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ASYLEE ADJUSTMENT OF STATUS
ONE YEAR PHYSICAL PRESENCE REQUIREMENT USCIS announced the policy change last year and I didn’t see it. POLICY UPDATE FOR ASYLEE ADJUSTMENT OF STATUS Asylees do not have to wait a year to file an I-485 because USCIS will now count the year from the date of adjudication of the I-485 not its filing date. REFERENCES USCIS Policy Manual Chapter 2 USCIS Policy Manual Volume 7 Part A 8 CFR 11771 Title 8 Section 1159 REQUIREMENTS TO ADJUST STATUS According to the USCIS Policy Manual, Volume 7 – Adjustment of Status, Part M – Asylee Adjustment, an asylee may adjust their status to a lawful permanent resident if they meet the following four requirements: ✅ 1 year physical presence in the US after being granted asylum ✅ Continuing to meet the definition of a refugee or being the spouse/child of the principal asylee ✅ Not having firmly resettled in a foreign country ✅ Admissible to the US as an immigrant at the time of adjustment of status examination The first and foremost requirement for Asylees to be eligible for a green card is to have been physically present in the US for at least 1 year after being granted asylum. This requirement is crucial in determining the eligibility of an asylee for a green card. 👉 The recent update from USCIS regarding the requirement for Asylees and Refugees to have a physical presence in the United States for a full year prior to filing for a Green Card has caused some confusion among immigration lawyers. Some interpret this update as a change in policy, allowing Asylees to file for a Green Card after only several months of physical presence in the US, while others believe that the one year requirement still holds. It’s important to note that, according to USCIS policy, an Asylee must have been physically present in the United States for at least one year after being granted asylum in order to be eligible for Adjustment of Status to a Lawful Permanent Resident (LPR). Despite this, there seems to be some uncertainty surrounding the new USCIS rule and its potential impact on the timeline for Asylees to apply for a Green Card. Until further clarification from USCIS, it remains a point of debate among immigration lawyers. Some believe that Asylees should still wait the full year before filing for a Green Card, while others think that the shortened time frame is acceptable. In either case, it is crucial for Asylees to consult with an experienced immigration lawyer to understand their options and ensure they are following all the necessary steps in their Green Card asylum journey. See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). Certain documentation requirements do not apply to asylees adjusting status. See INA 212(a)(7)(A). Matter of Chawathe (1) For purposes of establishing the requisite continuous residence in naturalization proceedings pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b) (2006), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated in the United States and trades its stock exclusively on U.S. stock exchange markets. (2) When an applicant’s employer is a publicly held corporation that is incorporated in the United States and trades its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those persons who own more than 51% of the stock of that firm. Matter of Warrach, 17 I&N Dec. 285, 286-87 (Reg. Comm’r 1979), clarified. (3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought. (4) Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989), followed. (5) If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition. PREPONDERANCE OF EVIDENCE Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See, e.g., Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965) (finding that the petitioner had not established eligibility by a preponderance of the evidence because the submitted evidence was not credible); cf. Matter of Patel, 19 I&N Dec. 774, 782-3 (BIA 1988) (noting that section 204(a)(2)(A) of the Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), requires a higher standard of clear and convincing evidence to rebut the presumption of a fraudulent prior marriage). See more info at the BURDEN OF PROOF — PREPONDERANCE OF EVIDENCE page.
