245(i) Derivative Beneficiary!
I'd like to know if anyone on this forum has been able to adjust under Section 245(i) with this EXACT scenario in terms of being the derivative beneficiary of an application filed on behalf of a parent. By exact scenario I mean the relationship of the original petitioner to the children.
"US Citizen son filed I-130 for mother by the April 30, 2001 deadline. US citizen sibling (Mother's daughter) was 14 at the time her mother's I-130 was submitted. I'm a US Citizen, if I petitioned for her now can we use the mother's I-130 (as a derivative beneficiary) to qualify her under Section 245(i)?
The reason why I'm looking for an exact scenario in terms of relationships is that I'm confused about what USCIS memos say on "derivative" beneficiaries versus "immediate" relatives of US Citizens not being considered derivative beneficiaries according to INA 203(d). I have heard of members on this forum with the following scenarios where children were protected under Section 245(i);
Scenario 1. Employer files I-140 by April 30, 2001 for Principal Alien. Principal Alien later on marries USC. USC spouse petitions Principal Alien. Principal Alien and Principal Alien's children were considered grandfathered and qualified for Section 245(i).
Scenario 2. USC brother files I-130 for sister (Principal Alien). Sister had underage children at the time. Sister (Principal Alien) later on marries USC. USC spouse now petitions for wife and children were also considered grandfathered under Section 245(i).
My Scenario again is: USC son files I-130 for mother. Mother had underage children at the time. Child is now married to USC. Would wife be covered though Mother's petition even though Mother's petitioner originally is my wife's sibling (brother).
Note the relationship from original petitioner to children. On scenario 1 it was an employer to children. Scenario 2 was an uncle of the children. Thank you so much and so sorry for the repetition but I would like to meet someone that felt in our scenario before we try to do anything with USCIS!
Last edited by dcontto; 01-28-2009 at 08:15 PM.
i found another document i had in addition to the other 2 i sent you. i accidently deleted your address.
A. USCIS Policy Pertaining to Section 245(i) of the Act
USCIS field offices will apply Section 245(i) of the Act as follows:
(1) Once an alien meets the requirements for grandfathering under 8 CFR 245.10, the alien continues to be grandfathered until the alien adjusts status.
(2) A grandfathered alien is not limited to seeking adjustment of status solely on the basis of the qualifying immigrant visa petition or application for labor certification that initially grandfathered the alien. The grandfathered alien may also seek to adjust status on any other proper basis for which the alien is eligible.
(3) Until a grandfathered alien adjusts status, there is no limit to the number of applications the grandfathered alien may file for adjustment of status under section 245(i) provided that the alien meets all of the requirements of 8 CFR 245.10, including payment of the $1,000 surcharge for every application filed.
To illustrate, an alien beneficiary of a Form I-130 (Petition for Alien Relative) that was filed on or before April 30, 2001 is considered to be a grandfathered alien and may apply to adjust status based on the I-130 petition. If the grandfathered alien is not yet eligible for adjustment of status based on the I-130 petition and later becomes the beneficiary of an approved Form I-140 (Immigrant Petition for Alien Worker), the alien would be eligible to apply for adjustment of status based on the I-140 petition. Similarly, the grandfathered alien would also be eligible for adjustment of status under section 245(i) if the alien later wins a diversity visa. If the alien has been denied adjustment of status, has withdrawn or abandoned the application for adjustment of status, or has otherwise not adjusted under section 245(i), the alien remains grandfathered. The alien may apply for adjustment of status again if the alien meets the requirements of 8 CFR 245.10.
B. General Requirements for Grandfathering
To be considered grandfathered, an alien must satisfy the following requirements pursuant to 8 CFR 245.10:
(1) The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001.
Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality Act
(2) The qualifying immigrant visa petition or the qualifying application for labor certification was “properly filed” and “approvable when filed.”
(3) The principal alien was physically present in the United States on December 21, 2000, if the alien’s qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001.
for my stepson we did have to pay the 1000 penalty because when we refiled he was now over age. there is more to it. i didnt want to post the whole thing because its over 5 pages