The Board of Immigration Appeals (BIA or Board) recently held in Matter of Ilic, 25 I. & N. Dec. 717 (B.I.A. Mar. 8, 2012), that, in order for a foreign national to independently qualify for adjustment of status under INA § 245(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 INA § 245(i)(1)(C), if applicable.

Section 245(i) of the Immigration and Nationality Act permits certain foreign nationals to adjust status to Lawful Permanent Resident, notwithstanding an unlawful entry or other unlawful presence. To be eligible for 245(i), the foreign national must have had an immigrant visa petition or labor certification filed on her behalf prior to April30, 2001, be admissible to the United States, and have an immigrant visa immediately available to her. There is also a requirement that the245(i) applicant be physically present in the U.S. on December 21, 2000. Beneficiaries of derivative petitions filed prior to April 30, 2001, or dependents of principal beneficiaries of such petitions, are also eligible to be grandfathered.

The respondent's wife in Matter of Ilic is the beneficiary of an approved family-based immigrant visa petition, which was filed by her sister on December 1, 1999. The respondent entered the U.S. most recently on August 15, 2005, without inspection. As the beneficiary of an approved employment-based immigrant visa petition filed by his employer, he would be eligible to adjust under 245(i) if he can be grandfathered based on the 1999 petition filed for his wife. The Immigration Judge found the respondent eligible to adjust under 245(i),but the Department of Homeland Security (DHS) appealed.

In its decision, the Board explained that the respondent's eligibility turned on whether the principal beneficiary of the qualifying visa petition (i.e. his wife) could meet all the requirements to adjust under 245(i) herself, including the physical presence requirement. Derivative grandfathered applicants are not required to meet this physical presence requirement themselves, but the Board held that a derivative beneficiary is only entitled to the status available to the principal beneficiary. Thus, respondent had to prove that his wife met the requirements of 245(i). Because the record was unclear as to whether the respondent's wife was physically present in the U.S. on December 21, 2000, the Board remanded to the Immigration Judge for further fact-finding.