ILIC
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,
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 sister
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 independently qualify for 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,
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
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.
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 January 14, 1998, given that they may be following the principal grandfathered alien to join him or her in the United States.
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 himself
The Act does not define the term “principal alien,” but it is defined at
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.