Can I adjust via 245i?
There's some confusion as to what it means to be a grandfathered derivative beneficiary, I was hoping some of you good folks here can help clear this up for me.
I'm grandfathered in as mentioned, and was 12 at the time the petition was approved in 2001. I've since married and divorced, am currently an unwed over 21yo single adult son of a PR (mother) and USC sister. My sister claims I'd get a EAD if my mom petitions me (this is 2 years from now when she becomes eligible for citizenship). It took my mom 3 months to get hers while her residency was in process. She says I'd be considered the same age I was when 245i was approved so immediate relative to the petitioner even though I'm currently 31. I've read before that while I'm grandfathered for life and can use 245i to adjust from now until kingdom come, I'd still be considered a non-immediate relative because of my CURRENT age.. And no EAD in such a scenario. Who's right and who's wrong? I read my legal advice on an immigration law blog. She read hers from a firm specializing in 245i related cases: http://www.sarmientoimmigration.com/...igration/245i/ |
Re: Can I adjust via 245i?
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Both your PR parent and USC sibling can file I-130 for you now. You are over 21 so you must wait before a Visa # is available before you can do AOS and yes you would be grandfathered under 245i if the 2001 approved was filed on or before 4/30/01. I think you might be considered IR now based on CSPA. Let’s see what others say. I am doing AOS using 245i currently. |
Re: Can I adjust via 245i?
Must the original petition filed before 4/30/01 be approved in order for the beneficiaries to be considered "grandfathered in"? I ask this because my mom originally filed an employment-based petition (EB-3) with my name on the I-140 application as a her child. That petition was ultimately denied due to her former employer's lack of financial ability to pay the required salary stated on the labor certification.
Fast forward 10 years. My mom's sister became a USC and petitioned for my mom. Her I-130 was approved 7 years ago and she currently has about 6 more years of wait until the visa number becomes current. The plan is to use her "grandafathered" 240(i) to adjust status when the time comes to filing I-485. We were told by several lawyers that this was a workable plan and that both her and I were indeed grandfathered-in. Now what cast a shadow of doubt into my mind was when I attempted to leverage off my own grandfathered 245(i) to have my employer petition for me, the company lawyer gave a conflicting opinion that my mom's original case must have been "approvable when filed" in order for us to be able to adjust using 245(i). The fact that the employer at the time had no ability to pay her salary, there is a chance that her case may not be considered "approvable when filed." So I have been super paranoid that my mom would not be able to use 245(i) when her number becomes current in 6 years, especially in this political climate. Then all this effort and wait would have been for naught. What's your guys' take on this? |
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What is considered ‘Approvable when filed’? https://www.uscis.gov/greencard/life...45i-adjustment |
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However no, CSPA does not apply in your case, that only lets you write off the time your application was pending off from your age, and it only applies if the petition you're trying to immigrate under was filed while you were under 21. So in this case you cannot get an IR petition from a parent. Consider this however, being unmarried your mother can petition for you immediately, if she naturalizes you'll be upgraded from F2B to F1 (you can also decline the upgrade should it make your wait longer), the wait time for F2B is currently about 7 years (unless you're from Mexico or Philippines). It might be better for you to find an employer willing to sponsor you. Quote:
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Appreciate the help. |
Re: Can I adjust via 245i?
Awesome. Thanks guys! I swear immigrants themselves are more knowledgeable than corporate lawyers.
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Whether you get petitioned in F2B or F1, or get upgraded from F2B to F1 doesn't matter in this case. Quote:
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