Basics of Adjustment

of Status

Sarah Bronstein and

Jennie Guilfoyle

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What is Adjustment of Status?

• Process to become LPR while inside US

• Contrast with consular processing

• Contrast with change or extension of

status

Ready to Adjust?

Visa number available (IR or PRD current)

Inside US

Not inadmissible (or waiver eligible) and not deportable

Eligible for adjustment under INA Section 245

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AOS Eligibility vs. Inadmissibility

• Adjustment

• Eligible to adjust status, under either INA § 245(a) or INA § 245(i)? – E.g., EWI or legal

entry?

• Inadmissibility

• Admissible under INA § 212? – E.g., crimes, fraud,

false claim of citizenship, health, immigration violations

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Two statutory doorways

• Two statutory doorways for those immigrating through family relationships – INA Sections 245(a) and (c)

– INA Section 245(i)

• Other doorways include: asylee/refugee; Cuban adjustment; cancellation of removal; U and T status

245(a) and (c) for IRs and Pref

• 245(a)

– “Inspected and admitted or

paroled”

– Visa number immediately

available

– Admissible

• 245(c)

– Not crewperson or admitted in

transit w/o visa

– Not admitted with S or J visa

– No work w/o authorization

– Always kept in lawful status

– Not admitted under Visa Waiver

Program

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K restrictions

• Under 245(d), those admitted on K

fiancé(e) visas may only adjust based

on marriage to USC who filed K petition

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Inspected and Admitted or Paroled?

– Juana from Honduras entered US in 2010 on

B2 visa and has not left since.

– Juana from Honduras entered US in 2010 by

walking through desert in Arizona and has not

left since.

– Juana from Honduras entered US in 2010 by

flying to Seattle and presenting fraudulent

Honduran passport and visa.

Adjust Under 245(a)?

• Cora has approved I-130 and entered on student visa. She is married to a USC.

• Tomas entered U.S. with tourist visa in 1987. His son was born in Texas in 1990. His son just filed a visa petition for him yesterday.

• Gisela, who is 35, entered U.S. on tourist visa in 2008 and has not left since. She has approved visa petition based on marriage to an LPR, and her PRD is current.

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What is Adjustment of Status?

• Process to become LPR while inside US

• Contrast with consular processing

• Contrast with change or extension of

status

Doorway Two: 245(i)

• Adjustment for aliens who

wouldn’t otherwise qualify

because:

– Entered without inspection (EWI),

– Entered with inspection but

violated or overstayed status, and

not immigrating as immediate

relative

– Fall within certain other classes

of people in INA § 245(c)

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Adjust under 245(i)

Javier entered U.S. without

papers in 1997. He is now

married to a USC. Even

though Javier is an

immediate relative, he can

qualify to adjust status in

the U.S. only if he can do

so under INA § 245(i).

WHY?

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245(i) Deadlines

• Petition must have been filed by:

• First 245(i) period:

Petition filed by Jan. 14, 1998

OR

• Second:

Petition filed between Jan. 15, 1998 and

April 30, 2001, and principal beneficiary

present in U.S. on Dec. 21, 2000

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Qualifying Petitions for 245(i)

• I-130 (petition for alien relative)

• Labor certifications with Department of

Labor

• I-360 (Amerasian, widow, VAWA, SIJS)

• I-526 (petition for alien entrepreneur)

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“Approvable When Filed”

• Filed Properly

• Meritorious

• Not fraudulent

• When filed, relationship existed to support

filing

• Even if petition later denied, revoked or

withdrawn

Grandfathering

Beneficiaries (incl

derivatives) of

approvable petitions

filed by 245(i) deadline

may use 245(i) to adjust

status later, even based

on different petition.

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Grandfathering Principles

• 245(i) stays with alien, not petition

• Applies if were derivative beneficiary on or

before 4/30/01

• Use if eligible based on subsequent I-130

• Also applies in limited way to after-

acquired beneficiaries (spouses and

children)

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Adjust Under 245(i)?

• Karen EWIed in 1996. Her LPR father

filed I-130 for her in 1997. May Karen

adjust under 245(i)?

• Same facts except LPR father filed I-130

in 1997 for Karen’s mother. Father filed

separate I-130 for Karen in 2002 after

Karen aged out and lost derivative status.

May Karen apply for adjustment under

245(i)?

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245(i) in Action

• In 1997 Karen’s LPR father filed I-130

for her mother, and then subsequent

one for Karen in 2002. Karen entered

U.S. without inspection in 2002 when

she was 21. Karen has now married a

USC.

• May Karen apply for adjustment under

245(i)?

