IndiaPost.com - Bia and second circuit on grandfathering and implications for employment-based cases

Recent decisions from the Board of Immigration Appeals and U.S. Court of Appeals for the Second Circuit raise new questions on an "old" issue: when an immigrant visa petition or labor certification filed on one's behalf prior to April 30, 2001 was "approvable when filed" and therefore permits one to adjust his or her status to permanent residence under the grandfathering provisions of Section 245(i). Matter of Jara Riero, 24 I&N Dec. 267 (BIA 2007), decided on August 15, 2007, and Butt v. Gonzales, ___ F.3d ___, 2007 WL 2452423 (2d Cir. 2007), decided a few days later, both address the heretofore unexamined phrases "approvable when filed," and "meritorious in fact," and consider whether Respondents have the right and the responsibility to present evidence to demonstrate that the underlying visa petition or labor certification was bona fide, even if subsequently withdrawn, denied or revoked. Section 245(i) allows a "grandfathered alien" to apply for adjustment of status to permanent residence despite the fact that he or she entered without inspection or remained in the United States without lawful status, because he or she is the beneficiary of a labor certification and/or visa petition filed before April 30, 2001.

To be "grandfathered," the immigrant visa petition or labor certification application must have been (1) properly filed and (2) approvable when filed. 8 C.F.R. § 1245.10(a)(2). "Approvable when filed" means that as of the date of the petition, the application or petition was (1) properly filed, (2) meritorious in fact, and (3) non-frivolous (meaning patently without substance). 8 C.F.R. § 1245.10(a)(3). Where a visa petition or labor certification has been determined to have been fraudulent, it may not be used for grandfathering purposes.

A petition may be approvable when filed even if it "was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing." Id. Prior to these decisions, there was little case law construing the terms "approvable when filed" or "meritorious in fact." Jara Riero involved an Ecuadorian man and his son who sought adjustment of status based on a visa petition filed by their wife and mother, respectively. 24 I&N Dec. 267. They claimed eligibility for adjustment of status under INA section 245(i) because the father was previously the beneficiary of a visa petition filed by his former wife on April 30, 2001.

The visa petition was ultimately denied after the respondent and his wife failed to respond to a Notice of Intent to Deny that cited several material inconsistencies resulting from their interview and raised questions about whether the marriage was bona fide. The Immigration Judge held that it was not "approvable when filed." The BIA affirmed, but held that "the denial of the visa petition, although significant, is not determinative of whether the visa petition was meritorious in fact." Id. at 269. Rather, the BIA held that the respondent could present additional evidence that the marriage was bona fide at its inception.

Although the appeal was dismissed, Jara Riero bodes well for 245(i) applicants because it holds that the immigration court may find a visa petition to have been "meritorious in fact" even where it was previously denied by USCIS. The holding accords with the language of the regulations, which recognize that a visa petition may grandfather a 245(i) applicant even if it is no longer valid. Specifically, 8 C.F.R. § 1245.10(a) (3) states that A visa petition that was … later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.

The holding of Jara Riero is also consistent with existing USCIS constructions of the statute. An April 14, 1999 memo from then-Associate Commissioner Robert L. Bach officially adopted an "alien-based reading" of family-based visa petitions filed prior to the sunset date, for purposes of evaluating eligibility for section 245(i).

The June 10, 1999 memo from Associate Commissioner Bach explained that the determination of approvability of employment-based visa petitions for grandfathering purposes is a separate inquiry from the evaluation of the visa petition on the merits. Sometimes, of course, it is unclear from the record whether a visa petition that was withdrawn or denied was fraudulent or meritorious at the time it was filed. In Jara Riero, the USCIS suspected that the I-130 filed by the respondent and his then-wife was not meritorious and issued a Notice of Intent to Deny, to which the respondent never replied.

The petition was then denied. In Jara Riero, the BIA affirmed the decision of the Immigration Court to hear additional evidence that the I-130 petition was meritorious so that it could be determined whether the petition could be used for grandfathering purposes. The BIA weighed the evidence submitted by the respondent against the evidence in the record that the marriage was not bona fide, and affirmed the ruling of the Immigration Court that the petition was not meritorious in fact.

Although the outcome was negative for the respondent in Jara Riero, the decision itself provides future respondents a basis to argue in Immigration Court that a denied or withdrawn visa petition was "meritorious in fact" at the time it was filed, and otherwise "approvable when filed" for the purposes of grandfathering.

Where USCIS has approved a visa petition and it has not been revoked, the respondent may cite the April 14, 1999 Bach memorandum instructing adjudicators to consider the petition to have been "approvable when filed," and the Immigration Court should consider the approved petition to be very strong evidence that the respondent is grandfathered.

Where, however, the USCIS has denied a visa petition, the respondent must be allowed to submit evidence that the petition was approvable at the time it was filed, including testimony, affidavits, and documentary evidence.

(To be continued)