Definition of a grandfathered person under INA §245(i)
Current 8 C.F.R. §245.10 defines a grandfathered person as the principal or qualifying derivative beneficiary of:
- A petition for immigrant classification under INA §204 that was properly filed on or before April 30, 2001 and approvable when filed; or
- An application for permanent labor certification under INA §212(a)(5)(A) that was properly filed under Department of Labor rules on or before April 30, 2001 and approvable when filed.
The old case must have been both timely and substantively viable when it was filed.
What types of filings can create grandfathering?
The two statutory classes are immigrant visa petitions and permanent labor certification applications.
Potential qualifying immigrant petitions can include filings such as:
- Family-based immigrant petitions;
- Employment-based immigrant petitions;
- Qualifying special immigrant petitions; and
- Other petitions for immigrant classification under INA §204 that satisfy the statutory and regulatory requirements.
A permanent labor certification application properly filed under the labor-certification system in effect before April 30, 2001 can also create grandfathering.
The April 30, 2001 deadline
April 30, 2001 is the final statutory filing cutoff for creating new INA §245(i) grandfathering through the LIFE Act extension.
A qualifying filing made on or before that date can potentially preserve grandfathering indefinitely.
A filing first made after April 30, 2001 does not create new grandfathering merely because:
- The person entered the United States before 2001;
- The person has lived in the United States for decades;
- The person had a U.S. citizen relative before the deadline;
- An employer intended to sponsor the person before the deadline; or
- A later petition eventually became approvable.
The qualifying case must have been properly filed
For an immigrant petition, current 8 C.F.R. §245.10 recognizes a filing physically received by the former INS on or before April 30, 2001 or, under the regulation's special rule, mailed with a qualifying postmark on or before that date and accepted for filing.
For a labor certification, the application must have been properly filed and accepted under the Department of Labor regulations then governing the application.
The filing must have been “approvable when filed”
Current 8 C.F.R. §245.10(a)(3) defines “approvable when filed” using three requirements.
At the time of filing, the petition or labor certification must have been:
- Properly filed;
- Meritorious in fact; and
- Non-frivolous.
The regulation defines frivolous in this context as patently without substance.
USCIS examines the facts that existed when the old case was filed rather than demanding that the old relationship or employment opportunity still exist today.
December 21, 2000 physical-presence requirement
An additional rule applies when the qualifying petition or labor certification was filed after January 14, 1998 and on or before April 30, 2001.
The grandfathered principal beneficiary must generally establish physical presence in the United States on December 21, 2000.
| Qualifying Filing Date | December 21, 2000 Presence? |
|---|---|
| On or before January 14, 1998 | No separate December 21, 2000 physical-presence requirement. |
| January 15, 1998 through April 30, 2001 | Grandfathered principal beneficiary generally must prove physical presence on December 21, 2000. |
| After April 30, 2001 | Does not create new INA §245(i) grandfathering. |
Principal grandfathered beneficiaries
The principal grandfathered beneficiary is generally the person directly named in the qualifying immigrant petition or labor certification.
Examples can include:
- The beneficiary of an I-130 filed by a qualifying family petitioner;
- The worker named in an employment-based immigrant petition;
- The worker named in a qualifying pre-April 30, 2001 labor certification; or
- The beneficiary of another qualifying immigrant petition under INA §204.
Derivative beneficiaries can become independently grandfathered
A spouse or child who qualified as a derivative beneficiary when the qualifying petition or labor certification was filed can also become grandfathered.
This distinction is powerful because a true grandfathered derivative can later invoke INA §245(i) independently of the original principal.
For example, a spouse who was married to the principal when a qualifying labor certification was filed in 2000 can potentially remain grandfathered even if:
- The spouses later divorce;
- The original labor case disappears;
- The former spouse later obtains a completely different immigrant petition; or
- The former spouse later wins the Diversity Visa lottery.
A person who was genuinely a qualifying derivative when the old filing was made can carry grandfathered status forward in the person's own right.
