Criminal Defense of Immigrants

(A)  In General.  Adjustment of status is the process by which a person who is admissible may obtain legal permanent resident status through a visa petition, usually filed by a U.S. citizen or lawful permanent resident relative, or an employer, without having to travel outside the United States.[11]  Any noncitizen who is eligible to adjust, is not inadmissible, and has an immigrant visa immediately available may be allowed to adjust. 

It is also possible to obtain lawful permanent resident status by travelling outside the United States through “consular processing.”  See § 15.12, supra.  Immediate relatives can immigrate rapidly, since they may file the immigrant petition and the adjustment of status application simultaneously.[12]  Those subject to the preference quota system[13] may face a wait of months or years before being able to immigrate, with their place in line determined by the date on which they first filed their application with the DHS.[14] 

It is also possible for an eligible legal permanent resident (e.g., one who has a U.S. citizen spouse) to “re-immigrate” by filing an application for adjustment of status in removal proceedings as a defense to deportation.[15]  If granted, the renewed adjustment of status will be a complete defense to removal.[16]  While the new LPR status may be obtained through petition of the same person who filed the original petition, the original petition itself cannot be used again.[17]  At least two courts have suggested the immigration courts should allow continuance of a removal case to allow time for a visa to become current.[18]  The Fourth Circuit recently reversed an earlier BIA decision, and held that the IJ has jurisdiction to determine whether an approved visa petition remains valid in order to allow adjustment.[19]

[11] INA § 245, 8 U.S.C. § 1255; 8 C.F.R. § § 245.1-245.22, 1245.1-1245.22.

[12] 8 C.F.R. § § 245.2(a)(1), (2), 1245.2(a)(1), (2).  A person is classified as an immediate relative when s/he is the spouse, parent (of a child over 21), or unmarried child (under 21 years of age) of a U.S. citizen.  See INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i).

[13] A person is classified as a preference relative if s/he is the single son or daughter (over 21) of a U.S. citizen (1st Preference); spouse or unmarried child (under 21) of a lawful permanent resident (2A Preference); unmarried son or daughter (over 21) of a lawful permanent resident (2B Preference); married son or daughter of a U.S. citizen (3d Preference); or brother or sister of an adult U.S. citizen (4th Preference). INA § 203(a), 8 U.S.C. § 1153(a).  The children of preference relatives may obtain derivative status upon adjustment of their parents.  INA § 203(d), 8 U.S.C. § 1153(d).  The preferences for employment-based immigrant visas are controlled by INA § 203(b), 8 U.S.C. § 1153(b).  

[14] For a recorded message giving the priority dates and preferences for relative and employment-based immigrant visas, call the State Department at (202) 663-1514.  This information is also contained in the State Department “Visa Bulletin” which can be viewed online at http://travel.state.gov (select the Visa section, which contains the Visa Bulletin).

[15] Applications for adjustment by permanent residents are legally permitted.  See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Parodi, 17 I. & N. Dec. 608, 611 (BIA 1980); Matter of Loo, 15 I. & N. Dec. 307 (BIA 1975).

[16] Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).

[17] Matter of Villareal-Zuniga, 23 I. & N. Dec. 886 (BIA 2006) (an application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment or admission as an immigrant).

[18] Ahmed v. Gonzales, 465 F.3d 806 (7th Cir. Oct. 16, 2006) (fact that noncitizen was not currently eligible to apply for adjustment of status because he did not have a visa immediately available to him did not mean noncitizen was not entitled to apply for adjustment due to visa petition filed on his behalf; fact that visa was not yet current was not sufficient, in itself, to form basis of denial of a continuance to allow noncitizen to apply for adjustment once visa became available); Merchant v. US Att’y Gen., 461 F.3d 1375 (11th Cir. Aug. 25, 2006) (IJ erred in denying motion for continuance where applicant for adjustment of status had met and fulfilled all requirements to adjust status under INA § 245(i), but the USCIS had yet to approve the visa, since 8 C.F.R. § 245.10(b)(2) requires only that noncitizen be eligible for visa; court contrasted this case from situation where noncitizen had not yet fulfilled all requirements).  But see Pede v. Gonzales, 442 F.3d 570 (7th Cir. Mar. 24, 2006) (immigration judge is not required to continue proceedings to allow the USICE to process an adjustment application where the respondent is clearly not statutorily eligible to adjust).

[19] Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. Feb. 22, 2007) (Immigration Judge has jurisdiction to determine whether an approved visa petition remains valid under applicable law; for example, IJ can determine whether employment violated visa and therefore disqualified noncitizen from adjustment of status), vacating Matter of Perez-Vargas, 23 I. & N. Dec. 829 (BIA 2005).  NOTE:  This case does not upset the applicability of Matter of Perez-Vargas outside the Fourth Circuit.