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BIA Ruling on Grandfathering Requirements under 245i

| Mar 21, 2012 | Immigration Court |

There is a new Board of Immigration Appeals precedential case regarding adjustment of status under 245(i). The case is Matter of Svetislav, 25 I&N Dec. 717 (BIA 2012). Anyone applying for adjustment of status under section 245(i) certainly needs to read this opinion, as it deals with the subject of grandfathering and more specifically, the issue of derivatives being grandfathered. In this particular case, the respondent was trying to apply under 245(i) as a derivative of his wife, who was the beneficiary of an I-130 filed on December 1, 1999. In a nutshell, the Board remanded the case to the Immigration Judge to determine whether the principal beneficiary–the wife–satisfied the physical presence requirement laid out by INA 245(i), namely, whether she was physically present in the US on December 21, 2000. The holding essentially concludes that in order for a person to adjust status under 245(i) as a derivative grandfathered alien, it must be shown that the principal beneficiary satisfies the grandfathering requirements, which in some cases means demonstrating physical presence as per INA 245(i)(1)(C).

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