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Strategies Every Immigration Attorney Should Consider In Light Of DHS's Pending Adjustment Application Removal Procedures

by Robert G. Nadalin, Esq.

I. Are Employment Based Nonimmigrant Visa Holders Who Concurrently Pursue an Adjustment of Status Application Based on an Employment Based Immigrant Petition Subject to Removal Proceedings at the Discretion of the Government?

Recent comments made by government officials indicate that the Department of Homeland  Security takes the position that it can refer aliens with pending adjustment of status applications to immigration court for removal proceedings.[1] Practitioners need to decide how best to protect their clients and may choose to extend an underlying nonimmigrant status for eligible clients as a means of obtaining additional protection against this new policy. This article will explore to what extent this is helpful and whether the ability to continue to maintain a lawful nonimmigrant status while an adjustment of status application is pending is limited to H-1B and L-1 visa status holders and their dependents.

PLACING ADJUSTMENT OF STATUS APPLICANTS IN PROCEEDINGS IS QUESTIONABLE AND IN CLEAR CONFLICT WITH OTHER ALREADY EXISITING POLICIES

The authority to place applicants with pending adjustment of status cases into immigration court proceedings is questionable. Even if such authority were found to exist, it would be an extremely bad policy for the DHS to refer applicants to proceedings prior to the adjudication of the pending adjustment application as such a policy would be a significant waste of resources for the agency.  ICE (Immigration and Customs Enforcement) has even issued guidance memorandum confirming this. A memorandum from the ICE Principal Legal Advisor, William J. Howard encourages ICE attorneys to join in motions to dismiss proceedings for individuals with clearly approvable adjustment of status cases in order to conserve limited ICE resources through the reallocation of approvable cases to CIS (Citizenship and Immigration Services). [2]

The USCIS also seems to recognize the need to use good judgment in deciding which cases should be referred to proceedings, even after an adjustment application has been denied. A recent memo from Michael Aytes, Associate Director, Domestic Operations, provides as follows:

In all other [noncriminal/ non-fraud/ non-danger to public safety] cases, once the denial of the application or petition is complete (including applications for waivers for which the applicant may be eligible), USCIS may issue an NTA where the applicant or permanent resident petitioner appears to be removable. However, if an individual submitted an application while in a valid non-immigrant status and there is no criminality surrounding the reasons for the denial and nothing else indicates that the alien will not timely depart the United States, the denial notice should clearly convey to the applicant the effect of the decisions and the fact that the individual should depart the United States or potentially face removal proceedings.

 

If an alien is in parole status as a result of an advance parole and has not otherwise violated the terms of his or her admission, the denial will indicate that the parole is terminated 30 days after the date of the denial. Issuance of an NTA also will serve as written notice of the termination of the parole, unless otherwise specified. See 8 CFR 212.5(e). [3]

If such caution is used to refer an applicant with a denied case to proceedings, there should be no necessity to refer an applicant with a pending adjustment application to proceedings prior to the adjudication of the pending case.

IS "APPLICANT FOR ADJUSTMENT OF STATUS" A STATUS?

The Immigration and Nationality Act provides for different kinds of immigration statuses, of which the nonimmigrant visa statuses are just one subcategory.[4] The use of the term "status" can be found to refer to the admission of lawful permanent residents. [5] It is used to refer to the status of being a citizen.[6] Further, it can also be found to refer to the circumstance of a person inspected and admitted or paroled into the U.S. who also has filed an application for adjustment of status to lawful permanent residence.[7] Specifically, INA § 245(a) provides that "The status of an alien inspected and admitted or paroled into the United States . . . may be adjusted . . . to that of an alien lawfully admitted for permanent residence. . . " (emphasis added.)

