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245(i) Section regarding Derivative Beneficiary

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  • 245(i) Section regarding Derivative Beneficiary

    Anyone has qualified for Section 245(i) using the derivative option? Here is our scenario. US Citizen son filed I-130 for mother by the April 30, 2001 deadline. Mother has a daugther who at the time of I-130 filing was 14. Daugther is now married to US Citizen. If I petition for her could we use the mother's I-130 to grandfather her under Section 245(i). Is there any conflict with the fact that the original petitioner is/was my wife's sibling. Thank you!

  • #2
    Anyone has qualified for Section 245(i) using the derivative option? Here is our scenario. US Citizen son filed I-130 for mother by the April 30, 2001 deadline. Mother has a daugther who at the time of I-130 filing was 14. Daugther is now married to US Citizen. If I petition for her could we use the mother's I-130 to grandfather her under Section 245(i). Is there any conflict with the fact that the original petitioner is/was my wife's sibling. Thank you!

    Comment


    • #3
      Pieces of information don't connect. Who are you in the scenario? Where's the daughter as of now? Please elaborate.

      Comment


      • #4
        <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Rough Neighbor:
        Pieces of information don't connect. Who are you in the scenario? Where's the daughter as of now? Please elaborate. </div></BLOCKQUOTE>

        I'm the US Citizen spouse. My wife's mother had an I-130 filed by April 30, 2001 by her US Citizen son. My wife is currently in the US. She EWI March 2000. The question is, if I the USC spouse petition her can we use the I-130 filed on behalf of her mother to be grandfathered under section 245(i) as a derivative beneficiary. Is there any conflict with the fact the one that petitioned her mother is/was my wife's brother. Thank you!

        Comment


        • #5
          First, she satisfies the Section 245(i) benefit derivation grandfathering requirement at age 14 when the I-130 was filed by her USC brother for their mother. Second, she could satisfy the continuous physical presence requirement from December 21, 2000 because she EWI'ed in March 2000 as you said. (Granting that her presence on US soil wasn't interrupted until now and she can show documentary evidence). Third and last, the fact that she and the original I-130 petitioner are siblings doesn't undermine her 245(i) coverage at all.

          (Just an opinion - take it or leave it).

          Comment


          • #6
            Thank you Rough Neighbor! Your feedback is greatly appreciated! My wife has been present on US soil uninterrupted since March 2000. We have evidence of this through school records as far as the December 21, 2000 date goes. We also have proof her mother's I-130 was properly filed on April 24, 2001 (approved 3/2002). Where I'm getting a bit confused and why I also asked the fact that my wife's sibling was who petitioned their mother is that according to USCIS Section 245i defines the term "beneficiary" to include spouse or children eligible to receive a visa under section 203d of the Act. It goes on to say that to "accompanying or following to join the principal alien". Then I read that the category "immediate relative of a US Citizen" is a category that does not allow derivatives. Her mother in this case was in an "immediate relative" category which does not allow derivative beneficiaries. What relationship does this have to 245i if any at all? Thank you!

            Comment


            • #7
              Oh, sorry, don't be confused between the two distinct immigration benefits derivation.

              INA Section 203(d) provides that spouses and children of "preference immigrants" are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal, 'except' when the principal beneficiary is an immediate relative such as the parent of your wife's brother in this particular case. Hence, it deals more on the "unavailability of visa" for the daughter that the mother got.

              Section 245(i) benefit coverage is just a coverage (not a visa) that the daughter would derive from the I-130 grandfathering provision. It's your petition for her that would give her the immigrant visa. It's her 245(i) grandfathered coverage that would pardon her EWI violation.

              (Just an opinion, not a legal advice).

              Comment


              • #8
                Rough Neighbor,
                How would you interpret the following explanation from another person for our cenario?
                "Immediate is the person being petitioned, the person who qualifies. Derivative is if the petitioner has a spouse or minor child.
                US parents can petition for married children. The child would be the immediate relative, the spouse and minor children under 21 at the time of the appointment are the derivative of spouse's petition.

                US siblings can petition married siblings, same scenario. The brother or sister is the immediate relative and the spouse or minor child under 21 at the time of the appointment would benefit from the petition.

                In these scenarios the spouse and minor child would obtain their visa, as well as the immediate family member.

                Both scenarios qualify under spouses and children of principal petitioner. Derivative is through marriage.

                Your scenario,

                Your wife doesn't qualify, because the petitions are filed separately. Son had to petition his mother on one hand, and petition separately his siblings." End Comment.

                In a sense this person is saying that because the US petitioner had an option to file a separate petition for a sibling and didn't it does not give the sibling a derivative benefit by virtue of the mother's application. If this is correct then the March 2005 245i memo from Yates makes no mention of a disqualifying basis for derivative spouses or children of a principal alien based on relationship to the USC petitioner, except that the scenarios given on the memo "assume that the spouse of child does not have his/her own independent basis to claim the 245i benefit. What are your thoughts? Thank you!

                Comment


                • #9
                  Here is comment from another source on the same issue..

