In Matter of Legaspi, 25 I&N Dec. 328 (BIA) 2010, the BIA found that an alien is not independently “grandfathered” for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, simply by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the result of having been a derivative beneficiary of a visa petition.
Section 245(i) of the Act permits adjustment of status for certain aliens who are (1) ineligible under section 245(a) for entering without inspection or (2) disqualified under section 245(c) of the Act. As originally enacted, section 245(i) was scheduled to sunset on October 1, 1997.1 However, Congress added a grandfathering provision that allows some aliens to continueto benefit from section 245(i).
Under the regulations relating to this provision, the term “grandfathered aliens” encompasses beneficiaries (and their derivative beneficiaries, including family members specified in section 203(d) of the Act of visa petitions or labor certifications that were (1) filed on or before April 30, 2001; (2) properly filed; and (3) approvable when filed.
The applicant here for adjustment of status married Ms. Blanco, who is a lawful permanent resident, in 2003. As a child, Ms. Blanco qualified as a derivative beneficiary of a 1987 visa petition filed by her paternal grandfather on her father’s behalf. Ms. Blanco did not adjust her status through her grandfather’s petition. Instead, her status was adjusted via an employment-based immigrant visa petition that was filed in April 2002. Even though her adjustment was not based on the 1987 petition, she remains a grandfathered alien for purposes of accessing section 245(i) to adjust status.
The applicant/husband is not eligible to adjust his status under section 245(a) because he is an alien who failed to maintain lawful status after entry. Section 245(c)(2) of the Act. Thus, he can only apply for adjustment of status undersection 245(i), but he cannot independently qualify to adjust under that section because he is not a grandfathered alien.
Both the statute and the regulations extend eligibility for section 245(i) adjustment to 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 visa petition or labor certification filed on or before April 30,2001, in certain circumstances.
However, the applicant/husband here cannot independently adjust his status under section 245(i) because he does not have a qualifying relationship to the principal beneficiary of the 1987 petition. The language of section 245(i) makes clear that it applies only to the beneficiary of the visa petition and to that principal alien’s spouse or child (and only if those relatives are eligible to receive a visa under section 203(d)). The respondent was not the beneficiary of a visa petition; nor was he ever the spouse or child of the principal alien beneficiary, Ms. Blanco’s father. Therefore, the applicant/husband cannot be grandfathered as a derivative.
Moreover, had Ms. Blanco been married at the time her grandfather’spetition was filed, she would not have qualified as a derivative beneficiary. If married, she would not have met the definition of a “child” for purposes of section 203(d) of the Act. In other words, Ms. Blanco’s derivative beneficiary status depended on her being a “child” who was accompanying or following to join her father. The respondent simply cannot claim to independently qualify forsection 245(i) adjustment of status on the basis of a relationship that would have precluded Ms. Blanco from qualifying in her own right.