245i - Derivative Beneficiary

[cb0110]

Hello!

I am hoping to look into qualifying as a derivative beneficiary under 245i. Although my mother (USC) can petition, getting past the extreme hardship requirements is risky in this climate.

So, here is my situation. I was born in 1976. Overstayed my visa. Been in the states since I was 9, was too old to qualify for DACA when is started. I'm stuck.

My mother married my stepfather in 1988 and divorced in 1993, had children, etc. My stepfather obtained permanent residency through a labor certification in the mid 1980s, before their marriage. We kept in touch after the divorce, unfortunately he passed in 2017.

This month I learned about 245i. Would I qualify as a derivative beneficiary since I was a minor during the marriage? I've looked in many places and I do not see if there is a restriction on how far back the principal beneficiary's petition can go back. I am assuming his 1980s petition is ok.

Please help!

[mecurial7]

Hello!

I am hoping to look into qualifying as a derivative beneficiary under 245i. Although my mother (USC) can petition, getting past the extreme hardship requirements is risky in this climate.

So, here is my situation. I was born in 1976. Overstayed my visa. Been in the states since I was 9, was too old to qualify for DACA when is started. I'm stuck.

My mother married my stepfather in 1988 and divorced in 1993, had children, etc. My stepfather obtained permanent residency through a labor certification in the mid 1980s, before their marriage. We kept in touch after the divorce, unfortunately he passed in 2017.

This month I learned about 245i. Would I qualify as a derivative beneficiary since I was a minor during the marriage? I've looked in many places and I do not see if there is a restriction on how far back the principal beneficiary's petition can go back. I am assuming his 1980s petition is ok.

Please help!

Under the instructions for form I-485 Supplement A (the form you submit to prove you are 245i eligible), it says the following on page 4: "You must submit documentation to prove...you are or were a derivative beneficiary... at the time the qualifying petition or application was filed." (emphasis mine)

Given the timeline you posted, it seems that your mother married your stepfather after the labor certification was filed on your stepfather's behalf, and if that's the case, then you couldn't have been a derivative beneficiary at the time the labor certification was filed.

As far as I know, a petition from the 1980s is fine so long as it you can prove you are a derivative beneficiary. Is it possible your stepfather, once he was a permanent resident and once he was married to your mother, filed an I-130 petition for you and your mother? Because if he did, you could use that petition to establish 245i.

If I were in your position, I would consult with a lawyer. It seems the suggestion for most 245i applicants is to have a lawyer on hand since they can get complicated quickly. Best of luck!

https://www.uscis.gov/i-485supa