USING YOUR OLD SECTION 245(i) FILING FOR A NEWLY FILED CASE – Part 4

by Michael J. Gurfinkel, Esq.

In a previous article, I discussed some of the commonly asked questions about the benefits of Section 245(i), which was a law that allows a person who is out of status to adjust status (be interviewed for a green card in the U.S.), even if they overstayed, worked without authorization, snuck across the border, jumped ship, etc.

Here are some other commonly asked questions about Section 245(i):

11. If I was “grandfatherd” under Section 245(i), can my spouse be the one to have a newly filed case with her employer?

While a spouse and children of a “grandfathered” alien can also acquire Section 245(i) benefits as derivative beneficiaries, USCIS will allow the spouse of the grandfathered alien to directly file a petition on the spouse’s behalf only in certain circumstances. The derivative spouse of a grandfathered alien is able to become the principal beneficiary of a newly filed case only if they were married to the grandfathered alien at the time the original 245(i) case was filed. If they were not married at the time, then only the original grandfathered alien would be able to be petitioned under a newly filed case.

For example, let’s say that a person was petitioned by his sister in 1997, when he was still single. Clearly, that person would have Section 245(i) eligibility. While waiting for the priority date on that petition to become current, that alien gets married in 2002 to a TNT. The TNT spouse now gets to use (or borrow) the 245(i). Suppose the TNT spouse has an employer willing to petition her. Unfortunately, because she was not married to the grandfathered alien at the time, the F-4 petition was originally filed, she cannot be the “principal alien” on a case filed by her employer after the 245(i) deadline. The husband (the original grandfathered alien) would have to have his employer filed a petition on his behalf.

If however, the couple was married at the time the original 245(i) case was filed, then the spouse could be the principal alien on a newly filed case by her employer.

12. What if my spouse and I divorce before we adjust status. Would I retain Section 245(i) eligibility even after the divorce?

A grandfathered spouse would retain Section 245(i), even after a divorce.
If an employer or family member petitions a person, that person is, of course, grandfathered under Section 245(i). In addition, his or her spouse is also grandfathered. However, if, before the principal alien adjusts status, the couple gets divorced, the spouse would still retain Section 245(i) eligibility, even though he or she is no longer married to the person who was petitioned, (and therefore no longer eligible to adjust under the sponsored alien’s petition). In that case, the divorced spouse could find an employer, and be sponsored by his/her employer for a new labor certification, filed long after the deadline.

As you can see, there are numerous advantages to Section 245(i), once you have been grandfathered. The fact that Section 245(i) eligibility is transferable to a different case, and is retained even after various changes in circumstances, means that you should look for faster ways to obtain a green card.

If you have been grandfathered under Section 245(i) under a slow-family petition, you should consider finding an employer for labor certification. In addition, I strongly recommend that you seek the advice of a reputable attorney, who can analyze your situation, and advise you on the proper way of legalizing your status in the fastest possible way, using the transferability benefits of Section 245(i). If you are out of status, but have Section 245(i) eligibility, use it to its fullest potential!