INA §245(i) • 8 C.F.R. §245.10 • Grandfathering

The “Approvable When Filed” Standard Under INA §245(i)

A petition or labor certification filed before the INA §245(i) deadline does not create grandfathering merely because an agency accepted the filing. Current 8 C.F.R. §245.10 requires the qualifying petition or labor certification to have been “approvable when filed.” The regulation defines that phrase through three elements: the case must have been properly filed, meritorious in fact, and non-frivolous when submitted. The inquiry is based on circumstances that existed on the filing date. A genuine petition can therefore preserve grandfathering even if it later fails because a petitioner dies, spouses divorce, an employer closes, a job disappears, or the case is withdrawn. But a sham marriage, fictitious employment opportunity, ineligible beneficiary, or petition that was patently without substance when filed cannot be transformed into a qualifying grandfathering case merely by the passage of time.

Central Distinction

A case can fail later and still have been approvable when filed.

The grandfathering analysis separates a defect that existed from the beginning from a circumstance that arose later. If a valid family relationship, genuine marriage, real job opportunity, or qualifying labor certification existed when the filing was submitted, a later event can destroy the old petition without necessarily destroying grandfathering. If the underlying facts were false or legally insufficient from the beginning, however, the old filing may never have created grandfathered status.

Apply the Test in Order

Do not jump from an old receipt notice directly to §245(i) eligibility

Reconstruct the Filing

Identify the exact petition or labor certification, filing date, petitioner or employer, beneficiary, classification, and evidence submitted at the time.

Test the Original Facts

Determine whether the qualifying relationship, marriage, job, worker qualifications, employer, and other required facts genuinely existed on the filing date.

Separate Later Events

Identify whether denial, withdrawal, revocation, death, divorce, job loss, or business closure occurred only after a valid filing had already been made.

Two Leading BIA Decisions

Marriage petitions and labor certifications apply the same regulation through different factual tests.

In Matter of Jara Riero and Jara Espinol, the BIA held that a marriage-based petition is not “meritorious in fact” merely because a legally valid marriage existed. The marriage must have been bona fide at inception.

In Matter of Butt, the BIA addressed labor certifications and held that a properly filed, non-frivolous labor certification with no apparent bar to approval when filed is presumed meritorious in fact.

Together, the cases illustrate that approvable-when-filed analysis depends on the substantive type of qualifying filing.

The regulatory definition of “approvable when filed”

Current 8 C.F.R. §245.10(a)(3) defines the phrase directly.

As of the date the qualifying immigrant petition or labor certification was filed, it must have been:

Properly filed;
Meritorious in fact; and
Non-frivolous.

The same regulation defines frivolous in this context as “patently without substance.”

Historical Inquiry

The determination is made from the circumstances that existed at the time of filing.

The filing date creates the legal snapshot

The approvable-when-filed inquiry asks what was true when the qualifying case was submitted.

It does not simply ask:

Whether the petition remains pending;
Whether it was eventually approved;
Whether it was ultimately denied;
Whether the petitioner is alive today;
Whether the spouses are still married today;
Whether the employer remains in business; or
Whether the original job still exists.

Later events matter principally because they help explain why the old case failed. They do not necessarily rewrite the factual circumstances existing when the filing occurred.

Element 1: properly filed

The first element concerns whether the document legally constituted a filing under the rules applicable to it.

Immigrant petition

Current §245.10 contains its own special proper-filing definition for pre-April 30, 2001 immigrant petitions, including a special mailing and postmark provision.

Labor certification

The labor certification must have been properly filed and accepted under the Department of Labor rules then governing that application.

A draft, rejected submission, informal inquiry, or unfiled application cannot become qualifying merely because it was prepared before April 30, 2001.

Element 2: meritorious in fact

“Meritorious in fact” examines whether the substantive facts underlying the filing were genuine and sufficient for the particular filing type.

Potential questions include:

Did the claimed family relationship genuinely exist?
Was the marriage bona fide at inception?
Did the employer genuinely exist?
Was the job offer real?
Was the worker actually the beneficiary?
Did the worker possess required qualifications?
Did the petitioner possess the legal capacity required for the petition?
Were material facts accurately represented?

Substance Matters

An agency receipt proves that something was filed. It does not by itself prove that the filing was meritorious in fact.

Element 3: non-frivolous

The regulation defines “frivolous” for this particular grandfathering provision as “patently without substance.”

The non-frivolous element should not be confused with other immigration statutes that use the word “frivolous,” such as the specialized consequences for frivolous asylum applications.

This is a §245(i)-specific regulatory definition. The question is whether the qualifying filing was patently without substance when filed.

Family-based petitions

For a family petition, the old record should establish the qualifying family relationship that existed when the petition was filed.

