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/

Who petitioned you on or before 4/30/01? Did you ever leave USA after that petition? Why didn’t file for AOS since you were under 21?

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.

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?

All that matters is the filing. It doesn’t have to be ever approved. You would be covered in that petition as a child. As long as it was filed on or before 4/30/01. When the visa bulletin is current then have your mom file for AOS. For those who can’t qualify for 245i have to get I-601A waiver approved.

What is considered ‘Approvable when filed’?

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

245(i) grandfathering is yours for life. It doesn't matter if you age out, marry, the primary beneficiary dies, or the basis for the petition no longer exists.

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.


You and your mother are covered under 245(i) because the labor certification was approved (and therefore approvable when filed), basically to qualify you either need an approvable when filed I-130, I-140, I-360, or I-526, OR an approvable when filed labor certification with DOL. Labor certs have a much lower standard of evidence, they only require the recruitment to happen, and that you have the education or/and experience required.

I was born in Mexico so I'm looking at 20 years for F2B. Since I have 2 years left on my DACA, we weren't planning on my mother sponsoring me until she naturalized. If I were F1 at that time, would I qualify for an EAD while an approval was pending and what would the wait time look like in this scenario?

Appreciate the help.

Awesome. Thanks guys! I swear immigrants themselves are more knowledgeable than corporate lawyers.

No, EAD in this case is tied only to eligibility to file I-485, and you can only do that if your priority date is current, so basically in IR cases, and generally in most employment cases. You should really look into having an employer petition for you, EB-3 is current for Mexico, meaning that you can concurrently file I-485 when I-140 is filed.

Whether you get petitioned in F2B or F1, or get upgraded from F2B to F1 doesn't matter in this case.

I don't think corporate lawyers really deal with matters of 245(i) and waivers very often.

Best to have her sponsor you ASAP as a PR. You can request to switch to FB1 later if the PD is faster there. EAD is only given on AOS pending. You are no longer an IR so much wait until PD is current to file for EAD.

It depends on the lawyer's experience. Lot of these lawyers were kids during 245i days.