by
Cyrus D. Mehta*
It is vital for a non-citizen who is not in status to be able to adjust status to
permanent residence within the United States. Unless the individual who is not in status is able to adjust
status here, he or she would have to leave the US to process for an immigrant visa at an overseas consular
post. A person under such circumstances could trigger either the 3-year or 10-year bars of
inadmissibility.
1
Thus, it would make no sense for such an individual to initiate the “green card” process
through a labor certification or some other family or employment-based petition if he or she would not be
able to adjust status here, and instead depart the US and trigger the bars.
INA § 245 governs the eligibility requirements for adjusting status to permanent residence within
the United States.
2 Essentially, the non-citizen must have been "inspected and admitted or
paroled into the United States" and must also be the beneficiary of an approved immigrant visa petition
under INA § 204(a)(1). This would include a family, employment, religious worker, or investor petition
as well as a win under the diversity visa ("green card lottery") program.
Furthermore, one is precluded from adjusting status after having accepted unauthorized employment,
been in unlawful status or failed to maintain continuously a lawful status since entry into the United
States."
3 There are other bars to adjustment of status too. For instance, alien crewmen or
aliens admitted in transit without a visa also cannot adjust status.
4
On the other hand, there are several exceptions, particularly with respect to those who are in violation
of their status in the United States:
Immediate Relatives
Immediate relatives who have been sponsored by US citizens - spouses, minor children and
parents
5 - may still be able to adjust status even if they have failed to maintain lawful status
or engaged in unauthorized employment. However, even this group of individuals must have been
“inspected and admitted or paroled” into the United States in order to be eligible for
adjustment of status despite subsequently violating their status. If, thus, an immediate relative of a US
citizen originally entered the US without inspection, he or she would still not be eligible to adjust status.
Note that a fiancée or fiancé of a US citizen on a K-1 visa or a spouse of a US citizen
on a K-3 visa, pursuant to INA § 101(a)(15)(K), can only adjust status through the citizen who filed the
K visa petition.
6 Hence, an individual on a K visa would be precluded from adjusting status
based on a marriage to a US citizen who was not the sponsor of the K visa petition.
Crewman and aliens on transit visas are still ineligible even if they are immediate relatives of US
citizens.
Technical Exceptions
§245 (c) excuses status violations"other than through no fault of his own or for technical
reasons." The regulations of the United States Citizenship Services limit the technical exceptions to the
following: i) Inaction of another individual or organization designated by regulation to act on behalf of an
individual and over whose actions the individual has no control, if the inaction is acknowledged by that
individual or organization (as, for example, where a designated school official or an exchange program
sponsor did not provide required notification to the Service of continuation of status, or did not forward a
request for continuation of status to the Service); (ii) A technical violation resulting from inaction of the
Service (as for example, where an applicant establishes that he or she properly filed a timely request to
maintain status and the Service has not yet acted on that request); (iii) A technical violation caused by the
physical inability of the applicant to request an extension of nonimmigrant stay from the Service either in
person or by mail (as, for example, an individual who is hospitalized with an illness at the time
nonimmigrant stay expires and is explained by a letter from the physician or hospital); or (iv) A technical
violation resulting from the Service's application of the maximum five/six year period of stay for certain
H–1 nurses only if the applicant was subsequently reinstated to H–1 status in accordance
with the terms of Public Law 101–656 (Immigration Amendments of 1988).
7
These exceptions have been construed narrowly. The first does not apply if the sponsor delayed in
filing the documents, the Department of Labor did not approve the labor certification in time or that the
non-citizen was unable to file the adjustment application in time because the priority date was not current.
It would only apply if the school or exchange-visitor sponsor did not take timely action, which resulted in
the F or J visa holder’s violation, and is acknowledged as such by the designated official.
It may however be possible for a V-2 or V-3 visa holder to assert the first exception who was earlier
not able to extend his or her status beyond the age of 21, but now is able to do so as a result of a reversal
in USCIS policy.
8
The second exception is applicable when a non-citizen files an asylum application prior to the
expiration of his or her visitor visa and then files for adjustment of status during the pendency of the asylum
application.
9 Even if the asylum application is subsequently denied, the individual can still
adjust status provided the application was filed prior to the denial.
10 This is true even if the
asylum application is not granted at a USCIS Asylum Office and the non-citizen is placed in removal
proceedings and applies for adjustment of status before an Immigration Judge.
11 On the
other hand, the exception may not apply if an adjustment application was filed while a timely request for an
extension of nonimmigrant status was pending.
12
The third exception is self-explanatory, while the fourth is no longer applicable.
