Daca recipient married to a H1b holder

Hi everyone,

I need some advice regarding my immigration situation. I'm currently a DACA recipient with significant unlawful presence in the U.S., and we are concerned about my ability to adjust status. Recently, we discovered that my father had filed an I-140 petition in 1999 so I might be grand fathered in for 245(i) protection.

my wife is currently in the process of obtaining her PERM certification and plan to file I-140 petition soon. We are exploring the possibility that I might be eligible for adjustment of status under Section 245(i) of the Immigration and Nationality Act based on my father's old petition.

Could anyone provide insights on:

Eligibility criteria for adjustment of status under Section 245(i) in this context.
Required documentation to support this claim.
How to incorporate this information into our current strategy, including the H1B and I-485 applications.
Thanks in advance for your help!

Since the petition was filed in 1999 you'll need to find it (i.e. have your father do a FOIA). The petition must've been approvable when filed, meaning that either it was approved, or it was legit and would've been approved if not for something like the employer pulling it or going under. PERM Labor certifications also confer 245(i) coverage, so if I-140 was denied, if there was a PERM you could instead use that for basis of eligibility.

Then you will need to prove that your father was in US on December 21, 2000. If he as adjusted status sometime down the line using it, getting his I-485 might be the best option to re-use the proof he used way back when. There is an obvious issue of getting documents from 24 years ago but for the most part whatever you can get your hands on - I-94, tax records, bills, driver's license.

So the documentation would be:
I-140 approval notice or perm labor certification approval or I-140 denial and whatever you can use to argue that the petition was approvable when filed
Proof that your father was in US on December 21, 2000.
Your birth certificate (proving that your father is your father and that you were under 21 at the time to qualify as a derivative).

How to incorporate it all? When it's time for your spouse to file I-485, you'll file one too, attach I-485 Supplement A, pay the $1000 fine, include above listed documents, and hopefully you'll get your AOS approved.

Some other insight:
245(i) eligibility:
Immigrant petition (I-130, I-140, I-360, I-526) or PERM labor certification filed on or before April 30, 2001.
Above petition must've been "approvable when filed".
If filed on or after January 15, 1998 then the primary beneficiary must've been in US on December 21, 2000.

Grandfathered derivatives (you are here):
Relationship must've existed by the sunset date. So married/born/adopted by April 30, 2001.
Do not have to prove their own presence in US, only presence of the primary beneficiary if applicable.
Grandfathered derivatives are eligible to adjust via any immigrant petition or DV lottery.

Non-grandfathered derivatives:
Relationship to the primary started after the sunset date.
Do not have to prove their own presence in US, only presence of the primary beneficiary if applicable.
Are only eligible to adjust as a derivative on an application filed for the primary. Might or not be the same one that got the 245(i) coverage.

Note, for 245(i) there's no such thing as a derivative to a derivative, so you can't for example marry a grandfathered derivative and adjust via 245(i).

One thing of note, I'd recommend looking for the PERM even if the I-140 was approved. Why? If the PERM was filed on or before January 14, 1998 then there's no physical presence requirements and you could skip over having to dig up ancient documents.

Hi Demise,

Thank you for your input. We've spoken with several lawyers, but most are either not familiar with 245i or are unsure how to file an I-485 along with 245i. Are you a lawyer, and if so, are you accepting new clients? If not, do you know of any good lawyers who can handle cases like this?

One last question: Since my father's I-140 needs to be approvable when filed, it's quite challenging to gather all the necessary approvable evidence at this point. I'm concerned that if my I-485 gets rejected, it might impact my spouse's application. Can you provide any insight on this?

Thank you.

Well first and foremost, was the I-140 approved? Being approved would be enough to tick the approvable when filed. Otherwise, do the FOIA for the I-140, get a copy of the underlying labor certification from the FOIA that was filed with the I-140, and use the labor certification to satisfy that requirement.

Further finnagling is only needed if whatever you're trying to use to claim 245(i) eligibility was ultimately denied. E.g. Uncle filed an I-130 for your dad. Obviously the two are brothers. INS issued an RFE that got lost in the mail and the petition got denied. Now, the petition was approvable when filed because the family relationship existed when the petition was sent out.

Regarding your wife - since she's the primary your denial generally won't prevent her from adjusting her status. Only case where this would matter is if you're seeking cross-chargeability, e.g. you're lets say Guatemalan, wife's lets say Indian. Wife can use your country of birth for the immigrant visa quota however in this case you both have to be approved since she's the primary for the petition but you're the primary for getting these charged to Guatemala.

Am I a lawyer? Nope. I can give you like 2-3 lawyers who do know how to do 245(i) if you want. They're in NYC though.

Doublepost. Site is having a stroke.

Hey, thanks again for the quick response.

We received the FOIA response, but the 140 was denied because the lawyer didn't respond within the allowable 12-week window. The request was to show "evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field." As a result, the I-140 wasn't approved, and my dad didn't file the labor certificate.

If you don't mind, could you please provide the contact information for the lawyers? I live in Jersey and work in NYC, so having a local lawyer would be perfect. Once again, I appreciate your time.

What category was this? Unless it was EB-1 or EB-2 NIV then there should've been a labor certification filed with it.

Well, one way about this would be to overcome the RFE, so you would need documents to prove that your father was paid well back when the I-140 was filed.

His category was EB-1 "Alien with extraordinary ability." I tried to request the labor certificate from the Department of Labor, but they said that they don't keep records that far back. We could certainly dig up the old records to show that he was paid well back then; I'm afraid it would be a long stretch. What type of finagling can we do at this point? If worst comes to worst, I would just wait for my wife to get her green card and then sponsor me, This would be a 6 years process since I was born in China, and it seems there is a long waiting queue for China. Going down this path I believe I would have to file a 601A waiver since I entered legally but overstayed. Have a lot of people gone through this route and successfully obtained the waiver?

If it's an EB-1 then there's no labor certification.

Do this instead.

Have your wife adjust on her own. Then once her I-485 is approved she will file I-824 on the I-140 to classify you as a follow to join (option 1.c.), do denote that your immigrant visa will be charged to her country of birth which will let you skip over the backlogs for China-born.
Then once USCIS processes that and NVC sends you the documents you will pay the DS-260 filing fee and file I-601A.
Once the I-601A is approved, you will file DS-260, get your interview date, depart, and return as an LPR.

I-601A isn't too difficult just for an overstay. The statute does say "extreme hardship" but in all reality it's something that can be argued in most cases and is more just weighting the good vs the bad.

I would recommend getting a lawyer since I don't recommend DIYing waivers, especially that a lawyer will know what to focus on.

We both came from China, so I don't think there is any skip over.
You don't think our 245i is strong enough to go down this route ?
Does the 601A waiver work for green card based petition ? Or she has to be a citizen ? I found below from the USCIS
"Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children, and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. "On Aug. 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States."
Thank you for all the suggestions. I will try to keep everyone posted what our next steps are.