February 2017

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

175 Eileen Way, Syosset NY 11791

Subscribe to our monthly free legal updates, SHAUTSOVA’S UPDATE.

Follow our Blog Posts commenting on the latest developments in the immigration and civil rights world

http://www.workharassmentattorneys.com/ 

http://www.russianspeakinglawyerny.com

A pair of hands holding a globe, depicting Earth with visible landmasses and oceans.

“Be the change that you wish to see in the world.”
― Mahatma Gandhi

NEWS Flashes

1. What To Do If Visa Was Cancelled Due To Trump Executive Orders

2. Credible And Reasonable Fear Proceedings Revised

3. New Trump Administration Immigration Orders

4. Known Unknowns Or How To Proceed If You Had An Immigration History But Do Not Have Your File

5. No Premium Processing For H1B This Year

6. Trump Is Said To Sign New Travel Restrictions Order

7. Presenting Your Claim Before EEOC

Watch Our YouTube Channel:

 13:01

Legally Speaking: Recently Leaked Drafts of Trump’s Proposed Immigration Executive Orders

Alena Shautsova

Adjustment Of Status For Arriving Aliens

Author: New York Immigration Lawyer Alena Shautsova

Welcome sign for the United States of America, featuring iconic symbols such as the Statue of Liberty, the Capitol Building, and mountains, with an American flag background.

Adjustment of status is an immigration process during which a person receives permanent residency in the United States without having to leave the country. It is often used for those who came to the US on various visas and later got married to US citizens or found an employer who sponsored them for a green card. To adjust one’s status, an applicant has to demonstrate that he/she was paroled or admitted into the US, that he/she is not inadmissible and that there is a relevant current petition (basis for the green card).

A person would be considered inspected and admitted into the US if he/she came to the US through a designated port of entry with a valid visa or without a visa in certain situations. Sometimes, it is possible to argue that a person was “waived in.”

But there is a group of people who were not inspected or admitted, but let into the US legally under an authority of parole. Often, people who travel using advance parole (DACA applicants for example, TPS holders) are paroled but not admitted into the United States. Nevertheless, such individuals may adjust their status to permanent residency in the US.

There is one more group of people who often find themselves facing difficulties while trying to adjust status. These are people who were paroled into the United States after they successfully passed credible fear interview and were placed in INA 240 removal proceedings under “arriving alien” category. Such a situation may happen when somebody surrenders him/herself at the border, presents a valid asylum claim, passes a credible fear interview and instead of INA235 expedited or asylum only proceedings, is allowed to defend himself/herself using other than asylum means of defense in court.

Usually, when a person’s case is in court, an Immigration judge has control over person’s applications and will decide them. But it is not the case for an arriving alien who is applying for adjustment of status in removal proceedings. Only USCIS has jurisdiction to adjudicate adjustment of status application for an arriving alien in removal proceedings. Bona v. Gonazales, 425 F 3d 663 (9^th Cir. 2005); Clifton v. Holder, 598 F 3^d486 (8^th Cir 2010). The only time when a an arriving alien will be able to ask for an adjustment of status in front of an IJ (Immigration Judge), is when he/she returned to the United States pursuant to an advance parole, USCIS denied their adjustment of status, they are placed in proceedings and they are renewing previously filed application for adjustment of status. It is important to remember here that a petition that had been already used once for adjustment of status (for example an I 130 petition) cannot be re-used again. Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006). 8CFR §204.2(h)(2).

Advance Parole Explained

Author: Green Card Attorney Alena Shautsova

A security fence topped with barbed wire, with a person standing near a vehicle at sunset.

An advance parole is a permission to enter the United States after a brief travel abroad while holding certain status or applying for an adjustment of status. If a person files an adjustment of status application and then travels outside the US without advance parole, the person’s application is considered abandoned.

There are just a few exceptions to this rule. Holders of L-1 and H-1B visas who maintained their lawful status after filing for adjustment may travel using their valid H1B or L1 visas. If a person in L1 or H1B status enters the US on advance parole and resumes her employment, she will be considered to be in a valid status nevertheless. See Memo, Cronin Acting Assoc. Comm. Office of Programs HQADJ 70/2.8.6, 2.8.12, 10.18 (May 16, 2000).

Pretty much the same exception applies to holders of valid K3, K4 and V visas. However, if a person holds a non immigrant status (let’s say F1, E or B) and files for an advance parole in connection with filed adjustment of status, return to the US on advance parole causes such a person (and his/her dependents) to lose their status. Letter, Skerrett, Chief IV Branch, Adjudications, HQ 245-C (Sept. 15, 1995).

Persons holding TPS and DACA are eligible for advance parole; so are those LPRSs who have applied for I 551 and who have to undertake an emergency trip abroad; and persons (apart from j visa holders subject to 2 year home residency requirement) whose parole is authorized for emergency or humanitarian reasons. A person in removal or other proceedings does not qualify for an advance parole.

Interestingly, even though it is being said in connection with 3/10 years bar, that travel on advance parole is not a departure, it is considered to be so if a person’s admissibility is being challenged after she returns from travel abroad using her advance parole. Such a person will be checked against admissibility rather than deportability grounds, even if before travel she was deportable. (There are different grounds for inadmissibility than deportability). At the same time, if an asylum applicant is travelling using advance parole, his departure and return do not trigger the new 1 year deadline to run.

Another danger of travel using advance parole is that it can be revoked while the person is outside the country. In such situations, even courts will not be able to help.