HORITSU.COM :: The US Immigration Laws


Who is a Grandfathered Alien? (pt.1)


BACKGROUND: From October 1, 1994 to January 14, 1998, any alien who had violated the US Immigration laws (for example, being here illegally or working without INS permission) willing to pay a penalty fee (currently $1000) could generally apply for their green card in the United States through a procedure called "adjustment of status." Changes in the law now limit the class of aliens eligible to use this law. Currently, in order to take advantage of Section 245(i) an alien must be the beneficiary of an INS immigrant visa petition filed with the Attorney General or a labor certification filed with the Secretary of Labor on or before January 14, 1998. Such alien is called a "grandfathered" alien.

Q. I am a grandfathered alien through labor certification. I just found out that I won the green card lottery. Can I adjust my status or can I only adjust using the petition filed prior to January 14, 1998?

A. If you win the lottery you can adjust your status. Once grandfathered, you can use any available way to adjust your status. For example, this would include the lottery, another relative petition filed after January 14, 1998, or even another labor certification filed after January 14, 1998.

Q. I applied for the green card lottery. Does this make me a "grandfathered alien?"

A. No. Green card lottery registration is made to the Department of State. Unfortunately, the law mentions applications and petitions filed with the Attorney General or the Secretary of Labor.

Q. My husband is a grandfathered alien. I was married to him when the company filed the papers for him, but I am getting divorced. As an ex-wife, am I still grandfathered?

A. Yes.