Adjustment of Status
AOS Statute INA 245(a) Adjustment of Status Eligibility Requirements The applicant must have been: Inspected and admitted into the United States; or Inspected and paroled into the United States. The applicant must properly file an adjustment of status application. The applicant must be physically present in the United States. The applicant must be eligible to receive an immigrant visa. An immigrant visa must be immediately available when the applicant files the adjustment of status application. and at the time of final adjudication. The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. The applicant must merit the favorable exercise of discretion. Exceptions to Being Admitted or Parole VAWA & INA 245i SIJS See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a). Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States. See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a). Bars to Adjustment of Status |See bars to adjustment of status page. EXEMPTIONS FROM BARS TO ADJUSTMENT Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants. Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference categories from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission. ADMITTED OR PAROLED ADMISSION A noncitizen is admitted if the following conditions are met: A noncitizen who meets these two requirements is admitted, even if the person obtained the admission by fraud. Likewise, the noncitizen is admitted, even if the CBP officer performed a cursory inspection. As long as the noncitizen meets the procedural requirements for admission, the noncitizen meets the inspected and admitted requirement for adjustment of status. Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee. See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.” Evidence of Admission An Arrival/Departure Record (Form I-94), including a replacement when appropriate, is the most common document evidencing a noncitizen’s admission. The following are other types of documentation that may be accepted as proof of admission into the United States: When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record: In these situations, an applicant should submit alternate evidence to prove his or her inspection and admission to the United States. This may include a Border Crossing Card, plane tickets evidencing travel to the United States, or other corroborating evidence. False Claim to Citizenship Cannot be an Admission/Inspection A noncitizen who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). Deferred Admission Deferred inspection is a form of parole. A noncitizen who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)]. PAROLE Conditional Parole Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility. Evidence of Parole Evidence of parole includes: When is Parole NOT Parole for Purposes of Adjustment of Status? Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023) explained on page about INA §236(a)(2)(B) parole and adjustment of status. See also Form I-485 INA 236 PAROLE NOT ELIGIBLE FOR AOS Immigrant Visa Immediately Available at Time of Filing and at Time of Approval In general, an immigrant visa must be available before a noncitizen can apply for adjustment of status. An immigrant visa is always available to applicants seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application. Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application. Dependents The spouse and children of certain family-based, employment-based, and Diversity Immigrant Visa adjustment applicants may also obtain LPR status through their relationship with the principal applicant. Because the spouse and children do not have an independent basis to adjust status apart from their relationship to the principal immigrant, they are “dependents” of the principal for purpose of eligibility for adjustment of status. Dependents do not have their own underlying immigrant petition and may only adjust based on the principal’s adjustment of status. In general, dependent applicants must have the requisite relationship to the principal both at the time of filing the adjustment application and at the time of final adjudication. ASYLUM ADJUSTMENT OF STATUS An asylee whose adjustment application is based on his or her asylee status adjusts under INA 209(b). An asylee, however, may seek to adjust under INA 245(a) if the asylee prefers to adjust on a basis other than the asylee’s status. This may arise in cases where, for example, an asylee marries a U.S. citizen
INA 236 PAROLE NOT ELIGIBLE FOR AOS
As the Board explained in its decision in Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), a release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. § 1226(a)(2)(B) (2018)) is legally distinct from humanitarian parole under INA §212(d)(5). In the 2023 decision, Matter of Cabrera Fernandez, 28 I&N Dec. 747 (BIA 2023), the Board took that further and confirmed that conditional parole under INA §236(a)(2)(B) is not a parole for purposes of adjustment of status. INA 236(a)(2)(B) Parole does not count as a parole for purposes of Adjustment of Status MATTER OF CABRERA-FERNANDEZ Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023) (1) Release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2018), is legally distinct from release on humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A) (2018). Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), followed. (2) Applicants for admission who are released on conditional parole rather than humanitarian parole have not been “inspected and admitted or paroled,” and accordingly are not eligible for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended.
