MY HUSBAND IS AN ALIEN GRANDFATHERED BY SECTION 245(i). HE WAS PETIONED THE FIRST TIME BY HIS EMPLOYER IN 1997 (I-140). A NEW I-140 PETITION WAS FILED ON HIS BEHALF ON 11/2006 AND APPROVED ON 2007. WE MARRIED ON 02/2006 AND I WAS INCLUDED IN HIS I-140 APPLICATION. I CAME TO NY IN 2002 WITH A VISA, WHICH EXPIRED ALREADY. WE HIRED A LAWYER TO PREPARE THE ADJUSTMENT OF STATUS. HE PREPARED THE APPLICATION ONLY FOR MY HUSBAND. NOW MY HUSBAND IS A PERMANENT RESIDENT. I AM ALSO HERE IN NEW YORK. I WOULD LIKE TO KNOW IF I CAN APPLY FOR ADJUSTMENT OF STATUS BECAUSE I AM THE DERIVATIVE BENEFICIARY OF THE PRINCIPLE BENEFICIARY. DO YOU KNOW OF ANY CASES SIMILAR TO MINE?
According to the Yates Memo of March 9, 2005. When the derivative beneficiary’s relationship to the principal has come into existence after the filing of the grandfathering I-130 or Labor Cert, but before the principal beneficiary adjusts status. Such individuals are not independently grandfathered under 245(i). Nonetheless, USCIS will allow such after-acquired derivatives the benefit of filing an adjustment
of status application under 245(i) if and only if they are adjusting status along with or following
to join the principal beneficiary. That means you are fine and can follow to join your husband within a two year period counting of the date of his adjustment. It is very unfortunate that it was not done contemporaneously.
If your husband is an LPR (Legal permanent resident) and you entered legally and don't have any bars you are not informing us about then there are possibly ways to get you an adjustment of status, it would be even easier if he were a citizen. Sounds like you guys already have an immigration lawyer you should call him or her.
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