Depending on the category, evidence can include:

Birth certificates;
Marriage certificates;
Divorce decrees;
Adoption records;
Legitimation evidence;
Proof of the petitioner's immigration status;
Evidence of parental relationships; and
Other category-specific evidence.

A relationship created only after the filing cannot retroactively make the old petition meritorious in fact.

Marriage-based petitions require a bona fide marriage at inception

A legally valid marriage certificate does not automatically prove that an old marriage petition was meritorious in fact for §245(i) grandfathering.

The BIA requires proof that the marriage was genuine when entered.

Relevant historical evidence can include:

Joint residence;
Financial commingling;
Children;
Insurance;
Tax records;
Photographs;
Correspondence;
Family testimony;
Contemporaneous statements; and
Other evidence showing intent to establish a life together.

Matter of Jara Riero and Jara Espinol

In Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007), the Board considered whether an old marriage-based petition was meritorious in fact for §245(i).

BIA Holding

A marriage-based visa petition must be based on a marriage that was bona fide at its inception in order to be “meritorious in fact.” Merely proving that a legal marriage existed is insufficient.

The precedent is particularly important where:

The spouses later divorced;
The old I-130 was denied;
The petitioner withdrew the case;
USCIS questioned whether the couple lived together;
The old immigration file contains contradictory statements; or
A current applicant relies on the old marriage solely for grandfathering.

Employment-based immigrant petitions

An employment-based immigrant petition must likewise have had substantive merit when filed.

Depending on the petition type, the inquiry can involve:

Whether the petitioner actually existed;
Whether a genuine job opportunity existed;
Whether the beneficiary satisfied required qualifications;
Whether a qualifying labor certification existed where required;
Whether required employer eligibility existed; and
Whether the classification's substantive requirements were otherwise met.

The governing law is the law applicable to the old petition. Do not automatically apply today's regulatory requirements to a petition filed under an earlier statutory or regulatory regime.

Labor certification applications

Labor certifications present a special evidentiary problem because many old applications were accepted and processed but never reached final approval.

An old labor certification can still be qualifying where it was:

Properly filed;
Non-frivolous; and
Meritorious in fact.

The BIA addressed how to establish the factual-merit element in Matter of Butt.

See Qualifying Labor Certification Under §245(i).

Matter of Butt: presumption for qualifying labor certifications

Matter of Butt, 26 I&N Dec. 108 (BIA 2013), held that a beneficiary is presumed to have a labor certification that was meritorious in fact when:

The labor certification was properly filed;
The filing was non-frivolous; and
No apparent bar to approval existed when it was filed.

Why Butt Matters

The absence of a final labor certification approval does not necessarily defeat grandfathering. The adjudicator must examine the original filing rather than treating every later denial or withdrawal as proof that the application lacked merit from the beginning.

What if the old petition was approved?

An old approval notice can be powerful evidence that the petition was approvable when filed.

However, grandfathering depends on the actual legal and factual requirements rather than the mere existence of a historical approval.

Later-discovered evidence can still raise questions involving:

Fraud;
Marriage fraud;
A fictitious employer;
Material misrepresentation;
A nonexistent qualifying relationship; or
Another defect existing when the case was filed.

Approval is strong evidence, not a license to ignore evidence that the original filing was fundamentally invalid.

A later denial does not necessarily mean “not approvable when filed”

Current regulation expressly preserves grandfathering where a qualifying filing was approvable when filed but was later denied due to circumstances arising after filing.

Reason for Later Failure	Potential Analysis
Petitioner dies after filing	Can be a post-filing circumstance rather than an original defect.
Spouses divorce after genuine marriage petition	Can preserve grandfathering if the marriage was bona fide at inception.
Employer closes after filing	Can be a later circumstance.
Job eliminated after filing	Can be a later circumstance.
Required relationship never existed	Can defeat factual merit at filing.
Marriage was sham when filed	Fails the marriage-petition factual-merit requirement.
Beneficiary lacked required qualification when filed	Can constitute an original eligibility defect.

Later withdrawal or revocation

Current §245.10 expressly recognizes preservation of grandfathering despite later:

Denial;
Withdrawal; or
Revocation

when the qualifying filing was properly filed by the statutory deadline, was approvable when filed, and the later failure resulted from post-filing circumstances.

The reason for withdrawal matters. Withdrawal because a couple later divorced is different from withdrawal after discovery that the marriage never genuinely existed.

Death, divorce, business closure, and job loss

These events illustrate the regulation's time-of-filing approach.

Potential post-filing circumstances can include:

Death of a petitioner;
Later divorce;
Later termination of a qualifying family relationship;
Employer bankruptcy;
Business closure;
Loss of the offered position;
Employer withdrawal;
Beneficiary career change; or
Other circumstances arising after a valid filing.

The Question

Would the petition or labor certification have possessed genuine substantive merit when it was filed, before the later event occurred?

