Adjustment of Status and Extension of Status Rules for T Nonimmigrants

• Introduction: New Guidance for Extension of Status for T Nonimmigrants
• Background
• Policy from the Memorandum
  • Automatic Extension of Status for Principal or Derivatives Based on Adjustment Application
  • Extension of Status Based on Law Enforcement Need or Exceptional Circumstances
  • Considerations for Derivatives
  • Older Cases
• Conclusion

Introduction: New Guidance for Extension of Status for T Nonimmigrants

On October 4, 2016, the United States Citizenship and Immigration Services (USCIS) published a Policy Memorandum (PM-602-0032.2) titled “Extension of Status for T and U Nonimmigrants (Corrected and Revised)” (“The Memorandum”) [PDF version]. The new Memorandum, which revises chapters 39.1 and 39.2 of the USCIS's Adjudicator's Field Manual (AFM), completely rescinds and replaces a previous Policy Memorandum (PM-602-0032.1) titled “Extension of Status for T and U Nonimmigrants; Revisions to Adjudicator's Field Manual (AFM) Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11-28),” issued on April 19, 2011.

The main change in the new Memorandum relates to adjustment of status for derivative T nonimmigrants. Under the previous Memorandum, a derivative T nonimmigrant could only apply for adjustment of status contemporaneously with the principal. The derivative T nonimmigrant would be ineligible to adjust from T nonimmigrant status after the principal had adjusted because he or she would not be considered to be maintaining T nonimmigrant status. The USCIS also noted in the new Memorandum that there existed a discrepancy between the adjustment provisions for derivative T nonimmigrants and derivative U nonimmigrants, because derivative U nonimmigrants were required to meet their own physical presence requirement to seek adjustment of status (there was no physical presence requirement for derivative T nonimmigrants seeking adjustment). Under the new rules, a derivative T nonimmigrant will no longer automatically lose status when the principal adjusts. He or she may apply for adjustment of status after the principal has applied, provided the principal meets the eligibility requirements and the T nonimmigrant was admitted in T nonimmigrant status and continues to hold such status at the time the principal applied for adjustment of status.

Finally, under the new rules, an individual who was on T nonimmigrant status as a derivative and whose application for adjustment of status was denied solely because the principal had already adjusted status may file a motion to reopen his or her Form I-485, Application to Register Permanent Residence or Adjust Status. Such applicants may do so by filing the Form I-290B, Notice of Appeal or Motion.

In this article, we will review the rules found in PM-602-0032.2 regarding T nonimmigrants. Please see our site to learn about T nonimmigrant status [see article] and U nonimmigrant status [see article] in general.

Background

Before examining the new guidance in the Memorandum, we must understand the general rules for adjustment for T nonimmigrants. Please see our full article to learn about the issues in greater detail [see article].

Under section 245(l)(A) of the Immigration and Nationality Act, a T nonimmigrant may seek adjustment of status if he or she has been continuously physically present in the United States for a period of at least 3 years since admission as a nonimmigrant, or if he or she has been continuously physically present in the United States for a continuous period during the investigation or prosecution of acts of trafficking until the competition of the investigation (“completion” in the opinion of the Attorney General), whichever period of time is less.

Section 204(o)(7)(A) of the INA limits generally T visa status to 4 years. However, there are limited situations in which an individual may be eligible for an extension of T nonimmigrant status. These cases are found in clause B of the same provision:

The authority investigating or prosecuting the activity relating to human trafficking certifies that the presence of the T nonimmigrant in the United States is necessary to assist in the prosecution of such activity;or
The T nonimmigrant is eligible for relief under the adjustment provision in section 245(l) because regulations had not yet been promulgated to implement the statute (applies to individuals who filed a complete application for adjustment of status before April 13, 2009; see 8 C.F.R. 245.23(a)(2)(ii)); or
The Secretary of Homeland Security determines that an extension of the period of T nonimmigrant status is warranted due to exceptional circumstances (e.g., to be determined on a case-by-case basis, if a derivative T nonimmigrant has not been able to secure admission before the principal would adjust).

