22 May May the Spouse and Children of Principal Immigrant Adjust Status under Sec. 245 (i)?
The spouse and children of principal immigrant petitioned under family based and employment based petition are called derivative aliens who may qualify for adjustment of status under INA Sec. 245 (i).
Question: What is adjustment of status under Sec. 245(i)?
Answer: Aliens who are in the United States may adjust status to permanent resident. Adjustment of status under Sec. 245 (i) allows beneficiaries of visa petition or labor certification to adjust status despite (1) entering the United States without inspection, (2) working without authorization or (3) violating the terms of any nonimmigrant visa she might possessed, by paying a fine of $1000.
Question: Who qualifies for adjustment of status under Sec. 245(i)?
Answer: To qualify for adjustment of status under Sec. 245 (i) the applicant must (1) have an immigrant petition or labor certification filed by April 30, 2001, (2) and if the immigrant petition or labor certification was filed between January 14, 1998 and April 30, 2001, the applicant must prove physical presence in the United States on December 21, 2000. The derivative spouse and children of the principal beneficiary also qualify if the petition or labor certification was filed by April 30, 2001. Derivative aliens do not have to prove physical presence in the United States on December 21, 2000.
Question: What are examples of derivative aliens who may qualify for adjustment of status?
Answer: Peter is a U.S. citizen who filed an immigrant petition for his brother Primo in 1983. At the date the petition was filed in 1983, Primo has an 8 year old son named Derek. Derek is a derivative alien of an immigrant visa petition filed for Primo. If Derek is in the United States he qualified to adjust status under Sec. 245(i) because at the time of the visa petition Derek is a derivative child below 21 years of age.
Example 2. In the above example, Maria is the spouse of Primo when the petition by Peter was filed in 1983. Maria is a derivative beneficiary of the petition for Primo. If Maria is in the United States she can adjust status under Sec. 245 (i) with Primo or with other visa categories currently available to her.
Note: This is not a legal advice. Our Law Firm has successfully represented clients using Sec. 245 (i) to adjust status for derivative spouse and children.