The term adjustment of status status reflects a legal standing. The Immigration and Nationality Act as well as the USCIS interpretive regulations, which have the force and effect of law, provide a number of rights accorded adjustment applicants. An applicant has legal standing to request an EAD (Employment Authorization Document) to engage in lawful employment in the U.S. while the application is pending. [8] An adjustment applicant has the right to request an advance parole travel document to facilitate international travel. [9] Further, an applicant has the right to have his or her case adjudicated and may file a mandamus action if the CIS refuses to adjudicate the case. [10] An applicant also has the right to renew the application before an Immigration Judge if placed in proceedings. [11] The legal status of an adjustment applicant is also recognized in that the applicant is not unlawfully present in the U.S. during the time a properly filed I-485 adjustment application is pending. The Service has even issued a memo designating the time a properly filed affirmative adjustment of status application under 245 of the Act or 249 of the Act to be a period of stay authorized by the Attorney General. [12] Thus, just as a person with permanent residence status and a person with nonimmigrant H-1B, L-1, E-1 or E-2 status has the right to work legally in the U.S., to return to the U.S. from travel abroad, and to lawfully remain in the U.S. while complying with the terms of the given status, an adjustment applicant also shares in all of those same rights, derivative of the status of being an adjustment applicant. Thus, more than a mere penumbra, the filing of an adjustment of status application should be viewed by DHS as providing a lawful status.

WHAT GOUNDS OF DEPORTATION COULD DHS TRY TO APPLY TO ADJUSTMENT APPLICANTS?

Classes of deportable aliens can be found in Section 237 of the Immigration and Nationality Act (the INA). While aliens with adjustments pending who have committed deportable offenses obviously face removal or deportation, particularly if the deportation ground is also a ground of inadmissibility, it is not clear under what grounds those without such violations are placed in proceedings.

Aliens Inadmissible at the Time of Entry [INA § 237(a)(1)(A)]

Aliens inadmissible at the time of entry into the U.S. or adjustment of status are specifically listed in this section of the Act as being deportable. The specific grounds of inadmissibility can be found at INA Section 212 and include aliens present in the U.S. without being admitted or paroled. [13]  With the exception of some applicants applying under INA § 245(i), the majority of adjustment applicants will apply after having been inspected and admitted into the U.S. under one of the classifications of nonimmigrant visas, or will continue to pursue a pending adjustment application after having been inspected and paroled on an advance parole. Applicants who were not inadmissible at the time of entry but later fell out of status, should not be removable under the provision of INA § 237(a)(1)(A) provided they were not inadmissible at the time of their entry into the U.S. Further, applicants subject to INA § 245(i) who entered the U.S. without inspection are not subjected to removal proceedings under INA § 237(a)(1)(A) because they are not deemed to have made an "entry" into the U.S.[14]

INA § 212(a)(6)(A)(i) states that persons present in the U.S. without being admitted or paroled, or who arrive at any time or place other than as designated by the Attorney General are inadmissible. Nonetheless, INA § 245(i) provides specific relief to this ground of inadmissibility by allowing eligible applicants who entered the U.S. illegally to adjust status by paying a $1000 penalty fee.

Further, the inadmissibility bars found at INA § 212(a)(9)(A) and (C) only apply to persons after removal from the U.S. The unlawful presence bars found at INA § 212(a)(9)(B) apply to persons who have been removed or departed the U.S. on their own after a period of unlawful presence. These bars specifically do not apply to persons present in the U.S. pursuant to a period of stay authorized by the Attorney General, including parolee status. [15] Thus, adjustment applicants using an EAD and/ or advance parole instead of an H-1B or L-1 visa are not removable based on any unlawful presence related ground of inadmissibility.

Aliens Removable for Being Present in Violation of Law [INA § 237(a)(1)(B)]

INA § 237(a)(1)(B) states that "an alien who is present in the United States in violation of this Act or any other law of the United States is deportable." Adjustment applicants are specifically recognized as being lawfully present. [16] They should therefore be allowed to remain here lawfully through the time the application is adjudicated as they are not present in the U.S. in violation of the law.

Aliens Removable as Nonimmigrant Status Violators [INA § 237(a)(1)(C)]

Classes of removable aliens also include nonimmigrant status violators. [17] As adjustment applicants are not listed among the various nonimmigrant classifications,  adjustment applicants are not nonimmigrants and should fall outside of the scope of INA § 237(a)(1)(C). [18] This ground could only apply if adjustment of status applicants were  deemed to derive no status from a pending application and subjected to proceedings based on a former nonimmigrant status, or lack thereof. Such a policy would ignore the Congressional mandates expressly provided by INA §§ 245(i) and 245(k) and the limitations on the applicability of INA §§ 245(c)(2) and (c)(8) to immediate relatives who engage in unauthorized employment.

