BIA on 245(i) - Matter of ILIC

Before getting into the holding in Matter of Ilic, let's get the facts and the terminology straight:

Svetislav Ilic married Sabina (not her real name) on May 8, 1982.

On December 1, 1999, Sabina's U.S. citizen sister, Maria (also not her real name) filed an I-130 seeking to benefit Sabina with an immigrant visa. Since Svetislav was married to Sabina at the time of filing he became a derivative beneficiary of Maria's I-130 visa petition.

Since Maria's petition was filed before April 30, 2001, one of the requirements for benefiting from section 245(i) of the Act was fulfilled and, if she satisfied the other requirements, she would be considered a PRINCIPAL GRANDFATHERED ALIEN.

Svetislav was the husband of a principal grandfathered alien and thus became a DERIVATIVE GRANDFATHERED ALIEN.

Svetislav entered the United States on August 15, 2005 by surreptitiously crossing the Rio Grande (I don't really know how he entered, I just know he entered EWI).

On April 22, 2004 the ABC Corporation was able to successfully request USCIS to approve an I-140 petition for alien worker benefiting Svetislav.

Svetislav then filed an application to adjust status based on the approved I-140 petition. Although he last entered the U.S. without inspection he argued that he qualified for the exception to the strictures of sections 245(a) and (c) of the Act because he was a DERIVATIVE GRANDFATHERED ALIEN.

There are three holdings:

1) Derivative grandfathered aliens may apply for adjustment of status even if the underlying petition is not the same one that qualified him for 245(i). In Svetislav's case the petition that qualified him for 245(i) was the petition made by Maria, his wife's sister. But this was not the petition that he was using to adjust status. Svetislav was using the approved petition filed by his employer, ABC Corporation. Because Svetislav is a derivative grandfathered alien he can do this successfully.

2) The BIA also held that derivative grandfathered aliens do not need to comply with the physical presence requirement imposed by section 245(i). A brief explanation: there are different versions of section 245(i). For purposes of this case suffice it to say that the law requires that the foreigner seeking to benefit from section 245(i) must have been physically present in the United States on December 21, 2000.

As a result, one would think that the law requires Svetislav to by physically present in the United States on December 21, 2000 to be eligible to adjust status pursuant to section 245(i). One would further think that Svetislav is out of luck because it has been established that he entered the United States in August 2005. Not so. The BIA held that derivative grandfathered aliens do not need to prove physical presence.

3) In a related holding, the BIA held that just because the derivative grandfathered alien does not need to prove his physical presence that does not mean that section 245(i)'s physical presence requirement is waived. Remember, Svetislav is a derivative grandfathered alien because he was married to Sabina, the beneficiary of the qualifying visa petition that was filed by Maria, Sabina's sister, on December 1, 1999. So, the BIA held, for Svetislav to be a derivative grandfathered alien he needs to prove that Sabina, the principal grandfathered alien, was physically present in the United States on December 21, 2000. Svetislav did not provide this evidence to the Immigration Judge during his removal proceedings. The BIA sent the case back to the Immigration Judge to give Svetislav an opportunity to do so.

Finally, the BIA dismissed a creative argument made by the Department of Homeland Security (DHS). According to DHS, Svetislav was attempting to adjust status using an I-140 visa petition to which he was the principal alien. Svetislav was the derivative beneficiary of the visa filed by Maria, but he was a principal alien to the I-140 visa petition filed by ABC Corporation. As a result, argued Mary T. Abraham for the DHS, Svetislav could not be classified as a derivative grandfathered alien because de juris he became a principal grandfathered alien when he tried to adjust status on a visa petition in which he was the principal beneficiary.

The BIA dismissed Ms. Abraham's argument saying "We understand that... the term "principal alien who is a grandfathered alien" refers to the principal beneficiary of the QUALIFYING VISA PETITION." The qualifying visa petition is Maria's petition for Sabina. The principal grandfathered alien is Sabina.