William R. Yates, Associate Director for Operations for the U.S. Citizenship and Immigration Services, recently issued a memorandum offering clarification of certain eligibility requirements pertaining to an application to adjust status under Section 245(i) of the Immigration and Nationality Act.  Specifically, the memo clarifies issues pertaining to a derivative of a grandfathered alien, when an application for labor certification serves to grandfather an alien and multiple filings for adjustment of status under section 245 (i).

If an alien demonstrates that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before April 30, 2001, a principal alien’s spouse or child is a grandfathered alien regardless of any subsequent changes in the relationship with the principal alien.  This means that a spouse or child remains grandfathered even after losing the status of spouse or child, such as by divorce or the child becoming 21 years of age.  That spouse or child who is grandfathered may seek to adjust status under Section 245(i) on any proper basis, if qualified.

If a spouse or child relationship is established after the filing of a grandfathering petition or application and is in existence at the time the principal alien adjusts status, the spouse or child is not a grandfathered alien and may not independently benefit from section 245(i).  Rather, the spouse or child may only benefit from section 245(i) as a dependent of the principal alien.  Accordingly, the qualifying relationship must continue to exist at the time the principal alien adjusts status in order for the spouse or child to obtain the derivative benefit.

If a spouse or child relationship is established after the filing of a grandfathering petition or application but is not in existence at the time the principal alien adjusts status, the spouse or child is not grandfathered and may not file for adjustment of status under section 245(i) as a dependent of the principal alien pursuant to section 203(d) of the Act.

An alien who becomes who becomes the child or spouse of a grandfathered alien after the grandfathered alien acquires lawful permanent resident status cannot adjust status under section 245(i) of the ACT unless the alien has an independent basis for grandfathering.