Matter of Estrada and Estrada
In Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), the Board clarified the distinction between a grandfathered derivative beneficiary and an after-acquired spouse or child.
The Board held that an after-acquired spouse who did not have the qualifying derivative relationship when the old petition was filed does not become independently grandfathered merely by later marrying a grandfathered person.
After-acquired spouses and children
A spouse or child whose qualifying relationship arose after the old grandfathering filing is not independently grandfathered merely from that later relationship.
However, current USCIS policy recognizes that a current spouse or child can still benefit from §245(i) as an accompanying or following-to-join derivative of a grandfathered principal in qualifying circumstances.
The distinction becomes crucial if the later spouse wants to adjust on an entirely independent basis.
| Family Member | Independent Grandfathering? |
|---|---|
| Spouse already married to principal when qualifying filing was made | Potentially yes, if the spouse qualified as a derivative beneficiary. |
| Child already qualifying as derivative when filing was made | Potentially yes. |
| Spouse married to principal years after qualifying filing | No independent grandfathering solely from the later marriage. |
| Child born after the qualifying filing | Not independently grandfathered solely from later birth. |
| After-acquired spouse or child accompanying/following grandfathered principal | May potentially use §245(i) derivatively if the statutory relationship and immigrant category permit. |
Divorce, death, or loss of the old relationship
Once a person truly became a grandfathered derivative beneficiary through a relationship that existed when the qualifying filing was made, later termination of that relationship does not necessarily eliminate the grandfathering.
This is different from an after-acquired spouse who is using §245(i) only as an accompanying or following-to-join derivative.
Was the person independently grandfathered when the qualifying filing occurred, or is the person only relying on a current derivative relationship today?
A later withdrawn, denied, or revoked petition can still grandfather
A common misconception is that the old petition must still be approved today.
Current regulation provides otherwise.
A qualifying filing can preserve grandfathering where it:
- Was properly filed by April 30, 2001;
- Was approvable when filed; and
- Was later denied, withdrawn, or revoked because of circumstances arising after filing.
Examples of later circumstances can include death, divorce, business closure, loss of the job offer, or other events that did not make the original filing defective when submitted.
A grandfathered person can adjust through a different immigrant basis
Current 8 C.F.R. §245.10 expressly permits a grandfathered person to seek adjustment using another approved immigrant petition, a Diversity Visa selection, or another proper basis.
For example:
- A brother's I-130 filed in 2000 can establish grandfathering while a U.S. citizen spouse's much later I-130 becomes the actual adjustment basis;
- An old labor certification can establish grandfathering while a later EB-2 NIW supplies the current immigrant classification;
- An old family petition can establish grandfathering while a later employment petition supplies the current immigrant visa; or
- A grandfathered person selected in the Diversity Visa program may potentially adjust through the DV selection.
What does not create INA §245(i) grandfathering?
Current regulations specifically state that the following do not themselves grandfather a person:
- An asylum application;
- A Diversity Visa lottery application;
- A Diversity Visa winning letter standing alone;
- Simply living in the United States before April 30, 2001;
- Merely having a qualifying relative before the deadline without a qualifying filing;
- A petition first filed after April 30, 2001; or
- An old filing that was not approvable when filed.
Grandfathering does not give lawful status
Current 8 C.F.R. §245.10 expressly states that grandfathering does not affect the person's nonimmigrant status.
USCIS policy likewise explains that grandfathering:
- Does not confer immigration status;
- Does not place the person in lawful nonimmigrant status;
- Does not itself create a period of stay authorized by DHS; and
- Does not itself stop the accrual of unlawful presence.
Grandfathering does not waive inadmissibility
INA §245(i) operates notwithstanding the ordinary requirements in §245(a) and specified adjustment bars in §245(c).
It does not create a general waiver of INA §212.
