INA §245(i) Derivative Grandfathering for F2B Adjustment — Activating a 2001 ETA-750 Twenty Years Later

IMMIGRATION LAW · SONG LAW FIRM SUCCESS STORY

Client Profile

• Nationality: Republic of Korea. Male in his late twenties (anonymized).
• Entry history: entered on a B-2 visa as a child; overstayed. Received DACA on reaching adulthood to regain status.
• Family: LPR mother (adjusted through the client's U.S.-citizen brother); father previously in F-1 status. Mother petitioned for the client as her unmarried son over 21 under F2B — approved.
• Asset in hand: a copy of an ETA-750 labor certification filed by the father's former employer in April 2001.

Case Background

The client reached out to Song Law Firm in August 2026. The September 2026 Visa Bulletin advanced F2B Final Action Dates from January 1, 2018 to August 22, 2019 — nearly 20 months — making the client's estimated priority date of July 25, 2019 current for the first time. The core question was whether the father's ETA-750, accepted for processing on April 16, 2001, could be used for INA §245(i) derivative grandfathering and whether an I-485 adjustment could be filed in the September window.

Legal Issues

Under INA §245(i) and 8 C.F.R. §245.10(a)(1)(i)(B), a beneficiary (including a derivative spouse or child) of a labor certification or I-130 petition that was "properly filed" on or before April 30, 2001 and was "approvable when filed" is grandfathered. The applicant may then adjust on any independently available basis, with §245(c)(2) and (c)(8) bars (unlawful status, unauthorized employment) cured through Form I-485 Supplement A and the $1,000 penalty fee.

Element-by-element analysis.

• Timely filing: both the ETA-750 Final Determination letter and the form endorsements show April 16, 2001 — inside the April 30, 2001 sunset. Clean.
• Approvable when filed: the labor certification was actually granted on September 11, 2002 — near-conclusive evidence that it was approvable when filed. Under the Yates Memo "Clarification of Certain §245(i) Grandfathering Provisions" (March 9, 2005), the fact that the family never filed an I-140 or I-485 off that labor certification does not strip grandfathering.
• Derivative relationship at time of filing: the parent-child relationship must have existed on or before the qualifying filing date. The client was six years old in April 2001 — satisfied.
• Physical presence on December 21, 2000: required because the qualifying application was filed after January 14, 1998. USCIS applies this requirement to the principal (the father), not the derivative. We nonetheless corroborate the father's late-2000 presence through school records, tax returns, and lease documents.

September Visa Bulletin: F2B Final Action Date advanced to August 22, 2019 for all chargeability areas. USCIS continued using the Dates for Filing chart for family-sponsored adjustment in September. The priority date is current under either chart.

Urgency: the Department of State has openly cautioned that retrogression may follow in upcoming months as FY2027 begins. Missing the September window risks losing current status into October and beyond.

Song Law Firm Strategy

• Retainer executed and ETA-750 Final Determination letter and form endorsements fully verified.
• Father's December 21, 2000 physical presence evidence: 1998–2001 school enrollment records, tax returns, lease agreements, medical records. Belt-and-suspenders secondary evidence for the client's own U.S. presence (school records) added.
• Korean notarial Basic Certificate and Certificate of Family Relations with certified translations to establish the father-son relationship in April 2001.
• Admissibility screen: no unlawful presence accrued before age 18 (INA §212(a)(9)(B)(iii)(I)) and DACA approval stopped further accrual; no §212(a)(9)(B) bar is triggered absent a departure. We confirm there have been no departures (including DACA advance parole travel).
• Supplement A package: Form I-485 Supplement A plus $1,000 penalty fee.
• I-693 sealed medical exam, filed concurrently per USCIS policy effective December 2, 2024.
• I-864 financial support: the mother (a nail technician) may fall below 125% of the poverty guideline; a joint sponsor (the U.S.-citizen brother) is lined up in advance.
• Concurrent I-765(c)(9) and I-131.
• Cover-letter legal memorandum: lays out the 245(i) derivative-grandfathering theory under the Yates Memo framework to foreclose service-center-level RFEs.

Process

• Late August 2026: consultation completed, retainer signed.
• End of August 2026: evidence package assembled. ETA-750 original, certified Korean translations, DACA notices, mother's approved F2B I-130, and father's physical-presence evidence.
• September 1, 2026 — window opens: priority date confirmed current.
• First week of September 2026: I-485 Supplement A package filed. $1,000 penalty, $1,440 I-485 fee, I-765 $260, I-131 $630 — $3,330 total — plus the civil-surgeon fee.
• Biometrics expected within three to six weeks; EAD/AP within three to six months; I-485 decision within eight to fifteen months.
• No-marriage counseling: F2B is predicated on unmarried status — any marriage before approval automatically revokes the LPR parent's petition.

Result

• I-485 package timely filed; priority date current status preserved.
• DACA remains in place as a continuing status and work-authorization safety net.
• If the mother naturalizes, F2B automatically converts to F1. If F1 ever lags F2B, INA §204(k) opt-out keeps the client on F2B. Song Law Firm will monitor.
• Interview expected (Newark or NY) — grandfathered DACA cases are routinely interviewed; the client is being prepped on the family's full immigration history.

Lessons

• An ETA-750 or I-130 filed on or before the April 30, 2001 sunset remains a grandfathering asset decades later. If any family member had a qualifying filing in that window, review it.
• Derivative grandfathering is not contingent on whether the principal ever completed a green card — only on whether the qualifying filing was approvable when filed.
• A derivative who aged out as a child retains grandfathering as an adult (Yates Memo).
• September and October routinely see large Visa Bulletin moves at the fiscal-year transition, with retrogression risk entering FY2027. The strategy is to file immediately when current.
• F2B requires unmarried status through approval — marrying before approval revokes the petition from an LPR mother. (The U.S.-citizen conversion to F3 is far from current and is effectively a loss.)
• 245(i) matters are prone to service-center-level misadjudication, so the quality of the cover-letter legal memorandum often decides outcomes.