Definition of “Grandfathered in”
On December 21, 2000, the Legal Immigration Family Equity Act (LIFE) was enacted, extending Section 245(i) of the Immigration and Nationality Act until April 30, 2001, for persons physically present in the US on December 21, 2000. Based on the LIFE Act, a beneficiary of a family-sponsored or employment-based application or petition is eligible to adjust status in the United States and pay a $1,000 penalty fee, so long as he or she was physically present in the US on December 21, 2000, and the petition or application was filed on or before April 30, 2001. Thus the beneficiary would be “grandfathered in” by filing a petition or application on or before April 30, 2001.
The applicant does not necessarily have to adjust status based on the original petition filed on or before April 30, 2001. However, to be grandfathered in, USCIS had taken the position that the petition must have been “approvable when filed.”
In Huarcaya v. Mukasey, (2d Cir. 2008), the Second Circuit Court of Appeals recently upheld the Board of Appeals’ interpretation of when a petition is grandfathered in the context of a marriage-based visa petition. According to the Board, in order to be grandfathered in, a visa petition must be approvable when filed.
A case is approvable when filed when the relevant petition was 1) properly filed, 2) meritorious in fact and 3) non-frivolous. In the case of a marriage-based visa petition, the petitioner must demonstrate a bona fide marital relationship at the time the visa petition was filed. As long as the visa petition was properly filed and approvable when filed, it does not matter that the petition was later revoked, withdrawn or denied for circumstances arising after the filing of the petition.