Derivative Grandfathering
The spouses and children of persons who are grandfathered under §245(i) are also grandfathered. The March 2005 245(i) Memo clarifies which spouses and children have this benefit. The following scenarios assume that the spouse or child does not have his/her own, independent basis to claim the §245(i) benefit.
Spouses / Children :
At the Time the Petition or Application that Conferred §245(i) Was Filed :
If a person was the spouse or child of a §245(i) beneficiary at the time that the qualifying immigrant visa petition or labor certification application was filed, that spouse or child remains grandfathered under §245(i) even if couple has divorced or the child has reached the age of 21 since that time. This means that, even if the spouse or child is no longer eligible for derivative adjustment of status, the spouse or child can obtain adjustment of status through any other means available and use §245(i) to achieve this goal.