INA § 245(i) provides that an alien who illegally entered the U.S. without inspection or who failed to maintain continuously a lawful status since the time of entry into the U.S., may adjust his or her status by paying a $1000 penalty fee if he or she is the beneficiary of an immigrant petition filed on or before April 30, 2001. INA § 245(k) provides that an alien may immigrate under the first three employment based preference categories listed in INA § 203(b), as long as he or she is in the U.S. pursuant to a lawful admission and has not, for an aggregate period exceeding 180 days, failed to maintain a lawful status, engaged in unauthorized employment or otherwise violated the terms and conditions of admission. Both of these provisions clearly provide a benefit to persons with pending adjustment applications who previously violated a nonimmigrant status. If these applicants were removed from the U.S. before their applications could be adjudicated, the will of Congress could never be carried out and these two laws would become meaningless. While technically a valid ground of deportability exists for status violators, as noted above, it seems to be a great waste of resources to attempt to apply this to immediate relatives or those eligible to adjust under 245(i) or 245(k).

II. Continuation of Nonimmigrant Statuses in Place at Time Adjustment Application Is Filed.

If ICE and USCIS persist in asserting that adjustment applicants with no underlying valid nonimmigrant status are eligible to be placed in removal proceedings, aliens may feel compelled to maintain an underlying nonimmigrant status.

ABILITY TO EXTEND NIV STATUSES WHILE ADJUSTMENT APPLICATION PENDING FOR PERONS WHO HAVE NOT TRAVELED OUTSIDE THE U.S. AND NOT WORKED FOR ANOTHER EMPLOYER ON EAD

H-1B and L-1

An alien’s maximum H-1B stay is limited to 6 years. [19] H-1B visa holders may continue to obtain H-1B extensions while an adjustment of status application is pending.[20] It may also be possible to make the most of the time allowed by recapturing any days spent physically present outside of the U.S., as those days should not count toward the maximum allowed stay. [21] Further, extensions beyond the 6 year maximum may be available under two circumstances. The status of an H-1B holder may be extended in increments of one year if 365 days or more have elapsed since the filing of either a labor certification application or an immigrant visa petition.[22] Also, the status of an H-1B holder may be extended for an additional 3 years if the alien is the beneficiary of an approved I-140 petition but has not yet been able to complete the immigrant process due to the per country immigrant visa quota  limitations. [23]

L-1 time is limited to 5 years for specialized knowledge personnel and 7 years for managers and executives. [24] Unfortunately, unlike the H-1B, there are no exceptions under the current law available for obtaining additional time once the maximum allowed time has been reached.

O-1 and E-visa Holders

Many nonimmigrant visa categories have a strict nonimmigrant intent requirement. Others, however, are more flexible in recognizing the dual intent concept, which allows a person to concurrently pursue work in the U.S. temporarily on a nonimmigrant visa while concurrently pursuing an immigrant visa which shows an intent to remain in the U.S. on a permanent or indefinite basis. In addition to the H-1B and L-1 visa, the dual intent concept is also recognized for O-1 visa holders. [25] This may be viewed to support an O-1 extension for work authorization, but not travel authorization purposes, after the filing of an adjustment application. [26]

A 1997 memo written by Paul Virtue, Acting Executive Associate Commissioner recognizes the ability of E-1 and E-2 visa holders to file extensions after an adjustment application has been filed.[27] Further, the DOS Foreign Affairs Manual provides that an E-3 beneficiary may be the beneficiary of an I-130 or I-140 immigrant visa petition and also states that E-3 aliens in specialty occupations are treated under the same standard applied to treaty traders and investors.[28] Thus, after the filing of an adjustment application, it may be possible to obtain E-visa status extensions for adjustment applicants for work authorization, but not travel authorization purposes. Both the O-1 and E-2 visa classifications have no maximum time limitations and allow for an indefinite number of extensions to be requested.

