What does it mean to be grandfathered under INA §245(i)?
A grandfathered person is someone who was a qualifying principal or derivative beneficiary of an immigrant visa petition or permanent labor certification application that satisfies the statutory and regulatory grandfathering requirements.
Once grandfathering is established, it can remain available until the person obtains lawful permanent resident status, even if the original qualifying petition or labor certification is no longer the petition ultimately used to obtain the green card.
The old filing can establish grandfathering; a different qualifying immigrant petition may later provide the actual basis for adjustment.
Grandfathering itself does not confer lawful immigration status, employment authorization, protection from removal, or a period of authorized stay.
What filings can create INA §245(i) grandfathering?
The statute identifies two principal types of qualifying filings:
- An immigrant visa petition filed under INA §204 on or before April 30, 2001; or
- An application for permanent labor certification filed under the applicable labor certification process on or before April 30, 2001.
Depending on the historical case, qualifying immigrant petitions may include older family-based, employment-based, or qualifying special immigrant filings.
| Possible Qualifying Filing | What to Locate | Why It Matters |
|---|---|---|
| Family petition | Receipt notice, approval notice, petition copy, A-file evidence | May grandfather the principal beneficiary and qualifying derivative family members. |
| Employment petition | Form I-140 or predecessor filing records and receipt information | May establish grandfathering if properly filed and approvable when filed. |
| Labor certification | DOL or former state-workforce-agency filing records | An old qualifying labor certification can create grandfathering even if a later immigrant petition supplies the current basis. |
The “approvable when filed” requirement
Filing before the statutory deadline is not enough. The petition or labor certification must also have been approvable when filed.
USCIS applies a framework requiring the filing to have been properly filed, meritorious in fact, and non-frivolous when submitted.
Later denial does not always destroy grandfathering
A qualifying petition or labor certification can sometimes continue to establish grandfathering even if it was later withdrawn, denied, or revoked because of circumstances that arose after filing.
The critical question is why the filing failed. If it was defective or not meritorious when originally filed, grandfathering may fail. If it was approvable when filed but later became unapprovable because circumstances changed, grandfathering can remain.
The December 21, 2000 physical-presence requirement
A special physical-presence rule applies where the qualifying petition or labor certification was filed after January 14, 1998 and on or before April 30, 2001.
In those cases, the principal beneficiary generally must establish that the principal beneficiary was physically present in the United States on December 21, 2000.
| Qualifying Filing Date | December 21, 2000 Presence? |
|---|---|
| On or before January 14, 1998 | The special December 21, 2000 physical-presence requirement does not apply. |
| After January 14, 1998 through April 30, 2001 | The grandfathered principal beneficiary generally must establish physical presence in the United States on December 21, 2000. |
Evidence of physical presence
Evidence can include government records and reliable contemporaneous documents such as:
- Form I-94 or passport records;
- Immigration-court notices or DHS correspondence;
- Driver's-license or state records;
- Tax records;
- School records;
- Medical records;
- Lease and utility records;
- Employment and payroll records; and
- Other credible documents showing presence on or around the required date.
Grandfathered spouses and children
INA §245(i) grandfathering can extend beyond the person directly named in the old petition or labor certification.
A spouse or child who had the qualifying derivative relationship to the principal beneficiary when the qualifying filing was made may become a grandfathered derivative beneficiary.
A grandfathered derivative beneficiary may retain grandfathering even if the original family relationship later ends.
For example, a spouse who was married to the principal beneficiary when the qualifying filing was made can remain grandfathered even after divorce. Similarly, a child who was a qualifying derivative when the old filing was made can remain grandfathered after turning 21 or marrying.
Such a grandfathered derivative may later adjust on an independent immigrant basis if all other requirements are satisfied.
Spouses and children acquired after the qualifying filing
A person who became the spouse or child of a grandfathered principal beneficiary only after the qualifying petition or labor certification was filed is generally not independently grandfathered by that old filing.
However, a current spouse or child may in some circumstances be eligible to use §245(i) as an accompanying or following-to-join derivative of a grandfathered beneficiary who adjusts under §245(i).
| Relationship | Independent Grandfathering? | Possible Derivative §245(i)? |
|---|---|---|
| Spouse or child relationship existed when qualifying filing was made | Potentially yes | Yes, if derivative requirements are satisfied |
| Relationship created after qualifying filing but before principal adjusts | Generally no | Potentially yes as accompanying or following-to-join derivative |
| Relationship created only after principal already became an LPR | No through the old filing | Generally not through that principal's completed §245(i) adjustment |
The current green-card basis can be different from the grandfathering filing
One of the most important features of §245(i) is that the old qualifying petition or labor certification does not necessarily have to remain the petition used for final adjustment.
