CASE: Marriage-Based Adjustment of Status
CLIENT: Gambia�
LOCATION: Cleveland, OH

Our client came to the United States in January 2004 with an F-1 student visa from Gambia.  She married a U.S. Citizen in July 2011 and retained our office on August 31, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 8, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On December 5, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well. On February 8, 2012, our client’s green card application was approved.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Filipina
Location: Los Angeles, CA / Cleveland, OH

Our Filipina client came to the United States in 2003 with an H-1B visa to work at a Cleveland Ohio hospital as a registered nurse. Through an attorney, her employer filed an I-140 Petition for her and she eventually filed an adjustment of status application. While her adjustment of status application was pending, our client traveled abroad with an Advanced Parole travel document. While abroad, her I-485 was denied due to unauthorized work lasting over 180 days not for the H-1B company. Though her I-485 was pending during that time, her attorney unfortunately did not file an I-765 application for employment authorization document even though she was eligible. She came back to the United States in February 2007 on the same advance parole document. She was not stopped despite the I-485 denial.

She did not know about the denied I-485 and she was not notified by her attorney, thus she was under the impression the I-485 was still pending and that her advance parole was valid. She later found out about the denied I-485 upon following up with her attorney so she hired a different attorney to re-file it and address all pertinent issues. However, her adjustment of status application was denied again in 2009 and she was placed in removal proceedings with the issuance of a Notice to Appear. Part of the denial focused on her last entry on the advance parole, when she came back when her I-485 was already denied. On her Notice to Appear (“NTA”), due to her entry, she was considered an arriving alien.

Our client married her U.S. citizen spouse after removal proceedings were initiated. Meanwhile, our client’s first hearing was scheduled at the Cleveland Immigration Court.  Our client consulted with our firm to see if there was anything that could be done for them knowing that she had this entry issue involving her I-131 despite a denied I-485, and her deemed illegal work for over 180 days.

We saw from her Notice to Appear that she was considered an arriving alien and based on that, we advised her that we can apply for adjustment of status based on her marriage to a U.S. citizen.  She retained us in June 2011.

An arriving alien can adjust his or her status with the USCIS even though he or she is in removal proceedings or has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.

Under the amended jurisdictional provisions of the interim regulations, the USCIS has been given jurisdiction over adjustment of status applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

At the first hearing in Cleveland, Attorney Sung Hee (Glen) Yu accompanied our client, took pleadings, and conceded removability. He explained that since our client is an arriving alien and is married to a U.S. Citizen, that she shall file an I-130 and I-485 with the CIS, since jurisdiction for both lies with the CIS. Our office then prepared and filed the I-130 Petition and I-485 adjustment of status application in accordance with the regulations, including the bona fide marriage exemption letter mandatory for marriages entered into after removal proceedings.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.

Our client’s I-130/I-485 interview was scheduled on January 11, 2012 at the Los Angeles California USCIS field office. Prior to the interview, Attorney Yu thoroughly prepared our client and her husband for their USCIS adjustment of status interview. The preparation lasted for over an hour due to the “arriving alien” issue and other possible concerns with regards to our client’s extensive immigration history.

At the interview, Attorney Yu accompanied our client and her husband at the Los Angeles USCIS office. At the interview, the USCIS officer argued that they did not have jurisdiction to adjudicate the adjustment of status application because removal proceedings were not yet terminated. Attorney Yu argued that the USCIS clearly has jurisdiction for adjudication of our client’s adjustment application, regardless of whether proceedings were terminated. He argued that termination can occur after the adjustment of status approval. The interview lasted two hours and included a meeting between Attorney Yu and the head of the Los Angeles USCIS, as referred by the CIS officer with regard to the jurisdictional issue. After the meeting, the USCIS officer eventually approved the I-130 petition on the same day.  Eventually, our client’s adjustment of status application was approved by the USCIS on January 26, 2012.  After almost ten years in the United States, overcoming two adjustment of status denials, and being placed in removal proceedings, our client is now finally a permanent resident of the United States.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Hungarian
LOCATION: Atlanta, GA

