A new BIA case came out which should clear out some confusion on whether spouses of grandfathered relatives are protected under 245(i). They’re not. The Board held in Matter of Legaspi that an alien is not independently grandfathered for purposes of adjustment of status under section 245(i), by virtue of marriage to another alien who is grandfathered as the result of having been a derivative beneficiary of a visa petition.

A simple example is as follows: A petitioned his son B back in 1997. B’s son, C, is a derivative beneficiary of A’s petition to B, and is thus grandfathered under 245(i). C’s wife under this BIA case is not independently grandfathered under this petition and is thus not protected under 245(i).

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In assessing whether a person can adjust status based on marriage to a U.S. Citizen, one of the documents we look for is the I-94. Unless you came in due to fraud or misrepresentation, the I-94 is usually an indication that you entered either legally or were paroled in the United States. Unless there are other grounds of inadmissibility, that usually means you can adjust to permanent resident status, but is not always the case. In Matter of Castillo-Padilla, the Board held that an alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act. It should be noted that an I-94 was still issued but did not automatically mean that Respondent was “paroled.” Thus aliens and practitioners should take caution on the type of parole / conditional parole aliens are subjected to, and not assume based on an I-94 that one entered legally or was paroled and could thus apply for adjustment.

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