245 i derivative grandfathering?

[colorfulx 1]

My husband was brought here in 1989 with his parents, all EWI. (His mother has since passed) / My husband has never left the united states, been deported or detained by ice.

My husband's father started his petition with his current wife in 1998 and my husband was listed as a relative on there, although no physical papers we're filed on my husbands behalf before 2001. I have yet to get a hold of the original I-130 as my in law's house burnt in 2007, however he let me see all of the documents he has received from immigration and I noticed he had an approved I-485 in 2008. His father is currently a green card holder.The only papers ever filed on my husbands behalf we're filed in 2004 when he was 18 by his brother.

My husband would of been 13 at the time of his stepmothers petition for his father, is he a derivative of the 245i? Or has he aged out? I see that being married disqualifies you, but I read on another site that it doesn't? Lots of conflicting stuff, I have no idea what's true and what isn't.

Here is my original post, that I think I posted in the wrong area if you would like to read more: http://www.visajourney.com/forums/topic/527682-i-485-eligibilty-need-help-on-this-one/

Edited December 16, 2014 by colorfulx

[Hypnos 6,576]

I believe your husband is a derivative beneficiary of his father's I-130 and so is eligible to adjust status under 245(i). I don't believe his marriage to you invalidates his eligibility.

DUI is usually not considered a crime involving moral turpitude (CIMT), which may require a waiver for him to be able to successfully adjust. Assault sometimes can be though.

I would strongly recommend you consult with an AILA-certified immigration attorney at your earliest convenience. Try to find one who is familiar with 245(i) and possible inadmissibility due to CIMTs. You should attempt to obtain any documentation relating to your father-in-law's I-130, including the receipt notice, approval notice, or even a copy of the filed form (if available).

Are you a US citizen?

Edited December 16, 2014 by Hypnos

[colorfulx 1]

Does it matter that no petition was ever filed on his behalf by his father prior to him turning 21? I keep reading that he 'aged out' because he wasn't an actual "immediate" relative of his stepmother and that his brothers petition for him does not 'freeze' his age and that our marriage made him lose these "derivative benefits" (if he in fact could have gotten them.) I really shouldn't be allowed to use google. And yes, the assault is my concern too, even though it happened with a male and they were fighting each other - my husband pled guilty as advised and never pressed charges against his friend at the time, I believe it falls under the "Act of violence" under CIMT.

Thank you so much for responding! I really do appreciate your help.


Yes, I am a US citizen. We have a consultation set up with a lawyer for January 5th. Have a lot of questions for her, really hoping my mother in law put my husband's name somewhere on his father's petition. She said she did but, it's been so many years ago that they filled out that petition they really don't remember. I looked on her website and it says that she is 'a member of AILA (American Immigration Lawyer's Association'

Edited December 16, 2014 by colorfulx

[Hypnos 6,576]

Bear in mind that I am not a lawyer, and I don't even play one on TV. What I know I've learned through (a lot of) reading, so take this with a sizable grain of salt.

This is complicated (245(i)s often are) but as I understand it, the fact that your husband was a derivative beneficiary of the I-130 filed by his father's US citizen wife grandfathers him into 245(i) status until he receives a green card (so his eligibility never expires under any circumstances - including being petitioned by someone else, such as his brother).

Not only does his 245(i) grandfathered status never expire, but it also allows him to adjust status in the future on any qualifying basis, such as marriage to a US citizen (i.e. you), a company sponsoring him through an I-140, or anything else. Essentially, the feature of his 245(i) status whereby he can adjust status even after EWI is like a sticker that you can transfer; in this case you would be transferring it from the old I-130 filed by his stepmother to the I-485 he would file to obtain a green card.

It is essential though that he be named on the old I-130 as a derivative beneficiary; if he isn't then I don't believe he is eligible, no matter whether not including him was simply an oversight, or any other reason. He must be listed on that old form. You will likely need to do something like file a FOIA request (or in this case the stepmother may have to do it, since the I-130 is technically her application) in order to find out definitively whether your husband was included on the petition.

Worthwhile links I've found:

http://www.wilneroreilly.com/Articles/Deconstructing-245i-law.shtml

https://cliniclegal.org/resources/articles-clinic/bia-clarifies-when-derivatives-may-adjust-under-245i

http://shusterman.com/245ifrequentlyaskedquestions.html

It would be a pity if he had 245(i) derivative benefits but could not adjust status due to a CIMT. At the very least he can attempt to file an I-601 waiver of that CIMT, but would need to be able to demonstrate why it would be a hardship to you - not to him - if it were not granted. That assumes that his assault is a CIMT, which it may not be. The lawyer would be the one to ask about that.