Importantly, section 245(o)(7)(C) of the INA provides for an automatic extension of T nonimmigrant status during the pendency of a properly filed application for adjustment of status. The statute uses the term “shall be extended,” meaning that such extension is not discretionary.

The Memorandum explains that, without an extension of T nonimmigrant status or a properly filed application for adjustment of status, a T nonimmigrant's status will expire in accordance with 8 C.F.R. 214.11(p)(2). Under regulations found in 8 C.F.R. 215.23(b)(1), a derivative T nonimmigrant is only eligible for adjustment of status so long as the principal is also eligible and therefore may only apply for adjustment of status concurrently with the principal or after the principal has filed for adjustment of status.

Policy from the Memorandum

Automatic Extension of Status for Principal or Derivatives Based on Adjustment Application

The Memorandum begins by explaining that a T nonimmigrant who properly files a timely application for adjustment of status shall have his or her T nonimmigrant status automatically extended during the pendency of the application (in accord with section 245(o)(7)(C) of the INA). This extension is procured by properly filing the Form I-485 in accordance with the form instructions. No separate filing of the Form I-539, Application to Extend/Change Nonimmigrant Status is necessary. The USCIS will issue a Form I-797, Notice of Action; a receipt notice for the application of adjustment of status, and a notice of extension of the T nonimmigrant status.

The Memorandum explains that the extension of T nonimmigrant status will be valid until the USCIS renders a decision on the adjustment of status application. During such extension, the T nonimmigrant “will continue to be in valid T nonimmigrant status, with all the associated rights, privileges, and responsibilities.” During the automatic extension period while the Form I-485 is pending with the USCIS, the T nonimmigrant will continue to have employment authorization. The individual's Form I-797 that indicates his or her T nonimmigrant status was extended can be used for Form I-9, Employment Eligibility Verification purposes for one year after the individual's previous period of T nonimmigrant status (unless the Form I-485 is denied or withdrawn). The T nonimmigrant will also have the option of applying for a new Employment Authorization Document (EAD) by filing the Form I-765, Application for Employment Authorization (this may be filed concurrently with the Form I-485).

A derivative T nonimmigrant will be entitled to an extension of status based on a properly filed Form I-485 under the same conditions as the principal. However, a derivative T nonimmigrant will not have his or her status automatically extended merely because the principal properly filed a timely application for adjustment of status. Rather, the derivative T nonimmigrant's status will only be automatically extended when he or she properly files a timely application for adjustment of status.

Extension of Status Based on Law Enforcement Need or Exceptional Circumstances

The Memorandum explains that in order to request an extension of T nonimmigrant status for law enforcement need (section 204(o)(7)(A)(i)) of exceptional circumstances (section 204(o)(7)(A)(i)), the T nonimmigrant must file a Form I-539, Application to Extend/Change Status, accompanied by supporting evidence, in accordance with form instructions.

Derivative T nonimmigrants may also seek an extension of status using the Form I-539 along with the principal. However, an extension is not available for a derivative T nonimmigrant who has not previously entered and resided in the United States in T nonimmigrant status. However, the USCIS has discretion to issue a T nonimmigrant to someone who has not previously entered or resided in the United States in T nonimmigrant status with an amended T visa approval notice with updated validity dates.

The Memorandum explains that the Form I-539 should be filed within 90 days of the expiration of T nonimmigrant status (neither before nor after). The USCIS has discretion, on a case-by-case basis, to grant an extension of T nonimmigrant status based on a Form I-539 filed after such status expired.

When a Form I-539 is properly and timely filed by a T nonimmigrant, he or she will be issued a Form I-797: a receipt notice for the Form I-539 and, if approved, a notice of extension of T nonimmigrant status.

