After-Acquired Spouses and Children Under INA §245(i)

What is an after-acquired spouse or child?

For INA §245(i) purposes, the term generally describes a qualifying spouse or child relationship that arose after the April 30, 2001 grandfathering sunset.

Examples include:

• A grandfathered principal who married in 2004;
• A grandfathered principal whose child was born in 2006;
• A later qualifying stepchild relationship;
• A qualifying child relationship otherwise arising after April 30, 2001; or
• Another post-cutoff family relationship that could support derivative status under INA §203(d).

Matter of Estrada and Estrada controls the modern analysis

Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), directly addressed whether a spouse who married a principal grandfathered person after April 30, 2001 became derivative-grandfathered.

The BIA held that she did not.

The Board reasoned that allowing later family relationships to create new grandfathered persons would effectively nullify Congress's April 30, 2001 filing cutoff.

April 30, 2001 freezes the independently grandfathered class

Matter of Estrada treats April 30, 2001 as a temporal boundary.

By that date, a person seeking independent grandfathering generally had to be:

• The principal beneficiary of the qualifying petition or labor certification; or
• A spouse or child of that principal who qualified for derivative immigrant status under INA §203(d).

An after-acquired spouse or child is not independently grandfathered

This has major practical consequences.

An after-acquired spouse generally cannot say:

1. My spouse is grandfathered;
2. Therefore I am permanently grandfathered;
3. I now have my own independent I-130 or I-140; and
4. I can use my spouse's old §245(i) grandfathering with my own petition.

Matter of Estrada rejects that result.

But an after-acquired dependent can still benefit from §245(i)

Matter of Estrada expressly recognizes an important exception to the otherwise strict rule.

A qualifying after-acquired spouse or child can potentially adjust under §245(i) when:

• The principal is a grandfathered person;
• The principal is applying for adjustment under §245(i);
• The family relationship arose before the principal adjusted status;
• The spouse or child qualifies under INA §203(d); and
• The spouse or child is accompanying or following to join the principal.

INA §203(d) must actually apply

Matter of Estrada's dependent rule does not extend to every spouse or child of every grandfathered person.

The current immigrant classification through which the principal adjusts must permit derivative status under INA §203(d).

Examples commonly allowing derivatives include:

• Employment-based preference classifications;
• Family-preference classifications; and
• Other preference classifications to which INA §203(d) applies.

The relationship must exist before the grandfathered principal adjusts

Matter of Estrada relies on the 2001 rulemaking explanation that a spouse or child relationship established after the original grandfathering filing can support dependent §245(i) adjustment if the relationship exists before the principal grandfathered person adjusts status.

Accompanying the grandfathered principal

An after-acquired spouse or child can potentially file adjustment as a derivative while the grandfathered principal's adjustment is being adjudicated.

The dependent must independently satisfy the requirements that apply to the derivative adjustment application, including:

• Qualifying spouse or child relationship;
• INA §203(d) derivative classification;
• Visa availability;
• Admissibility or an available waiver;
• Proper Form I-485 filing;
• Supplement A where §245(i) is required;
• The applicable additional statutory sum; and
• Favorable discretion where required.

Following to join after the principal adjusts

The phrase “following to join” permits the derivative process to occur after the principal becomes a permanent resident in qualifying preference categories.

Matter of Estrada recognizes that an after-acquired dependent may potentially benefit if:

• The qualifying relationship existed before the principal's adjustment;
• The relationship continues to qualify;
• INA §203(d) permits following-to-join treatment; and
• The principal's immigrant classification remains the legal source of derivative status.

Marriage after the grandfathered principal already becomes an LPR

A spouse acquired after the principal's adjustment does not become grandfathered through the principal's old §245(i) history.

The Ninth Circuit addressed a related situation in Landin-Molina v. Holder, concluding that a spouse acquired after the grandfathered person adjusted could not acquire derivative grandfathering.

The BIA relied on that reasoning in Matter of Estrada.

The new spouse may have a separate family-based immigrant path but must independently satisfy whatever adjustment statute applies.

Immediate-relative adjustment can create a derivative problem

Immediate-relative immigrant categories generally do not provide derivative beneficiaries under INA §203(d).

Consider a grandfathered person who later becomes the immediate-relative spouse of a U.S. citizen.

The grandfathered person may potentially use §245(i) with the U.S. citizen spouse's I-130. But the grandfathered person's own child cannot automatically derive immigrant classification from that immediate-relative petition.

Employment-based principal adjustment

Employment-based categories commonly provide derivative classification to a spouse and qualifying children under INA §203(d).

For example:

1. A worker is grandfathered through a qualifying 2000 labor certification;
2. The worker marries in 2010;
3. A different employer later obtains an EB-2 I-140 for the worker;
4. The worker seeks adjustment under §245(i); and
5. The 2010 spouse seeks derivative EB-2 adjustment with the principal.

The spouse is not independently grandfathered because the marriage arose after April 30, 2001. But if all requirements are met, the spouse can potentially use §245(i) as the principal's derivative.

Family-preference principal adjustment

The same framework can apply to family-preference categories that allow derivative spouses and children.

Review:

• The principal's preference category;
• The petitioner's current status;
• Whether derivative status is legally available;
• The date the spouse or child relationship arose;
• The date the principal adjusts;
• Visa availability for the derivative; and
• Whether the derivative remains a qualifying spouse or child.

An after-acquired spouse cannot generally take §245(i) to an unrelated independent petition

This is the central practical distinction between true derivative grandfathering and dependent treatment.

Suppose:

1. A principal is grandfathered;
2. The principal marries in 2005;
3. The spouse can potentially adjust as a derivative with the principal; but
4. The spouse instead later receives an independent employment-based I-140.

The spouse cannot ordinarily use the principal's old grandfathering with that independent I-140 because the spouse never became independently grandfathered.

Divorce can eliminate an after-acquired dependent's ability to use §245(i)

A true derivative grandfathered person may retain grandfathering after divorce because grandfathering was independently acquired by the statutory cutoff.

An after-acquired spouse is different.

Because the person's §245(i) eligibility exists only as the current dependent of the principal, divorce before adjustment can eliminate:

• The spouse relationship;
• INA §203(d) derivative classification; and
• The dependent basis for §245(i).

After-acquired children must remain eligible derivatives

A child relationship arising after April 30, 2001 does not create independent grandfathering.

The child must instead remain eligible for current derivative immigrant status under INA §203(d).

Potential issues include:

• Turning 21;
• Marriage;
• CSPA age calculations;
• Stepchild relationship requirements;
• Adoption requirements;
• The principal's immigrant classification; and
• Whether the child is accompanying or following to join.

The Child Status Protection Act can affect current derivative eligibility

CSPA can protect a person's age for certain immigrant classifications.

Where an after-acquired child relies on dependent treatment under INA §203(d), CSPA may therefore affect whether the person continues to qualify as a “child” for the current immigrant case.

Matter of Legaspi prevents derivative grandfathering from cascading through later family relationships

Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010), involved a man married to a woman who herself was grandfathered as a derivative through an old family petition.

The BIA held that the husband did not thereby become independently grandfathered.

The decision reinforces a broader rule:

Evidence checklist for an after-acquired spouse or child

Examples

Frequently asked questions