The 245i Grandfather Clause
Section 245i of the U.S. Immigration code, also referred to as the “grandfather clause” is the single most missed opportunity by foreign nationals and lawyers alike as a means for undocumented individuals to adjust status to a Permanent Resident while living in the United States. Did you know that if someone entered the United States without being inspected, and he or she had a family member here in the United States prior to April 2001, they may be able to adjust status to become a U.S. Permanent Resident?
This ‘Golden Goose’ keeps giving golden egg Green Card benefits to family members long after 2001. This short blog article explains the provision in the U.S. Federal Regulations called 245i or the “grandfather clause” which was passed into law by President Clinton as he exited his office in 2001.
Section 245i Federal Grandfather provision states:
A noncitizen may be eligible to adjust as a grandfathered derivative beneficiary under INA 245(i) in his or her own right or as an accompanying (or following-to-join) spouse or child if:
- The noncitizen demonstrates that he or she was the spouse or child (unmarried and under 21 years of age) of a grandfathered principal beneficiary at the time a qualifying petition or application was properly filed; and
- The noncitizen is still the spouse or child of the principal beneficiary.
A noncitizen who became the spouse or child of a grandfathered principal beneficiary after the qualifying petition or application was filed may only seek INA 245(i) adjustment through the principal beneficiary as an accompanying (or following-to-join) immigrant. These applicants do not qualify as grandfathered derivative beneficiaries who may adjust in their own right under INA 245(i). https://www.uscis.gov/policy-manual/volume-7-part-c-chapter-2?fbclid=IwAR3k_UgF7DCrUXnl_bCU5kqJhmkdHm289ozTcOt3X41Y9sSnRl_ft4_nWQE
To be grandfathered and 245i eligible, the qualifying petition must have been filed by principal non-citizen prior to April 31st, 2001. If the principal family member is 245i eligible; and he or she filed their qualifying application before or after marriage; or in the case of a child…before or after child is born…adjustment of status to a U.S. Permanent resident is a possibility for these derivative family members. Essentially, a family member may derive status from another family member who is 245i eligible even though the family relationship didn’t exist at the time. Further, a derivative family member need not have lived in the United States prior to April 2001.
Here are a few examples, but not an exhaustive list of options:
1. Minor child who lived in another country at the time his or her parent filed an approvable qualifying petition may be able to adjust to U.S. permanent resident based on principal parent application.
2. If the principal applicant marries after filing qualified application; when he or she eventually adjusts status…their undocumented spouse may also adjust status at the same time by filing I-485. If derivative spouse lives abroad, he or she may consular process their U.S. permanent resident status.
3. Spouse may also adjust status under 245i as a “standalone” derivative beneficiary if he or she was married to the principal 245i spouse at the time the principal filed the qualified petition prior to 2001.
The rules for 245i eligibility are complex and require the assistance of experienced immigration legal counsel. Family members who have entered the United States without inspection and are undocumented receive extraordinary protections and benefits if found to be 245i eligible and should seek a consultation with an immigration attorney asap. Our immigration lawyers have over 25 years’ experience, and we have enjoyed legalizing our clients through this powerful provision in the law that unites families and provides stability.
We have successfully processed these U.S. immigration matters for over 25 years. To schedule a consultation, you may email us at info@becapitallaw.com or call / text (703)966-0907. B&E Capital – Vassell Law Group,PC | http://www.vasselllaw.com | http://www.becapitallaw.com | Members of the American Immigration Lawyers Association for over 20 years.