BIA Decision Narrows the Scope of 245(i) Grandfathering for Certain Dependents

Section 245(i) of the Immigration and Nationality Act (INA) permits adjustment of status for certain grandfathered aliens who are otherwise ineligible because of violations such as entry without inspection, failure to maintain status or unauthorized employment. In order to grandfather an alien for purposes of Section 245(i), a qualifying visa petition or labor certification must have been filed on his or her behalf on or before April 30, 2001. The alien also must have been physically present in the United States on certain dates.

There are two categories of grandfathered aliens: principal and derivative. Both principal and derivative grandfathered aliens are independently eligible to apply for section 245(i) adjustment of status and either may be the principal adjustment applicant under that section.

On August 8, 2013, the Board of Immigration Appeals (BIA), in Matter of Estrada, 26 I&N Dec. 180 (BIA 2013), concluded that children and spouses of grandfathered aliens do not qualify for derivative grandfathered status by virtue of a relationship created after April 30, 2001. Therefore, such after-acquired aliens can only adjust status under section 245(i) as dependents of an application filed by the principal grandfathered alien, but not independently as principal applicants for adjustment of status.

In Matter of Estrada, the after-acquired spouse of a grandfathered alien attempted to adjust status under 245(i) based on an employment-based petition approved on her behalf. However, the BIA concluded that she was not independently grandfathered under Section 245(i) because the relationship to the grandfathered alien was created after April 30, 2001. As such, she could not utilize Section 245(i) as a primary applicant for adjustment of status.