SIJS ADJUSTMENT OF STATUS
ADJUSTMENT OF STATUS ELIGIBILITY REQUIREMENTS The applicant must have been: 1. Inspected and Admitted or Inspected and Paroled SIJs are not exempt from the general adjustment requirement that applicants be inspected and admitted or inspected and paroled. However, the INA expressly states that SIJs are considered paroled into the United States for purposes of adjustment under INA 245(a). Accordingly, the beneficiary of an approved SIJ petition is treated for purposes of the adjustment application as if the beneficiary has been paroled, regardless of the beneficiary’s manner of arrival in the United States. 2. Eligibility to Receive an Immigrant Visa An applicant must be eligible to receive an immigrant visa to adjust status. An adjustment applicant typically establishes eligibility for an immigrant visa through an approved immigrant petition. An SIJ can establish eligibility for an immigrant visa by obtaining classification from USCIS by filing an SIJ-based Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) (SIJ petition). Therefore, in order for an SIJ-based adjustment applicant to be eligible to receive an immigrant visa, he or she must be one of the following: The SIJ petition should already be adjudicated and approved when the officer adjudicates the adjustment application. USCIS does not re-adjudicate the SIJ petition at the time of the adjudication of the adjustment application but the officer will ensure that the applicant remains classified as a special immigrant juvenile and thus is eligible to adjust based on that petition. Revocation of Approved Petition USCIS may revoke an approved SIJ petition upon notice for what it deems to be good and sufficient cause, such as, if the record contains evidence or information that materially conflicts with the evidence or information that was the basis for petitioner’s eligibility for SIJ classification.  Automatic Revocation of Approved Petition USCIS automatically revokes an approved SIJ petition, as of the date of approval, if any one of the circumstances below occurs before a decision on the adjustment application is issued: 3. Bars to Adjustment An applicant classified as an SIJ is barred from adjustment if deportable due to engagement in terrorist activity or association with terrorist organizations. There is no waiver of or exemption to this adjustment bar if it applies. Therefore, if the terrorist-related bar to adjustment applies, an SIJ is ineligible for adjustment of status. 4. Admissibility and Waiver Requirements An applicant who is inadmissible to the United States may only obtain LPR status only after obtaining a waiver or other form of relief, if available. SIJS Applicants for adjustment are exempt from several grounds of inadmissibility and do not require a waiver for those grounds. Inadmissibility Grounds that Do Not Apply to Special Immigrant Juveniles INA 212(a)(4) Public Charge INA 212(a)(5)(A) Labor Certification INA 212(a)(6)(A) Present without admission or parole INA 212(a)(6)(C) Misrepresentation INA 212(a)(6)(D) Stowaways INA 212(a)(7)(A) Documentation Requirements for Immigrants INA 212(a)(9)(B) Unlawful Presence Inadmissibility Grounds that Apply to Special Immigrant Juveniles INA 212(a)(1) Health-Related INA 212(a)(2) Crime-Related INA 212(a)(3) Security-Related INA 212(a)(6)(B) Failure to Attend Removal Proceedings INA 212(a)(6)(E) Smugglers INA 212(a)(6)(F) Subject of Civil Penalty INA 212(a)(6)(G) Student Visa Abusers INA 212(a)(8) Ineligibility for Citizenship INA 212(a)(9)(A) Certain Aliens Previously Removed INA 212(a)(9)(C) Aliens Unlawfully Present After Previous Immigration Violations INA 212(a)(10) Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation An applicant found inadmissible based on any of the above applicable grounds may be eligible for an SIJ-specific waiver of these inadmissibility grounds for: Inadmissibility Grounds that Cannot Be Waived INA 212(a)(2)(A) Conviction of Certain Crimes INA 212(a)(2)(B) Multiple Criminal Convictions INA 212(a)(2)(C) Controlled Substance Traffickers INA 212(a)(3)(A) Security and Related Grounds INA 212(a)(3)(B) Terrorist Activities INA 212(a)(3)(C) Foreign Policy Related INA 212(a)(3)(E) Participants in Nazi Persecution, Genocide, or the Commission of Any Act of Torture or Extrajudicial Killing Documentation and Evidence An applicant should submit the following documentation to adjust status as an SIJ: AUTHORITY INA §245(h) [link] Application with respect to special immigrants In applying this section to a special immigrant described in section 1101(a)(27)(J) of this title- (1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States; and (2) in determining the alien’s admissibility as an immigrant- (A) paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), and (9)(B) of section 1182(a) of this title shall not apply; and (B) the Attorney General may waive other paragraphs of section 1182(a) of this title (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. The relationship between an alien and the alien’s natural parents or prior adoptive parents shall not be considered a factor in making a waiver under paragraph (2)(B). Nothing in this subsection or section 1101(a)(27)(J) of this title shall be construed as authorizing an alien to apply for admission or be admitted to the United States in order to obtain special immigrant status described in such section. 8 CFR 245.1(e)(3) [link] Special immigrant juveniles — (i) Eligibility for adjustment of status. For the limited purpose of meeting one of the eligibility requirements for adjustment of status under section 245(a) of the Act, which requires that an individual be inspected and admitted or paroled, an applicant classified as a special immigrant juvenile under section 101(a)(27)(J) of the Act will be deemed to have been paroled into the United States as provided in § 245.1(a) and section 245(h) of the Act. (ii) Bars to adjustment. An applicant classified as a special immigrant juvenile is subject only to the adjustment bar described in section 245(c)(6) of the Act. Therefore, an applicant classified as a special immigrant juvenile is barred from adjustment if deportable due to engagement in terrorist activity or association with terrorist organizations (section 237(a)(4)(B) of the Act). There is no waiver of or exemption to this adjustment bar if
