basics of adjustment of status - catholic legal … of... · · 2013-03-26basics of adjustment of...
TRANSCRIPT
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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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