Here, the BIA did not abuse its discretion in denying the Blaszczyks' motion to reconsider its prior decision. In its first decision, the BIA declined to revisit Matter of Legaspi, 25 I. & N. Dec. 328 (BIA 2010), under which Krzysztof was ineligible to adjust status to lawful permanent resident pursuant to 8 U.S.C. § 1255(i). And in declining to reconsider, the BIA rejected the Blaszczyks' argument that Matter of Estrada, 26 I. & N. Dec. 180 (BIA 2013) was a continuation of the flawed reasoning in Matter of Legaspi, and concluded that Matter of Estrada would not change the result in their case.

To determine if a visa petition is grandfathered, the original visa petition "must have been approvable when filed, which is defined by regulation as a petition that is: 1) 'properly filed,' 2) 'meritorious in fact,' and 3) 'non frivolous.'" Matter of Butt 26 I. & N. Dec. 108, 111( BIA 2013) (quoting 8 CFR §§ 245.10(a)(1)-(3)); see also Matter of Ilic, 25 I. & N. Dec. 717, 718 (BIA 2012); Matter of Legaspi, 25 I. & N. Dec. 328, 329 (BIA 2010). "Properly filed" is defined in the regulations as a complete visa petition application was timely received by USCIS on or before April 20, 2001. 8 C.F.R. §§ 245.10(a)(2)(i). It is undisputed that Mr. Hart's I-130 petition was "properly filed."

According to Mansour, this language implies that § 245(i) is a “distinct and separate scheme for adjustment of status that operates apart from the rest of section 245” and the “only thing that terminates the eligibility of a grandfathered alien is the use of § 245(i) itself.” See Matter of Legaspi, 25 I & N Dec. 328, 329 n. 2 (BIA 2010) (finding that the beneficiary of a 1987 visa petition who adjusted her status under § 245(a) remains grandfathered and eligible for adjustment under § 245(i) until she adjusts under § 245(i)). No regulations, memorandums, BIA decisions, or courts of appeal have interpreted the statute as Mansour does. Legaspi is inapposite: the petitioner there had not previously used the petition under which she was grandfathered.

The Lees then contend that, if Mr. Lee's labor certificate was approvable when filed, Mrs. Lee's visa satisfies the requirement that the grandfathered alien have "another approved visa petition" and the Lees may be statutorily eligible for an adjustment of status. See Matter of Legaspi, 25 I. N. Dec. 328, 329 n. 2 (BIA 2010); Memorandum from William R. Yates, Assoc. Dir. for Operations, to USCIS officials (Mar. 9, 2005), at §§ 3D(1), 3E(2), 2005 WL 628644 (discussing eligibility requirements under § 1255(0). Under the facts of this case, we agree with the Lees that the BIA erred in ruling that the IJ was not permitted to review Mr. Lee's labor certificate to determine if it was "approvable when filed."

In Matter of Legaspi, the BIA considered whether the spouse of an applicant who is grandfathered for purposes of § 1255(i) can independently adjust his status under § 1255(i). 25 I. & N. Dec. 328 (BIA 2010). Legaspi, like the USCIS memo, does not address whether an applicant qualifies (or can be grandfathered) for purposes of § 1255(i).