EMPLOYMENT WITHOUT AUTHORIZATION
(c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title, (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa. – INA 245(c) / Title 8-ALIENS AND NATIONALITY CHAPTER 12-IMMIGRATION AND NATIONALITY SUBCHAPTER II (Link to Full) These bars apply not only to unauthorized employment since an applicant’s most recent entry but also to unauthorized employment during any previous periods of stay in the United States. Employment-based applicants also may be eligible for exemption from this bar under INA 245(k). An applicant employed while his or her adjustment application is pending final adjudication must maintain USCIS employment authorization and comply with the terms and conditions of that authorization. The filing of an adjustment application itself does not authorize employment. OTHER LINKS https://web.archive.org/web/20160607145933/https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter6.html USCIS POLICY MANUAL Volume 7 Chapter 6 – Unauthorized Employment https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim My Attorney USA
PAROLE
Conditional Parole Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility. Evidence of Parole Evidence of parole includes: Special Immigrant Juvenile Status (SIJS) Parole INA § 245(h) states “a special immigrant described in section 1101(a)(27)(J) of this title…such an immigrant shall be deemed, for purposes of subsection (a) [adjustment of status], to have been paroled into the United States.” The Regulations at 8 C.F.R. § 1245.1(a) goes farther, noting that regardless of how they entered the United States, a young person designated a special immigrant juvenile has been paroled: such a person is “deemed, for the purpose of applying the adjustment of status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States” (emphasis added). A Respondent cannot be found inadmissible or removable for being present in the United States without having been paroled when, under the law, he has been deemed to have been paroled. So this would serve as grounds for a motion to terminate removal proceedings if the the respondent is being charged only as inadmissible INA § 212(a)(6)(A)(i). INA §245(h) (h) Application with respect to special immigrants In applying this section to a special immigrant described in section 1101(a)(27)(J) of this title- (1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States; and (2) in determining the alien’s admissibility as an immigrant- (A) paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), and (9)(B) of section 1182(a) of this title shall not apply; and (B) the Attorney General may waive other paragraphs of section 1182(a) of this title (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. INA § 245(h) is clear and unambiguous, as “a special immigrant described in section 1101(a)(27)(J) of this title…such an immigrant shall be deemed, for purposes of subsection (a) [adjustment of status], to have been paroled into the United States.” The Regulations at 8 C.F.R. § 1245.1(a) goes farther, noting that regardless of how they entered the United States, a young person designated a special immigrant juvenile has been paroled: such a person is “deemed, for the purpose of applying the adjustment of status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States” (emphasis added). The Respondent cannot be found inadmissible or removable for being present in the United States without having been paroled when, under the law, he has been deemed to have been paroled. 8 USC § 1101(a)(27)(J) (J) an immigrant who is present in the United States— **(i)**who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; **(ii)**for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that— **(I)**no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and **(II)**no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; When is Parole NOT Parole for Purposes of Adjustment of Status? See **Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023);** MATTER OF CABRERA FERNANDEZ (1) Release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2018), is legally distinct from release on humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A) (2018). Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), followed. (2) Applicants for admission who are released on conditional parole rather than humanitarian parole have not been “inspected and admitted or paroled,” and accordingly are not eligible for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended.
ADMISSION
ADMISSION A noncitizen is admitted if the following conditions are met: A noncitizen who meets these two requirements is admitted, even if the person obtained the admission by fraud. Likewise, the noncitizen is admitted, even if the CBP officer performed a cursory inspection. As long as the noncitizen meets the procedural requirements for admission, the noncitizen meets the inspected and admitted requirement for adjustment of status. Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee. See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.” Evidence of Admission An Arrival/Departure Record (Form I-94), including a replacement when appropriate, is the most common document evidencing a noncitizen’s admission. The following are other types of documentation that may be accepted as proof of admission into the United States: When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record: False Claim to Citizenship Cannot be an Admission/Inspection A noncitizen who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). Deferred Admission Deferred inspection is a form of parole. A noncitizen who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].
