Anyone do AOS through 245i???

[HRQX 4,145]

On 4/14/2020 at 4:37 PM, Joooce said:

Any insight would be greatly appreciated!

@Visitor User adjusted per INA 245(i)

 

[Visitor User 253]

19 hours ago, HRQX said:

@Visitor User adjusted per INA 245(i)

 

You did?

[Visitor User 253]

Update?

 

[Demise 1,282]

On 4/14/2020 at 6:37 PM, Joooce said:

Hi everyone,

I had a question about AOS through INA 245i LIFE ACT

 

Key info

-My mom who petitioned for me is a LPR not USC.

-I entered legally on a tourist visa when I was young.

-Currently DACA recipient 

 

Oct 2015: my mom (LPR) filed a i-130 F2B for me (daughter over 21) 

April 2020: I got the i-130 approval letter, but it stated I am not eligible for AOS from the documents I provided. Im assuming this is because my mom is only a LPR and it does not forgive overstay. They are sending my documents to NVC for consular processing. However I wont be able to go through consular processing as I have accrued 1+ years of unlawful presence and will incur a 10 year ban if I leave for the interview. 

 

My lawyer asked my mom if she had filed any petitions under the 245i act. Her old employer actually petitioned a i-140 for her before the cut off date. We don't have the records so I submitted a FOIA (freedom of information request).

 

My question is - if my mom actually has record of the i-140 that was filed under 245i, would I be able to adjust status through that as a derivative beneficiary?

 

 

Any insight would be greatly appreciated!

 

Well I am definitely late to the party, however.

 

If she was petitioned by an employer before April 30th 2001 or had a PERM labor certification filed on or before April 30th 2001, and was in US on December 21, 2000 if the petition or labor certification was filed after January 14, 1998 (there's no physical presence requirement for petitions filed before 1/14/1998), then yes you would be what's known as "grandfathered derivative" for purposes of 245(i) and are able to adjust via basically any means ignoring any EWI, overstay, or status violations.

 

Definitely do a FOIA and get that old I-140. Also, one thing to consider, the I-140 doesn't necessarily had to been approved. If it was "approvable when filed" then you can argue with USCIS that it probably would've been approved. Also, for an I-140 you can actually go a step further and take the underlying labor petition (unless it was an EB-1 or EB-2 NIW case) and use that as basis of eligibility for 245(i) instead.

[Joooce 2]

On 9/8/2020 at 4:24 AM, Demise said:

Well I am definitely late to the party, however.

 

If she was petitioned by an employer before April 30th 2001 or had a PERM labor certification filed on or before April 30th 2001, and was in US on December 21, 2000 if the petition or labor certification was filed after January 14, 1998 (there's no physical presence requirement for petitions filed before 1/14/1998), then yes you would be what's known as "grandfathered derivative" for purposes of 245(i) and are able to adjust via basically any means ignoring any EWI, overstay, or status violations.

 

Definitely do a FOIA and get that old I-140. Also, one thing to consider, the I-140 doesn't necessarily had to been approved. If it was "approvable when filed" then you can argue with USCIS that it probably would've been approved. Also, for an I-140 you can actually go a step further and take the underlying labor petition (unless it was an EB-1 or EB-2 NIW case) and use that as basis of eligibility for 245(i) instead.

Thank you! Yes I filed a FOIA for my mom's A-file through their FIRST portal. It took about 4-5 months for them to gather all the documents. They uploaded a PDF of all her documents in the portal. I was able to sift through and find her old i-140 which was stamped as approved back in 2001! 

 

Recently submitted my AOS packet to USCIS - hoping they cash my checks soon! Thanks for everyone's input!

[Visitor User 253]

18 hours ago, Joooce said:

Thank you! Yes I filed a FOIA for my mom's A-file through their FIRST portal. It took about 4-5 months for them to gather all the documents. They uploaded a PDF of all her documents in the portal. I was able to sift through and find her old i-140 which was stamped as approved back in 2001! 

 

Recently submitted my AOS packet to USCIS - hoping they cash my checks soon! Thanks for everyone's input!

Awesome.