Finally, I would suggest making appointments with more than one attorney. If one tells you what you want to hear that can be good, but if five do, you can consider that more reliable. This is especially true for a non-straightforward case like this.

Edited December 16, 2014 by Hypnos

[colorfulx 1]

Oh thank you! Yes, I have already told my in law's and his brother that I needed the receipt number for the petition his brother filed in 2004, as well as an official copy of the I-130 to show, or not show if this is a route we can pursue. His step mother said that she was almost positive that he was, because she had to get my husband's birth certificate translated and notarized to give to the lawyer in 1999. She actually was able to find the birth certificate with the attached translation dated for 1999. So here's to hoping at least.

One more question:

Could my father in law have been able to file an I-485 in 2008 if he had not been grandfathered? He came here EWI and had previous criminal arrests for a string of things in the 90's (I myself am surprised that he was able to obtain a social security number and green card.) They began their petition in 1998, so we're all under the impression that everything was submitted before the cut off date but I know sometimes with immigration, it takes a long time for petitions to be processed/approved. I saw the approval notice for the I-485 so I know he received it in 2008, I just am trying to cover all my basis in case there is a chance they tell me that this isn't a possibility.

The last lawyer I spoke with years ago didn't want to hear a thing that my husband or myself had to say. We told him that his father had a green card and he said "that doesn't help him." and would wave his hand at us whenever we were telling him anything. I at the time had a copy of the petition from his brother and that his father was a green card holder and he said that it meant nothing. He gave me a ton of print outs from the computer, told us that we needed to get married and that was it basically. It was roughly 3 years ago and it deterred my husband from wanting to see another, because of his criminal background (although that lawyer never asked to see police reports or court documents) and we were told he would have to leave the country. I'm hoping the domestic assault isn't a CIMT, but its really hard to gauge on there. It says "Most crimes of violence (not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least one year." because his was a misdemeanor and its classified in TN as Class A (Punishable up to 11 months & 29 days in jail.) Or Class B (Punishable up to 6mths in jail) My husbands was classified as 'Class B Misdemeanor'

The new lawyer requested that I bring anything from immigration with his name on it and that I bring all police reports, court dockets and his criminal record. So she should be able to shed more light on this for me.

Really do appreciate your time

Edited December 16, 2014 by colorfulx

[colorfulx 1]

What I meant to say was "I had a copy of the petition from his brother and we told the lawyer that his father was a green card holder"

Sorry about that.

[aleful 1,905]

My husband was brought here in 1989 with his parents, all EWI. (His mother has since passed) / My husband has never left the united states, been deported or detained by ice.

My husband's father started his petition with his current wife in 1998 and my husband was listed as a relative on there, although no physical papers we're filed on my husbands behalf before 2001. I have yet to get a hold of the original I-130 as my in law's house burnt in 2007, however he let me see all of the documents he has received from immigration and I noticed he had an approved I-485 in 2008. His father is currently a green card holder.The only papers ever filed on my husbands behalf we're filed in 2004 when he was 18 by his brother.

My husband would of been 13 at the time of his stepmothers petition for his father, is he a derivative of the 245i? Or has he aged out? I see that being married disqualifies you, but I read on another site that it doesn't? Lots of conflicting stuff, I have no idea what's true and what isn't.

Here is my original post, that I think I posted in the wrong area if you would like to read more: http://www.visajourney.com/forums/topic/527682-i-485-eligibilty-need-help-on-this-one/

hi

only if his wife was a LPR. remember, there are no derivatives on immediate relatives petitions. if his spouse was a USC, then he was only listed for information purposes, that doesn't mean he was covered. there has to be an approvable petition. if his stepmother was a USC, stepchildren are filed separately and there would have been a separate petition filed on his behalf

his brother's petition in 2004 doesn't mean anything, they are considered separate petitions

[colorfulx 1]

How would one go about finding out if a separate petition was ever filed for him by his step mother? His step mother is a US citizen. I've asked her and she said that she doesn't really know, so we are going under the assumption that nothing was ever filed on his behalf. How would we find this out for sure?

