BIA Allows IJ to Examine Approvability of Previously-Approved 245(i) Petition

The Board of Immigration Appeals has determined that an Immigration Judge may revisit whether a 245(i) grandfathering petition was actually approvable when filed, even if USCIS approved the petition. in this case, the respondent’s wife had been the beneficiary of an F2B petition filed by her father. Her father failed to disclose she was married, and the petition was approved. The respondent then tried to claim grandfathering eligibility through the petition, even though F2B petitions are only valid if the beneficiary is unmarried. “We conclude that a visa petition that is not “meritorious in fact” at the time of filing will not be considered “approvable when filed,” even if the visa petition was, in fact, approved and never revoked.”

The full text of Matter of Triana can be found here:

https://www.justice.gov/eoir/page/file/1555006/download

Ninth Circuit Interprets "Approvable When Filed" Standard for 245(i) Petitions

The Ninth Circuit has determined that USCIS may rely on the denial of a petition to find that the petition was not approvable when filed so long as the denial was on the merits, and not based on a procedural finding or based on circumstances that changed after the petition was filed.  Though USCIS is permitted to reevaluate the merits of a denied petition at the time an applicant is applying for adjustment of status, it is not required to do so.  

The full text of Hsiao v. Hazuda can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/01/15-55676.pdf