Dated 10 June, 1999
All Regional Directors
All District Directors
All Officers in Charge
All Service Center Directors
Training Facilities: Glynco, GA and Artesia, NM
Robert L. Bach
Executive Associate Commissioner
Office of Policy and Programs
Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration
and Nationality Act.
This document provides supplemental guidance to the April 15 memorandum on adjustment
of status under Section 245(i) of the Immigration and Nationality Act (the Act). In
particular, this memorandum addresses the adjustment of persons who have filed
employment-based immigrant petitions (I-140s) and applications for labor certifications,
for purposes of "grandfathering" under section 245(i) of the Act.
Note that the general policy outlined in the April 14 memorandum is applicable to the
adjudication of both family and employment-based immigrant petitions. For this reason, we
will not repeat the introductory, background, and general portions of the April 14
memorandum. This memorandum addresses issues unique to employment-based petitions and
makes one set of clarifications to the April 15 memorandum. Officers are reminded that
portions of the April 14 document relating to "alien-based" reading,
"approvable when filed", and the effects of "grandfathering" remain in
effect and are applicable to both family and employment-based immigrant petitions.
Offices and service centers should note that this memorandum lifts the processing hold
on applications for adjustment of status based on an alien's representation that the
employer filed a Department of Labor Application for Alien Employment Certification, Form
ETA 750, Parts A&B before January 15, 1998. See page 6 of the April 14, 1999
memorandum. Processing of these petitions may begin based upon the following instructions.
This memorandum has the concurrence of the Service's Office of Field Operations. The
Office of Field Operations concurs with this memorandum.
Filing issues regarding unadjudicated cases
A. Labor Certification Filed with DOL
Section 245(i) requires the application that will serve as the vehicle for
grandfathering to have been filed on or before January 14, 1998. Adjudicators may
encounter cases in which the original labor certification application has not yet been
acted on by the Service,Department of Labor (DOL), while the applicant seeks to adjust
status on the basis of a later and different visa category such as the diversity lottery.
When the claimed basis for grandfathering is an application for labor certification
filed with the Secretary of Labor, the beneficiary of that application must demonstrate
that the application meets all relevant regulatory requirements established by the
Secretary of Labor for filing the application. Mere proof that a labor certification
application was mailed on or before January 14, 1998 is not sufficient for the
grandfathering provisions of section 245(i).
For purposes of 245(i) adjustments, a properly filed DOL certification application
means that the ETA 750 Parts A&B were properly completed by the sponsoring employer
and the alien and filed with the Secretary of Labor on or before January 14, 1998. (1).
The burden rests with the alien to submit sufficient proof. Examples of such evidence
include documentary proof such as a receipt or a statement from the DOL that its records
indicate that the application was submitted to the appropriate State Agency prior to
January 15, 1998.
B. Employment-based Immigrant Visa Petitions filed with the Attorney General
In order to be approvable at the time of filing for purposes of grandfathering, an
employment-based petition must meet all applicable requirements for obtaining immigrant
classification in the category for which the petition was filed. Any district office
adjudicator with questions on the applicable requirements for employment-based petitions
may forward questions via e-mail to the following contact point for their respective
Vermont: Beth Libbey
Texas: Joyce A. Brown
Nebraska: Sandy Palarski
California: Hector Corella
An alien who claims to be grandfathered because of an employment-based pre-January 15,
1998 filing with the Service must show evidence of that filing when submitting the
subsequent application for adjustment of status. An example of this is when the INS-issued
receipt notes that the petition was received before January 15, 1998. It is the
applicant's burden to establish that he or she is eligible to be grandfathered, but
adjudicators should make reasonable efforts to verify an alien's claim that he or she is
eligible to adjust status under section 245(i). If the pre-January 15, 1998 petition has
been approved, it meets the "approvable when filed" standard and thus provides a
basis for grandfathering. It is important to note, however, that denied, revoked,
withdrawn, and pending cases may also meet the "approvable when filed" standard,
as discussed in the April 14 memorandum.
When an adjudicator has a 245(i) adjustment filing that was based on a vehicle other
than the qualifying petition that is pending with the service center, the adjudicator
needs to check CLAIMS to see if the qualifying petition has been adjudicated. If it has
been approved, it meets the requirement of approvable at the time of filing. If it is
denied or not adjudicated, the adjudicator needs to contact his or her service center
point of contact to request an expedited determination of approvability at the time of
filing. This determination can be made by relying on the information contained in the
application and the supporting documentation.
Grandfathering when petitions were denied
When an immigrant visa petition has been denied, and the alien claims that petition as
the basis for grandfathering, adjudicators must look to the reasons for the denial to
determine whether the alien continues to be a beneficiary of that petition for
"grandfathering" purposes. The issue is whether or not the petition was
"approvable when filed" with the Service.
