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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