Dated 10 June, 1999
MEMORANDUM FOR
All Regional Directors
All District Directors
All Officers in Charge
All Service Center Directors
Asylum Directors
District Counsels
Training Facilities: Glynco, GA and Artesia, NM
FROM:
Robert L. Bach
Executive Associate Commissioner
Office of Policy and Programs
SUBJECT:
Accepting Applications for Adjustment of Status Under Section 245(i) of the
Immigration and Nationality Act.
Purpose
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
service center:
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.
Withdrawn petitions
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 “Used petitions.”)
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.
“Aged-out” children
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.