F-1/ TN and Others

An extension application under one of the strictly nonimmigrant intent visa categories, including F-1 students and TN professionals would face an almost certain denial as the filing of an adjustment application, signed personally by the applicant, would be viewed to be a clear declaration of immigrant intent rendering the visa holder ineligible for additional extensions.

ABILITY TO EXTEND NIV STATUSES WHILE ADJUSTMENT APPLICATION PENDING FOR PERSONS WHO HAVE NOT TRAVELED OUTSIDE THE U.S. BUT HAVE WORKED FOR ANOTHER EMPLOYER ON AN EAD

CIS has taken the position that neither an H-1B nor an L-1 nonimmigrant is eligible for extensions of that status if the visa holder has worked for another employer on an  EAD.[29] This position is understood to cover the circumstance in which the visa holder stops working for the H-1B or L-1 sponsoring employer to begin working for some other employer. It is not clear that "moonlighting," or continuing to work for the sponsoring H-1B or L-1 employer while concurrently also working in the evening or on the weekend for another employer on the EAD would negate the possibility of obtaining an additional H-1B or L-1 extension, as a person in such a circumstance would still be complying with the terms of the approved petition requiring the visa holder to perform specific duties for a specific employer. The additional work for a separate employer would not interfere with the H-1B or L-1 employment, but would be in addition to and separate from the approved nonimmigrant petition.

Working on an EAD would not be viewed to be a violation of status for L-2 and E-visa spouses as they are allowed to obtain EAD work authorization pursuant to their nonimmigrant visa statuses.  However, H-4 spouses, L-2 children and E-visa children are not eligible for work authorization independent of a pending adjustment application and therefore would be viewed to violate status by working on an EAD obtained on the basis of a pending adjustment, which would render them ineligible for additional nonimmigrant extensions.[30]

ABILITY TO EXTEND NIV STATUSES WHILE ADJUSTMENT APPLICATION PENDING FOR PERSONS WHO HAVE TRAVELED OUTSIDE THE U.S.

Nonimmigrant Visa Holders Who Let NIV Status Expire After Adjustment Application Filed

A nonimmigrant visa holder who lets his or her nonimmigrant status expire after filing an adjustment of status application would be ineligible to extend that status inside the U.S., unless he or she were to be granted a request to be waived back into status based on exceptional circumstances beyond the nonimmigrant visa holder’s control.[31]

H-1B and L-1 Visa Holders Who Continue to Possess Facially Valid I-94 But Who Reenter on Advance Parole

If person with an approved H-1B petition travels and reenters on advance parole, he or she may apply for an extension of status. USCIS can then terminate the parole and readmit the person as an H-1B.[32]

Further, a memorandum from Michael D. Cronin from May of 2000 asserts that the Service takes the position that after last entering the U.S. on advance parole, an applicant may depart the U.S. and reenter on an H-1B visa.[33] This position seems to conflict with the regulation found at 8 C.F.R. § 245.2(a)(4)(C) which allow an applicant "who is in lawful H-1 or L-1 status" to travel outside of the U.S. and return in H or L status to resume a pending adjustment application. If an applicant’s previous "entry" had been as a parolee, and not pursuant to an approved H or L visa petition, then arguably he or she was not maintaining lawful H or L status prior to departing the U.S. Thus, he or she could potentially encounter problems in trying to return to the U.S. in H or L status after having made a previous "entry" as a parolee, depending on whether the reviewing immigration inspector chooses to follow the binding regulation or the non-binding memorandum.[34]

H-1B and L-1 Visa Holders who Reenter on H-1B or L-1 Visas

An H-1B and L-1 visa holder who reentered the U.S. in H-1B or L-1 status to resume a pending adjustment application would have last been admitted as an H-1B or L-1 nonimmigrant and therefore should remain eligible for an additional H-1B or L-1 extension.

