LIFE Act Adjustment of Status

 

Introduction to LIFE Act Adjustment of Status

life act adjustment of statusAliens who enter the United States without inspection or who are described in section 245(c) of the Immigration and Nationality Act (INA) are precluded from eligibility for adjustment of status (AOS) under section 245(a) of the INA. The Legal Immigration Family Equity Act (LIFE Act), as codified in section 245(i) of the INA, created special provisions to permit AOS for persons who were ineligible on account of having entered without inspection (EWI) or being of a class described in section 245(c). In order to be eligible for adjustment under section 245(i), an alien must be the beneficiary of a labor certification application (LCA) that was filed on or after January 14, 1998, but on or before April 30, 2001, or the beneficiary of an immigrant visa petition that was filed on or before April 30, 2001. Provided that the alien meets that filing requirement, the alien will be “grandfathered” in for purpose of eligibility for section 245(i) Life Act AOS benefits. This article will explain the eligibility requirements for LIFE Act AOS and explain how it works for aliens who qualify for grandfathering but have not yet obtained an immigrant visa.

Eligibility for LIFE Act Adjustment of Status

In order to be eligible for LIFE Act AOS, an alien:

  • Must be the beneficiary of an immigrant visa petition that was filed on or before April 30, 2001; or
  • Must be the beneficiary of an LCA filed on or after January 14, 1998, but on or before April 30, 2001; and
  • Must pay a $1000 fine with the petition; and
  • Must have been physically present in the United States on December 21, 2000.

Spouses and children of persons described above are also eligible and are not required to meet the physical presence requirement.1 However, in order for a spouse or child to be eligible, the relationship to the principal (as a spouse or child) must have existed at the time the qualifying petition was filed before April 30, 2001.2

Furthermore, the petition or LCA must have been properly filed (physically received by the requisite date) and approvable when filed (at the time of filing, the petition was meritorious in fact and non-frivolous) [8 C.F.R. 1245.10(a)(1)(ii)].

Generally speaking, section 245(i) allows people to adjust status notwithstanding ineligibility on the grounds of:

  • Entering without inspection (EWI);
  • Overstaying a nonimmigrant visa;
  • Having engaged in unauthorized employment.

LIFE Act AOS provisions found in section 245(i) also allow the following aliens to be eligible for AOS:

  • Alien crewmen;
  • Aliens admitted in transit without a visa;
  • Aliens admitted under the Visa Waiver Program (VWP).

Notwithstanding the above, the following persons may not adjust status pursuant to 245(i):

  • K-1 visa holders;
  • S visa holders (except where recommended for adjustment of status by applicable law enforcement authority);
  • Conditional permanent residents;
  • Persons seeking AOS based upon marriage entered into during removal proceedings (except where there is clear and convincing evidence that the marriage is bona fide);3
  • Stowaways [AFM 40.6.2(d)(3)(ii)].

It is crucial to note that section 245(i) does not waive grounds of inadmissibility found in section 212(a) of the INA except for inadmissibility for unlawful entry.4 Section 245(i) does not waive the permanent bar of inadmissibility even though the permanent bar may only be triggered by entering without inspection.5 It also does not waive the 3 and 10-year bars of inadmissibility.6 However, pursuant to Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771, 779 n.6 (BIA 2012), the Board of Immigration Appeals (BIA) held that traveling on a grant of advance parole does not trigger the 3 or 10-year bar of inadmissibility and thus would not harm an adjustment applicant's eligibility for AOS under section 245(i).

J visa beneficiaries who are subject to the 2-year home residency requirement must obtain a waiver of the home residency requirement in order to adjust status under 245(i) [please follow this link for information on obtaining the home residency requirement waiver for J-1 medical graduates]. A, E, and G visa beneficiaries are required to obtain waivers in order to adjust status under 245(i).

LIFE Act Adjustment of Status “Grandfathering”

Provided that a principal who had an approvable when filed immigrant visa petition or an LCA filed on his or her behalf before the deadline, he or she will be “grandfathered” in for purpose of 245(i) eligibility until his or her status is adjusted or the requirements for 245(i) eligibility are otherwise no longer met. An applicant for AOS who has been grandfathered is actually permitted to adjust status based upon a new petition, provided that he or she demonstrates eligibility for grandfathering.7 For example, an applicant who is eligible for grandfathering based upon a properly filed LCA from 1999 would be able to adjust status based upon a family-based visa petition filed in 2010, provided that the other requirements for 245(i) eligibility are met. Furthermore, there is no limitation on the number of applications that an applicant who has been grandfathered may file, and merely having an application for AOS denied does not render a grandfathered applicant ineligible for 245(i) benefits.8

In order for a principal applicant to be eligible, he or she must provide evidence of physical presence on December 21, 2000. While derivatives are not required to provide evidence of physical presence on December 21, 2000, they will only be eligible for grandfathering if the principal satisfies that requirement.

