Issue: Arriving Alien / Adjustment of Status
Nationality: Chinese
Location: Cleveland, Ohio
Our client came to the United States in 1991 without any documents (such as a passport or a visa) from China. Once he arrived at the Los Angeles International Airport, he was inspected by the DHS officer and was paroled into the United States. He applied for asylum relief after he was paroled in, but, his asylum relief was denied by the Immigration Judge in 1993. Thus, he had a final order of removal (exclusion).
According to 8 C.F.R 1.1, 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. 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.
Despite his final order of removal, our client remained in the United States and his biological daughter became 21 years old in 2020. Our client consulted with our firm and retained us on August 18, 2020.
Arriving Aliens can adjust his or her status even though they were subject to removal proceedings previously. 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(EOIR)) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8).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 applications of “arriving aliens” in particular.
The January 12, 2007 USCIS memo states that USCIS can decide an adjustment application of a parolee with a final order under these interim regulations.
- Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment 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).
Thus, our office thoroughly prepared and filed the I-130 Petition and I-485 Adjustment of Status application in accordance with the regulations on September 22, 2020. Everything went smoothly and the receipt notices, finger print notices, and work authorization all came on time. Prior to the interview, our office thoroughly prepared our client for their upcoming USCIS adjustment of status interview.
On May 25, 2021, Attorney Yu accompanied our client and his daughter in Cleveland USCIS office. Though the interview went well, the USCIS issued the Request for Evidence and requested our client to submit a certified copy of our client’s marriage certificate. We submitted it on December 3, 2021. Eventually, the USCIS approved our client’s I-485 adjustment of status application on February 3, 2022. Despite being a parolee and “arriving alien” in the United States for the last 20 years, he finally is a permanent resident of the United States.