New York Lawyer's Legal Updates

Adjustment Of Status For Arriving Aliens

Author: New York Immigration Lawyer Alena Shautsova

Adjustment of status is an immigration process during which a person receives permanent residency in the United States without having to leave the country. It is often used for those who came to the US on various visas and later got married to US citizens or found an employer who sponsored them for a green card. To adjust one’s status, an applicant has to demonstrate that he/she was paroled or admitted into the US, that he/she is not inadmissible and that there is a relevant current petition (basis for the green card).

A person would be considered inspected and admitted into the US if he/she came to the US through a designated port of entry with a valid visa or without a visa in certain situations. Sometimes, it is possible to argue that a person was “waived in.” But there is a group of people who were not inspected or admitted, but let into the US legally under an authority of parole. Often, people who travel using advance parole (DACA applicants for example, TPS holders) are paroled but not admitted into the United States. Nevertheless, such individuals may adjust their status to permanent residency in the US.

There is one more group of people who often find themselves facing difficulties while trying to adjust status. These are people who were paroled into the United States after they successfully passed credible fear interview and were placed in INA 240 removal proceedings under “arriving alien” category. Such a situation may happen when somebody surrenders him/herself at the border, presents a valid asylum claim, passes a credible fear interview and instead of INA235 expedited or asylum only proceedings, is allowed to defend himself/herself using other than asylum means of defense in court.

Usually, when a person’s case is in court, an Immigration judge has control over person’s applications and will decide them. But it is not the case for an arriving alien who is applying for adjustment of status in removal proceedings. Only USCIS has jurisdiction to adjudicate adjustment of status application for an arriving alien in removal proceedings. Bona v. Gonazales, 425 F 3d 663 (9th Cir. 2005); Clifton v. Holder, 598 F 3d 486 (8th Cir 2010). The only time when a an arriving alien will be able to ask for an adjustment of status in front of an IJ (Immigration Judge), is when he/she returned to the United States pursuant to an advance parole, USCIS denied their adjustment of status, they are placed in proceedings and they are renewing previously filed application for adjustment of status. It is important to remember here that a petition that had been already used once for adjustment of status (for example an I 130 petition) cannot be re-used again. Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006). 8CFR §204.2(h)(2).

06 March 2017
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