Qualifying Immigrant Petition Filed by April 30, 2001

INA §245(i)(1)(B)(i): the immigrant-petition grandfathering rule

INA §245(i) includes a person who is the beneficiary, including a qualifying derivative spouse or child, of a petition for classification under INA §204 filed on or before April 30, 2001.

The implementing regulation adds two critical requirements:

• The petition must have been properly filed; and
• The petition must have been approvable when filed.

What is a qualifying immigrant visa petition?

The statute refers to a petition for classification under INA §204.

Potential qualifying petitions therefore include petitions seeking permanent immigrant classification rather than merely temporary immigration permission.

Depending on the law and form in effect at the time, qualifying cases can include:

• Family-based immigrant petitions;
• Employment-based immigrant petitions;
• Qualifying special immigrant petitions; and
• Other petitions that legally sought immigrant classification under INA §204.

Common examples of potentially qualifying immigrant petitions

See Qualifying Labor Certification Under §245(i).

Not every pre-2001 immigration filing qualifies

Current 8 C.F.R. §245.10 specifically states that an asylum application does not create §245(i) grandfathering.

The regulation also states that:

• A Diversity Visa lottery application does not grandfather;
• A Diversity Visa selection or winning letter does not grandfather; and
• Those filings cannot substitute for the qualifying immigrant petition or labor certification.

The petition must have been filed by April 30, 2001

The LIFE Act Amendments extended the grandfathering deadline to April 30, 2001.

A petition first filed on May 1, 2001 is generally too late to create new grandfathering.

The deadline can become especially difficult to prove when:

• The original receipt has been lost;
• The petitioner is deceased;
• The attorney's office has closed;
• USCIS no longer has an easily accessible paper file;
• The petition was mailed immediately before the deadline; or
• The recorded receipt date is shortly after April 30, 2001.

The special postmark rule

Current 8 C.F.R. §245.10 contains an unusually important mailing provision for qualifying immigrant petitions.

A petition can satisfy the deadline where:

• It was physically received by the former INS on or before April 30, 2001; or
• If mailed, it was postmarked on or before April 30, 2001 and was accepted for filing under the applicable rules.

Evidence may include the original mailing envelope, certified-mail receipt, postal tracking record, attorney correspondence, or agency records.

What does “properly filed” mean?

For the qualifying immigrant petition, current regulation requires compliance with the filing rules applicable to the petition.

Potential defects can include:

• Failure to submit the required signature;
• Failure to submit the required filing fee under the rules then in effect;
• Submission to an improper location if the governing rules did not treat it as filed;
• A filing rejected rather than accepted;
• Missing essential filing requirements; or
• Another defect preventing the document from constituting a valid petition filing.

“Approvable when filed” is a separate requirement

Even a timely and properly accepted petition must have been approvable when filed.

Current 8 C.F.R. §245.10(a)(3) requires the petition, as of its filing date, to have been:

1. Properly filed;
2. Meritorious in fact; and
3. Non-frivolous.

See Approvable When Filed Standard.

What does “meritorious in fact” mean?

The qualifying filing must have had real factual merit when submitted.

For a family petition, this can require a genuine qualifying family relationship.

For an employment petition, it can require the underlying job, employer, worker qualifications, and classification requirements to have genuinely existed as represented.

The adjudicator may therefore need to review facts from decades ago to decide whether the filing was actually viable when submitted.

The petition must also have been non-frivolous

The regulation defines frivolous for §245(i) purposes as “patently without substance.”

This is separate from whether the petition eventually succeeded.

A petition can be:

• Non-frivolous but later denied because circumstances changed;
• Non-frivolous but withdrawn later;
• Non-frivolous but revoked after a later event; or
• Unable to support adjustment today while still preserving grandfathering.

Does approval of the old petition prove it was approvable when filed?

An approval notice is strong evidence that the petition satisfied the adjudication requirements at the time USCIS approved it.

But grandfathering is still legally tied to the actual facts existing when the petition was filed.

If later evidence establishes that the old filing involved:

• Fraud;
• A fictitious relationship;
• A material false statement;
• A nonexistent job;
• A sham employer; or
• Another defect existing at filing

USCIS can examine whether the petition was truly approvable when filed despite an earlier approval.

A later withdrawal does not necessarily destroy grandfathering

Current regulation expressly provides that later withdrawal of a qualifying petition does not automatically preclude grandfathering if:

• The petition was properly filed by April 30, 2001;
• It was approvable when filed; and
• The later loss of the petition resulted from circumstances arising after filing.

Examples can include:

• A family relationship later ending;
• The petitioner later withdrawing support;
• An employer later eliminating the position;
• A business later closing; or
• Another genuine post-filing event.

A later denial or revocation can also preserve grandfathering

The same principle can apply where the old petition was later denied or revoked.

The decisive question is why.

Fraud and the grandfathering petition

Grandfathering should not be assumed merely because an old receipt or approval exists.

Where USCIS alleges fraud, the analysis can involve:

• Whether the qualifying relationship actually existed;
• Whether the petitioner and beneficiary intended the represented relationship;
• Whether employment existed;
• Whether required qualifications were present;
• Whether material representations were false;
• Who knew of any false information;
• Whether the old petition was meritorious in fact; and
• Whether an independent INA §212(a)(6)(C)(i) issue also exists today.

Derivative beneficiaries of the qualifying petition

INA §245(i) and its regulation include qualifying derivative spouses and children.

Where the derivative relationship existed when the qualifying petition was filed, the derivative can potentially become independently grandfathered.

This means the derivative may later use §245(i) on a completely different immigrant basis even after the original derivative relationship has ended.

See Who Is Grandfathered Under INA §245(i)?.

Petitions filed after January 14, 1998 trigger the physical-presence issue

If the qualifying petition was filed after January 14, 1998 and no later than April 30, 2001, the grandfathered principal beneficiary must generally establish physical presence in the United States on December 21, 2000.

The principal's evidence can include:

• INS or EOIR documents;
• I-94 records;
• Government records;
• Driver's licenses;
• School records;
• Hospital records;
• Tax records;
• Bank or public utility records; and
• Multiple documents surrounding December 21, 2000 where no single record proves that exact date.

See December 21, 2000 Physical Presence Requirement.

The old petition does not have to be the current adjustment basis

Current 8 C.F.R. §245.10(i) expressly recognizes that a grandfathered person can later seek adjustment on another proper basis.

For example:

1. A U.S. citizen sibling files I-130 in 2000;
2. The beneficiary becomes grandfathered;
3. Years later, the beneficiary marries a U.S. citizen;
4. The spouse files a new I-130; and
5. The beneficiary invokes grandfathering from the old sibling petition while using the new spouse petition as the immigrant basis for adjustment.

What if the old petition file is missing?

Many §245(i) cases now depend on records more than 25 years old.

Potential sources include:

• Old I-797 notices;
• USCIS A-file records;
• FOIA responses;
• Immigration court files;
• Former attorney files;
• Petitioner's records;
• Employer records;
• Postal receipts;
• Certified mail records;
• Old correspondence from INS;
• Labor Department records;
• Copies retained by family members; and
• Prior immigration applications referencing the filing.

Evidence checklist for a qualifying petition

Frequently asked questions