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Resubmitting an I-485 Under Section 245(k)

by Carl Shusterman

During the past two years, the USCIS has denied hundreds, perhaps thousands, of employment-based Applications for Adjustment of Status (Form I-485) on grounds that could have been overcome if the applicants were permitted to resubmit their applications. Persons who are "immediate relatives" of U.S. citizens may resubmit their I-485s as many times as they wish. So may persons who qualify under section 245(i).

With regard to employment-based I-485s, there is no doubt that persons in valid nonimmigrant status may also submit multiple I-485s. But there are a myriad of restrictions on maintaining valid nonimmigrant status once a person has submitted form I-485. In 1997, Congress amended the law to allow certain persons not currently in legal status to apply for employment-based adjustment of status under section 245(k). Section 245(k) reads as follows:

"An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C) , under section 203(b)(4) ) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), 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 exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien's admission."

Section 245(k) would seem to permit a person to resubmit an application for adjustment of status as long as (1) he does so within 180 days of his I-485 being denied plus (2) any time that he was not in lawful status or engaged in unauthorized employment prior to filing his initial I-485 must be added to the 180 days.

At least, this was USCIS' position prior to 2005. And it makes sense. The status requires that a person maintain "a lawful status". The period of time that a person is waiting for the USCIS to adjudicate form I-485 is clearly lawful since the person is permitted to reside in, and be employed in, the U.S.

Sometime in 2005, the USCIS started to deny resubmitted I-485s filed by registered nurses on the ground that the period of time that the RN's previous I-485 was pending was a "period of stay authorized by the Attorney General", but not a "lawful status". Huh?

This seems like a bit of sophistry on the government's part.

First, the applicant has no control over how long the government takes to adjudicate an application for adjustment of status. If the government decided on the application negatively within 180 days, the applicant clearly could reapply under section 245(k). However, since the USCIS seldom decides such applications within this timeframe, they then argue that, in effect, their slowness bars applicants from refiling under section 245(k)! This seems a wee bit self-serving on USCIS' part. Delay adjudicating the I-485 for months or even years, and then penalize the applicant for the government's delay.

RNs have been disproportionately affected by this interpretation because there is no general nonimmigrant visa category that they qualify for. Did we mention that the USCIS would have no problem with RNs refiling their I-485 if they maintain their valid nonimmigrant status? Unfortunately, it is nearly impossible for an RN to maintain a nonimmigrant status during the pendency of the I-485.

The USCIS decided back in 2000 that a pending application for adjustment of status tolls a person's "unlawful presence" in the U.S. for purposes of avoiding the three and ten-year bars. Yes, somehow, the USCIS makes a distinction between a person being lawfully present in the U.S. and being in "a lawful status" under section 245(k).

The bottom line, in our opinion, is that the USCIS is attempting to amend section 245(k) by adding a modifier: the person must be in "a lawful (nonimmigrant) status". The word "nonimmigrant" does not appear in the statute. The problem for the USCIS is that it is not part of the legislative branch of the government, and therefore is not able to amend laws written by Congress. The USCIS is part of the executive branch and its duty is to enforce the law. Trust me on this. It's on the naturalization exam.

Ten years after the President signed the law, the USCIS has yet to issue regulations interpreting section 245(k). They have not even issued a precedent decision justifying their interpretation, or written a policy memorandum on this subject.

However, this does not prevent the agency from issuing I-485 denials based upon this dubious logic. And we predict that given the 300,000 persons who submitted I-485s from mid-July to mid-August this year coupled with the retrogression of the EB numbers in the October 2007 Visa Bulletin, a lot of persons besides RNs will be negatively affected by USCIS' overly restrictive interpretation of section 245(k) in the future.

We hope that if the reasons for the denial can be cured, one intrepid applicant will seek to resubmit his or her I-485 and, thereby, challenge the government's argument that the law bars him from doing so. A favorable ruling would benefit not just the applicant, but thousands of other would-be immigrants.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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

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