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Deconstructing 245i law

The concept behind the law commonly referred as "245i" is not a difficult one. However, its application and interpretation has not been without confusion in practice. In fact, many practitioners, immigration officers, and even immigration judges struggle to apply and understand this law every day.

The "245i" law has derived its name from the statute, where it is set forth, specifically section 245(i) of the Immigration and Nationality Act (INA). In general, section 245(i) allows an alien who has an immediately available immigrant visa to apply for adjustment of status (green card) upon a payment of a $1,000 fee. This applies to three situations: (1) the alien has entered the United States without inspection, (2) the alien has overstayed his non-immigrant status and is now present in the United States without authorization, or (3) the alien has engaged in an unauthorized employment. To be protected or "grandfathered" under section 245(i), the alien must be the beneficiary of a qualifying immigrant visa petition or application for labor certification that was filed on or before April 30, 2001. The alien has to be otherwise admissible (eligible) to receive his or her green card.

Additionally, several points must be kept in mind. First, an alien who is protected under section 245(i) remains "grandfathered" until he or she obtains the green card. Second, the "grandfathered" alien can adjust his or status on any basis, not necessary the grandfathering petition. Third, the petition that initially grandfathered the alien must have been properly filed and must have been approvable (bona fide) when filed.

Most importantly, the primary beneficiary of the grandfathered petition is not only person that is eligible for the 245(i) protection. The primary beneficiary's spouse and children, known as derivative beneficiaries, may also derive the same benefit depending on when the familial relationship started and whether it existed when the grandfathering petition was filed.

It is this last point that has been the subject of a recent Board of Immigration Appeals (BIA) decision. In Matter of Legaspi, 25 I. & N. Dec. 328 (BIA 2010), the BIA analyzed whether an alien, married to another alien who is "grandfathered" under section INA 245(i) as a derivative beneficiary of a visa petition, can claim the same 245(i) protection for a later adjustment of status application. The BIA answered this question in the negative.

Factual background of the Legaspi case is helpful here. Legaspi, a citizen of the Philippines, failed to maintain lawful status following his entry as a non-immigrant. He was not the direct principal of a petition filed under section 245(i) by either his relative or employer. As such, Legaspi was not eligible to apply for a green card when the opportunity to do so later arose. However, Legaspi was married to Ms. Blanco, a green card holder. Ms. Blanco was protected under section 245(i), but not directly. Rather, she qualified as a derivative beneficiary (child) of the petition filed by her paternal grandfather on behalf of her father. Ms. Blanco later adjusted status through other means. Legaspi, at 329.

Legaspi applied for his own adjustment of status, claiming that he was protected under section 245(i) by the virtue of his marriage to Ms. Blanco. The BIA disagreed with him and upheld the denial of his green card application. The BIA held that Legaspi could not "borrow" his wife's derivative 245(i) protection because the protection applies only to the principal beneficiary and that principal beneficiary's spouse and children. In this case, the principal beneficiary was Ms. Blanco's father. His daughter (Ms. Blanco) qualified for the derivative protection because at the time the visa petition was filed she was under 21 and unmarried.

Legaspi, however, had no requisite relationship with the principal beneficiary, which is why he could not be grandfathered. The BIA explained:

"Moreover, had Ms. Blanco been married at the time her grandfather's petition was filed, she would not have qualified as a derivative beneficiary. If married, she would not have met the definition of a "child"..... In another words, Ms. Blanco's derivative beneficiary status depended on her being a "child" who was accompanying or following to join her father. The respondent [Legaspi] simply cannot claim to independently qualify for section 245(i) adjustment of status on the basis of a relationship that would have precluded Ms. Blanco from qualifying in her own right."Legaspi, at 330.

The holding of the Legaspi case is significant, although not necessarily unexpected. It not only clarifies the law surrounding section 245(i), but it also explains when and how the 245(i) protection can apply to derivate beneficiaries and their spouses. This case should be seriously considered when individuals try to "borrow" protection under section 245(i) in their future filings. Our office will be glad to help you navigate through this challenging area of the immigration law should you have any questions. Please do not hesitate to contact us at any of our three offices located in Cerritos, Boise, Riverside, and Irvine.

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