Adjustment of Status for Conditional Permanent Residents Who Lose Status

 

Introduction

On November 21, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it had updated its Policy Manual (PM) in a policy alert titled “Adjustment on New Basis After Termination of Conditional Permanent Residence” [PDF version].

An alien who is admitted to the United States as a conditional permanent resident is barred from pursuing adjustment of status under section 245(a) while he or she is in conditional permanent resident status. See INA 245(d). The Board of Immigration Appeals (BIA) held in 1991 that this bar does not apply to an alien who was admitted to the United States as a conditional permanent resident status but whose conditional permanent resident status was terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The USCIS's new guidance is designed to ensure uniformity in the USCIS's handling of adjustment applications filed by aliens who were admitted as conditional permanent residents but whose conditional permanent resident status was subsequently terminated.

In this article, we will first examine the Matter of Stockwell decision before moving to study the USCIS's new policy guidance.

Relevant Statutes

An alien who obtains permanent resident status on the basis of marriage to a U.S. citizen or lawful permanent resident, and that alien's derivative sons or daughters, is admitted to the United States as a permanent resident on a conditional basis. INA 216(a)(1). An alien who obtains status as an alien entrepreneur (employment-based fifth preference) and his or her derivative spouse and/or children is also admitted as a permanent resident on a conditional basis. INA 216A(a)(1).

Conditional permanent residents must subsequently petition to have the conditions on their status removed. The requirements for having conditions removed are different for spouses (see INA 216) and entrepreneurs (see INA 216A). A conditional permanent resident under INA 216 or INA 216A may not adjust status on an alternative basis under INA 245(a). See INA 245(d); 8 CFR 245.1(c)(5).

The statutes do not address the ability of an alien who was admitted as a conditional permanent resident, but whose status was subsequently terminated, to adjust status under INA 245(a). In the next section, we will examine how the BIA resolved this question.

The Matter of Stockwell Decision

On May 31, 1991, the Board's decision in Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) [PDF version] was published. We will examine the important aspects of the Board's decision in the subsequent sub-sections.

Factual and procedural history

The respondent, a native and citizen of the United Kingdom, had last entered the United States as a temporary visitor for pleasure on April 3, 1987.
The respondent married a U.S. citizen on November 20, 1987.
The respondent was granted lawful permanent resident status on a conditional basis under INA 216 based on his marriage to a U.S. citizen.
The respondent's spouse filed for divorce and the respondent's marriage was terminated on November 28, 1988.
The respondent subsequently married a second U.S. citizen on July 6, 1989.
The former Immigration and Naturalization Service (INS) issued an Order to Show Cause and a Notice of Hearing against the respondent on July 14, 1989. The INS charged that the respondent was deportable under former INA 241(a)(9)(B) as an alien whose conditional permanent resident status was terminated. (Today, this deportability ground is found at INA 237(a)(1)(D).)
The respondent's second U.S. citizen wife filed a visa petition on his behalf — the petition was approved on September 19, 1989.

The respondent's deportation hearing transpired on November 14, 1989. The Immigration Judge concluded that the INS had sustained its burden of showing that the respondent was deportable as charged. Furthermore, the Immigration Judge concluded that the respondent was not eligible for a hardship waiver of the joint filing requirement to remove the conditions from his permanent resident status that he acquired as a result of his first marriage. See INA 216(c)(4)(A).

The respondent applied for adjustment of status under INA 245(a) in proceedings on the basis of the approved immigrant visa petition filed on his behalf by his second wife. The INS took the position that section 245(d) bars a conditional permanent resident from adjusting status under section 245(a) at any time after admission — even if the alien's conditional permanent resident status was terminated. The Immigration Judge disagreed with the INS's position, finding that section 245(d) only bars adjustment when the applicant still holds conditional permanent resident status. Following from this conclusion, the Immigration Judge concluded that the respondent, as the beneficiary of an immediate relative petition, was eligible to adjust status and granted the respondent's application in the exercise of discretion.

The INS appealed from the Immigration Judge's decision to the Board.

Board concludes that INA 245(d) does not bar adjustment after alien loses conditional permanent resident status

The INS argued on appeal that Congress intended in codifying INA 245(d) to bar conditional permanent residents from adjustment under INA 245(a), regardless of whether they still held conditional permanent resident status.

The Board began by noting that INA 245(d) was added to the INA as part of the Marriage Fraud Amendments of 1986, part of what it described as “a comprehensive statutory scheme to deter immigration-related marriage fraud.” Section 216 itself, the Board explained, “was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage.”

The INS codified regulations to implement the section 245(d) bar at 8 CFR 245.1(b)(12) (1991). The regulation, in the pertinent part, stated that “[a]ny alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 of the Act” was barred from adjustment under INA 245(a).