Fraud, fictitious relationships, and sham filings

An old filing cannot create §245(i) grandfathering merely because it predates April 30, 2001 if the filing was never genuinely meritorious.

Potential problems include:

Sham marriage;
Fictitious family relationship;
Fictitious employer;
Nonexistent job;
False beneficiary qualifications;
Materially false information;
Fabricated supporting documents; or
A filing otherwise patently without substance.

A bad grandfathering filing can create more than a §245(i) problem. The same historical conduct can potentially implicate INA §204(c), INA §212(a)(6)(C)(i), criminal provisions, credibility, or adjustment discretion depending on the facts.

Evidence for the approvable-when-filed analysis

Evidence	Potential Use
Old petition or labor certification	Shows what was actually represented and requested on the filing date.
Receipt notice	Establishes petition type and filing date.
Approval notice	Strong evidence of favorable historical adjudication.
Denial / withdrawal / revocation notice	Identifies why the old case failed.
Marriage and relationship evidence	Establishes whether a marriage petition was bona fide at inception.
Birth and family records	Establish qualifying relationships.
Employer records	Establish a genuine employer and job opportunity.
Beneficiary credentials	Establish required employment qualifications at filing.
DOL correspondence	Shows processing and apparent viability of a labor certification.
Contemporaneous attorney records	Can reconstruct the filing and evidence submitted.
FOIA / A-file	Can recover agency copies of missing historical filings.
Declarations	Can explain old facts where documentary evidence is incomplete, subject to credibility and corroboration.

Examples

Old Filing	Approvable-When-Filed Issue
Genuine marriage I-130 filed in 1997, spouses divorce in 2002	Can remain approvable when filed if marriage was bona fide at inception.
Marriage I-130 filed solely to obtain immigration benefits	Fails Matter of Jara Riero's meritorious-in-fact requirement.
Labor certification properly filed April 30, 2001 and later abandoned	Matter of Butt can support factual merit if non-frivolous and no apparent bar existed at filing.
Employer actually closed two years after filing	Later event does not necessarily destroy grandfathering.
Employer never existed	Can defeat factual merit as of filing.
Valid petition withdrawn after petitioner later dies	Grandfathering can potentially survive under §245.10.
Petition first filed after April 30, 2001	Cannot create new grandfathering regardless of substantive merit.

Frequently asked questions

Does an old approval automatically mean the petition was approvable when filed?

An approval is strong evidence, but the legal standard still concerns whether the filing was properly filed, meritorious in fact, and non-frivolous based on the circumstances existing when filed.

Can a denied petition still grandfather me?

Yes, potentially. Current regulation expressly preserves grandfathering after a later denial when the qualifying filing was approvable when filed and failed because of circumstances arising afterward.

Can a withdrawn petition still qualify?

Potentially yes for the same reason. The critical question is whether it satisfied the requirements on the original filing date.

What does “meritorious in fact” mean for an old marriage petition?

Matter of Jara Riero holds that the marriage must have been bona fide at its inception. A marriage certificate alone is insufficient.

What does it mean for an old labor certification?

Matter of Butt holds that a properly filed, non-frivolous labor certification with no apparent bar to approval at the time of filing is presumed meritorious in fact.

What does “non-frivolous” mean?

For this regulation, frivolous means “patently without substance.” It is a specific §245(i) definition.

What if the petitioner died after filing?

Death arising after a filing that was otherwise approvable when filed can be a later circumstance that does not necessarily destroy grandfathered status.

Who decides whether the old filing was approvable when filed?

The agency or tribunal adjudicating §245(i) eligibility may need to make the determination from the historical record, even when another agency handled the original petition or labor certification decades earlier.

Primary Authorities

Approvable-when-filed authorities

Regulation

8 C.F.R. §245.10(a)(3) — Approvable When Filed

Statute

INA §245(i) / 8 U.S.C. §1255(i)

Marriage Petition Precedent

Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007)

Labor Certification Precedent

Matter of Butt, 26 I&N Dec. 108 (BIA 2013)

USCIS Policy

USCIS Policy Manual, Volume 7, Part C, Chapter 2

Legal content reviewed August 30, 2026. Current 8 C.F.R. §245.10(a)(3) defines “approvable when filed” as properly filed, meritorious in fact, and non-frivolous, determined from circumstances existing on the filing date. Matter of Jara Riero requires a marriage-based grandfathering petition to have been based on a bona fide marriage at inception. Matter of Butt establishes the corresponding presumption of factual merit for qualifying labor certifications.

Is USCIS disputing whether your old petition was approvable when filed?

The Messersmith Law Firm, P.A. handles complex INA §245(i) matters involving old marriage petitions, labor certifications, Matter of Jara Riero, Matter of Butt, missing records, fraud allegations, derivative grandfathering, entry without inspection, removal proceedings, RFEs, NOIDs, and I-485 denials.

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