Eligible for 245-i?

[Bengalita 12]

Hi. Maybe you can help me decipher this. I have another friend who is debating on whether or not she can adjust status through her soon-to-be US Citizen husband WITHOUT HAVING TO RETURN TO MEXICO. She entered without inspection when she was 9. All evidence indicates that she would be eligible for the work permit soon to be authorized by Immigration for certain young people. However, she would like to become a Permanent Resident, not just have a temporary work permit. Something that makes me think she MIGHT be eligible to adjust here in the USA is the fact that her mother (also EWI) has an approved I-130 pending that her mother's sister filed for her in 2000 (245-i eligible). I believe her mother's sister listed my friend as a "derivative" of her mother on this application.

If her name is, in fact, listed as a derivative on that application, she is technically 'grandfathered' under 245-i protection, isn't she? However, does she still have to be under 21 in order to receive this protection, or could she still be considered a "derivative" for 245-i purposes even though she is now 23? If this is the case, then she would most likely be able to use this 245-i eligibility in order to adjust status through her US Citizen husband.

Right? Wrong?

[JimVaPhuong 4,863]

Hi. Maybe you can help me decipher this. I have another friend who is debating on whether or not she can adjust status through her soon-to-be US Citizen husband WITHOUT HAVING TO RETURN TO MEXICO. She entered without inspection when she was 9. All evidence indicates that she would be eligible for the work permit soon to be authorized by Immigration for certain young people. However, she would like to become a Permanent Resident, not just have a temporary work permit. Something that makes me think she MIGHT be eligible to adjust here in the USA is the fact that her mother (also EWI) has an approved I-130 pending that her mother's sister filed for her in 2000 (245-i eligible). I believe her mother's sister listed my friend as a "derivative" of her mother on this application.

If her name is, in fact, listed as a derivative on that application, she is technically 'grandfathered' under 245-i protection, isn't she? However, does she still have to be under 21 in order to receive this protection, or could she still be considered a "derivative" for 245-i purposes even though she is now 23? If this is the case, then she would most likely be able to use this 245-i eligibility in order to adjust status through her US Citizen husband.

Right? Wrong?

Whether or not she's listed as a derivative on the original petition from her aunt isn't relevant. She was eligible as a derivative. It also doesn't matter what her current age is. It only matters if she was eligible as a derivative when the petition was filed. Section 245(i) gets around a whole lot of the requirements that would be imposed on anyone else.

The only remaining question is whether she's been continuously present in the US since December 21, 2000. If so, and she's got evidence to prove it, then she can adjust status based on her marriage to a US citizen. She'll have to pay the $1000 fine, on top of the other fees.

[Bengalita 12]

Whether or not she's listed as a derivative on the original petition from her aunt isn't relevant. She was eligible as a derivative. It also doesn't matter what her current age is. It only matters if she was eligible as a derivative when the petition was filed. Section 245(i) gets around a whole lot of the requirements that would be imposed on anyone else.

The only remaining question is whether she's been continuously present in the US since December 21, 2000. If so, and she's got evidence to prove it, then she can adjust status based on her marriage to a US citizen. She'll have to pay the $1000 fine, on top of the other fees.

Yes, she's been in the USA continuously since she first entered illegally when she was 9. She has school records to prove she was here in December 2000, so I don't think this will be a problem. Thank you for your information.