Effect of Travel on All Other NIV Status Holders

All other nonimmigrant visa holders who file an adjustment application must obtain advance parole travel authorization to facilitate travel outside of the U.S. during the time an adjustment application is pending in order to avoid abandonment of the adjustment application.[35] This would make it impossible for them to reassume a nonimmigrant status as a parole entry is not a status that can be changed to a nonimmigrant classification.[36]

ADJUSTMENT OF STATUS IS A DISCRETIONARY PROCESS

The adjustment process is subject to the discretion of the adjudicator.[37] If the pending adjustment application is denied, an applicant who had continued to maintain valid H or L status would have a safety net to fall back upon. An applicant who did not continue to maintain a valid nonimmigrant status would be out of status upon the denial of the adjustment of status application and could then unambiguously be subjected to removal proceedings.[38] While perhaps a remote possibility at best, after the denial of the adjustment of status case and prior to the commencement of proceedings, the CIS could grant a request to waive the applicant back into status after his or her nonimmigrant status had expired and the adjustment of status application had been denied.[39]

The idea of the CIS or ICE instituting immigration proceedings while an adjustment case is pending can be contrasted with the CIS denying the adjustment based on a discretionary issue and issuing and filing a Notice to Appear subsequent to the denial, thereby subjecting the applicant to removal proceedings. This would clearly be authorized under the immigration laws.

IS IMMIGRATION COURT THE END OF THE WORLD?

An adjustment applicant placed in proceedings would be able to continue to pursue adjustment of status in addition to seeking other remedies including voluntary departure, cancellation of removal for certain nonpermanent residents, asylum, and paradoxically, termination of proceedings under the Howard memo. Although immigration court can be a scary place for aliens unfamiliar with it and practitioners not involved with removal work, it is a forum that provides applicants with both a notice of the proceeding and the opportunity for a full and fair hearing on the merits of the applicant’s case and the opportunity to seek relief including adjustment of status.

IS CP SAFER?

An additional point to consider would be whether pursuing consular processing abroad would be preferable to using the adjustment of status process available in the U.S. While the adjustment process is discretionary, and consular processing is not, it is important to note that only adjustment applicants have the right to have attorney accompany the applicant to the interview. The clear benefit of the adjustment of status process is that it allows for continuity of presence, there is no necessity to depart the U.S. to complete the process and no risk of separation from work or family if lengthy adjudication delays are encountered. Also, the ability to pursue remedies in court for erroneous denials clearly exists for adjustment applicants and such remedies could be significantly more difficult, if not impossible for consular processing applicants.[40] Adjustment still continues to be the more reliable method for successfully completing the permanent residence process.

CONCLUSION

Placing an alien with a pending adjustment application in proceedings is often legally dubious and a needless waste of resources for the DHS as well as the individual applicant. For some applicants, avoiding even the possibility of being placed in removal proceedings will lead them to continue to maintain a nonimmigrant status while concurrently pursing an adjustment of status application. Others may choose to use advance parole and an EAD instead of continuing to maintain a nonimmigrant status, as the advance parole and EAD may be cheaper to maintain in terms of attorney fee and government filing fee costs, the EAD may provide greater flexibility in employment and the advance parole may allow an alien to avoid the difficulties encountered in nonimmigrant visa processing at the U.S. consulates abroad. Prudent practitioners should weigh the risks and benefits of all possible options in helping clients to make informed decisions on these matters.


Endnotes

[1] Robert Divine, USCIS Chief Counsel, and Dan Brown, USCIS Deputy Associate General Counsel, were understood to have made comments at 2006 AILA Annual Conference in San Antonio, Texas implying that persons with pending adjustment of status applications could be placed in removal proceedings prior to the adjudication of a pending adjustment of status case.

[2] Memo of William J. Howard, Principal Legal Advisor, Exercising Prosecutorial Discretion to Dismiss Adjustment Cases, October 6, 2005.

[3] Memo of Michael Aytes, Associate Director, Domestic Operations, 70/1-P, Disposition of Cases Involving Removable Aliens, p.7 (July 11, 2006).

[4] INA § 101(a)(15) lists the various subcategories of nonimmigrant visa statuses.

[5] INA § 101(a)(13)(C).

[6] INA § 324(c).

[7] INA § 245(a).