Bars to Adjustment of Status
Bars to Adjustment of Status Noncitizen INASection Entries and Periods of Stay to Consider Exemptfrom Bar Crewman 245(c)(1) Only most recent permission to land, or admission prior to filing for adjustment VAWA-based applicants In Unlawful Immigration Status on the Date the Adjustment Application is Filed OR Who Failed to Continuously Maintain Lawful Status Since Entry into United States OR Who Continues in, or Accepts, Unauthorized Employment Prior to Filing for Adjustment 245(c)(2) All entries and time periods spent in the United States (departure and return does not remove the ineligibility) VAWA-based applicantsImmediate relativesCertain special immigrants245(k) eligible Admitted in Transit Without a Visa (TWOV) 245(c)(3) Only most recent admission prior to filing for adjustment VAWA-based applicants Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program 245(c)(4) Only most recent admission prior to filing for adjustment VAWA-based applicantsImmediate relatives Admitted as Witness or Informant 245(c)(5) Only most recent admission prior to filing for adjustment VAWA-based applicants Who is Deportable Due to Involvement in Terrorist Activity or Group 245(c)(6) All entries and time periods spent in the United States VAWA-based applicant Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status 245(c)(7) Only most recent admission prior to filing for adjustment VAWA-based applicantsImmediate relatives and other family-based applicantsSpecial immigrant juveniles245(k) eligible Who has Otherwise Violated the Terms of a Nonimmigrant Visa OR Who has Ever Engaged in Unauthorized Employment 245(c)(8) All entries and time periods spent in the United States (departure and return does not remove the ineligibility) VAWA-based applicantsImmediate relativesCertain special immigrants245(k) eligible EXEMPTIONS FROM BARS TO ADJUSTMENT Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants. Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference categories from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission. See also exceptions for being admitted or paroled.
Adjustment Exceptions to Being Admitted or Parole
Exceptions to Being Admitted or Parole VAWA & INA 245i SIJS See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a). Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States. See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).
ADJUSTMENT OF STATUS
AOS Statute INA 245(a) Adjustment of Status Eligibility Requirements The applicant must have been: The applicant must properly file an adjustment of status application. The applicant must be physically present in the United States. The applicant must be eligible to receive an immigrant visa. An immigrant visa must be immediately available when the applicant files the adjustment of status application. and at the time of final adjudication. The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. The applicant merits the favorable exercise of discretion. §1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence (a) Status as person admitted for permanent residence on application and eligibility for immigrant visa The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (b) Record of lawful admission for permanent residence; reduction of preference visas Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 1152 and 1153 of this title within the class to which the alien is chargeable for the fiscal year then current. (c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title,1 (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa. (d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under section 1101(a)(15)(K) of this title. (e) Restriction on adjustment of status based on marriages entered while in admissibility or deportation proceedings; bona fide marriage exception (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien’s status adjusted under subsection (a). (2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien’s right to be admitted or remain in the United States. (3) Paragraph (1) and section 1154(g) of this title shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien’s admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 1154(a) of this title or subsection (d) or (p) 2 of section 1184 of this title with respect to the alien spouse or alien son or daughter. In accordance with regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence. (f) Limitation on adjustment of status The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186b
READJUSTMENT OF CONDITIONAL RESIDENTS
Matter of Stockwell On November 21, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it had updated its Policy Manual (PM) in a policy alert titled “Adjustment on New Basis After Termination of Conditional Permanent Residence” [PDF version]. An alien who is admitted to the United States as a conditional permanent resident is barred from pursuing adjustment of status under section 245(a) while he or she is in conditional permanent resident status. See INA 245(d). The Board of Immigration Appeals (BIA) held in 1991 that this bar does not apply to an alien who was admitted to the United States as a conditional permanent resident status but whose conditional permanent resident status was terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The USCIS’s new guidance is designed to ensure uniformity in