Cite as 25 I&N Dec. 717 (BIA 2012) Interim Decision #3743
717
Matter of Svetislav ILIC, Respondent
Decided March 8, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
For an alien to independently qualify for adjustment of status under section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as a derivative grandfathered
alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements
for grandfathering, including the physical presence requirement of section 245(i)(1)(C)
of the Act, if applicable.
FOR RESPONDENT: Rodney R. Youman, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Mary T. Abraham, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
GREER, Board Member:
In a decision dated June 1, 2009, an Immigration Judge found the
respondent removable and granted his application for adjustment of status
under section 245(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1255(i) (2006). The Department of Homeland Security (“DHS”)
has appealed from that decision. This case addresses whether the
respondent is eligible to apply for adjustment of status under section 245(i)
as a grandfathered alien based on his own approved visa petition. Because the
record does not establish whether the respondent’s wife satisfied the physical
presence requirement for her to be grandfathered under section 245(i), which
we find is necessary for the respondent to independentlyqualifyfor adjustment
under that section, the record will be remanded to the Immigration Judge for
further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent and his wife are both natives and citizens of Serbia, the
former Republic of Yugoslavia. They were married on May 8, 1982. The
respondent’s wife is the beneficiary of an approved family-based immigrant
visa petition, Form I-130 (Petition for Alien Relative), filed by her sisterCite as 25 I&N Dec. 717 (BIA 2012) Interim Decision #3743
1 At the time of the Immigration Judge’s decision, the respondent’s visa was immediately
available to him through his employer’s Form I-140, whereas his wife’s priority date was
not current.
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on December 1, 1999. The respondent entered the United States most recently
on August 15, 2005, without inspection. He is the beneficiary of an approved
employment-based immigrant visa petition, Form I-140 (Immigrant Petition
for Alien Worker), filed by his employer, with a priority date of April 22,
2004.
In removal proceedings, the respondent conceded removability and
applied for adjustment of status under section 245(i) of the Act as a derivative
grandfathered alien based on the Form I-130 filed for his wife in 1999. The
Immigration Judge found the respondent eligible for adjustment of status and
granted his application.1
II. ISSUE
The issue before us is whether the respondent can independentlyqualifyfor
section 245(i) adjustment as a derivative grandfathered alien if the principal
beneficiary of the qualifying visa petition does not meet the physical presence
requirement under section 245(i)(1)(C) of the Act.
III. SECTION 245(i)
Section 245(i) of the Act permits adjustment of status for certain
grandfathered aliens who are ineligible under section 245(a) on the basis
of having entered without inspection or who are barred under section 245(c).
To be eligible for adjustment of status under this section, an alien must be “the
beneficiary (including a spouse or child of the principal beneficiary, if eligible
to receive a visa under section 203(d))” of the Act, 8 U.S.C. § 1153(d) (2006),
of an immigrant visa petition filed on or before April 30, 2001, or of an
application for a labor certification that was filed pursuant to the regulations
on or before that date. Section 245(i)(1)(B) of the Act; see also 8 C.F.R.
§ 1245.10(a)(1)(i) (2011). A beneficiary of a visa petition or labor
certification filed after January 14, 1998, must demonstrate that he or she was
physically present in the United States on December 21, 2000. Section
245(i)(1)(C) of the Act; 8 C.F.R. § 1245.10(a)(1)(ii);see also Matter of Rajah,
25 I&N Dec. 127, 133-34 (BIA 2009) (discussing the congressional intent
behind the enactment of section 245(i) of the Act and the eligibility
requirements for adjustment of status under that section).Cite as 25 I&N Dec. 717 (BIA 2012) Interim Decision #3743
719
A grandfathered alien is not limited to seeking adjustment of status based
solely on the qualifying visa petition or application for labor certification that
initially conferred grandfathered status. We agree with the position of the
United States Citizenship and Immigration Services (“USCIS”) that such
aliens may seek adjustment of status on any other basis for which they
are eligible. See Memorandum from William R. Yates, Assoc. Dir. for
Operations, to USCIS officials (Mar. 9, 2005), at § 3A(2) (clarifying the
eligibility requirements for adjustment of status under section 245(i)), 2005
WL 628644 (“Yates Memo”); see also Matter of Legaspi, 25 I&N Dec. 328,
329 n.2 (BIA 2010) (agreeing with the Yates Memo’s interpretation of section
245(i) of the Act); cf. Matter of Jara Riero and Jara Espinol, 24 I&N Dec.