[8] For employment authorization purposes, 8 C.F.R. § 274a.12(c)(9) provides that "an alien will not be deemed to be an ‘unauthorized alien’ as defined in INA § 274A(h)(3) while his or her properly filed Form I-485 application is pending adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 C.F.R. § 274a.12 to engage in employment. . . ."

[9] Advance parole travel authorization is issued to adjustment applicants pursuant to INA § 212(d)(5), 8 C.F.R. § 245.2(a)(4)(ii) and 8 C.F.R. § 223.2.

[10] 28 U.S.C. § 1361.

[11] 8 C.F.R. § 245.2(a)(1). See also, Agyeman v. INS, 296 F.3d 871, 879 (9th Cir. 2002).

[12] INA § 212(a)(9)(B). Properly filed affirmative applications submitted pursuant to INA § 245(a), 245(i) and 249 registry toll any unauthorized time and are considered to be a period of stay authorized by the Attorney General. Memo, Pearson, Exec. Assoc. Comm. Field Operations (HQADN 70/21.1.24-P, AD 00-07) (March 3, 2000).

[13] INA § 212(a)(6)(A).

[14] A persons who enters without inspection (an EWI) is deemed to be an applicant for admission under INA§ 235(a)(1).

[15] INA § 212(a)(9)(B)(ii). See also, Memo, Pearson, Exec. Assoc. Comm. Field Operations (HQADN 70/21.1.24-P, AD 00-07) (Mar. 3, 2000).

[16] Id.

[17] INA § 237(a)(1)(C).

[18] INA § 101(a)(15).

[19] 8 C.F.R. §214.2(h)(13)(iii).

[20] 8 C.F.R. §214.2(h)(16)(i).

[21] Nair v. Coultice, 162 F.Supp.2d 1209 (S.D. Cal. 2001).

[22] 21st Century Department of Justice Appropriations Authorization Act, PL 107-273 Sec 11030A (November 2, 2002).

[23] AC21 § 104(c). See also, Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2.8-P (May 12, 2005).

[24] INA § 214(c)(2)(D)(i)-(ii).

[25] Regarding O-1 dual intent, see 8 C.F.R. § 214.2(o)(13). Authority for E-1 and E-2 dual intent can be found at: 8 C.F.R. § 214.2(e)(5) and 9 FAM 41.51 N 15.

[26] Letter, Weinig, Deputy Asst. Comm., Adjudications, CO-214h-C (February 7, 1992), reprinted in 69 No. 13 Interpreter Releases 425, 432 (April 6, 1992).

[27] Memo, Paul Virtue, Acting Exec. Assoc. Comm. (August 5, 1997).

[28] See, 9 FAM 41.51 N16.6.

[29] Adjudicator’s Field Manual, § 30.1, and appendix 23.4, 31.2a.

[30] 76 Interpreter Releases 897, 898 (June 7, 1999).

[31] 8 C.F.R. § 214.2(c)(4).

[32] Memo of Michael D. Cronin, Acting Assoc. Comm., Office of Programs HQADJ 70/2.8.6,2.8.12,10.18 (May 16, 2000). See also, Adjudicator’s Field Manual, Appendix 23-4.

[33] Id.

[34] 8 C.F.R. § 245.2(a)(4)(ii)(C). See also, Memo of Michael Aytes, Associate Director, Domestic Operations, 70/1-P, Disposition of Cases Involving Removable Aliens, p.7 (July 11, 2006), confirming that the denial of an adjustment of status application does not affect the ability of the CIS to reinstate an applicant’s previous nonimmigrant status.

[35] 8 C.F.R. § 245.2(a)(4)(ii)(A).

[36] INA § 248.

[37] See, INA § 245(a).

[38] 8 C.F.R. §245.2(a)(5).

[39] 8 C.F.R. § 214.1(c)(4).

[40] Li Hing of Hong Kong, Inc.  v. Levin, 800 F.2d 970, 971 (9th Cir. 1986).


About The Author

Robert G. Nadalin, Esq. practices immigration and nationality law at Montag & Nadalin LLP in San Diego.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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