Dear Atty. Lou,
I am a nurse with an approved I-140 and a priority date of June 2005. My adjustment of status was denied due to some technicalities and I am out of status right now.
My US citizen uncle petitioned my parents in 1981. This petition was approved and the immigrant visas were made available in 2002. Unfortunately, I already aged out in 2002 and was not able to obtain my immigrant visa as a derivative beneficiary.
Now that I have my own I-140 approved petition, can I use my uncle’s petition to adjust status? Or should I should wait for the I-140 to become current before I can apply for adjustment of status again? Thank you and waiting for your reply.
RN in Unlawful Status
Dear RN,
Generally, applicants for immigrant visas who are present in the United States and are in possession of approved petition filed on their behalf, may apply for adjustment of status as long as their priority date is current. This adjustment of status is permitted under Section 245 of the Immigration and Nationality Act (INA). There are exceptions to the filing of this adjustment of status applications. Those ineligible to apply are those who entered without inspection, overstayed and worked without authorization may apply nothwithstanding INA Section 245(a) under Section 245i.
Section 245i was enacted in 1994 allowing an applicant otherwise ineligible (including stoaways, crewmen, visa waiver entrants) to file an application for adjustment of status as long as s/he pays a special fee ($1,000) and is a beneficiary of any labor certification or petition under Section 204 that was filed on or before April 30, 2001.
It should be noted that the USCIS has taken the view that it is the individual beneficiary (and his spouse and children) who are grandfathered by filing on or before April 30, 2001 and not the petition. Hence, an applicant meets the requirements for grandfathering, s/he continues to be grandfathered until adjustment of status. In the same manner, spouse or child of a grandfathered applicant are also grandfathered for 245i purposes even if they do not adjust with their principals. The USCIS takes the view that a spouse or child is also grandfathered “even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age” as long as the relationship existed with the principal applicant at the time a qualifying petition or application was propertly filed on or before April 30,2001.
In your particular case, even if you aged out in 2002, you were considered a derivative child at the time the I-130 petition was filed on behalf of your parents. Even if you aged out thereafter, you may still use this approved petition filed by your US citizen uncle to qualify under the Section 245i provision of the INA. You need to wait until your I-140 approved petition’s priority date is actually current before filing for an application for adjustment of status. For the month of October 2009, the third preference employment petitions with priority dates of June 1, 2002 are the petitions being processed for immigrant visas. There is still retrogression and your eligibility for 245i requires you also to wait until the visa is made available.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