[aleful 1,905]

there was no aging out because there wasn't any petition filed on his behalf to begin with.

it would have been different if his dad, once he became a LPR filed a petition on his behalf before 2001, then he would have been covered under the 245i

there always have to be an approvable petition filed on his behalf, and as stated, there are no derivatives on petitions for spouses

[aleful 1,905]

did she file two i130? how can she not remember paying for all that paperwork?

or you need a copy of that i130 or some hardcopy of the petition, you can recover a hardcopy of the approved i130 but you would need information about the petition'

[aleful 1,905]

I think your assumption probably is correct, because why did his father get a GC and he didn't?

he should have been a GC holder even a USC by now

[colorfulx 1]

I don't know how she can't remember if she filed two or not, maybe she's afraid to say because she borrowed money from my husband's brother and uncles (LPR) to "file papers" for my husband and never really did.

I assume that she didn't, but I was at least hoping that perhaps she filed something or anything for my husband, because I was under the impression all they had to do was properly file a petition with INS before 2000 to be grandfathered (or be a derivative beneficiary, which I now see my husband is not.) That's the reason why I'm asking.

[Hypnos 6,576]

Fair points. From what I had read it seemed as if 245(i) derivatives of an IR petition were a special allowable case, but now I'm not so sure of that. If a separate petition was filed for your husband by his stepmother then he's still good, otherwise I'm not sure he has any recourse under 245(i).

One thing I can think of off the top of my head...if it's determined that his assault is not a CIMT then you could file an I-130 for him and wait for it to be approved. Once it's at the NVC he could then apply for an I-601A provisional waiver, since his only ineligibility would be the overstay. If it were approved he would then interview for an immigrant visa overseas. He would likely be stuck outside the US for a time, but it is one possible route I can see.

You absolutely should not try that without taking exceptional legal advice first though. Hopefully he has a separate 245(i) status from his stepmother, as that would make things significantly easier.

Edited December 16, 2014 by Hypnos

[colorfulx 1]

Fair points. From what I had read it seemed as if 245(i) derivatives of an IR petition were a special allowable case, but now I'm not so sure of that. If a separate petition was filed for your husband by his stepmother then he's still good, otherwise I'm not sure he has any recourse under 245(i).

One thing I can think of off the top of my head...if it's determined that his assault is not a CIMT then you could file an I-130 for him and wait for it to be approved. Once it's at the NVC he could then apply for an I-601A provisional waiver, since his only ineligibility would be the overstay. If it were approved he would then interview for an immigrant visa overseas. He would likely be stuck outside the US for a time, but it is one possible route I can see.

You absolutely should not try that without taking exceptional legal advice first though. Hopefully he has a separate 245(i) status from his stepmother, as that would make things significantly easier.

It would make things a lot easier if she filed a petition for him, I guess that is something to ask the lawyer. I find a lot conflicting things online about that too. Some say that as long as it was properly filed and approved before April 2001 then he is still eligible even if they stopped working on them. Another website from what I gather says that isn't true, it had to of stayed current.

With the I-601A Provisional Waiver, I don't know if that's the route he can take, but that one he can stay inside the US to file (Or I think anyway?) But I think his arrests, even though they may not be CIMT could still knock him out of that one. The I-601 is the one that I'm most afraid of, because he will have to leave the country to file and I'm afraid they might not let him re-enter and while he does speak Spanish, it's not very good. English is primary and he can't read or write in Spanish. And I myself can't speak Spanish so that scares me. Plus all his immediate family are here, I'm sure he has cousins back home but we've never met them or anything and I don't know where we would stay in El Salvador. / Sorry I'm rambling.

These are all things I should remember to bring up to the lawyer. Anticipation is brewing and I just found out yesterday.

Perhaps you could help me; Do you know if it's possible to obtain records from immigration without receipt numbers or a lot of information? I have an old work authorization forum from 1993 for my husbands now deceased mother that has the immigration office that they used. Basically from his stepmoms point of view, I basically only know that it would of been for my husband, with her as the petitioner. / Not sure if it's even possible to obtain those records at all.

[aleful 1,905]

hi hypnos

the 245i doesn't change any of the laws, the petitions are the same, the only thing that it allows you is that if you have an approvable petition, you can wait in the country and interview by paying a fine, that's all

I got my GC under the 245i, my USC mom filed for me in 1999

the petitions and categories are still the same, but instead of going through consular processing, by paying a fine you could get the GC without leaving by paying the fine. whether labor certification or family petition

since there are no derivatives in immediate relatives, that doesn't change, the only change is paying a $1000 fine instead of a waiver to get the GC in country