December 21, 2000 Physical Presence Requirement Under INA §245(i)

INA §245(i)(1)(C) creates the December 21, 2000 requirement

Current INA §245(i)(1)(C) applies when the qualifying immigrant petition or permanent labor certification was filed after January 14, 1998.

For those filings, the principal beneficiary must have been physically present in the United States on December 21, 2000—the date Congress enacted the LIFE Act Amendments that extended §245(i)'s filing deadline.

Who must prove physical presence?

Current USCIS policy distinguishes the principal beneficiary from derivative beneficiaries.

Filings on or before January 14, 1998 do not require December 21, 2000 presence

This is one of the most important dividing lines in §245(i).

If the qualifying immigrant petition or labor certification was filed on or before January 14, 1998, the statutory physical-presence requirement does not apply.

The applicant must still be physically present in the United States when seeking adjustment under §245(i) and must satisfy the remaining adjustment requirements.

See January 14, 1998 Cutoff and INA §245(i).

The principal beneficiary's presence controls

For a post-January 14, 1998 filing, the focus is on the person who was the principal beneficiary of the qualifying petition or labor certification.

Examples include:

• The beneficiary named in a qualifying Form I-130;
• The beneficiary named in a qualifying employment immigrant petition;
• The worker named in the qualifying labor certification; or
• The principal beneficiary of another qualifying immigrant petition.

A derivative beneficiary does not have to prove personal presence on December 21, 2000

Current USCIS Policy Manual guidance states that the physical-presence requirement applies only to the principal beneficiary.

Therefore, a qualifying derivative beneficiary can potentially be grandfathered even if the derivative:

• Was outside the United States on December 21, 2000;
• Had never yet entered the United States on December 21, 2000;
• Later entered without inspection;
• Later divorced the original principal beneficiary; or
• Later seeks adjustment independently on another immigrant basis.

The derivative must still show that the principal beneficiary satisfied the physical-presence requirement if the qualifying filing was made after January 14, 1998.

Matter of Ilic confirms the derivative rule

In Matter of Ilic, 25 I&N Dec. 717 (BIA 2012), the Board addressed whether a grandfathered derivative who later became the principal applicant on a different adjustment basis had to prove his own presence in the United States on December 21, 2000.

The Board rejected the theory that becoming the principal applicant on the later I-485 converted a grandfathered derivative into the “principal grandfathered” beneficiary for purposes of the physical-presence rule.

Is a document dated exactly December 21, 2000 required?

No.

Current 8 C.F.R. §245.10(n)(1) expressly provides that when no single document establishes physical presence on the required date, the applicant may submit several documents showing physical presence in the United States before and after December 21, 2000.

The closer the evidence falls to the required date, the stronger the inference ordinarily becomes.

Former INS and EOIR records

The regulation specifically identifies documents issued by the former INS or EOIR as evidence of presence.

Possible records include:

• Form I-94;
• Immigration court documents;
• Notices to Appear;
• Orders to Show Cause;
• Applications filed with INS;
• Biometrics or fingerprint records;
• Employment authorization records;
• Interview notices;
• Agency correspondence;
• Receipt notices; and
• Other records showing interaction with immigration authorities near the required date.

Other federal, state, and local government evidence

Current 8 C.F.R. §245.10(n)(3) provides examples of other government records that can establish physical presence.

They include:

• State driver's license;
• State identification card;
• County or municipal hospital records;
• Public college transcripts;
• Public school transcripts;
• Income tax records;
• Certified government benefit records;
• Property-tax records; and
• Other authenticated federal, state, county, or municipal records.

Non-government evidence

The regulation expressly recognizes private evidence as well.

Examples include:

• School records;
• Rental receipts;
• Utility receipts;
• Other dated receipts;
• Personal checks with bank cancellation stamps;
• Employment records;
• Pay stubs;
• Credit-card statements;
• Bank records;
• Records maintained by public utilities;
• Records from accredited private or religious schools; and
• Other contemporaneous records that reasonably establish location.

Evidence concerning other members of the family unit

Current regulation permits evidence concerning another member of the same family unit when the applicant establishes that the family unit existed and was cohabiting in the United States.

For example, the principal beneficiary might lack personal transaction records near December 21, 2000 while the spouse or child's records establish:

• Enrollment at a local school;
• Medical treatment;
• Residence at the family home;
• Utility service;
• Lease payments;
• Other contemporaneous household activity.

Can a personal affidavit prove December 21, 2000 presence?

An affidavit can contribute to the record, but current 8 C.F.R. §245.10(n)(5) imposes an important limitation.

The adjudicator will not accept a personal affidavit attesting to physical presence on December 21, 2000 without:

• An interview; or
• Additional evidence validating the affidavit.

Third-party declarations can also be useful, but contemporaneous documentary evidence ordinarily provides a stronger foundation.

Building a before-and-after evidence chain

Suppose no record is dated December 21, 2000.

The applicant might instead have:

• Pay stub dated December 15;
• ATM withdrawal in Florida on December 19;
• Utility payment dated December 20;
• Canceled check dated December 22;
• Employer time record dated December 26; and
• No evidence of foreign travel during the period.

Viewed together, the records can establish a persuasive continuous factual picture surrounding the statutory date.

Travel around December 21, 2000

International travel immediately before or after the statutory date requires careful review.

Relevant evidence can include:

• Passport stamps;
• I-94 records;
• Airline tickets;
• CBP travel history;
• Foreign entry stamps;
• Hotel records;
• Credit-card activity;
• Employment attendance; and
• Other records showing the actual date of departure or return.

An old entry record alone may not prove presence two years later

Evidence that a person entered the United States in 1998 or 1999 is relevant but may not independently establish that the person remained in the country on December 21, 2000.

An AAO decision has specifically rejected the assumption that an old I-94 entry record alone necessarily proves presence on the later statutory date.

The applicant bears the burden of proof

The applicant seeking §245(i) adjustment must establish eligibility for the statutory benefit.

When physical presence is required, the record should affirmatively prove it rather than relying on assumptions such as:

• “I lived here that year”;
• “My family was here”;
• “My visa had not expired”;
• “I had a U.S. address”;
• “I filed taxes”; or
• “I had entered the country years earlier.”

What if records from 2000 are missing?

Because these cases concern events more than 25 years old, missing documents are common.

Potential reconstruction sources include:

• USCIS FOIA;
• EOIR records;
• Old passport copies;
• IRS transcripts;
• State motor-vehicle agencies;
• Social Security earnings records;
• Former employers;
• Banks and credit unions;
• Schools and universities;
• Hospitals and healthcare systems;
• Property records;
• Utility providers;
• Old attorneys;
• Family archives; and
• Contemporaneous correspondence.

December 21, 2000 evidence checklist

Examples

Frequently asked questions