Anyone do AOS through 245i???

[Joooce 2]

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!

 

Edited April 14, 2020 by Joooce

[Boiler 43,359]

Your mother could find a waiver, such a long time since 2451 was enacted and I have forgot many of the details, I would speak with the Lawyer.

[SusieQQQ 11,584]

While I don’t know anything about this act, it’s not clear to me if this was the basis under which your mother actually adjusted. If not, she was not a principal beneficiary under it, so surely you cannot be a derivative.  [Begs the question of why she didn’t add you as a derivative at the time if that’s how she adjusted?] Unless I misunderstand what the lawyer means. 

[Joooce 2]

23 minutes ago, SusieQQQ said:

While I don’t know anything about this act, it’s not clear to me if this was the basis under which your mother actually adjusted. If not, she was not a principal beneficiary under it, so surely you cannot be a derivative.  [Begs the question of why she didn’t add you as a derivative at the time if that’s how she adjusted?] Unless I misunderstand what the lawyer means. 

Sorry, I wasnt clear on that. So my mom had the i-140 petitioned for her back in 2001 but she never acted on it. So technically there is only a record of the i-140 being filed under 245i. According to 245i as long as you filed before 4/30/2001 then I think that primary beneficiary and any derivative beneficiary should be eligible to apply for AOS. She eventually got her LPR status through my sister who is a USC

Edited April 15, 2020 by Joooce

[Boiler 43,359]

Presumably from Mexico? Only only one I can think that is backed up so far. I think all the others have become current and scraping my memory cells she could have used 245i assuming she entered without inspection to adjust. I can not remember if that applies to derivatives.

 

 

[SusieQQQ 11,584]

48 minutes ago, Joooce said:

Sorry, I wasnt clear on that. So my mom had the i-140 petitioned for her back in 2001 but she never acted on it. So technically there is only a record of the i-140 being filed under 245i. According to 245i as long as you filed before 4/30/2001 then I think that primary beneficiary and any derivative beneficiary should be eligible to apply for AOS. She eventually got her LPR status through my sister who is a USC

No derivative is ever eligible if there is no principal getting a visa/adjusting status/whatever.  Can you explain exactly what it is your lawyer thinks you are able to do? Why were you not able to adjust as a derivative when your mother adjusted through her sister?

[SusieQQQ 11,584]

How old are you/when did you turn 21?

seems to me even if 245 somehow applies (i still don’t see how) you would either have aged out or not sought to acquire within a year of visa becoming available if you had not aged out at that stage, making you ineligible to apply as a derivative now. Unless there is some major exception in 245 that prevented derivatives aging out, never heard of anything like that, but as I said I’m unfamiliar with this act.

Edited April 15, 2020 by SusieQQQ

[Boiler 43,359]

Mother would have been an immediate no derivatives.

[SusieQQQ 11,584]

3 minutes ago, Boiler said:

Mother would have been an immediate no derivatives.

Oh I misread, I thought it was mother's sister. Right.

Edited April 15, 2020 by SusieQQQ

[Joooce 2]

11 minutes ago, SusieQQQ said:

How old are you/when did you turn 21?

seems to me even if 245 somehow applies (i still don’t see how) you would either have aged out or not sought to acquire within a year of visa becoming available if you had not aged out at that stage, making you ineligible to apply as a derivative now. Unless there is some major exception in 245 that prevented derivatives aging out, never heard of anything like that.

Hi - so Ive been reading most of the info from here:

https://www.ilrc.org/sites/default/files/resources/245i_everything_you_want_to_know-20180628.pdf

 

It is super long so I will copy and paste the relevant parts:

 

245(i) adjustment eligibility is based on the existence of an old petition, filed on or before April 30, 2001, for which your client was the principal or derivative beneficiary. Derivative beneficiaries are the spouses and children (unmarried and under age 21) of the principal beneficiary at the time the petition was filed, or those relationships that came into being before April 30, 2001 while a petition was still active.7

 

This means that someone who was a spouse or child at that time qualifies for 245(i) now, even if they no longer have that relationship. For instance, children who are over 21 and/or married and no longer a “child” would still have 245(i) protection if they were a child of a petition before the cut-off date.

 

According to this doc i should be "grandfathered in" due to my mom filing a petition before April 2001. Im 26 now

Edited April 15, 2020 by Joooce

[Joooce 2]

12 minutes ago, Boiler said:

Mother would have been an immediate no derivatives.

My mom gained LPR through my sis, who is her daughter as well. Haha it gets confusing 

Edited April 15, 2020 by Joooce

[SusieQQQ 11,584]

Yeah I’ve just been reading up, it does seem the case.

 

The BIA confirmed the long-standing USCIS policy that both principal and derivative grandfathered aliens are independently eligible to apply for section 245(i) adjustment of status and either may be the principal adjustment applicant under that section. The regulations define “grandfathered” as “an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act)” of a qualifying visa petition or labor certification that was filed on or before April 30, 2001.” 8 CFR § 1245.10(a)(1)(i).

https://cliniclegal.org/resources/family-based-immigration-law/bia-clarifies-when-derivatives-may-adjust-under-245i

 

What an absolute gift from uscis this was. I guess this is what your lawyer is basing it on...if that reading is correct you should be golden, but absolutely have a lawyer along with you every step of the way. 

[Joooce 2]

46 minutes ago, SusieQQQ said:

Yeah I’ve just been reading up, it does seem the case.

 

The BIA confirmed the long-standing USCIS policy that both principal and derivative grandfathered aliens are independently eligible to apply for section 245(i) adjustment of status and either may be the principal adjustment applicant under that section. The regulations define “grandfathered” as “an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act)” of a qualifying visa petition or labor certification that was filed on or before April 30, 2001.” 8 CFR § 1245.10(a)(1)(i).

https://cliniclegal.org/resources/family-based-immigration-law/bia-clarifies-when-derivatives-may-adjust-under-245i

 

What an absolute gift from uscis this was. I guess this is what your lawyer is basing it on...if that reading is correct you should be golden, but absolutely have a lawyer along with you every step of the way. 

Yes! That's the one. Wow, thank you for double checking/reading up on this. If all works out with the i-140 my mom had in 2001, hopefully I can AOS. Just needed a confirmation that I was reading this right

 

Many thanks!

 

Edited April 15, 2020 by Joooce

[jcracked52 55]

I applied under 245i. I know everything about it. Yes, you can qualify to adjust under 245i if your mom's i140 or labor was filed before April 30th, 2001. However, you must submit evidence of your mom's physical presence in US on December 21st, 2000 if your mom filed between January 15, 1998 and April 30, 2001. Was your mom in US on December 21st, 2000? If your mom filed the petition before January 15, 1998, then physical presence in US proof on December 21st, 2000 is not needed. 

 

And your mom's i140 didn't have to be approved, just have to prove that it was "approvable when filed" and not some frivolous filing. Ask me anything via PM. I have heavily researched on this. 

Edited April 15, 2020 by jcracked52

[Joooce 2]

2 hours ago, jcracked52 said:

I applied under 245i. I know everything about it. Yes, you can qualify to adjust under 245i if your mom's i140 or labor was filed before April 30th, 2001. However, you must submit evidence of your mom's physical presence in US on December 21st, 2000 if your mom filed between January 15, 1998 and April 30, 2001. Was your mom in US on December 21st, 2000? If your mom filed the petition before January 15, 1998, then physical presence in US proof on December 21st, 2000 is not needed. 

 

And your mom's i140 didn't have to be approved, just have to prove that it was "approvable when filed" and not some frivolous filing. Ask me anything via PM. I have heavily researched on this. 

Thanks! I sent you a PM