§ 245(i)
INA §245(i), on the other hand, allows a person to apply for adjustment of status notwithstanding
the fact that he or she entered without inspection, overstayed, or worked without authorization. Under this
provision, a person who has violated immigration status would still be able to adjust to permanent residence
if a fee of $1,000 accompanied such a filing and as long as this person (including the spouse and children)
is the beneficiary of any labor certification or petition filed under Section 204 of the Act on or before April
30, 2001.
INA § 245(i) previously sunset on January 14, 1998, but was revived under the LIFE Act
amendments to include any application filed on or before April 30, 2001.
13 Under the latest
amendment, if a person filed after January 14, 1998 and before April 30, 2001, he or she had to be
physically present in the US on or before December 21, 2000 in order to take advantage of Section
245(i).
Interestingly, INA § 245(i) waives all the disqualifying conditions to adjusting status in §
245(a), requiring an entry with inspection or parole, and in § 245(c). Thus, under § 245(i), a
person who entered without inspection can still adjust status if he or she meets all of the other conditions
of this provision. Moreover, the disqualifications in § 245(c) are also not relevant, such as being an
alien crewman or on a transit visa if an individual is eligible under § 245(i). But a K visa holder would
still not be able to take advantage of § 245(i) in the event that he or she is adjusting through a citizen
spouse who was not the sponsor of the K visa petition.
Although the latest version of § 245(i) again sunset on April 30, 2001, it still is a boon for
non-citizens who are considered "grandfathered" under this provision.
14 In order to be
"grandfathered," the labor certification or petition should have been "approvable as filed," which means
"that, as of the date of the filing of the qualifying immigrant visa petition under INA § 204 of the Act or
qualifying application for labor certification, the qualifying petition or application was properly filed,
meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without
substance)."
15 If such a petition or application, which was approvable as filed, is later
withdrawn, denied or revoked due to circumstances that have arisen after the time of filing, it would still
preserve the non-citizen's eligibility to adjust status under a different application or petition.
16
On March 9, 2005, the USCIS issued an important memo
17 clarifying who can be
grandfathered under § 245(i). The memo is noteworthy because it clarifies that there is no restriction
on the number of times a non-citizen may properly seek to adjust status under § 245(i). In the past,
the USCIS frequently took the position that a non-citizen could file under § 245(i) only once.
The memo also clarifies under what circumstances a derivative spouse or child can grandfather under
§ 245(i). If a spouse was already married to an alien who was the beneficiary of a labor certification or
immigrant visa petition filed on or before April 30, 2001, then this spouse would independently grandfathered
under § 245(i) even if the marriage is subsequently terminated. Thus, the derivative spouse could file
an adjustment application under a wholly independent basis separate from the spouse’s immigrant
visa petition. The same principle applies to a derivative child. The memo, on the other hand, distinguishes
between a spouse who was married to a grandfathered alien prior to April 30, 2001, and a spouse who
marries such an alien after April 30, 2001. In the latter situation, such a spouse cannot independently
grandfather and is limited to filing an adjustment of status application under § 245(i) as a derivative of
the spouse who has been grandfathered. The memo notes that the qualifying relationship must continue to
exist at the time the principal alien adjusts status in order for the spouse or child to obtain the derivative
benefit.
According to the memo, if an "after acquired" spouse - one who married a grandfathered alien after
April 30, 2001 – subsequently divorces, such a spouse is not considered to be grandfathered and
may not file for adjustment of status under § 245(i) either independently or as a dependent of the
principal alien.
§ 245(k)
Another useful, albeit limited, exception is INA § 245(k). This provision may only be availed by a
beneficiary of an employment-based petition under the first, second and third preferences as well as the
beneficiary of a religious worker petition who is seeking to adjust status. Unlike § 245(i), which waives
all disqualifications under § 245(a) and (c), § 245 (k) only waives the disqualifications listed
under § 245 (c)(2), (c)(7) and (c)(8).
18
§ 245 (k) triggers if
"(1) the alien on the date of filing an application for adjustment of status, is present in the United
States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeded 180 days
–
failed to maintain, continuously, a lawful status;
engaged in unauthorized employment; or
otherwise violated the terms and condition of the alien’s
admission."19
If the non-citizen is present in the US "pursuant to a lawful admission" and "on the date of filing an
application for adjustment of status" has not violated status or engaged in unauthorized employment for
more than 180 days, he or she would still be eligible to adjust status.
Although there has not been much interpretation on § 245 (k), it has now been confirmed that the
180 day period starts running after the last "lawful admission."20 Prior violations of status
would therefore not count towards the 180 days that begin after the "lawful admission."
It is also debatable whether 245 (k) trumps any violations that occur after the adjustment application
has been filed or does the 180 day period continue to run after the adjustment application has been filed?