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245(i) in Action

• Same facts but LPR father filed original

I-130 for spouse in April 2001 while

Karen was under 21. Karen entered

U.S. EWI in 2002. Karen is now

married to a USC.

• May Karen adjust status under 245(i)?

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245(i) in Action

• Grandfathering principle applies to aliens whose underlying spousal relationship ends but who later re-marry.

• LPR Maria petitioned for husband Martin in April 2001. Maria and Martin divorce in 2004. In 2010 Martin marries a USC. Martin can adjust under 245(i) as long as he can prove ________________________.

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After-acquired beneficiaries

• Spouses and children acquired after

4/30/01 may also use 245(i), but only if

adjusting as derivative of original principal

beneficiary

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245(i) in Action

• USC Bridget filed I-130 for her sister, Helen, who lives in Ireland, in Feb. 1997. Helen married an Irishman in 2002 and they had a child in 2006. Helen, her husband, and child all entered U.S. in 2010 on visa waiver program and then overstayed.

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Physical Presence on 12/21/00

• Only required for principal, not derivative

beneficiary, if filed for 245(i) adjustment

1/15/98 – 4/30/01

• Present at least one gov’t document

issued on 12/21/00, or several docs (esp.

gov’t issued) to show residence during

that period

• 8 CFR 245.10(n)

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245(i) Form and Fee

• Must file Form I-485A

• Must pay penalty fee of $1,000 unless

– Under 17 years old

– Family Unity eligible

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Jurisdiction

• “Jurisdiction” describes concept of who may

decide a matter

• CIS does not have JURISDICTION to consider

an application for adjustment filed on behalf of

person in immigration court proceedings, or who

never departed US after being ordered to do so

(voluntary departure or removal order) by

immigration judge.

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FILE WITH CIS?

Manny has lived in U.S. since 2003, when

he entered U.S. from Venezuela with student

visa. He dropped out of school one year later, and

was arrested by ICE in 2008 while working

unlawfully. The judge gave Manny 6 months to

depart U.S. voluntarily but Manny stayed to be

with his USC girlfriend. They are now married and

Manny would like to apply for adjustment. Can he?

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“Arriving aliens”

• USCIS has jurisdiction for adjustment of almost all “arriving aliens” – Including arriving aliens in removal

proceedings [8 CFR § 245.2(a)(1)]

– Including arriving aliens with unexecuted final orders of removal (01/12/07 USCIS memo)

• IJs have jurisdiction to adjust arriving aliens in limited circumstances – Advance parolee whose I-485 was denied by

USCIS [8 CFR § 1245.2(a)(1)]

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Filing Procedure for Arriving Aliens

• If in removal proceedings, get

continuance or administrative closure

from IJ

• File I-485 with USCIS

– No renewal in removal proceedings if fail

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Adjustment: What to File

• I-485 – Filing fee

• G-325A (between ages of 14 and 79)

• 2 passport-style photos

• I-130 w supporting docs (IRs) or app’l notice for previously filed I-130

• Medical exam by civil surgeon on I-693

• Evidence of lawful admission if needed

• I-864, I-864EZ, or I-864W

• Birth certificate (translated)

• I-765 if want EAD

• I-131 if want Advance Parole (but beware 3/10 year bars!)

• G-28 if applicable

• Proof of bona fide marriage (if applicable)

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Filing Procedure

All family-based adjustment applications, including

applications for EAD and advance parole, are

filed at “Lockbox”

From there, case files forwarded to NBC – National

Benefits Center, in Lee Summit MO

Then to local district office if to be interviewed

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Adjudication

• Some I-485s adjudicated without

interview

• If CIS decides interview needed, will

forward to local District Office for interview

– Marriage-based cases

– Inadmissibility issues

– Other issues that need in-person interview to

resolve

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Adjustment Interviews

• CIS officer interviews beneficiary (and

often petitioner)

• Marriage-based cases: will question

about marriage

• Ask about inadmissibility issues

• Officer has access to any other

immigration applications beneficiary has

filed in the past

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Security Check Delays

• CIS runs “security checks” on all

adjustment applicants – should be

cleared before they will adjust

• Current CIS policy – will adjudicate

based on available evidence if no FBI

report after 180 days, application

otherwise approvable, and outside

normal processing times

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Role of Representative

• Attorneys and accredited reps (incl

partial) may represent clients at

adjustment interviews

• Benefits of representation at interviews

• Role of representatives who don’t

appear at interviews

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Decisions

• At interview

• After interview

• Denials

– Denial should explain reason for denial

– No appeal

– May reapply before IJ if put in removal

proceedings

Questions?

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