Does Derivative Status Apply to My Husband's Situation?

[Murasaki]

Hello, everyone.
My mother-in-law came to the US from Guatemala some time in 1990. At some point in 1991, she applied for political asylum (but not through NACARA) and it was approved. At the time of her application, both of her children were under age 21 but stayed behind in Guatemala. She stated on her application that she does have children, but that they were not in the US.
Many years later, she is now a US citizen. Her children entered the US illegally when they were over age 21. They have both been in the US for quite some time and have no criminal record.
I'd like to give my husband status, and I have a pretty good chance of getting the pardon for the 10-year-bar for him, since I have a chronic health condition and my husband takes care of me. My question is, a friend mentioned that my husband might not even have to leave the country to be interviewed at the American embassy in Guatemala, because of his "derivative status" from the time when his mom applied for her own political asylum and mentioned her children on the application. Is this really true? It's my understanding that derivative status doesn't actually apply to my husband's situation, but I just thought I'd ask.
I haven't even started the I-130 application yet, but wanted to get some advice in advance.
Saludos,
Murasaki

 

[Jackolantern]

Your friend is probably referring to 245(i) grandfathering for derivatives, which would allow people to qualify for 245(i) based on derivative status they had before the cutoff in April 2001. That would allow obtaining a green card via adjustment of status within the US through a new I-130 or I-140, despite entering illegally.

But the rules for qualifying for it are complicated, and you (or your lawyer) have to know what facts and evidence to present with the application. I suggest you consult an immigration lawyer who has experience with other 245(i) grandfathering cases. Be prepared to tell the lawyer the following information so they can figure out his eligibility:

- When did he enter the US?
- Did he ever leave the US since entering illegally the first time, and if yes when were the approx. dates he exited and reentered?
- When was his mother's asylum application submitted, and when was it approved?
- Was he married (to you or anybody else) when his mother's asylum application was being processed?
- Did his mother or anybody anybody actually file an immigrant petition on his behalf?