245(I) question "grandfathered derivate beneficiary alien"
 

Hello everyone I am about to send off my AOS application this week. Me and my husband are super excited! Does anyone know if with 245(I) or known as "I-485A" form if I should include a explanation letter of my eligibility as a "grandfathered derivative beneficiary alien"? I am including a copy of my mothers old I-130 which was approved on April 2 2001 that my grandfather that filed it for her who was a U.S. Citizen at the time (he has passed on) and my birth certificate showing my mothers name for "child and mother relationship" existed on and before and after December 20 2000 and also including prove of my presence in the U.S. before and after December 20 2000.
Am I missing anything else?


Green Card Application sent: Going to send 7/29/16
Notice of Action:..........
Biometrics:..........
EAD/AP:..............
Interview:............ Green Card Approved:........

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Yes you can include such a letter. While not 100% necessary it helps to explain to the case worker why you qualify for 245(i).

Also, you need to prove your mother's presence in US on December 21, 2000. You not not need to prove your presence in US on that date.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Thanks for replying! :-)

My mother has already received her green card about 3-4 years ago. I am filing this green card application based on marriage to a U.S. Citizen. Why do I need to prove my mothers presence for 245(I)? I'm using the form directly as a grandfathered derivative beneficiary?


"To qualify for 245(i), a petition (I-130, I-360, I-526, or labor certification) must have been filed on behalf of the beneficiary on or before April 30, 2001, and the beneficiary must have been physically present in the United States on December 21, 2000. This physical presence requirement is waived for those whose petition was filed on or before January 14, 1998 or who are derivative beneficiaries. The petition must have been “approvable” at the time of filing.

The BIA confirmed the long-standing USCIS policy that 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. The regulations define “grandfathered” as “an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act)” of a qualifying visa petition or labor certification that was filed on or before April 30, 2001.” 8 CFR § 1245.10(a)(1)(i)."

Link: https://cliniclegal.org/resources/ar...ust-under-245i

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Has to do with another ruling in Matter of Ilic, 25 I&N Dec. 717 (BIA 2012):

For an alien to independently qualify for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as a derivative grandfathered alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.


Basically in order to qualify for 245(i) the principal must meet the physical presence, not the derivative. There was another precedent before this, however this ruling just affirmed it. So in this case your mother must've been in US on December 21st 2000. Your physical presence in irrelevant.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Ok so I need to find proof my mother was here on or about December 21 2000? Hmmmm what kinda documention should I include? I have some old vaccination records with her name on it as my parent guardian after and before 2000 and also some of my old report cards from school as a kid with her name listed on them as my parent guardian and her signatures on them as well. The report cards are from 1999-2000 and 2000-2001. I also have a copy of her green card as well to show that she has received her green card through 245(I)

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Those old documents should do. Otherwise you can do a FOIA for her, to get a copy of her entire A file and use whatever she used to adjust under 245(i).

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Thanks I'll use the items I listed above to show that she was in the U.S. During that time and also the copy of her green card to show she received her green card threw 245(I). :-) thanks again! You've been a lot of help!

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Update?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

I am currently waiting for my 245i interview. Can you please tell what questions they asked and what documents you had to show? Which FO?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Venus?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Last post by Venus was a year ago. They're gone dude.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Result?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

His signature says that he already got his green card

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

I know. I wanted to know his interview experience.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

This process is so confusing. As a grandfathered beneficiary, you need to prove your parent was already in the US by 2000? I thought the only requirement was that the application was submitted prior to 2001? If an application for the parent was submitted in 1994 and approved later that year, but the Visa didnt become available until 2003, hence the parent was not in the US until 2003, the child will not qualify even though they were listed in the application?

For grandfather 245i to work, you need:
1/ application prior to 2001
2/ principal beneficiary in US prior to 2001
3/ grandfathered child to be over 21?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Also have been physically present in the United States on December 21, 2000,
if the qualifying visa petition or labor certification application was filed after
January 14, 1998.

If the petition was before 1/14/98. You do not need to prove 12/21/2000 physical presence.

https://www.uscis.gov/greencard/life...45i-adjustment

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Thanks, so #2 only applies to applications after 1/14/98.

Does anyone know about #3?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Example: If you file for AOS today, USCIS has the receipt of today or whatever date in the future AND you are under 21 then you are considered an IR meaning you do NOT need 245i to adjust in USA. If you were OVER 21 today then you would use 245i assuming a Visa # is available per the newest Visa Bulletin.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Application prior to January 14, 1998 does not have a physical presence requirement. In this case you can technically have it filed and then EWI/Overstay and adjust under 245(i).

In order to be grandfathered as a child you need to be under 21 and unmarried as of the date the petition was filed. After that you can age out or marry or whatever.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Thank you both, this makes me happy. The process if basically for my mom, who now has a 21 year old child who will be petitioning for her. Mom was 21 when the original application was filed and thus did not qualify at the time although she was listed as the daughter of the primary beneficiary. She then EWI in 1997. Good to know that she will now be eligible to adjust.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Wait, the question is if you were over 21 on the application receipt date, can you adjust via 245i using a new qualifying I-130?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Wait, so if my father has a 245(I) and I was under 21 years old at the time he filed. I am grandfathered in and can adjust via marriage?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Yes and in USA without leaving.

I had a Labor Certification ETA-750 filed with DOL before 4/30/01. I never got the job because of later withdrawal. I then had my USC Mother file I-130 for me 2011 and was approved in 2014.

I qualified for AOS and EAD in October 2017.

I got my EAD approved 2 months ago. So now I am just waiting for my interview letter.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Is your spouse a USC?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

She would need to be under 21 (so 20 years and 364 days or younger) as of the date the petition was filed to qualify.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

CSPA applies if they turn 21 while AOS pending.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Nope, I'm not married. I thought I couldn't adjust because I didn't have a point of entry. Guess I should just get married then.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

EWI's are covered by 245i grandfathered law. Do you have DACA?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

yeah I have DACA now

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Did you get AP? If yes, you could return to USA with POE.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

No, I didn't do AP. I thought that's the purpose of being grandfathered into 245(i), I wouldn't need AP?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

245i and DACA are separate benefits.

AP would have gave you a POE.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

So you're saying I can't get married and qualify under 245i because my father filed a labor certificate in 2001?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

How old were you when the Labor Certification was filed?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

Anyone?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

I was 11 years old

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

You can't get LC at 11. Legal limit to work is at least 14.

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

But that was to qualify as a relative then, she now has another qualifying petition-- does that still apply?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

My father filed the LC when I was 11 years old. Am I not grandfathered in as a beneficiary?

Re: 245(I) question "grandfathered derivate beneficiary alien"
 

My understand is that if you were a beneficiary, you are grandfathered in. In other words if your father was petitioned prior to the cut-off point and you were a minor at the time and would have been his beneficiary at that point, you are also locked in. It doesn't mean that the petition was for you directly.