                  "What I can say, by means of a quick guide, is that US Citizen sposors of family petitions cannot have derivatives in the sense of the US Citizen sponsoring for a relatives 'attached' to the intended beneficiary. This is a legal fiction. A derivative is one that derives a benefit from a dependent immigrant. For example, your wife would be your dependent beneficiary from your petition for her. If she has minor children with you (or even stepchildren in some instances), the children become 'derivatives' of her dependent posture. Under the sponsorship rules for US Citizens, each qualified relative within the 'immediate relative category', that is spouses, minor children and parents, must have an independent petition filed on their behalf. So, your wife would have a petition, your son would have a separate petition, and so forth.

                  The rules are different for green card holders that sponsor for their qualifying relatives. If you had a green card, you could file for your wife and all minor children in one petition. So in the green card sponsoring categories, there are derivative relatives.

                  With regard to 245(i) and US Citizen sponsors of spouses, minor children and parents, the basis for 245(i) must be established by each beneficiary because each has to be petitioned separately, not in a family group." End Comment.

                  Thank you!

                  Comment


                  • #10
                    dcontto,

                    I have not seen or read about a similar case...so I can't say I know how it works for sure, but I can understand and follow your logic better than RN's.

                    As I see it, in the eyes of USCIS, your wife has never been petitioned for; not as a principal beneficiary, not as a derivate (since there is no derivate when USC child petitions for a parent)... so I don't see how she could benefit from 245(i). It would be a different story if your brother in-law petitioned for his sister (your wife) seperately when he petitioned for his mother.

                    If there is a chance for your wife to claim 245(i), I think you guys need a very good lawyer.

                    I see that you've done a lot of homework on this.

                    RN, care to post some link that would support your opinion? I am interested to learn...

                    Comment


                    • #11
                      aneri,

                      Thank you for your feedback as well. I also see your point as it makes sense to me as well. I'd like to believe my wife's mother petition grandfathers her, but I also realize how USCIS can turn this back on us and precisely say she is not considered a derivative beneficiary and cannot adjust under Section 245i. If that's the case do you know what section of the Act they could/would use to disqualify her? I'm sure we are not the only ones with this scenario.

                      Now, my USC brother-in-law did file an I-130 for my wife (sibling) on or about the time he filed his mother's petition (April 2001). The issue we have with his petition for my wife is that we only have a WAC# and not a single proof of the date it was received at USCIS to meet the deadline. We've tried FOIA but because my brother-in-law passed away in 2005 USCIS refuses to give information to the petition beneficiary (my wife). We came across this derivative information which is what we are trying to explore since we do have proof of my wife's mother I-130 filing, etc. We know the petition for my wife by her brother was received, in fact it was approved on June 2005, but we have no records to support the date it was received by USCIS and I know we have the burden of proof. Any thoughts? Thank you!

                      Comment


                      • #12
                        Do you have approval letter of I-130 for your wife? Any other documents? Look for Priority date!
                        Have you tried to check on-line status using WAC#? Any similar info there?

                        Comment


                        • #13
                          Unfortunately since his passing away all documents they ever had were lost. We don't have the approval letter. Besides the WAC# we have a copy of the I-130 that was filed on behalf on my wife by her brother, a money order receipt (with date) for her I-130. The online status for the WAC shows the application was approved on June 2005 and since July of 2008 documents has been on hold at USCIS due to a bad address. When we filed the FOIA I guess they tried to re-submit to the old address and got it back. We can't even change the address unless the petitioner does it which of course he is no longer here. From my wife's mother I-130 we have documentation showing priority date and on my wife's I-130 there is a section where the petitioner describes petitioning her mother as well. So, no hard evidence of WHEN it was received, but we know it was. With what we have on my wife's I-130, reference on my wife's I-130 that her brother petitioned also her mother and documentation on my wife's filing be sufficient to validate the date? It's risky without us knowing what date USCIS shows receipt of her I-130. Thank you!

                          Comment


                          • #14
                            Update: I did called US Department of State NVC and based on her CDJ# her "priority date" is April 30, 2001. I understand the "priority date" is the date of record the petition was received by USCIS. Then I called USCIS and again they also confirmed the priority date as being April 30, 2001. The process date was 8/22/01, however, USCIS moved the date back to the sunset date of April 30, 2001 because they showed it as meeting the deadline. USCIS offered two options for us to obtain copies. One is to write to the California Service Director with a humanitarian reason to "preserve" the original I-130 application (no guarantees there). The other option is to file an I-824 to request a duplicate copy of approval notice ($340). So is this approval notice a MUST or do we have enough information to submit her petition. Could we make a statement of these verbal confirmations along with the I-485A, receipt number, etc or will USCIS demand the approval letter? I'm sure USCIS will have to check their records as welll of our claims. Thank you!

                            Comment


                            • #15
                              <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Rough Neighbor:
                              Pieces of information don't connect. Who are you in the scenario? Where's the daughter as of now? Please elaborate. </div></BLOCKQUOTE>

                              DUH
                              If Democrats Had Any Brains, They'd Be Republicans

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