Adjustment of Status by Arizona Immigration Lawyer John Messing

In General

Adjustment of status is a procedure for intending immigrants located within the United States to obtain legal residency without ever having to leave the country.

Adjustment of status applications are administratively decided by the USCIS, which is branch of the Department of Homeland Security (DHS). Because USCIS also determines the petition for alien relative (form I-130) or employment based immigrant petition (form I-140), the adjustment of status petition (form I-485), supporting documents and related applications, often are filed together in a single packet, which helps improve processing times as a general rule. With the onset of the most recent recession, the number of petitions in most categories has plummeted enabling USCIS to reduce or eliminate backlogs, which as a result has cut the adjustment of status ordinary processing times dramatically, sometimes to a matter of three to months from filing to green card issuance, which is the fastest processing time achieved for such petitions in recent decades.

Tucson Family and Employment Based Adjustment of Status Attorney: Messing Law Offices

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Commonly Encountered Bars to Adjustment of Status

Inspection

An adjustment applicant must have been "inspected and admitted or paroled" upon to the United States. This precludes adjustment of status for any who entered without inspection.

• Entry Without Inspection, sometimes referred to as EWI, means coming into the country without reporting to the authorities; i.e., slipping in. This dooms many different types of petitions, although in cases of extreme family hardship; i.e., a real tragedy such an aging parent who is bed-ridden and needs constant care, a waiver for a qualified family relation may be available if requested timely. Luckily for those who can prove it concretely, EWI does not include people who were waved through a check- point erroneously, like a sleeping child in a car backseat. Such persons are considered to have been lawfully admitted to the United States. The trick is in proving it by evidence that the authorities will accept, without being able to count on a second chance to do so if the first attempt fails.
• Section 245(i) Amnesty. Amnesty Laws adopted in the mid-1990's and again in 2000 allowed people who were EWI to pay a fine in order to adjust status. The latest date an application could have been filed to benefit from this law was April 30, 2001. The good news is that if someone filed for you under that law, even if the application was never processed to conclusion, you can file a different petition based on a more recent marriage or job in qualified situations and take advantage of the former filing date even though it is going to be filed after April 30, 2001; i.e., it is as though you filed your new application on the date that the first unprocessed one was accepted. The first application had to have some factual basis as approvable at the time it was received for filing and could not have itself been fraudulent, but otherwise the clock is reset back to before April 30, 2001. Other requirements apply, which we can discuss in a free seven minute phone call, if you think this exception may apply to you or a family member. Contact Messing Law Offices.

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Immediately Available Visa

An immigrant visa must be immediately available to the alien at the time his or her application for adjustment is filed, or adjustment must be denied. The Department of State Visa Bulletin is updated monthly and shows the priority date for each immigrant preference category for that month. Qualified immediate relatives of U.S. citizens, including certain statutorily protected minor children who reached the age of 21 ("aged out") during the visa processing period, always automatically have a visa available to them without reference to the immigrant categories of the Visa Bulletin. Others must wait until a visa becomes current in their immigrant category before adjustment of status can be granted. In the interim, an out of status immigrant is subject to removal from the country, even if a petition for alien relative has been approved and visa availability is the only issue.

Falling out of Status

Unauthorized Employment, Unlawful Status or Failure to Maintain Status

Aliens who have engaged in unauthorized employment, who are not in lawful status at the time of filing of the adjustment application or who have failed to continuously maintain status since their entry into the United States are barred from adjustment of status unless they are qualified immediate relatives of United States citizens or certain special immigrants. Once the adjustment petition is filed, the applicant is deemed to be in a "period of stay authorized by the Attorney General" but immigration enforcement agencies have interpreted this period as not including lawful status, and so even immediate relatives of U.S. citizens who have filed for adjustment of status, hold employment authorization, but are no longer in another lawful status pending receipt of permanent residency are by Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) policy subject to detention and removal proceedings. An unpublished U.S. District Court memorandum opinion on legal status and adjustment of status that issued in December 2009 suggests that this policy is legally binding on the federal courts as a valid agency rule. However the Court took great pains to express displeasure with the result and stated:

"This Court is not at all pleased with the result of this ruling. It is a testament to the bewildering traps that the immigration laws set in the path of persons trying to comply with such laws that these petitioners were lawfully present in the United States but at the same time were not in 'lawful status.'"