the USCIS’s handling of adjustment applications filed by aliens who were admitted as conditional permanent residents but whose conditional permanent resident status was subsequently terminated. The Board began by noting that INA 245(d) was added to the INA as part of the Marriage Fraud Amendments of 1986, part of what it described as “a comprehensive statutory scheme to deter immigration-related marriage fraud.” Section 216 itself, the Board explained, “was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage.” The INS codified regulations to implement the section 245(d) bar at 8 CFR 245.1(b)(12) (1991). The regulation, in the pertinent part, stated that “[a]ny alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 of the Act” was barred from adjustment under INA 245(a). The Board found that it was clear that Congress intended for any alien in conditional permanent resident status to be ineligible for adjustment of status. Regarding the open question of aliens whose conditional permanent resident status was terminated, the Board agreed with the Immigration Judge’s conclusion that the bar was only intended to apply “to aliens currently holding conditional permanent resident status.” The Board agreed with the Immigration Judge’s finding the regulatory language dispositive, and noted that the INS had omitted any mention of the regulation in its arguments. The Board subsequently affirmed the Immigration Judge’s decision granting the respondent’s application for adjustment of status in the exercise of discretion. Relevant Statutes An alien who obtains permanent resident status on the basis of marriage to a U.S. citizen or lawful permanent resident, and that alien’s derivative sons or daughters, is admitted to the United States as a permanent resident on a conditional basis. INA 216(a)(1). An alien who obtains status as an alien entrepreneur (employment-based fifth preference) and his or her derivative spouse and/or children is also admitted as a permanent resident on a conditional basis. INA 216A(a)(1). Conditional permanent residents must subsequently petition to have the conditions on their status removed. The requirements for having conditions removed are different for spouses (see INA 216) and entrepreneurs (see INA 216A). A conditional permanent resident under INA 216 or INA 216A may not adjust status on an alternative basis under INA 245(a). See INA 245(d); 8 CFR 245.1(c)(5). The statutes do not address the ability of an alien who was admitted as a conditional permanent resident, but whose status was subsequently terminated, to adjust status under INA 245(a). In the next section, we will examine how the BIA resolved this question. New USCIS Guidance on Adjustment for Former Conditional Permanent Residents The new USCIS guidance on adjustment cases involving aliens who were admitted as conditional permanent residents is found at 7 USCIS-PM B.7(G) [PDF version]. The PM notes that under statutes and regulations, an alien admitted in conditional permanent resident status is not permitted to adjust status under INA 245(a) while holding such status. Instead, the alien must comply with section 216 (family cases) or 216A (entrepreneur cases) to pursue the removal of conditions from his or her permanent resident status. However, in accord with Matter of Stockwell, the PM explains that this prohibition on adjustment only applies when the alien is currently in lawful conditional permanent resident status. Under Matter of Stockwell, “the bar no longer applies if USCIS terminates the alien’s [conditional permanent resident] status.” The USCIS may terminate an alien’s conditional permanent resident status for any of the reasons stated in INA 216 (family cases) or 216A (entrepreneur cases). The USCIS generally issues a Notice to Appear upon terminating an alien’s conditional permanent resident status. The PM states that although an immigration judge may review the termination of conditional permanent resident status in an alien’s subsequent removal proceedings, the USCIS’s position is that the bar to adjustment of status found in 245(d) becomes ineffective upon the USCIS’s decision to terminate conditional permanent resident status. Therefore, “it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s [conditional permanent resident] status before the alien may file a new adjustment application.” In accord with the statutes, regulations, Matter of Stockwell, and the USCIS’s interpretation of the foregoing, an alien whose conditional permanent resident status has been terminated may adjust status under INA 245(a) if: The alien has a new basis for adjustment;The alien is otherwise eligible to adjust; andUSCIS has jurisdiction over the adjustment application. The USCIS makes clear that an alien must have a new basis for adjustment of status. That is, “the alien may not reuse the immigrant petition associated with the previous [conditional permanent resident] adjustment or admission.” An alien initially admitted as a K nonimmigrant fiancé(e) may only re-adjust status on the basis of an approved Form I-130, Petition for Alien Relative, filed by the same U.S. citizen who filed the Form I-129F Petition for Alien Fiancé(e), on his or her behalf. The PM adds that the alien must be otherwise eligible for adjustment of status, including by not being inadmissible or barred from adjustment under INA 245(c). In short, the alien must meet the generally applicable requirements for adjustment. If the USCIS grants the former conditional permanent resident’s adjustment application, it “generally considers the date of admission to be the date USCIS approved the
