BIA releases precedential interpretation of 245i grandfathering

In April of 2013, the Board of Immigration Appeals (BIA) decided Matter of Butt, 26 I & N Dec. 108 (BIA 2013). The Butt ruling is particularly important because it provides a more transparent interpretation of what constitutes "grandfathering" for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act.

Mr. Butt was an alien from Pakistan who entered the United States without inspection. On April 30, 2001, the Sweet N' Sour corporation filed a labor certification for him, so that he could act as a manager for their company. Two years later, on Dec 29, 2003, New York's Department of Labor (DOL) mailed a request for information. It was responded to in a timely manner, as was the second request for information received on Sept 1, 2004. Ultimately, however, the petition was denied. Sweet N' Sour subsequently petitioned again for Mr. Butt on March 22, 2005, and this time the application was approved. Accordingly, an EB-3 petition was submitted on his behalf and approved February 12, 2008 with a priority date of March 22, 2005. However, USCIS later on denied his 245(i) adjustment application on the basis that the initial labor certification petition filed on April 30, 2001 had been denied. As such, DHS deemed Mr. Butt to be unlawfully present in the US and initiated removal proceedings against him. On Aug 13, 2008 an immigration judge ordered Mr. Butt removed, and Mr. Butt appealed.

On appeal, the court dealt squarely with the issue of "grandfathering" and the meaning of "approvable when filed," which is defined as a petition that is "properly filed," "meritorious in fact," and "non-frivolous." While aliens who enter without inspection are generally barred from adjustment of status, those who are grandfathered under section 245(i) of the Act remain eligible provided that they pay a penalty fee and satisfy certain statutory requirements (i.e. filed before April 30, 2001, etc.). According to 8 C.F.R. §§ 245.10(i), the alien will continue to be grandfathered on the basis of a labor certification even if the petition is subsequently denied, revoked or withdrawn so long as they were "properly filed", "meritorious in fact" and "non-frivolous."

First, the court addressed whether the case was properly filed. In the above case, the employer had to submit the labor certification application on or before April 30, 2001. The court confirmed that a properly filed labor certification application must be a complete application. However, a complete application could still raise questions that generate requests for additional information. While the immigration judge did find that Mr. Butt's rate of pay did not meet the regulations, the board of appeals decided that this was not an issue pertaining to the completeness of his application. The actual completeness of the application was proven by the local office's date stamp, demonstrating its acceptance. Therefore, the court found that Mr. Butt met this requirement.

Secondly, the court looked towards whether the application was "meritorious in fact." Because the term was not defined in the regulations, the court looked to agency memoranda and opinion letters to define it. The court defined "meritorious in fact" as being "properly filed" and "non-frivolous," with evidence that a genuine bona fide employer-employee relationship exists where the employer has the ability to hire the sponsored alien and there is no evidence that a labor certification was based on fraud.

Finally, the court confronted the issue of whether the application was non-frivolous. 8 C.F.R. § 245.10(a)(3) defines "frivolous" as being "patently without substance." Since neither the Immigration Judge nor USCIS asserted that the application was frivolous, the court determined that the application was not. Having met all three requirements, the Board found that Mr. Butt had been grandfathered. Accordingly, the case was remanded to the Immigration Judge for further proceedings.

The ruling has far reaching ramifications that potentially affect any alien who had a previously filed labor certification prior to April 30, 2001 that was subsequently denied. People in these situations should seek the advice of a qualified immigration attorney to assess whether they are nevertheless protected under 245(i).