BIA Decision - August 15, 2007
The Board of Immigration Appeals (BIA) dismissed an appeal, filed by Connecticut immigration lawyer Joe Tapper, challenging an earlier finding by an Immigration Judge that an initial visa petition was not “approvable when filed” and therefore did not meet the grandfathering requirements under 8 C.F.R. § 1245.10. In order for a visa petition to be “approvable when filed,” the visa petition must have been (1) properly filed, (2) meritorious in fact, and (3) not frivolous.
Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary’s grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act. 8 C.F.R. § 1245.10(a)(3) (emphasis added).
This appeal addressed the second prong - whether the inital visa petition was “meritorious in fact” - and illustrates that determinations will be made based on the circumstances that existed at the time the qualifying petitions or applications were filed. This standard applies to both marriage-based and employment-based adjustment of status applications filed under section 245(i) of the Immigration and Nationality Act.
For additional information on section 245(i) and the definition of “approvable when filed”, see
Yates Memo :: March 9, 2005 :: Approvable When Filed.