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You and Family Becoming Legal in the U.S.–245i Eligibility and Grandfathering

INA 245(I)  is the latest grace extended by the U.S. government to legalize anyone in the United States back in April 2001 who overstayed their current U.S. visa or walked across the border without inspection (EWI).

In order to be considered grandfathered under 245i, 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.
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.

Once it is determined that an alien is grandfathered, they remain grandfathered until they are eligible to adjust through almost any means.  In other words, an alien may adjust when a visa number is available, if they win the diversity visa lottery, or if they become the beneficiary of an I-140 or I-130 to name a few examples.

Whether one’s spouse or children are grandfathered or may adjust depends if they fall into one of 3 categories.

1st Category: If the grandfathered foreign national was married to his or her spouse at the time they became grandfathered pursuant to 245i, then the spouse is grandfathered and able to adjust status.

2nd Category: If at the time the foreign national was grandfathered he or she was NOT married, his or her spouse is NOT grandfathered.  But if the foreign national is married when they adjust status, their spouse may also adjust as a beneficiary.

3rd Category:  If at the tine the foreign national was grandfathered and adjusted status he or she was not married, and then their spouse or child will not be eligible to adjust status.

Please note that the rules for spouse also apply to children who are not permanent residents.  If you have any questions you may email us at info@scottcclaw.com or contact us at one of our offices in the DC, VA, MD area. You will find our telephone numbers and locations listed on our website at www.scottcclaw.com.

ScottMond Law Firm

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