The immigrant visa petition or LCA must have been approvable when filed. This means that it must have been properly filed, meritorious in fact, and non-frivolous, meaning not patently without substance [8 C.F.R. 245.10].

“When filed” is a key term because it restricts the “approvable” requirement to the time the petition was actually filed. This is an especially important distinction when the applicant is relying upon an LCA for LIFE Act AOS eligibility because, presumably, circumstances subsequently changed if the applicant did not ultimately adjust status based upon the qualifying LCA.

In the case of family-based petitions, “when filed” may also be crucial. For example, if the petition was based upon a marriage, a subsequent divorce will not render the applicant ineligible for grandfathering unless the divorce calls into question the validity of the marriage that the original petition was based upon. Similarly, if the applicant was petitioned for as a child, exceeding 21 years of age will not render him or her ineligible for 245(i) grandfathering.

Persons relying on an LCA for grandfathering purposes may have difficulty obtaining the original LCA in order to demonstrate that it was properly filed because the Department of Labor (DOL) no longer retains prior LCAs that are more than 5 years old.9 Where an applicant needs to demonstrate that an LCA was properly filed and approvable when filed for purpose of 245(i) eligibility, he or she should consult with an experienced immigration attorney.

LIFE Act Adjustment of Status “Grandfathering” for Derivatives

Where a spouse or child had the qualifying relationship with an applicant eligible for grandfathering at the time the original immigrant visa petition or LCA was filed, the spouse or child is not only eligible for grandfathering, but may also avail him or herself to LIFE Act AOS separate of the principal.10 Reaching the age of 21 before AOS will not render an applicant ineligible for 245(i) benefits. Similarly, a person who was the spouse of a principal for 245(i) grandfathering eligibility is still considered to be grandfathered even if the marital relationship no longer exists. However, the spouse or child of a derivative who is grandfathered may not benefit from LIFE Act AOS.11

There is an interesting scenario for derivatives of an applicant who is eligible for 245(i) where the relationship to the principal did not exist when the initial petition or LCA was filed [e.g., a spouse where the marriage occurred after the petition, or a child who was born later]. In this situation, the spouse or child is permitted to adjust status as a derivative along with the grandfathered principal. However, because the new spouse or child is not eligible for grandfathering, he or she must adjust status along with the principal and is not eligible to do so independently under 245(i).12 However, a derivative in this situation may not accompany or follow to join a principal who already became an LPR and still benefit from 245(i).13

LIFE Act Adjustment of Status in Proceedings

An immigration judge may hear an AOS application for a grandfathered applicant in removal or deportation proceedings and may hear it in conjunction with an application to waive inadmissibility that is not covered by 245(i).14 While an immigration judge should consider eligibility for AOS for an applicant in proceedings who has been grandfathered, the immigration judge may still deny AOS as a discretionary matter.15 If an immigration judge does not grant continuance for an applicant who is eligible for AOS pursuant to grandfathering, the decision may be reviewable by a Circuit Court.16

Legacy immigration agency guidance instructed immigration officials not to initiate removal proceedings against an applicant who was eligible for section 245(i) solely on the basis of the filing of an immigrant visa petition, LCA, or application for AOS.17 However, a person found in undocumented status who is eligible for 245(i) may be processed for removal under routine procedures; however, immigration officials were advised in the same legacy guidance that prosecutorial discretion may be exercised favorably for the alien in such a case.18

Courts have found that reinstatement of removal bars section 245(i) relief for applications that were filed after April 1, 1997.19 However, courts have differed on whether reinstatement of removal bars 245(i) relief where the original immigrant visa petition was filed before April 1, 1997.20

Conclusion to LIFE Act Adjustment of Status

LIFE Act AOS is a powerful benefit that allows certain persons to adjust status who would otherwise be ineligible for adjustment. The “grandfathering” provision allows persons who, whether because of a change in circumstances from the original petition, the LCA or processing delays, was unable to adjust status based upon the original petition or LCA, to remain eligible for AOS pursuant to 245(i). Any person who is still eligible for LIFE Act AOS, whether he or she is a principal or derivative, should consult with an experienced immigration attorney for assistance in finally becoming a lawful permanent resident. This is especially important for someone who has been grandfathered but is subject to removal proceedings.