267, 267-68 (BIA 2007) (noting that under 8 C.F.R. § 1245.10(i), the denial
of a qualifying visa petition that was properly filed and approvable when filed
will not preclude the grandfathered beneficiary from seeking adjustment
of status under section 245(i) of the Act on the basis of another approved visa
petition).
IV. PRINCIPAL GRANDFATHERED ALIENS
AND DERIVATIVE GRANDFATHERED ALIENS
Under the regulations relating to section 245(i), there are two categories
of grandfathered aliens. The first category, principal grandfathered aliens,
encompasses beneficiaries of visa petitions or labor certifications that were
(1) filed on or before April 30, 2001; (2) properly filed; and (3) approvable
when filed. 8 C.F.R. § 1245.10(a)(1)(i); see also Matter of Legaspi, 25 I&N
Dec. at 329. If the visa petition or labor certification was filed for the
principal grandfathered alien after January 14, 1998, he or she must have
been physically present in the United States on December 21, 2000. 8 C.F.R.
§ 1245.10(a)(1)(ii).
The second category, derivative grandfathered aliens, encompasses spouses
and children of principal grandfathered aliens, if eligible to receive a visa
under section 203(d) of the Act. The derivatives do not need to establish
physical presence even if the qualifying visa petition was filed after
January14, 1998, given that they may be following the principal grandfathered
alien to join him or her in the United States. 8 C.F.R. § 1245.10(a)(1)(ii).
The DHS recognizes that the physical presence requirement does not apply
to derivative grandfathered aliens. Nonetheless, the DHS contends that the
respondent has become the “principal grandfathered alien” because he is the
“principal adjustment applicant.” In other words, the DHS argues that the
respondent is transformed from a derivative grandfathered alien to a principal
grandfathered alien because he is the principal adjustment applicant based on
the approved Form I-140. Under this interpretation, the respondent himselfCite as 25 I&N Dec. 717 (BIA 2012) Interim Decision #3743
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would need to meet the physical presence requirement under section
245(i)(1)(C), which he concedes he cannot do. The respondent argues that
he remains a derivative grandfathered alien and that there is no requirement for
him to independently establish physical presence.
The Act does not define the term “principal alien,” but it is defined
at 22 C.F.R. § 40.1(q) (2011) as “an alien from whom another alien derives
a privilege or status under the law or regulations.” We understand that within
the context of 8 C.F.R. § 1245.10(a)(1)(ii), the term “principal alien who
is a grandfathered alien” refers to the principal beneficiary of the qualifying
visa petition. Here, the principal grandfathered alien would be the
respondent’s wife, to whom he was married when her sister filed the visa
petition for her in 1999. In order to be grandfathered, she must meet the
applicable statutory and regulatory criteria, including timely and proper filing
of an approvable visa petition and physical presence.
Derivative beneficiaries are only entitled to the status available to the
principal alien under section 203(d) of the Act. See Matter of Naulu, 19 I&N
Dec. 351, 353 (BIA 1986) (observing that “the right of a derivative beneficiary
to permanent resident status is wholly dependent upon that of the principal
alien”). Thus, if the respondent’s wife was in the United States on the date
in question, she is grandfathered for purposes of section 245(i) eligibility, and
so is the respondent, who would be able to apply for section 245(i) adjustment
based on his Form I-140. However, if the respondent’s wife does not meet the
physical presence requirement, she is not grandfathered and the respondent
cannot qualify for section 245(i) adjustment as a derivative grandfathered
alien.
V. CONCLUSION
The respondent’s wife is the beneficiary of an approved Form I-130,
which was filed on December 1, 1999. If she was physically present in the
United States on December 21, 2000, she qualifies as a principal grandfathered
alien. In that case, because the respondent could have accompanied
or followed to join her as a derivative beneficiary, he would qualify
as a derivative grandfathered alien. As a derivative grandfathered alien,
he would be eligible to adjust under section 245(i) of the Act. However,
it is unclear from the record whether the respondent’s wife was physically
present in the United States on December 21, 2000. Accordingly, we will
remand the record to the Immigration Judge for the necessary fact-finding.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.