Suppose the adjustment application is filed 170 days after the non-citizen has violated status. Then,
subsequent to the filing, the non-citizen continues to work without authorization for 11 more days. If the 11
days were to be added to the 170 days, § 245(k) would no longer protect the non-citizen.
There is a strong basis to argue that the 180 day period stops running when the application is filed
based on the statutory language, "on the date of filing an application for adjustment of status is present in
the United States."21 As noted earlier, 22 unauthorized employment after the
filing of the adjustment application would disqualify the non-citizen pursuant to § 245 (c) (8). However,
§ 245(k) explicitly exempts the application of (c)(7) and (8), which triggers even after the filing of the
application. In sum, one could argue that the 180 day period stops at the point of filing the application, and
if there is a violation after the filing, § 245(k) waives that too.
Unfortunately, the USCIS has not agreed with this interpretation. In an AILA/USCIS liaison meeting on
October 28, 2004, the USCIS advised that any unauthorized employment post filing due to a gap in the
issuance of the EAD would count toward the 180 days, and thus, if one goes over the 180-day period, the
applicant could still be precluded from adjusting status.23
*Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices
immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates,
P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient
of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the
City of New York and former Chair of the Committee on Immigration and Nationality Law of the same
Association. He frequently lectures on various immigration subjects at legal seminars, workshops and
universities and may be contacted in New York at 212-425-0555.
1 § 212(a)(9)(B) of the Immigration and Nationality Act (“INA”)imposes a
three year bar to a person who has accrued unlawful presence in the United States for more than 180 days
and a ten year bar to a person who has accrued unlawful presence in the U.S. for more than one year.
2See also 8 CFR § 245.1.
3 INA § 245(c)(2).
4 INA § 245(c)(1) and (3).
5 INA § 201(b)(2)(A)(i).
6 INA § 245(d).
7 8 C.F.R. 245.1(d)(2).
8 In Akhtar v. Burzynski, ___ F.3d ____ (9 th Cir. 2004), the court held that 8
C.F.R. § 214.15(g), terminating V-2 or V-3 nonimmigrant status prior to the child’s 21 st
birthday, was contrary to Congressional intent to reunite families when it enacted the LIFE Act. See
also USCIS Press Release, USCIS Announces New Policy Regarding V Status
Extensions, March 16, 2005, which announced that Akhtar would be applied nationwide
and those whose extension requests had been denied solely because they were over 21 could file new V
extension applications.
9See Matter of [name and file number not provided] (AAU Dec. 23, 1993),
digested in 71 Interpreter Releases 257 (February 14, 1994).
10See letter from Edward H. Skerrett, Chief, Immigration Branch, INS
Adjudications, to attorney Ronald J. Tasoff, File No. HQ 245-C (Apr. 6, 1994), reproduced at 71
Interpreter Releases 634, 641 (May 9, 1994).
11 The author was able to successfully argue this over the government’s objections
before an Immigration Judge in New York.
12See Memo, Janice Podolny, Chief, Inspections Law Division, Office of
General Counsel, HQCOU 90/15, posted on AILA Infonet at Doc. No. 03042140 (April 21,
2003) (non-citizen are not considered to be in lawful status while timely extension or change of status
application is pending even though s/he may not be accruing unlawful presence).
13 P.L 106-554.
14 8 CFR § 245.10
15 8 CFR § 245.10(a)(3).
16Id.
17 Memo, William R. Yates, Associate Director for Operations HQOPRD 70/23.1 (March 9,
2005), posted on AILA InfoNet Doc. 05031468 (Mar. 14, 2005).
18 § 245(c)(7) disqualifies a non-citizen who seeks adjustment of status under the
employment-based preferences and is not in a lawful nonimmigrant status. § 245 (c)(8) disqualifies a
non-citizen who was employed in an unauthorized capacity or who has otherwise violated the terms of a
nonimmigrant visa. These provisions apply to a non-citizen even after the filing of an adjustment of status
application. For example, if the individual works without an Employment Authorization Document (EAD)
while the application is pending, § 245 (c) (8) would disqualify him or her from being able to adjust to
permanent residence.
19 § 245(k)(1) & (2).
20 The USCIS Chief Counsel advised AILA that for purposes of § 245(k), an adjustment
applicant needs to demonstrate maintenance of status only from his or her last entry up to the date of the
filing of the adjustment application. However, the question of maintenance of status after the filing and the
applicability of § 245(k) was not addressed, posted on AILA InfoNet at Doc. No.
04060767 (June 7, 2004).
21 § 245(k)(1).
22 Note 15, supra.
23See Question 3 of the October 28, 2004, AILA/USCIS Liaison Minutes,
posted on AILA InfoNet at Doc. No. 05012163 (Jan. 21, 2005).