A grandfathered applicant can still be inadmissible for:
- Criminal grounds;
- Controlled substances;
- Fraud or willful misrepresentation;
- False claim to U.S. citizenship;
- Alien smuggling;
- Prior removal;
- Unlawful presence after departure;
- INA §212(a)(9)(C);
- Security grounds;
- Health grounds; or
- Other applicable inadmissibility provisions.
Evidence used to establish grandfathering
| Evidence | Purpose |
|---|---|
| Old I-797 receipt or approval | Shows existence and filing date of the qualifying petition. |
| Copy of the old immigrant petition | Identifies petitioner, beneficiary, classification, and underlying facts. |
| Old labor certification | Shows qualifying employment-based grandfathering filing. |
| Mailing envelope or postal receipt | Can establish a qualifying April 30, 2001 postmark where relevant. |
| Marriage certificate | Can establish derivative spouse status at the time of the qualifying filing. |
| Birth certificate | Can establish qualifying derivative child status. |
| December 21, 2000 evidence | Required for certain principal beneficiaries whose qualifying filing was after January 14, 1998. |
| Old denial, withdrawal or revocation record | Helps determine whether the filing failed because of later circumstances or because it was never approvable. |
| Current immigrant petition | Establishes the immigrant basis actually being used for adjustment today. |
| Complete immigration history | Identifies the specific §245(a) or §245(c) problem requiring §245(i). |
Examples of grandfathering
| Old Filing | Potential Result |
|---|---|
| U.S. citizen brother filed I-130 for beneficiary in 1997 | Potential principal grandfathering without the December 21, 2000 physical-presence requirement. |
| Employer filed qualifying labor certification in March 2001 | Potential grandfathering if approvable when filed; principal must generally establish December 21, 2000 presence. |
| Principal married spouse before qualifying 2000 filing | Spouse may be an independently grandfathered derivative beneficiary. |
| Principal married spouse in 2007 | Later spouse is not independently grandfathered merely by marriage, under Matter of Estrada. |
| Old qualifying I-130 later withdrawn after petitioner died | Grandfathering may survive if the filing was approvable when filed and later event caused the failure. |
| Person filed asylum application in 1999 | Asylum filing alone does not create §245(i) grandfathering. |
| Grandfathered person later receives approved U.S. citizen spouse I-130 | May potentially use §245(i) with the later I-130 as the current adjustment basis. |
Frequently asked questions
Do I need an approved petition from before April 30, 2001?
Not necessarily. The key question is whether the qualifying petition or labor certification was properly filed by the deadline and was approvable when filed. Later denial, withdrawal, or revocation for subsequent circumstances does not necessarily destroy grandfathering.
My old petitioner died. Can I still be grandfathered?
Potentially. Death occurring after a petition that was approvable when filed can be a later circumstance that does not necessarily eliminate grandfathered status.
My employer went out of business. Did I lose §245(i)?
Not necessarily. If the qualifying employment filing was approvable when filed, later business closure or loss of the job can be different from a filing that lacked merit when originally submitted.
I married someone who is grandfathered. Am I automatically grandfathered too?
No. Matter of Estrada holds that an after-acquired spouse is not independently grandfathered merely through the later marriage. The spouse may still be able to benefit as an accompanying or following-to-join derivative in qualifying circumstances.
My parents had a petition filed before 2001 when I was a child. Could I be grandfathered?
Potentially. Determine whether you qualified as a derivative beneficiary when the qualifying filing was made. A true grandfathered derivative can retain independent grandfathered status even after aging out or other later relationship changes.
Does §245(i) expire?
The deadline for creating new grandfathering passed on April 30, 2001, but a person who properly acquired grandfathered status can preserve that status for a later qualifying adjustment application until the person obtains permanent residence.
Can I use a completely different petition today?
Yes, potentially. Current regulations allow a grandfathered person to adjust through another family, employment, special immigrant, Diversity Visa, or other qualifying immigrant basis.
Does being grandfathered stop unlawful presence?
No. Current regulation and USCIS policy state that grandfathering does not confer lawful status or itself prevent unlawful-presence accrual.