Issue: Arriving Alien / Adjustment of Status
Location: Los Angeles, CA / Cleveland, OH
Our Filipina client came to the United States in 2003 with an H-1B visa to work at a Cleveland Ohio hospital as a registered nurse. Through an attorney, her employer filed an I-140 Petition for her and she eventually filed an adjustment of status application. While her adjustment of status application was pending, our client traveled abroad with an Advanced Parole travel document. While abroad, her I-485 was denied due to unauthorized work lasting over 180 days not for the H-1B company. Though her I-485 was pending during that time, her attorney unfortunately did not file an I-765 application for employment authorization document even though she was eligible. She came back to the United States in February 2007 on the same advance parole document. She was not stopped despite the I-485 denial.
She did not know about the denied I-485 and she was not notified by her attorney, thus she was under the impression the I-485 was still pending and that her advance parole was valid. She later found out about the denied I-485 upon following up with her attorney so she hired a different attorney to re-file it and address all pertinent issues. However, her adjustment of status application was denied again in 2009 and she was placed in removal proceedings with the issuance of a Notice to Appear. Part of the denial focused on her last entry on the advance parole, when she came back when her I-485 was already denied. On her Notice to Appear (“NTA”), due to her entry, she was considered an arriving alien.
Our client married her U.S. citizen spouse after removal proceedings were initiated. Meanwhile, our client’s first hearing was scheduled at the Cleveland Immigration Court. Our client consulted with our firm to see if there was anything that could be done for them knowing that she had this entry issue involving her I-131 despite a denied I-485, and her deemed illegal work for over 180 days.
We saw from her Notice to Appear that she was considered an arriving alien and based on that, we advised her that we can apply for adjustment of status based on her marriage to a U.S. citizen. She retained us in June 2011.
An arriving alien can adjust his or her status with the USCIS even though he or she is in removal proceedings or has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings. Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.
Under the amended jurisdictional provisions of the interim regulations, the USCIS has been given jurisdiction over adjustment of status applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).
At the first hearing in Cleveland, Attorney Sung Hee (Glen) Yu accompanied our client, took pleadings, and conceded removability. He explained that since our client is an arriving alien and is married to a U.S. Citizen, that she shall file an I-130 and I-485 with the CIS, since jurisdiction for both lies with the CIS. Our office then prepared and filed the I-130 Petition and I-485 adjustment of status application in accordance with the regulations, including the bona fide marriage exemption letter mandatory for marriages entered into after removal proceedings. Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.
Our client’s I-130/I-485 interview was scheduled on January 11, 2012 at the Los Angeles California USCIS field office. Prior to the interview, Attorney Yu thoroughly prepared our client and her husband for their USCIS adjustment of status interview. The preparation lasted for over an hour due to the “arriving alien” issue and other possible concerns with regards to our client’s extensive immigration history.
At the interview, Attorney Yu accompanied our client and her husband at the Los Angeles USCIS office. At the interview, the USCIS officer argued that they did not have jurisdiction to adjudicate the adjustment of status application because removal proceedings were not yet terminated. Attorney Yu argued that the USCIS clearly has jurisdiction for adjudication of our client’s adjustment application, regardless of whether proceedings were terminated. He argued that termination can occur after the adjustment of status approval. The interview lasted two hours and included a meeting between Attorney Yu and the head of the Los Angeles USCIS, as referred by the CIS officer with regard to the jurisdictional issue. After the meeting, the USCIS officer eventually approved the I-130 petition on the same day. Eventually, our client’s adjustment of status application was approved by the USCIS on January 26, 2012. After almost ten years in the United States, overcoming two adjustment of status denials, and being placed in removal proceedings, our client is now finally a permanent resident of the United States.
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