20 Massachusetts Avenue, N.W.
Washington, D.C. 20536
HQOPRD 70/23.1
To: REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
NATIONAL BENEFIT CENTER DIRECTOR
From: William R. Yates /S/
Associate Director for Operations
Date: March 9, 2005
RE: Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust
Status under Section 245(i) of the Immigration and Nationality Act
1. Purpose
This memorandum clarifies certain eligibility requirements pertaining to an application to
adjust status (Form I-485, Application to Register Permanent Residence or Adjust Status) under
section 245(i) of the Immigration and Nationality Act (the Act). In particular, this memorandum
clarifies issues pertaining to a “derivative” of a grandfathered alien, when an application for
labor certification serves to grandfather an alien, and multiple filings for adjustment of status
under section 245(i).
2. Background
In general, section 245(i) of the Act allows an otherwise admissible alien who has an
immediately available immigrant visa to apply for adjustment of status upon payment of a
$1,000 surcharge, even though the alien entered the United States without inspection in violation
of section 245(a) or is barred by section 245(c) of the Act. To be grandfathered under section
245(i) of the Act, an alien must be the beneficiary of a qualifying immigrant visa petition or
application for labor certification that was filed on or before April 30, 2001 and meets applicable
statutory and regulatory requirements.
United States Citizenship and Immigration Services (USCIS) has issued several policy
memoranda explaining the implementation of section 245(i) of the Act, including “Accepting
Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality
Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality Act
HQOPRD 70/23.1
Page 2
Act” (April 14, 1999 and June 10, 1999) and “Rules for Adjustment of Status of Fiscal Year
1999 Diversity Cases Including Section 245(i) Penalty Sum Situations” (July 22, 1999).
3. Field Guidance
USCIS offices are directed to comply with the following guidance in the adjudication of
applications for adjustment of status that are filed under section 245(i) of the Act.
A. USCIS Policy Pertaining to Section 245(i) of the Act
USCIS field offices will apply Section 245(i) of the Act as follows:
(1) Once an alien meets the requirements for grandfathering under 8 CFR 245.10, the
alien continues to be grandfathered until the alien adjusts status.
(2) A grandfathered alien is not limited to seeking adjustment of status solely on the basis
of the qualifying immigrant visa petition or application for labor certification that
initially grandfathered the alien. The grandfathered alien may also seek to adjust
status on any other proper basis for which the alien is eligible.
(3) Until a grandfathered alien adjusts status, there is no limit to the number of
applications the grandfathered alien may file for adjustment of status under section
245(i) provided that the alien meets all of the requirements of 8 CFR 245.10,
including payment of the $1,000 surcharge for every application filed.
To illustrate, an alien beneficiary of a Form I-130 (Petition for Alien Relative) that was
filed on or before April 30, 2001 is considered to be a grandfathered alien and may apply to
adjust status based on the I-130 petition. If the grandfathered alien is not yet eligible for
adjustment of status based on the I-130 petition and later becomes the beneficiary of an approved
Form I-140 (Immigrant Petition for Alien Worker), the alien would be eligible to apply for
adjustment of status based on the I-140 petition. Similarly, the grandfathered alien would also be
eligible for adjustment of status under section 245(i) if the alien later wins a diversity visa. If the
alien has been denied adjustment of status, has withdrawn or abandoned the application for
adjustment of status, or has otherwise not adjusted under section 245(i), the alien remains
grandfathered. The alien may apply for adjustment of status again if the alien meets the
requirements of 8 CFR 245.10.
B. General Requirements for Grandfathering
To be considered grandfathered, an alien must satisfy the following requirements
pursuant to 8 CFR 245.10:
(1) The alien was the beneficiary of a qualifying immigrant petition or application for
labor certification filed on or before April 30, 2001.
Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality Act
HQOPRD 70/23.1
Page 3
(2) The qualifying immigrant visa petition or the qualifying application for labor
certification was “properly filed” and “approvable when filed.”
(3) The principal alien was physically present in the United States on December 21,
2000, if the alien’s qualifying immigrant visa petition or application for labor
certification was filed between January 15, 1998 and April 30, 2001.
