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US Immigration

Posted 9/07/2008

LEGAL NOTES / By REUBEN S. SEGURITAN

Certain Out of Status Aliens May Apply for Adjustment

Aliens who are unlawfully present in the U.S. generally cannot apply for adjustment of status. They have to leave and apply for an immigrant visa at a U.S. consulate abroad. This could trigger the three-year or ten-year bars of inadmissibility. One exception is provided by Section 245 (i) of the Immigration and Nationality Act. To be covered under this exception, an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001.

In addition, he/she must have been physically present in the U.S. on December 21, 2000, if the petition or application was filed after January 14, 1998.

There is another exception that applies to certain employment-based applicants. This is authorized by Section 245 (k) of the Immigration and Nationality Act.

A new memo from Donald Neufeld, Acting United States Citizenship and Immigration Services (USCIS) Associate Director, clarified the applicability of Section 245 (k).

To be eligible, the adjustment applicant’s violation of status must have been due to his/her failure to maintain, continuously, a lawful status or engaging in unauthorized employment or otherwise violating the laws and conditions of his/her admission.

Applicants who are ineligible to adjust under any other basis, such as entering without inspection or as crewmen, are not covered.

Only certain employment-based categories benefit from this law. These are the EB-1 aliens (those of extraordinary ability, outstanding professors and researchers, and multinational managers and executives); EB-2 (advanced degree professionals and aliens of exceptional ability); EB-3 (skilled workers, professionals and other workers) and EB-4 religious workers. Their derivative spouse and children also benefit.

The violation must not last for an aggregate period of more than 180 days since their lawful admission.

If the alien committed more than one violations, these violations are treated in the aggregate. An example is a tourist who worked without authorization, violated his/her lawful status and failed to maintain continuously a lawful status. Each day in which one or more of these violations occurred must be counted as one day.

All periods of unauthorized employment since the date of the applicant’s last lawful admission, including any periods after the filing of adjustment application are counted. The filing of an adjustment of status application will not stop the counting period. It will stop only when the employment authorization document (EAD) is approved.

But in the case of failure to maintain lawful status and/or violation of a nonimmigrant visa, the counting stops when the USCIS receives a properly filed adjustment of status application.

REUBEN S. SEGURITAN

has been practicing law for over 30 years. He was former immigration editor and is author of a book on immigrant experiences. He frequently speaks on immigrant issues and for his advocacy efforts he was the recipient of two presidential awards by President Ramos and an award by the Commission on Filipinos Overseas. He previously taught business law and international politics. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com