A beneficiary of a visa petition or labor certification filed after January 14, 1998, must demonstrate that he or she was physically present in the United States on December 21, 2000.
In a recent case decided on March 8, 2012[1] it was solidified that for an alien to independently qualify for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as a derivative grandfathered alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.
Under the regulations relating to section 245(i), there are two categories of grandfathered aliens. The first category, principal grandfathered aliens, encompasses beneficiaries of visa petitions or labor certifications that were (1) filed on or before April 30, 2001; (2) properly filed; and (3) approvable when filed. 8 C.F.R. § 1245.10(a)(i); see also Matter of Legaspi, 25 I&N Dec. at 329. If the visa petition or labor certification was filed for the principal grandfathered alien after January 14, 1998, he or she must have been physically present in the United States on December 21, 2000. 8 C.F.R. § 1245.10(a)(ii).
The second category, derivative grandfathered aliens, encompasses spouses and children of principal grandfathered aliens, if eligible to receive a visa under section 203(d) of the Act. The derivatives do not need to establish physical presence even if the qualifying visa petition was filed after January 14, 1998, given that they may be following the principal grandfathered alien to join him or her in the United States. 8 C.F.R. § 1245.10(a)(ii). Derivative beneficiaries are only entitled to the status available to the principal alien under section 203(d) of the Act. See Matter of Naulu, 19 I&N Dec. 351, 353 (BIA 1986) (observing that “the right of a derivative beneficiary to permanent resident status is wholly dependent upon that of the principal alien”).
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