A. Denials based on change in circumstances
When an immigrant visa petition has been denied due to circumstances arising after the
petition or application was filed, the Service will continue to regard the alien as the
"beneficiary" for the purposes of grandfathering under section 245(i). Changed
circumstances generally relate to factors beyond the alien's control not related to the
merits of the petition at the time of filing. In addition to the examples discussed below
involving children, examples of changed circumstances include the alien beneficiary's
employer going out of business or the death of a petitioning spouse.
B. Denials based on the merits
Another type of denial relates to the merits of the petition itself at the time of
filing. This type of denial is not based on the changed circumstances described above.
This includes meritless or fraudulent petitions or applications, or cases in which the
claimed relationship or employment simply cannot serve as the basis for issuance of a
visa. When the denial relates to the merits in this manner, the alien cannot continue to
be deemed a beneficiary upon denial of the petition or application, and the alien cannot
be considered grandfathered as the result of the filing of such a petition.
When an immigrant visa petition is withdrawn, the former beneficiary of the withdrawn
filing is still grandfathered for the purpose of section 245(i). For example, a business
files an I-140 on behalf of an alien. After 18 months, the business experiences a reversal
and no longer needs the services of the alien. The alien is still grandfathered since he
or she was the subject of an approvable petition at the time of filing. Officers must be
aware, however, of situations where the alien withdraws a petition knowing that the
petition will be denied. In such cases, officers should apply the standards noted in the
prior section on denials based on merits.
Clarification Points from the April 14 Memorandum
Officers should note this clarification of the second paragraph of the section entitled
"The alien-based reading" found on page 3. The beneficiaries (including
derivatives and following to join) of any petition or labor certification that was filed,
pending or approved before January 15, 1998, may be grandfathered if the beneficiary has
not yet obtained LPR status as a result of the above noted pre-January 15 filing and the
filing has not been denied. The exception is for those filings that meet the
"approvable when filed" standard notwithstanding the denial. Each grandfathered
beneficiary, including those qualifying to ride as derivative beneficiaries, is then
entitled to one section 245(i) filing, and may adjust only once under section 245(i) based
on the pre-January 15 petition. (See page 6, April 14 memorandum, section entitled
Grandfathered children and spouses
Section 245(i) defines the term "beneficiary" to include a spouse or child
"eligible to receive a visa under section 203(d) of the Act." This applies to
spouses or children "accompanying or following to join" the principal alien.
An alien who is accompanying or following to join an alien who is a grandfathered alien
is thus also the "beneficiary" of the grandfathered petition or labor
certification application and is also grandfathered.
Since an alien's ability to characterize himself or herself as "accompanying or
following to join" the principal alien depends on the existence of a qualifying
relationship at the time of the principal's adjustment, adjudicators must determine
whether the relationship existed prior to the time the alien adjusted status. Officers
should remember that the burden of proof to establish the qualifying relationship rests
with the applicant.
The spouse or child of a grandfathered alien as of January 14 is also grandfathered for
245(i) purposes. This means that the spouse or child is grandfathered irrespective of
whether the spouse or child adjusts with the principal. The pre-January 15 spouse or child
also are grandfathered even after losing the status of spouse or child, such as by divorce
or by becoming 21 years of age.
Many aliens with pending, grandfathered petitions or labor certification applications
will marry or have children after the qualifying petition or application was filed but
before adjustment of status. These "after-acquired" children and spouses are
allowed to adjust under 245(i) as long as they acquire the status of a spouse or child
before the principal alien ultimately adjusts status.
An alien who becomes the child or spouse of a grandfathered alien after the alien
adjusts status or immigrates cannot adjust status under section 245(i) unless he or she
has an independent basis for grandfathering.
Often, a principal alien who has filed a visa petition or labor certification
application will have a "child" who reaches the age of 21, and thus no longer
meet the statutory definition of child, before the petition or application is approved or
the principal alien adjusts status. However, such an "aged-out" beneficiary will
remain a beneficiary for the purpose of determining whether he or she may use section
245(i) to adjust status.
Point of Contact
Questions concerning this memorandum or policy issues related to section 245(i) should
be referred to Pearl Chang, Chief, Residence and Status Branch, Office of Adjudications,
at 202-514-4754, through appropriate channels.
1 "Properly filed" is the term used in reference to DOL certifications while
"approvable at time of filing" is used with reference to INA petitions. Also
note that the DOL has advised that they do not have the ability to state definitively if a
certification is approvable or deniable during certification processing.