LOCATION: Cleveland, OH
Our client is from Mexico who came to the U.S. without inspection and admission in 1988 with her parents. Since that time, she never left the United States.
In November 1991, our client’s father filed an I-130 (F2A) petition for her mother. This I-130 petition was approved in March 1992. At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. However, our client’s parents divorced in 2007. Furthermore, our client was placed in removal proceeding in December 2009.
Around November 2010, our client contacted our office to represent her at removal proceedings. After we reviewed her previous immigration documents, we determined that she might be eligible to adjust her status under INA 245(i) and the Child Status Protection Act (CSPA). She retained our office on December 1, 2010 and our attorney represented her at her master calendar hearing. Cancellation of Removal relief was requested and we preserved possible adjustment of status relief through INA 245(i) and CSPA.
Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.
Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.
On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.
Section 3 of CSPA, codified in section 203(h) of the INA, provides that “If the age of the alien is determined to be 21 years of age or older… the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
Our client was the derivative beneficiary of her father’s petition for her mother in November, 1991. Our client is now older than 21. According to Section 3 of CSPA, a new I-130 petition by our client’s father on behalf of our client should automatically retain the priority date of the original I-130 petition, which was November 1991, in which our client was a derivative beneficiary. If this new I-130 is approved with a November 1991 priority date, our client would be eligible to adjust under 245(i) since the priority date is current and the petition was filed before January 1998. So it was two petitions that saved her case, one for 245i, and the other for adjustment eligibility, retaining the old priority date under CSPA.
On January 11, 2012, our office filed the I-130 Petition with a cover brief (citing the CSPA provision) and other supporting documents. Her I-130 was approved by the USCIS California Service Center on June 14, 2012 with the old priority date (November 1991). Now, we can work on terminating her proceedings for CIS adjustment of status.
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