If you are concerned about whether you are in status, or whether a family member or business associate may be in status and the impact on his, her or their ability to adjust status or remain in the US pending processing of the adjustment petition, please feel free to contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

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Some Basics and Pointers of Adjustment Petitions

Petitions

If you are seeking adjustment of status, the first step is to have a petition from a qualifying family member, or an authorized officer of an employer company filed for you. There are fees charged by the Government for such a petition.

In addition, the intending immigrant must file another, separate petition (form I-485) to adjust status and pay the required filing fee, which is currently $1010 per principal applicant. Sometimes all the petitions can be filed together, which is better because the process concludes faster, generally. At other times the petition on your behalf from a relative or company must be approved before any petitions to adjust are timely. If you file out of sequence and the filing is mistakenly accepted for filing, you stand to receive a denial and lose any chance of getting a refund, regardless of cause of the mistake, so you want to understand what you are doing before acting.

Basic forms and information about filing for adjustment of status can be gotten for free from the official USCIS website.

If you want to discuss filing a qualifying petition for or from a relative, company, employee or investor, contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

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Affidavit of Support

In most family based petitions and where a family member has 5% or more of ownership control in an employment setting, an affidavit of support must also be filed which promises repayment to the Government of specific types of welfare entitlements until citizenship is attained or 40 quarters of social security wages has been earned by the adjustment applicant. Read more about affidavits of support . . .

Usefulness of Adjustment of Status

As Path to Permanent Residency

Adjustment of Status is one way to obtain permanent residency. Permanent residency based on marriage to a United States citizen for less than two years at the time of filing for adjustment of status is conditional permanent residency. No later than two years from the anniversary of the grant of permanent residency as shown on the permanent resident card, the conditional permanent resident must file a form I-751 to remove the conditions. The form I-751 must be filed no earlier than 90 days prior to the expiration date of the card. A late filing will not be accepted unless there is a suitable explanation showing good cause for the late filing. A failure to file timely causes permanent residency and all of its benefits to lapse and renders the former permanent resident without status and subject to removal (deportation). The principal purpose of the I-751 is to satisfy the immigration authorities that the marriage was bona-fide and not entered into solely as a sham for immigration benefits. There is an expectation that the parties will still be married at the conclusion of the two year period. However, in the event of divorce before the expiration of the two year period, a waiver may be filed using the form I-751. Parties who are separated or in the process of divorce which is not final by the time that an I-751 is due are not eligible to have the conditions on permanent residency removed and are thus deportable. However, successive I-751's are permissible so long as late filing is justifiable for "good cause" and waivers can be filed for and obtained right up to a final removal order.

If you want to discuss filing to remove conditions on permanent residency, or are contemplating divorce or legal separation as a conditional permanent resident, contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

Naturalization

Five years from the date of the grant of most types of permanent residency, or three years from the date for permanent residency based on marriage to a US citizen spouse, naturalization may be sought. Naturalization triggers an in-depth analysis of entitlement to citizenship and any defects in the process that led to permanent residency or any criminal troubles since the initial grant of permanent residency.

If you want to discuss filing for naturalization, or are having difficulties with a filed naturalization petition, contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

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Defense to Removal in Immigration Court

Removal is a legal process to expel a citizen or native of a foreign country from the United States. Formerly it was called exclusion or deportation; the applicable term depended on very technical distinctions. Deportation is the term most commonly associated with such a procedure by non-lawyers. It involves the taking of evidence, examination and cross-examination of witnesses, application of rules of procedure and evidence, legal briefs, and appeal of decisions. Being in removal definitely requires a lawyer's services.

