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Immigration Law Associates, PC

Rule on Physical Presence for some Derivative Beneficiaries

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In another important decision, the BIA clarified in Matter of Ilic, 25 I.& N. Dec. 717 (BIA 2012) that only the principal beneficiary needs to satisfy the grandfathering rules including physical presence for the purpose of adjustment of status under INA § 245 (i). See INA § 245 (i)(1)(C).

Svetislav Ilic who was the derivative beneficiary in this case) was put in removal proceeding and then granted adjustment of status by IJ under § 245 (i), 8 U.S.C. § 1255(i) based on an approved I-130 petition for his wife. He qualified for this section based on being the principal beneficiary of the petition filed by sister in 1999. Ilic was also the beneficiary of an approved I-140 petition with a priority date in 2004. He admitted that he was not present in the United States as of December 21, 2000. DHS argued that the rules of physical presence should apply to Ilic as well, because he had become “principal grandfathered alien” since he was the “principal” adjustment of status applicant.

The BIA explained that there are two categories of grandfathered aliens – principals and derivatives. Therefore, different rules on physical presence apply. If Ilic, not his wife, was a principal beneficiary, the regulations would require him to be physically present in the US as of December 21, 2000. Although the BIA referred to 8 C.F.R. § 1245.10(a)(1)(ii) and 22 C.F.R. § 40.1 (q) and decided that Ilic was a derivative. 8 C.F.R. § 1245.10(a)(1)(ii) states that the physical presence” requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien.” Consequently, the only applicant whose physical presence as of December 21, 2000 matters, was his wife’s. Based on that factual finding the BIA remanded the matter.

Filed under: Immigration Issues

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