The Board found that it was clear that Congress intended for any alien in conditional permanent resident status to be ineligible for adjustment of status. Regarding the open question of aliens whose conditional permanent resident status was terminated, the Board agreed with the Immigration Judge's conclusion that the bar was only intended to apply “to aliens currently holding conditional permanent resident status.” The Board agreed with the Immigration Judge's finding the regulatory language dispositive, and noted that the INS had omitted any mention of the regulation in its arguments.

The Board subsequently affirmed the Immigration Judge's decision granting the respondent's application for adjustment of status in the exercise of discretion.

Concurring and dissenting opinions

Board Member Michael J. Heilman authored a concurring opinion, expanding on why he believed that the Immigration Judge reached the correct result in the case. His concurring opinion focused on his disagreement with the INS's position that the use of the word “admitted” in INA 245(d) entailed a bar to adjustment in perpetuity for an alien who was at one point admitted as a conditional permanent resident.

Board Member James P. Morris authored a dissenting opinion, agreeing with the INS's position that INA 245(d) barred adjustment for aliens who lost conditional permanent resident status. While he agreed that the regulation applied only to aliens currently holding conditional permanent resident status, he would have ruled that the regulation was silent on the question of whether an alien who had lost conditional permanent resident status was eligible for adjustment. Based on his reading of the statute, he would have held that aliens who lost conditional permanent resident status were ineligible for adjustment under INA 245(a).

New USCIS Guidance on Adjustment for Former Conditional Permanent Residents

The new USCIS guidance on adjustment cases involving aliens who were admitted as conditional permanent residents is found at 7 USCIS-PM B.7(G) [PDF version].

The PM notes that under statutes and regulations, an alien admitted in conditional permanent resident status is not permitted to adjust status under INA 245(a) while holding such status. Instead, the alien must comply with section 216 (family cases) or 216A (entrepreneur cases) to pursue the removal of conditions from his or her permanent resident status. However, in accord with Matter of Stockwell, the PM explains that this prohibition on adjustment only applies when the alien is currently in lawful conditional permanent resident status. Under Matter of Stockwell, “the bar no longer applies if USCIS terminates the alien's [conditional permanent resident] status.”

The USCIS may terminate an alien's conditional permanent resident status for any of the reasons stated in INA 216 (family cases) or 216A (entrepreneur cases). The USCIS generally issues a Notice to Appear upon terminating an alien's conditional permanent resident status. The PM states that although an immigration judge may review the termination of conditional permanent resident status in an alien's subsequent removal proceedings, the USCIS's position is that the bar to adjustment of status found in 245(d) becomes ineffective upon the USCIS's decision to terminate conditional permanent resident status. Therefore, “it is not necessary that an immigration judge have affirmed USCIS' decision to terminate the alien's [conditional permanent resident] status before the alien may file a new adjustment application.”

In accord with the statutes, regulations, Matter of Stockwell, and the USCIS's interpretation of the foregoing, an alien whose conditional permanent resident status has been terminated may adjust status under INA 245(a) if:

The alien has a new basis for adjustment;
The alien is otherwise eligible to adjust; and
USCIS has jurisdiction over the adjustment application.

The USCIS makes clear that an alien must have a new basis for adjustment of status. That is, “the alien may not reuse the immigrant petition associated with the previous [conditional permanent resident] adjustment or admission.”

An alien initially admitted as a K nonimmigrant fiancé(e) may only re-adjust status on the basis of an approved Form I-130, Petition for Alien Relative, filed by the same U.S. citizen who filed the Form I-129F Petition for Alien Fiancé(e), on his or her behalf.

The PM adds that the alien must be otherwise eligible for adjustment of status, including by not being inadmissible or barred from adjustment under INA 245(c). In short, the alien must meet the generally applicable requirements for adjustment.

If the USCIS grants the former conditional permanent resident's adjustment application, it “generally considers the date of admission to be the date USCIS approved the subsequent adjustment application.” Therefore, “[t]ime spent in the prior [conditional permanent resident] status does not count toward the residency requirement for naturalization purposes.”

If the USCIS denies the adjustment application, it will generally follow agency guidance on issuing a Notice to Appear, initiating removal proceedings, after denying the application.

Conclusion

The USCIS PM has been updated to provide clearer guidance on adjustment of status applications filed by aliens who were admitted as conditional permanent residents but whose conditional permanent resident status was terminated. As a general rule, while an alien cannot adjust status while he or she is in lawful conditional permanent resident status, the alien is not precluded from adjustment after that status has been terminated.

An alien whose conditional permanent resident status is likely to be or has been terminated should consult with an experienced immigration attorney for case-specific guidance. Although the alien may technically not be precluded from adjustment, this does not mean that the alien will be able to adjust on the basis of a new petition. Each case is unique. While the equities in some cases — such as the one described in Matter of Stockwell — may weigh in favor of the alien being able to adjust, other cases may have more unfavorable fact patters, especially if they present indicia of fraud or misrepresentation. An experienced attorney will be able to analyze the facts presented in a particular case in order to counsel a client on how best to proceed.

We discuss adjustment of status [see category] and conditional permanent residents [see category] more broadly in separate sections on site.