ADJUSTMENT OF STATUS
For most foreigners seeking permanent legal status in the United States (I intentionally avoid the word “alien” as it seems to me more appropriate to a different, selected group of visitors i.e. visitors from outer space) and who are already on these shores, the most advantageous route to accomplish legalization is through the procedure known as adjustment of status.
But not all foreigners who want to become legal permanent residents can take advantage of this discretionary procedure. To qualify and avoid leaving the country and undergoing a potentially risky interview abroad in the territorially appropriate U.S. consulate of the applicant’s country of nationality or prior residence, a prospective U.S. permanent resident must comply with a set of requirements established by the federal statute known as the Immigration and Nationality Act (or simply INA in its acronymic form).
Paragraph 245(a) of the INA prescribes a list of conditions to sidestep the traditional default procedure of consular processing. Yet even if a foreigner qualifies under all standards, she or he may still be denied the adjustment based on the traditional, and so far never successfully challenged, notion (despite many attempts) that the adjustment of status procedure should be viewed as an exception to the rule that legal permanent status is only to be obtained through the “usual” procedure of consular visa processing.
Filing of an adjustment application should be the final step in any immigrant’s odyssey towards permanent legal status. It is the most crucial, and many times, quite intricate phase of the whole legalization process.
There is always more than one topic to dwell upon while preparing to file for adjustment. The issues are the possible aging out of children, questions of public charge or issues related to past, and even otherwise seemingly insignificant criminal charges. These and other questions must be answered before proceeding with the application.
An unpleasant side effect of a possible denial is that the government may, at its discretion (there is no legal obligation to act) institute removal proceedings against the unsuccessful applicant. Under such a scenario, the unlucky applicant still has the proverbial second bite of the apple and will have another chance to proceed with the adjustment application, but this time it will be reviewed anew by the fresh set of eyes of the assigned immigration judge.
BASIC QUALIFYING CRITERIA
Not all aspiring permanent residents can qualify for adjustment. To be eligible under the normal adjustment standards, a prospective U.S. immigrant must comply with the following requirements:
(1) Must be admitted or paroled into the United States. Still, some categories of foreigners who were admitted remain ineligible for adjustment (i.e., crew members and some categories of exchange students).
(2) Must not engaged in unlawful employment in the United States.
The disqualifying consequences of unauthorized employment have several exceptions:
- (a) The prohibition does not apply to immediate family members of U.S. citizens (spouses, parents, and minor children)
- (b) Individuals who were grandfathered under the now-sunset provisions of §245(i) of the Immigration and Nationality Act
- (c) Technical violators (lapses in employment authorization not due to the immigrant’s own fault, who otherwise maintains status during the entire period of stay and does not violate any other conditions of the non-immigrant visa)
(3) The immigrant petition leading to the adjustment application must be already approved. A notable exception is the application of a prospective immigrant who is the immediate relative of a U.S. citizen, i.e., spouses, parents, and minor children. In such cases, an application for adjustment may be filed along with the family preference petition.
(4) The prospective immigrant may not be legally inadmissible. There are many categories of inadmissibility predicated upon conditions like prior violations of non-immigrant status, criminal conviction, contagious disease, etc.
INELIGIBLE CLASSES OF IMMIGRANTS
The law requires that all eligible for adjustment of status applicants entered the United States legally. This obvious proclamation becomes less obvious when we actually attempt to define what in real terms constitutes a “legal entry.”
It seems indisputable that any legal entry must comply with some minimum requirements, such as the need for any would-be U.S. visitor to present him or herself at the appropriate border crossing to be questioned by the appropriate border official. It is always more convenient if this type of fact is officially confirmed by an official stamp in a passport with a properly issued U.S. entry visa.
Surprisingly, the current law is less demanding in this respect, and it does not impose on legal entrants the requirements as rudimentary (one might think) as the need for a meaningful conversation with a U.S. border official. A “waive-in” entry that seems to be almost out of the question at airport crossings is less so at the land border crossings. Frequently at these crossing, border officials attempting to expedite the traffic order drivers of lined-up vehicles to move on after only a cursory examination of travel documents. Yet this satisfies the “legal entry” requirement. Under that scenario, the burden of proof switches to the applicant, though. In many instances, it may be hard or virtually impossible to prove such an entry.
The following are the most typical categories of applicants excluded from the adjustment of status provisions:
- A visitor admitted in transit without a visa
- An exchange visitor with a J visa subject to the two-year foreign residence requirement (must reside outside the U.S. for two years or receive a waiver of this requirement)
- A crewmember admitted in the D nonimmigrant visa category
- A person admitted under the Visa Waiver Program (the bar does not apply to spouses and minor children of U.S. citizens)
- A fiancé of a U.S. citizen admitted in the K visa category, except based on the marriage to the very same U.S. citizen within 90 days of entry
ARTICLE 245 (i)
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) introduced many harsh penalties for even minor infractions of immigration rules. The statutory “tightening of the screw” had the most severe consequences in the area of unlawful presence. Since April 1, 1997, the date the new law went into effect, many millions of immigrants have faced a dilemma: leave the U.S. or face the consequences of staying in the United States illegally. Those who remained in the U.S. for a period of six months or more beginning April 2, 1996 became inadmissible for three years (provided they would ever leave, of course). Those who stayed longer than one year thereafter were banned from the U.S. shores for no less than 10 years. The change was dramatic.
Until the 1996 reform, the illegal immigrants, while barred from adjustment, still had a realistic, although somewhat risky option, of traveling overseas and going through the standard route of consular processing. The 1996 reform effectively shut down this option. As it almost always the case in the history of lawmaking, a well-meaning intention to bring order to the house resulted in entirely new and (we hope) not contemplated consequences of throwing the millions of undocumented immigrants in a virtual stalemate—barred from adjustment, with the only avenue of possible solution eliminated by the new law.
Temporarily, the problem was alleviated by a new subsection (i) to paragraph 245 of the Immigration and Nationality Act. According to the new provision, those who by January 14, 1998, would apply for legalization either through a family or employment (the deadline was later extended to April 30, 2001) would be given a special status to allow in the the future and once the underlying petitions are were approved, to legally circumvent the general prohibition and to legalize through the adjustment of status process. This exception and the resulting privilege were conditional upon payment of an addition fee initially set at $600 and later increased to $1,000.
This regulation, although technically expired or sunset as some jurists with more romantic predilections prefer to call it, continous to maintain its validity for a significant group of permanently grandfathered applicants and their derivative beneficiaries. The idea of grandfathering has since been rather generously interpreted and extended or permanently bestow upon spouses (even including those who later become ex-husbands or ex-wives) and minor children of the grandfathered applicants (even if they later graduated into adulthood by turning 21 or got married). To paraphrase from an unrelated field, “once grandfathered, always grandfathered.”