A grandfathered applicant may potentially adjust through:
- A later family-based petition;
- A later employment-based petition;
- A qualifying special immigrant petition;
- A diversity visa selection; or
- Another immigrant category that legally supports adjustment.
Old employment filing, later marriage case
A worker was the beneficiary of a qualifying labor certification filed before April 30, 2001 and became grandfathered. Years later, the worker marries a lawful permanent resident who files a new family petition. If the worker otherwise qualifies, the old labor certification may provide the §245(i) grandfathering while the later family petition provides the actual immigrant visa basis.
What problems can INA §245(i) overcome?
Section 245(i) applies notwithstanding INA §245(a) and §245(c). This makes it especially important in cases where ordinary adjustment would fail because of the applicant's manner of entry or immigration history.
Depending on the facts, §245(i) may permit adjustment despite:
- Entry without inspection;
- Failure to satisfy the ordinary inspected-and-admitted-or-paroled requirement;
- Unauthorized employment;
- Unlawful status at filing;
- Failure to continuously maintain lawful status;
- Certain nonimmigrant status violations; and
- Other §245(c) restrictions that would otherwise prevent adjustment.
What INA §245(i) does not waive
Grandfathering does not make every applicant eligible for permanent residence.
A §245(i) applicant must still be eligible to receive an immigrant visa and admissible for permanent residence.
Section 245(i) does not automatically waive issues such as:
- Fraud or willful misrepresentation;
- Criminal inadmissibility;
- Controlled-substance grounds;
- Security-related inadmissibility;
- Prior removal-related grounds;
- Unlawful-presence consequences triggered by departure;
- INA §212(a)(9)(C) where applicable;
- Health-related inadmissibility; or
- Other grounds that independently make the applicant inadmissible.
Form I-485 Supplement A and the $1,000 statutory sum
An applicant seeking adjustment under INA §245(i) generally files Form I-485 together with Form I-485 Supplement A and the additional statutory sum required for §245(i) adjustment.
The additional statutory amount is generally $1,000, in addition to the otherwise applicable Form I-485 filing requirements.
Statutory and regulatory exceptions exist for certain applicants, including specified applicants under age 17 and certain qualifying family-unity applicants.
Supplement A can generally be filed with Form I-485 or while the Form I-485 remains pending, but the §245(i) requirements must be satisfied before adjudication.
Applicants should always verify the current edition of Supplement A, filing location, and USCIS fee requirements before filing.
Evidence for an INA §245(i) case
The applicant bears the burden of proving grandfathering and current adjustment eligibility.
| Issue | Potential Evidence |
|---|---|
| Old qualifying filing | Receipt notice, approval notice, petition copy, labor certification record, A-file documents, DOL records |
| Timely filing | USCIS receipt date, filing stamp, envelope or postmark, historical agency records |
| Approvable when filed | Original supporting evidence, approval record, relationship evidence, employer records, historical labor certification evidence |
| December 21, 2000 presence | Government records, tax records, school records, medical records, lease, utilities, employment records |
| Derivative grandfathering | Marriage certificate, birth certificate, adoption record, evidence showing relationship existed when qualifying filing was made |
| Current immigrant basis | Approved or properly filed immigrant petition, visa classification evidence, priority date and visa availability |
| Admissibility | Medical examination, criminal dispositions where applicable, immigration records, waiver evidence where needed |
Common INA §245(i) scenarios
Entry without inspection
An applicant entered without inspection but is grandfathered through a qualifying pre-April 30, 2001 filing and now has an immediately available immigrant visa through a later petition. Section 245(i) may permit adjustment despite the entry without inspection if the applicant satisfies all remaining requirements.
Unauthorized employment and overstay
An applicant has substantial unauthorized employment and status violations that would prevent ordinary adjustment under §245(c). If properly grandfathered, §245(i) may overcome those adjustment bars, although separate inadmissibility must still be analyzed.
Child of the old beneficiary is now over 21
A person was under 21 and unmarried when a qualifying petition was filed for the person's parent before the statutory deadline. If the person was a qualifying derivative beneficiary at that time, the person may remain independently grandfathered even after aging out.
The old petition was later denied
A denial does not automatically answer the grandfathering question. The record must show whether the petition was approvable when filed or whether a defect existed from the beginning.