C. Applications for Labor Certification Filed with the U.S. Department of Labor
"Approvable when filed" for a qualifying application for labor certification means that, as
of the date of filing of the application for labor certification, the application was properly filed,
meritorious in fact, and non-frivolous ("frivolous" meaning patently without substance). Absent
evidence of fraud, when a qualifying application for labor certification (Form ETA-750) is
properly filed and accepted by the United States Department of Labor in accordance with 20
CFR 656.21, USCIS will consider the requirements of 8 CFR 245.10 related to "properly filed"
and "approvable when filed" to have been met for grandfathering purposes under section
245(i). Also, as already provided under 8 CFR 245.10(i), the denial, withdrawal, or revocation
of a qualifying application for labor certification, that was properly filed on or before April 30,
2001 and was approvable when filed, will not preclude its grandfathered alien (including the
grandfathered alien's dependent spouse or child) from seeking adjustment of status under section
245(i) of the Act on any proper basis, if so qualified.
D. Requirements for the Derivative Spouse or Child of a Grandfathered Alien
Section 245(i) defines the term “beneficiary” to include a spouse or child “eligible to
receive a visa under section 203(d) of the Act.” Depending on the circumstances, a spouse or
child of a grandfathered alien may also be a grandfathered alien or may be eligible to adjust
status as a dependent of the principal alien under section 245(i) of the Act.
(1) Spouse or Child Relationship Existed at Time of Filing of Grandfathering Immigrant
Visa Petition or Application for Labor Certification submitted on or before April 30, 2001. If an
alien demonstrates that a spouse or child relationship existed at the time a qualifying petition or
application was properly filed on or before April 30, 2001, a principal alien’s spouse or child is a
grandfathered alien regardless of any subsequent changes in the relationship with the principal
alien. This means that a spouse or child remains grandfathered even after losing the status of
spouse or child, such as by divorce or the child becoming 21 years of age. Such spouse or child
who is grandfathered may seek to adjust status under Section 245(i) on any proper basis, if so
qualified.
Scenario 1 illustrates the conditions under which a grandfathered alien’s spouse and child
are also grandfathered.
An application for labor certification is filed on behalf of principal alien “A” in 2000. At
that time, principal alien “A” is married to spouse “B” and they have child “C.” Principal alien
“A” and spouse “B” divorce in 2003. Today, spouse “B” and child “C” win the diversity lottery.
Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality Act
HQOPRD 70/23.1
Page 4
May spouse “B” and child “C” apply for adjustment of status under section 245(i) regardless of
their relationship to and the status of principal alien “A”?
If all other grandfathering requirements are satisfied, spouse “B” and child “C” are
grandfathered aliens. Principal alien “A” is a grandfathered alien, because the application for
labor certification was filed on the principal alien’s behalf on or before April 30, 2001. Spouse
“B” and child “C” are also grandfathered, because a qualifying relationship existed at the time
the application for labor certification was filed. Therefore, spouse “B” and child “C” may apply
for adjustment under section 245(i) based on a winning lottery application or any other proper
basis.
(2) Spouse or Child Relationship Established after April 30, 2001 and in Existence on the
Date the Principal Alien Adjusts Status. If a spouse or child relationship is established after the
filing of a grandfathering petition or application and is in existence at the time the principal alien
adjusts status, the spouse or child is not a grandfathered alien and may not independently benefit
from section 245(i). Rather, the spouse or child may only benefit from section 245(i) as a
dependent of the principal alien. Accordingly, the qualifying relationship must continue to exist
at the time the principal alien adjusts status in order for the spouse or child to obtain the
derivative benefit.
Scenario 2 illustrates conditions under which a spouse and child can apply to adjust status
under section 245(i) of the Act as dependents of the grandfathered alien.
An application for labor certification is filed on behalf of principal alien “A” in 2000. At
that time, principal alien “A” is unmarried. Principal alien “A” marries spouse “B” in 2002.
Principal alien “A” and spouse “B” have child “C.” An I-140 is filed on behalf of principal alien
“A” and is ultimately approved in 2004. Principal alien “A” applies for adjustment of status.
May spouse “B” and child “C” apply for adjustment of status under section 245(i) in conjunction
with principal alien “A”?
If all other grandfathering requirements are met, spouse “B” and child “C” may seek to
adjust status only as dependents of principal alien “A.” Principal alien “A” is grandfathered as
described in Scenario 1. Because spouse “B” marries principal alien “A” after the April 30, 2001
sunset date, spouse “B” and child “C” are not grandfathered.
(3) Spouse or Child Relationship Established after April 30, 2001 but not in Existence on
the Date the Principal Alien Adjusts Status. If a spouse or child relationship is established after
the filing of a grandfathering petition or application but is not in existence at the time the
principal alien adjusts status, the spouse or child is not grandfathered and may not file for
adjustment of status under section 245(i) as a dependent of the principal alien pursuant to section
203(d) of the Act.
Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality Act
HQOPRD 70/23.1
Page 5
Scenario 3 illustrates conditions under which a spouse cannot apply for adjustment of
status under section 245(i) of the Act.
A fourth-preference I-130 is filed on behalf of principal alien “A” in 1999. At that time,
principal alien “A” is unmarried. Principal alien “A” marries spouse “B” in 2002. An I-140
petition is filed on behalf of principal alien “A” and is ultimately approved in 2003. Principal
alien “A” applies for adjustment of status. Principal alien “A” and spouse “B” divorce in 2004
while the I-485 is still pending. Spouse “B” wins the diversity visa lottery. May spouse “B”
apply to adjust status under section 245(i) based on the winning diversity visa lottery application
regardless of whether or how principal alien “A” adjusts status? May spouse “B” apply for
adjustment of status under section 245(i) as a dependent of principal alien “A”?
Spouse “B” cannot apply for adjustment under section 245(i) based on the winning
diversity lottery application. If all other grandfathering requirements are satisfied, principal alien
“A” is grandfathered as described above. Because spouse “B” marries principal alien “A” after
the April 30, 2001 sunset date, spouse “B” is not grandfathered and may not independently
benefit from section 245(i) of the Act. In addition, spouse “B” may not apply for adjustment of
status under section 245(i) as a dependent of principal alien “A,” because principal alien “A” and
spouse “B” divorced before principal alien “A” adjusted status.
(4) Spouse or Child Relationship Established after the Principal Alien Adjusts Status. An
alien who becomes the child or spouse of a grandfathered alien after the grandfathered alien
acquires lawful permanent resident (LPR) status cannot adjust status under section 245(i) of the
Act unless the alien has an independent basis for grandfathering.
Scenario 4 illustrates conditions under which a spouse and child of a grandfathered alien
who acquires LPR status cannot apply for adjustment of status under section 245(i) of the Act.
An application for labor certification is filed on behalf of principal alien “A” in 1999. At
that time, principal alien “A” is unmarried. An I-140 is filed on behalf of principal alien “A” and
is ultimately approved in 2001. Principal alien “A” applies for adjustment of status and is
granted LPR status in 2003. Principal alien “A” marries spouse “B” in 2004. Principal alien
“A” and spouse “B” have child “C.” May spouse “B” and child “C” apply for adjustment of
status under section 245(i) as dependents of principal alien “A”?
Spouse “B” and child “C” may not apply for adjustment of status under section 245(i) as
dependents of principal alien “A.” Spouse “B” and child “C” are not grandfathered aliens on the
basis of principal alien “A’s” application for labor certification, as the spouse and child
relationships did not exist on the date of the filing of the application. Moreover, because the
spouse and child relationships were established after the principal alien adjusted status to an
LPR, spouse “B” and child “C” are not eligible as “accompanying” or “following-to-join” spouse
and child under section 203(d) of the Act.
Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality Act
HQOPRD 70/23.1
Page 6
E. Multiple Filings for Adjustment of Status under Section 245 of the Act
Section 245 of the Act does not stipulate when or how often an alien may file an
application for adjustment of status. As such, there is no restriction on the number of times an
alien may properly seek to adjust status, except as noted in (2) below.
(1) Timing of the Filing of an Application to Adjust Status. A grandfathered alien is not
required to submit Form I-485 by a particular date. The mere filing of a qualifying immigrant
visa petition or application for labor certification, however, does not confer status upon an alien
nor place an alien in a period of stay authorized by the Secretary of Homeland Security for
purposes of section 212(a)(9) of the Act. The filing of Form I-485 will prevent an alien from
accruing unlawful presence under section 212(a)(9)(B) and (C) of the Act.
(2) Eligibility to File an Application to Adjust Status. A grandfathered alien is eligible to
file an application to adjust status under section 245(i) as long as the alien meets the
requirements of 8 CFR 245.10 and has not adjusted status under section 245(i). USCIS no
longer considers an alien “grandfathered” once the alien is granted adjustment of status under
section 245(i), because the alien has acquired the only intended benefit of grandfathering: LPR
status.
4. Use
This memorandum is intended solely for the training and guidance of USCIS personnel in
performing their duties relative to the adjudication of applications for adjustment of status. It is
not intended to, does not, and may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law of by any individual or other party in removal proceedings, in
litigation with the United States, or in any other form or manner.
5. Contact Information
Questions regarding this memorandum and USCIS policy regarding section 245(i) of the
Act may be directed to Mark Phillips, USCIS Office of Program and Regulations Development,
through appropriate supervisory channels.
