Derivative Grandfathering Under INA §245(i)

Who is a derivative grandfathered person?

Current 8 C.F.R. §245.10(a)(1)(i) defines a grandfathered person to include a spouse or child of the beneficiary of a qualifying petition or labor certification if that spouse or child was eligible to receive a visa under INA §203(d).

BIA precedent identifies two categories:

• Principal grandfathered persons; and
• Derivative grandfathered persons.

INA §203(d) is essential to derivative grandfathering

It is not enough merely to be related to a grandfathered person.

INA §203(d) generally gives the spouse or child of a principal immigrant beneficiary the same preference status and order of consideration when accompanying or following to join the principal, where the immigrant category permits derivatives.

Therefore, the analysis requires determining whether the spouse or child could legally have derived immigrant status from the principal under the qualifying classification.

The derivative relationship must have arisen by April 30, 2001

Matter of Estrada and Estrada establishes the controlling cutoff.

A person can qualify as a derivative grandfathered spouse or child where:

• The principal is grandfathered through a qualifying petition or labor certification;
• The person became the principal's spouse or child on or before April 30, 2001; and
• The person qualified as a derivative under INA §203(d).

Must the marriage or child relationship have existed when the original petition was filed?

Not necessarily.

The BIA's formulation in Matter of Estrada focuses on whether the spouse or child relationship had arisen on or before April 30, 2001—not necessarily whether it existed on the earlier date the principal's qualifying petition or labor certification was filed.

For example:

1. A qualifying labor certification is filed for the principal in 1999;
2. The principal marries in 2000;
3. The spouse could qualify derivatively under INA §203(d); and
4. The marriage existed before April 30, 2001.

That spouse can potentially be a derivative grandfathered person even though the marriage occurred after the 1999 filing.

The original immigrant category must permit derivative beneficiaries

Derivative grandfathering frequently arises from:

• Family-preference petitions;
• Employment-based immigrant petitions;
• Permanent labor certifications that support a derivative-capable employment category; and
• Other immigrant classifications for which INA §203(d) applies.

The spouse or child must have had a derivative path through the principal's classification.

Immediate-relative petitions generally do not create derivative beneficiaries

The immediate-relative categories under INA §201(b)(2)(A)(i) do not provide derivative status in the same way as the preference categories governed by INA §203(d).

For example, when a U.S. citizen petitions for a spouse as an immediate relative, the spouse's child generally needs a separate qualifying petition rather than deriving through the spouse's I-130.

Matter of Ilic: derivative grandfathering can be used independently later

In Matter of Ilic, 25 I&N Dec. 717 (BIA 2012), the respondent was married to the principal beneficiary when her sister filed a qualifying family petition in 1999.

The respondent later had his own employment-based Form I-140 with a 2004 priority date.

The BIA held that if his wife satisfied the grandfathering requirements for the original 1999 petition, he remained a derivative grandfathered person and could use §245(i) with his own employment petition.

The derivative has no personal December 21, 2000 physical-presence requirement

Current 8 C.F.R. §245.10(a)(1)(ii) expressly excludes qualifying spouses and children from the principal's physical-presence requirement.

Matter of Ilic confirms this rule.

A derivative grandfathered person can therefore have been:

• Outside the United States on December 21, 2000;
• Living abroad throughout 2000; or
• Not yet physically present in the United States at all

without necessarily losing derivative grandfathering.

See December 21, 2000 Physical Presence Requirement.

Derivative grandfathering depends on valid grandfathering of the original principal

A derivative cannot acquire grandfathering from a principal who was never grandfathered.

The original case should therefore establish:

• A qualifying immigrant petition or labor certification;
• Proper filing on or before April 30, 2001;
• Approvable-when-filed status;
• The principal's December 21, 2000 physical presence if applicable; and
• The derivative's qualifying relationship under INA §203(d).

A derivative grandfathered person can later adjust through a different immigrant basis

Once properly grandfathered, the derivative can potentially invoke §245(i) while using:

• A later employment-based I-140;
• A later family-based I-130;
• An EB-1A self-petition;
• An EB-2 NIW;
• A qualifying special immigrant petition;
• A Diversity Visa selection; or
• Another legally available immigrant basis.

The original principal does not have to adjust simultaneously with the derivative-grandfathered person.

Divorce generally does not destroy already acquired derivative grandfathering

Matter of Estrada explains that once derivative grandfathering was properly acquired before the April 30, 2001 sunset, subsequent changes in the relationship do not ordinarily eliminate it.

Therefore, a spouse who was derivative grandfathered can potentially remain grandfathered after:

• Divorce from the original principal;
• Legal separation;
• Remarriage; or
• The principal's later adjustment through another basis.

Death of the principal does not necessarily eliminate derivative grandfathering

The same grandfathering principle applies when the original principal later dies.

If the spouse or child already became a derivative grandfathered person before the statutory deadline, the grandfathered status can remain available for a later independent adjustment basis.

Aging out does not necessarily destroy derivative grandfathering

A person who qualified as a derivative “child” when grandfathering arose can later turn 21 without necessarily losing the §245(i) grandfathering acquired while still a child.

The person may subsequently use another immigrant basis as the principal applicant.

Later marriage of a derivative child

Similarly, later marriage can end the person's status as a “child” for current derivative immigrant purposes without necessarily erasing grandfathering already acquired before April 30, 2001.

The former derivative child may then need a different immigrant petition but can potentially continue to invoke §245(i).

Matter of Estrada and Estrada

Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), provides the clearest modern framework.

The BIA explained that:

• Principal beneficiaries of qualifying filings are principal grandfathered persons;
• Spouses and children who qualified under INA §203(d) by April 30, 2001 can be derivative grandfathered persons;
• Both principal and derivative grandfathered persons can independently apply under §245(i);
• Later divorce or death does not ordinarily eliminate properly acquired derivative grandfathering; and
• A relationship first arising after April 30, 2001 cannot create new derivative grandfathered status.

Matter of Legaspi: grandfathering does not cascade through later marriages

Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010), involved a person who married someone who herself had been grandfathered as a derivative beneficiary.

The BIA held that the later spouse did not become independently grandfathered merely by marrying the derivative-grandfathered person.

Derivative grandfathering versus an after-acquired spouse or child

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

Derivative grandfathering evidence checklist

Examples

Frequently asked questions