Arriving Aliens
DEFINITION OF ARRIVING ALIEN The regulations define “arriving alien” at 8 CFR §1001.1(q): The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act. See 8 C.F.R. §§ 1.2, 1001.1(q) Arriving Alien vs. Applicant for Admission While the term “applicant for admission” is not defined in the Immigration and Nationality Act (INA), the statute broadly identifies those who fall within the term’s parameters as any noncitizen who: is present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including a[] [noncitizen] who is brought to the United States after having been interdicted in international or United States waters). See 8 U.S.C. § 1225(a)(1); see also 8 C.F.R. § 235.1(f)(2) (discussing noncitizens present without admission or parole and those who enter without inspection), (f)(3) (explaining that noncitizens interdicted at sea are applicants for admission); but see 8 C.F.R. § 235.1(f)(4) (clarifying that a stowaway is not an applicant for admission). As such, someone classified as an “arriving [noncitizen]” also is an applicant for admission. However, the latter category is broader than the former so not all applicants for admission are arriving noncitizens. That is, while individuals who enter the United States without inspection are considered applicants for admission, they are not arriving noncitizens as they did not seek admission at a port-of-entry. A noncitizen who was admitted after inspection is neither an applicant for admission nor an arriving noncitizen, even if that person subsequently falls out of status. Arriving Aliens in Removal Proceedings § 1240.8 Burdens of proof in removal proceedings. (b) Arriving aliens. In proceedings commenced upon a respondent’s arrival in the United States or after the revocation or expiration of parole, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged. Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a credible fear determination, and if no credible fear, until removed. See INA § 235(b)(1)(B)(i)(IV). Generally, arriving aliens placed in 240 proceedings, shall also be detained. See INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3. Mandatory Detention Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a crediblefear determination, and if no credible fear, until removed. INA § 235(b)(1)(B)(i)(IV). Generally, arriving aliens placed in 240 proceedings, shall also be detained. INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3. ARRIVING ALIEN CASE LAW Failure to check the box indicating the respondent is an arriving alien is not grounds for termination of proceedings. Matter of Jonathan Said HERRERA-VASQUEZ, 27 I&N Dec. 825 (BIA 2020) An alien that is transferred from expedited removal proceedings to full removal proceeding after establishing a credible fear, remains ineligible for bond. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019). Matter of M-S- overrules overruled Matter of X-K-, 23 I&N Dec. 731 (BIA 2005). Arriving Aliens and Adjustment of Status The regulations detail which agency (USCIS or EOIR) has jurisdiction over an adjustment application filed by an arriving noncitizen who is in removal proceedings. With respect to USCIS, 8 C.F.R. § 245.2(a)(1) specifies that it has jurisdiction over the adjustment application of any noncitizen “unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” Thus, USCIS has jurisdiction over all adjustment applications except those over which an immigration judge has jurisdiction. In turn, 8 C.F.R. § 1245.2(a)(1) states that an immigration judge does not have jurisdiction over an adjustment application of an “arriving [noncitizen]” in removal proceedings, with one exception. Under this exception, an immigration judge has jurisdiction over the adjustment application of an arriving noncitizen in removal proceedings if: Does USCIS have jurisdiction to decide an adjustment application if the arriving noncitizen is under a final order of removal? Yes, USCIS has jurisdiction over the adjustment application of an arriving noncitizen even when a removal order has become administratively final, as long as the order has not been executed— that is, as long as the individual has not departed, whether voluntarily or not, after the removal order was issued. See 8 U.S.C. § 1101(g) (specifying that a noncitizen who departs the United States while under an order of removal “shall be considered to have been deported or removed”). Under 8 U.S.C. § 1255(a), a noncitizen must be admissible to the United States to adjust status.Significantly, as explained in a USCIS memorandum, “[t]he removal order, itself, does not makethe [noncitizen] inadmissible until it is executed.”20 Thus the removal order is not a bar toadjustment. However, practitioners still must consider whether the underlying ground uponwhich the removal order is based renders the noncitizen inadmissible and therefore ineligible foradjustment and, if it does, whether a waiver is available. For example, where the removal order isbased on 8 U.S.C. § 1182(a)(7)—the inadmissibility ground for individuals who did not have avalid visa or
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