The BIA answers this question in Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010) handed down on September 1, 2010. The question presented by the case is whether the spouse of an alien who is grandfathered for purposes of section 245(i) can independently adjust his status.
Mr. Legaspi is married to Ms. Blanco who as a child qualified as a derivative beneficiary under a petition filed by her paternal grandfather on behalf of her father in 1987. Ms. Blanco is grandfathered under 245(i) although when she adjusted, she did not utilize her grandfather’s petition but rather on an employment based immigrant visa filed in 2002.
Legaspi now claims, in his attempt to adjust by means of his marriage to Ms. Blanco, that he, like her, is qualified under 245(i). As a result, he argues, it makes no difference that he is now out of status.
The BIA holds that he cannot independently adjust his status under 245(i) because he bears no relationship to the principal beneficiary of the 1987 petition. In support of the holding, the BIA relies upon section 245(i)(1)(B) and 203(d) fo the Act which states that grandfathering only applies in a situation where the derivative is accompanying or following to join the principal alien. Here the principal alien is Ms. Blanco’s father. Since Mr. Legaspi is not in that category, he is not grandfathered.
Moreover, the BIA points out that the reason Ms. Blanco would be a derivative of her grandfather’s petition for her father is because she is a “child” of the principal beneficiary and to be a “child” she must be unmarried. The BIA concludes that Mr. Legaspi could not qualify under Ms. Blanco’s grandfather’s petition because to do so would preclude Ms. Blanco from qualifying in her own right. She would be disqualified because of her marriage to Mr. Lesgapi. It only stands to reason, says the BIA, that if the marriage would prevent Ms. Blanco from being a beneficiary, her husband could not benefit either.
While it is true that once an individual is qualified under 245(i), he or she is always qualified under 245(i), we now know that you cannot create more 245(i) qualified individuals simply by marrying them.