Removal proceedings take place in an administrative law tribunal of the United States Department of Justice, called the Executive Office for Immigration Review (EOIR). EOIR courts are immigration courts. They exist throughout the country and each has one or more Immigration Judges that hear and decide cases.

One defense to removal (deportation) in Immigration Court is adjustment of status. If a person in removal can obtain adjustment of status, then the removal proceedings can be terminated. Marriage to a US citizen while in removal proceedings creates a presumption that the marriage was entered into for impermissible reasons related to defending against removal, rather than for bona fide romantic or family goals. The marriage must be proven to have been bona fide by "clear and convincing evidence". Marriage to a US citizen before the commencement of removal proceedings does not carry this penalty, because the marriage was concluded before removal was begun, for reasons that presumably had nothing to do with removal.

If you are a legal representative of a minor child of a US citizen parent, who is in removal OR

you yourself are in removal AND

you are the spouse or a US citizen OR

you are the parent of an adult US citizen, OR

you hold or have been offered a job and your employer has already agreed to petition for your permanent residency through the job,

and you are uncertain about what to do, THEN

you may be eligible for adjustment of status which can enable you to remain in the United States and defend against removal. Please contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

Before an immigration judge can grant adjustment of status in removal proceedings, a petition from a qualifying relative or company officer must already have been submitted and approved administratively by USCIS; the immigration judges have no authority to grant or deny petitions from qualifying relatives and company officers on behalf of intending immigrants. In addition, the attorney for the respondent in the removal proceeding must timely prepare and submit a complete copy of an adjustment petition to the USCIS Service Center in Mesquite, Texas, without the attachments or other forms, along with the fee or fee waiver, a copy of Side B of special instructions regarding the USCIS filing, a copy of the attorney's notice of appearance before the EOIR in the removal case, and a copy of the next hearing notice from the Court. Upon proper filing, USCIS issues a receipt and returns it to the attorney for filing in Court as proof of filing and payment. The attorney also files the original of the adjustment application bearing the manual signatures, along with other forms for adjustment of status and supporting documents with the immigration court and sends a copy to the ICE trial attorney handling the case. The trial attorney has discretion to close the case administratively where the petition for adjustment seems approvable on its face, which terminates the removal proceedings and transfers the case from ICE to USCIS to investigate further and finalize permanent residency. If the trial attorney does not move to close the case administratively, then the case concludes after hearing by a judicial adjudication in the Immigration Court that is final absent rehearing, reconsideration, reopening or successful appeal. If the immigration judge grants the permanent residency, a green card must be requested and obtained from USCIS. If the judge denies the permanent residency adjustment application, then deportation may result, subject to the aforesaid possible post-hearing proceedings. Any mistakes in following the applicable procedures can severely hamper or delay a successful defense of an immigration removal case based upon adjustment of status.

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Alternative to Consular Processing

Intending immigrants who are outside the United States, or will be leaving the United States, do not adjust status as a general rule but instead follow consular processing. It differs from adjustment of status in that a U.S. embassy or consulate official finally decides to grant or deny the application rather than a USCIS case officer. The embassies and consulates are located in foreign countries and operate under the Department of State, unlike USCIS which is located inside the Department of Homeland Security, so the forms used and procedures for consular processing are somewhat different from adjustment of status but the information provided is similar. Unlike adjustment of status interviews, attorneys for intending immigrants are rarely allowed into the consulate facility or permitted to argue matters in person to the consular officials. Email is the embassies' usual preferred means of communication with attorneys.

Consular processing costs somewhat less than adjustment of status. Petitions are routed through the National Visa Center, which is a branch of the State Department located inside the United States. The idea is for the National Visa Center to collect processing fees before a petition is sent to the consulates and embassies, and to forward the cases on for appointment setting and decision. At the consulates and embassies worldwise, processing procedures and practices vary considerably. Processing times are generally longer (in 2010) for consular processing than for adjustment of status, and in many cases, the required period for consular processing from start to finish can be very hard to predict.

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Tucson Immigration Lawyer AZ Attorney

At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices for professional Arizona immigration attorney assistance.