245(I): EVERYTHING YOU ALWAYS WANTED TO KNOW BUT WERE AFRAID TO ASK
10 245(I): EVERYTHING YOU ALWAYS WANTED TO KNOW BUT WERE AFRAID TO ASK | JUNE 2018
→ If your client has a prior spouse, ask whether the spouse filed a petition in the past. Additionally, if
the prior spouse did not have immigration status either, determine whether the ex-spouse might
have been the principal beneficiary of an old petition. For instance, the sister of your client’s ex-wife
might have petitioned for the ex-wife. If the petition was filed on or before April 30, 2001, and the
marriage was also in place on or before April 30, 2001 (and while the petition was still active), your
client might have 245(i) eligibility.
→ Remember, the person does not have to actually be listed on the petition as a derivative to be
245(i)-eligible—it is enough that they could have properly qualified as a derivative on or before April
30, 2001, on a petition that was filed on or before April 30, 2001 (these two dates do not have to
coincide, they both just have to be before April 30, 2001).
You may also need to create a timeline, and ask follow-up questions, to make sure that the petition was
approvable when filed. The timing of when the petitioner achieved LPR status or citizenship will need to be
checked against marriage dates and ages of beneficiaries. For instance, if your client reports that their LPR
grandmother filed a petition for their mother in 1997, or a USC uncle may have filed papers for a father in
2000, you would want to pin down the following dates:
→ For a petition filed by an LPR grandparent for a parent, did the client's parent ever marry and if so,
when? If the principal beneficiary parent was married before the petition was filed, that petition was
not in fact approvable when filed (no visa category for married son or daughter of an LPR) and
therefore does not qualify for 245(i) purposes.
→ For a petition filed by a USC aunt or uncle for a parent, when did that aunt or uncle naturalize? While
unlikely, you will want to double check that the USC aunt or uncle was already a USC at the time they
filed the petition. If the petitioning aunt or uncle did not become a U.S. citizen until after the petition
was filed, that petition was not approvable when filed (no visa category for sibling of LPR), and
beneficiaries of that ultimately invalid petition are not eligible for 245(i).
Many clients will have no idea if, for example, an aunt filed a petition for their mother twenty years ago, so
most likely they will have to go ask their parents or other relatives before being able to answer the above
questions, and you should encourage them to investigate. They may discover that their relatives were part of
the mad rush in the days and weeks leading up to the April 30, 2001 sunset of 245(i) who filed petitions.
Your client may have heard nothing about these petitions because some are still waiting for the priority date
to be current, especially where filed by USC siblings because there is such a long wait for visas in that
category, even after 20 years of waiting. Others may no longer be viable because the underlying
relationships ended, so people did not realize the petition might still benefit them in some other way.
For qualifying petitions filed after January 14, 1998, you will also need to ask questions to determine if the
principal beneficiary was present in the United States on December 21, 2000. In some cases, the principal
beneficiary might be a prior spouse or a parent who is now deceased. Thus, even this question takes some
investigation.
Once you have found possible 245(i) eligibility for your clients—let them know! Because 245(i) eligibility stays
with the grandfathered client until they adjust, even if there is no immediate option to adjust, they may have
an option in the future. Many people can no longer use the original petition because they aged out or the
relationships have changed, but will still be able to use 245(i) eligibility for an adjustment based on a new
petition. It is important that people know they have 245(i) eligibility, even if a new petition is not yet possible.
In the future, their USC child will turn 21, or they might marry a USC or permanent resident down the road.