ADJUSTMENT OF STATUS

While in Deportation/Removal Proceedings

245 of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. 1101-1524.

Copyright 1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

Originally, the Immigration and Nationality Laws of the United States provided that aliens may only acquire
their Immigrant Visas at a U.S. Consulate (Department of State) abroad. In most instances, this would occur
at the country of last residence or nationality. However, since, 1952, Congress has provided a mechanism for aliens
who qualify (e.g., have an approved visa petition that is immediate available) to adjust their status to that of a
permanent resident without departing the United States and traveling to a U.S. Consulate. Adjustment ought to be
envisioned as a procedure whereby an alien's formal immigration status is changed or adjusted without a formal admission
or entry as a immigrant. Hence, the phrase "adjustment of status" is a term of art and the statutory and regulatory references to adjustment refer only to the actual process of acquisition of lawful permanent residence within the United States at an U.S. INS Service Office.

The benefits of "adjusting" one's immigration status within the United States can, therefore, be immediately seen. Such an applicant enjoys a number of practical and potential advantages as compared to the normal consular process of immigrating to the United States, such as:

  1. the alien need not expend financial resources to return to his or her home country or incur the difficulties of dislocation.

  2. the alien may receive an employment authorization document (e.g., Work Permit, I-765) at the time of filing, pending adjudication of his adjustment of status application.

  3. the alien may travel abroad pending adjudication of the application if the foreign antional submits and receives approval of a discretionary grant for Advance Parole (e.g, Travel Document, I-131).

  4. the alien may have a denied application for adjustment of status reviewed by an Immigration Judge in deportation or removal proceedings and, if necessary, seek judicial review before Federal Courts; whereas a visa applicant at a U.S. Consulate may only have U.S. Consular Officials' denials reviewed by the U.S. Department of State Visa Office, but only as they pertain to matters of law.


To be eligible to apply for lawful permanent residence through the Adjustment of Status process, the following criteria must be met:

(1) Beneficiaries of an approved Immediate Relative petition (Form I-130) may apply for adjustment of status even if they previously worked without authorization or were out of status; and
 
(2) Beneficiaries of an approved Employment Based petition (Form I-140) may apply for adjustment of status so long as the time "out of status" or engaged in unauthorized employment was for an aggregate time of less than 180 days.

Under the terms of a provision of the law which is no longer effective for most aliens known as Section 245(i), an alien who did not meet all of the above criteria might be eligible to apply for adjustment of status by paying a penalty fee of $1,000. If a labor certification application or immigrant petition was filed on behalf of the foreign national prior to January 14, 1998, the foreign national may still be permitted to file an adjustment of status application by paying the penalty fee in some situations.

Accordingly, individuals who have been placed into Deportation, Exclusion, or Removal proceedings may be eligible to apply for Adjustment of Status pursuant to 245 of the Immigration & Nationality Act. In order to apply for Adjustment of Status while in Immigration proceedings, an applicant must file an Application for Adjustment of Status (Form I-485) in conjunction with the following forms before a United States Immigration Judge: Form I-485A, I-797C (Approval Notice for I-130 Visa Petition or NVC letter) G-325A, IRS 9003, ADIT sheet, Wr-636, I-864, 2 color immigration style photographs, along with all supporting documentation. An Immigration Judge does not have the authority or jurisdiction to adjudicate an I-130 Visa Petition, and therefore such petition must be filed with and in advance of the request for Adjustment of Status. Normally, Immigration Judges will not continue proceedings in order for the U.S. INS to adjudicate a pending I-130 visa petition. Hence, usually only aliens who are immediate relatives and are immediately eligible to Adjust Status (e.g., visa petition is immediately available) can file for Adjustment of Status before an Immigration Judge.

In this regard, aliens who marry while in Immigration proceedings, may have to request a special Bona Fide Marriages Exemption Waiver in order to have a visa petition approved by the U.S. INS. Normally, an alien who marries after November 10, 1986 and while in proceedings, is deemed to have married for the sole purpose of obtaining an immigration visa. Hence, pursuant to 8 C.F.R. 204.2(a)(1)(iii) (1998), an alien must demonstrate by clear and convincing evidence that the marriage is a bona-fide marriage, made in accordance with the laws of the place where the marriage took place, and was not entered into for the purpose of evading the immigration laws pursuant to 8 C.F.R. 245.1(c)(9)(iii). Generally, this requires that the alien demonstrate a valid relationship together and a intention to live as husband and wife (e.g., presence of children born to the martial union, long residency together, commingling of assets, etc.)

Application Procedure

The Adjustment of Status application is filed with the local Immigration Court having jurisdiction over the immigration proceedings to remove the alien from the United States on Form I-485 with the above-referenced supporting documentation. The alien must also file Form I-485A Supplement A regarding date and manner of entry and payment of the Section 245(i) penalty fee. This application must be accompanied by Biographic Information on Form G-325A, tax information on on IRS Form 9003, Affidavit of Support on Form I-864 for Approved Family Based Petitioners or Form I-134 for applicants with Aproved Employment Based Petitions, results of a medical examination on Form I-693 with Supplement, and various supporting documentation such as marriage and birth certificates, records of non-immigrant status and employment verification letters. The local Immigration Court notify the alien of his next court hearing, either a Master Calendar proceeding or Individual Hearing (for adjudication of the merits of the Application). In addition, the U.S. INS will notify the alien of a time and date to have his fingerprints taken by a U.S. INS official at an official Application Support Center. Please note, under new regulations only the U.S. INS may take an applicant's fingerprints. Aliens may no longer file a separate fingerprint card on Form FD-258.

The Immigration Judge will then review the Application for Adjustment of Status at the time of the individual Adjustment hearing set by the Court. Generally, the alien must "qualify" himself and his relationship with the petitioner in order to have the application approved, as well as demonstrate that the alien is not inadmissible to the United States (e.g., no disqualifying factors exist, or that a waiver will cure the defect). If an Application for Adjustment of Status is granted by an Immigration Judge, an order will be issued to that effect. However, the alien must still present the order to the U.S. INS for final issuance of proof of lawful permanent residency on Form I-551 (Alien Registration Card). An Immigration Judge cannot order the U.S. INS to give an alien his alien registration card. Nevertheless, the U.S. INS is bound to issue proof of lawful permanent residency while an alien is in proceedings pursuant to 8 C.F.R. 264.5(g) (1999). Accordingly, the alien is, at that moment, a lawful permanent resident, but will not receive his actual alien registration card, also known as a "green card," until the U.S. INS completes "card processing."

It is usually wise to also file applications for employment authorization along with an Application for Adjustment of Status. Please note, however, that aliens who are in immigration proceedings should not file for an Advance Parole document until their "card processing" is completed.

For more information about filing for Adjustment of Status while in Immigration proceedings, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.