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  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1156, citing Matter of Ilic, 25 I&N Dec. 717 (BIA 2012)
  2. Kurzban 1158, citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/23.1 (Mar. 9, 2005)
  3. Kurzban 1153, citing for the list INA § 245(d); 8 C.F.R. §§ 245.1(c), 1245.1(c); Birdsong v. Holder, 641 F.3d 957 (8th Cir. 2011); Markovski v. Gonzales, 486 F.e (4th Cir 2007)
  4. Kurzban 1153, citing Legal Opinion, Martin, General Counsel, INS, CO 245(i), CO 212(a)(6)(A) (Feb. 19, 1997), reprinted in 74 No. 11 Interpreter Releases 499, 516-22 (Mar. 24, 1997)
  5. Kurzban 1153, citing Matter of Diaz, 25 I&N Dec. 188 (BIA 2010); Matter of Briones, 24 I&N Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)
  6. Kurzban 1153, e.g., citing, Matter of Lemus-Losa, 25 I&N Dec. 771, 779 n.6 (BIA 2012)
  7. Kurzban 1155, citing Matter of Ilic, 25 I&N Dec 717, 719 (BIA 2012) [holding that a grandfathered alien may adjust status based upon a new petition]
  8. Kurzban 1155, citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/23.1 (Mar. 9, 2005), published on AILA InfoNet at oc. No. 05031468
  9. Kurzban 1157, citing News, OFLC, (Oct. 30, 2013), published on AILA InfoNet at Doc No. 13103048
  10. Kurzban 1158, citing Memo, Yates, Assoc. Dir. Operations, USCS, HQOPRD 70/23.1 (Mar. 9, 2005)
  11. Kurzban 1159, citing Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010)
  12. Kurzban 1158, citing Matter of Estrada and Estrada, 26 I&N Dec. 180, 182-87 (BIA 2013)
  13. Kurzban 1158, citing 8 C.F.R. § 245.10(a); Memo, Yates, Assoc. Dir. Operations, USCS, HQOPRD 70/23.1 (Mar. 9, 2005); Landin-Molina v. Holder, 580 F.3d 913, 917-20 (9th Cir. 2009)
  14. Kurzban 1159, citing Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994); Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)
  15. Kurzban 1159, citing Usmani v. Att'y Gen. of the U.S., 483 F.3d 1147 (11th Cir. 2007); Westover v. Reno, 202 F.3d 475, 480 (1st Cir. 2000)
  16. Kurzban 1159, citing e.g., Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009); Ahmed v. Gonzales, 465 F.3d 806 (7th Cir. 2006); Suhban v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). But see e.g. Olveira v. Holder, 568 F.3d 275 (1st Cir. 2009) [not an abuse of discretion to deny a motion to reopen]; Chacku v. Att'y Gen. of the U.S., 555 F.3d 1291 (11th Cir. 2008) [not an abuse of discretion to deny continuance where immigrant visa in applicant's preference category was not immediately available].
  17. Kurzban 1160, citing Memo, Pearson, Executive Assoc. Comm. Office of Field Operations, INS, HQOPS, 50/12.2 (Apr. 27. 2001), reprinted in 78 No. 19 Interpreter Releases 809, 817-18 (May 14, 2001)
  18. Kurzban 1160, citing Memo, Pearson, Executive Assoc. Comm. Office of Field Operations, INS, HQOPS, 50/12.2 (Apr. 27. 2001), reprinted in 78 No. 19 Interpreter Releases 809, 817-18 (May 14, 2001)
  19. Kurzban 1160, citing e.g., Delgado v. Mukasey, 516 F.3d 1127, 1234-42 (9th Cir. 2007); Lino v. Gonzales, 467 F.3d 1077, 1079 (7th Cir. 2006); De Sandoval v. Att'y Gen. of the U.S., 440 F.3d 1276, 1284-85 (11th Cir. 2006)
  20. Kurzban 1160, citing Valdez-Sanchez v. Gonzalez, 485 F.3d 1084 (10th Cir. 2007) [held that application of reinstatement in such a case was impermissibly retroactive]; but see Silva Rosa v. Gonzales, 490 F.3d 403 (5th Cir. 2007) [found that reinstatement for such an application was not impermissibly retroactive]

Materials and Resources:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1153-1160, Print. Treatises & Primers.