Our client came to the United States in March 2008 as a B-2 visitor from Hungary. Although his authorized stay in the United States expired in September 2008, he remained in the United States.   He married his U.S. Citizen wife in June 2011 and retained our office on September 2, 2011 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 20, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time.  Prior to the interview, we thoroughly prepared our clients for their interview. On January 26, 2012, our client was interviewed at the Atlanta, Georgia USCIS.   On the same day, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Cleveland, OH

Our client came to the United States in September 2008 with an H-2 temporary work visa from the Philippines. She eventually overstayed her visa and remained in the United States. She married a U.S. Citizen in October 2011 and retained our office on November 8, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on November 21, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On January 26, 2012, our client was interviewed at the Cleveland, Ohio USCIS office.  We accompanied them at the interview as well.  On the same day, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Canadian
LOCATION: Baltimore, MD

Our client came to the United States in March 2011 as a visitor from Canada.  She married her U.S. Citizen wife in April 2011 and retained our office on September 9, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 26, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time.  Prior to the interview, we thoroughly prepared our clients.  On January 12, 2012, our client was interviewed at the Baltimore, Maryland USCIS office.  Our attorney accompanied them at the interview as well.  On January 17, 2012, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Indian
LOCATION: Seattle, WA

Our client came to the United States in 2011 with an L-1 intra-transferee visa from India.  He is currently working as a lead engineer for his employer in Seattle, WA.  He married a U.S. Citizen wife in 2011 and retained our office on October 19, 2011 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October 27, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time.  Prior to the interview, we thoroughly prepared our clients through conference calls.  On January 12, 2012, our client was interviewed at the Seattle, Washington USCIS.  The day after the interview, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Ghanaian
LOCATION: Cleveland, OH

Our client came to the United States in March 2009 with a J-1 Exchange Visitor visa from Ghana. Although his J-1 program was completed in 2009, he stayed in the United States since then.  He got a waiver of the two- year foreign residency requirement. He married his U.S. Citizen wife in January 2011 and retained our office in the middle of September for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 21, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time.  Prior to the interview, we thoroughly prepared our clients at our office. On January 6, 2012, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On the same day, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Cleveland, OH

Our client came to the United States in June 2008 with a B-2 tourist visa from the Philippines. She married a U.S. Citizen in June 2011 and retained our office in late August for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 20, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time.  Prior to the interview, we thoroughly prepared our clients at our office.  On December 22, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  Attorney Sung Hee Yu accompanied them at the interview as well.  On the same day, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: British
LOCATION: Alexandria, VA

Our client came to the United States in February 2011 with a B-2 visitor visa from the United Kingdom.  In August 2011, he married a U.S. Citizen and retained our office on September 19, 2011 for the petition and adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 22, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, work permit, and advance parole all came on time. There was no Request for Evidence.  Prior to the interview, we prepared our clients. On December 15, 2011, our client was interviewed at the Fairfax, VA USCIS Field Office.  On December 16, 2011, his green card application was approved.

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Case: Request to Join in a Motion to Terminate with DHS and Motion to Terminate with the Cleveland Immigration Court
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in January 2002 with a valid B-1 visa.  He has stayed in the United States ever since. He was placed in removal proceedings a few years later. While he was in the United States, his wife, who obtained her green card through asylum, filed an I-130 petition for him. It was approved in June 2010.  At the time of the I-130 filing, our client’s wife was a Lawful Permanent Resident, so the priority date for our client was not current. She became a naturalized U.S. citizen on June 17, 2011.

Before our firm was retained, our client already had a scheduled asylum individual hearing in 2013.  In August 2011, our client consulted with our office and sought legal assistance. We advised him that we would try to terminate his removal proceedings with the DHS’ cooperation.  Our office filed a request to join in a Motion to terminate proceedings with a copy of the I-485 application and supporting documents on November 8, 2011.  The DHS counsel in Cleveland agreed to terminate our client’s removal proceedings.  The Immigration Judge then granted the Motion to terminate without prejudice on December 7, 2011.

Now that removal proceedings are terminated, he can file an I-485 adjustment of status (green card) application with the USCIS. His case will be at the USCIS Cleveland Office for final adjudication.

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