In general, an extension of T nonimmigrant status based on law enforcement need or on exceptional circumstances will be valid for one year after the date that the T nonimmigrant status would have ended. If the T nonimmigrant obtained permission to file the Form I-539 late, the extension would instead be valid for one year from the date of the approval of the extension. During the extension period, the individual would continue to be in valid T nonimmigrant status “with all the associated rights, privileges, and responsibilities.”

Individuals may file a Form I-765 for employment authorization concurrently with the extension request.

In order to procure an extension of status for law enforcement need, the Memorandum explains that the T nonimmigrant bears the burden of establishing eligibility. The T nonimmigrant may submit the following to establish that he or she merits an extension:

New Form I-914 Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons; or
Other evidence from law enforcement explaining that the applicant's presence is necessary; and
Any other evidence.

In order to establish exceptional circumstances, the Memorandum explains that the T nonimmigrant may submit an affirmative statement or any other credible evidence. If the T nonimmigrant is seeking an extension after the expiration of his or her status, the Memorandum states that the nonimmigrant should submit a letter explaining why he or she is filing the Form I-539 after the expiration of his or her status. The USCIS will use its discretion on a case-by-case basis to determine if granting an untimely extension request is warranted.

Considerations for Derivatives

As we discussed in the introduction, derivative T nonimmigrants may now file for adjustment of status provided that they remain in T nonimmigrant status. This means that if a T nonimmigrant is admitted into the United States while the principal is in T nonimmigrant status, he or she may seek adjustment after the principal has adjusted so long as he or she is individually eligible for such adjustment. However, the Memorandum explains that once the principal is no longer a T nonimmigrant, a derivative may no longer be eligible to be admitted into the United States in T nonimmigrant status. The principal may cease being a T nonimmigrant through adjustment of status or through the expiration of status.

In order for a derivative T nonimmigrant to apply for adjustment of status, he or she must continue to hold T nonimmigrant status and be present in the United States (see 8 C.F.R. 245.23(b)(2)). As we noted earlier, derivative T status is automatically extended for the pendency of an adjustment of status application when the derivative properly files for adjustment of status.

If an individual approved for derivative T status is waiting for an initial issuance of a T visa while abroad, and if the principal's T nonimmigrant status is set to expire, the Memorandum encourages the principal to apply for an extension of status based on exceptional circumstances. If granted, such an extension would give the derivative T nonimmigrant the opportunity to be admitted into the United States with a T visa before the principal seeks adjustment of status or allows it to expire.

The Memorandum explains that if a T nonimmigrant is seeking an extension after his or her status has expired based on a derivative being approved for T nonimmigrant status, but has not yet receiving a T visa to enter the United States before the expiration of such status, the T nonimmigrant should explain what exceptional circumstances prevented the derivative(s) from entering the United States. If the extension is granted, both the principal and derivative(s) will be able to file applications for adjustment of status.

As we noted in the introduction, if an individual who was on derivative T nonimmigrant status had an application for adjustment denied solely because the principal had already adjusted status, the individual may file an application to reopen T nonimmigrant status. In order to do so, he or she will be required to file a Form I-290B, Notice of Appeal or Motion, accompanied by a copy of the previous denial of adjustment of status.

Older Cases

1. Under the previous statutory scheme regarding adjustment of status for T nonimmigrants, an individual had to seek adjustment of status within 90 days of the third anniversary of the expiration of T nonimmigrant status. At that time, T nonimmigrant status lasted for three years instead of 4 years. On January 6, 2006, then-President George W. Bush signed legislation lengthening the duration of status for a T nonimmigrant from three years to four years. The Memorandum explains that individuals who sought adjustment under the old rules before accruing 3 years of status as a T nonimmigrant would continue to have their Form I-485s adjudicated. The Memorandum explains that no other T nonimmigrants (except those who obtained T nonimmigrant status due to a case that is determined to be closed by the Attorney General) may file for T nonimmigrant status before three years.
2. Regulations found in 8 C.F.R. 245.23(a)(2)(ii) allowed certain adjustment applicants with expired T nonimmigrant status to file for adjustment of status by April 13, 2009. Such applicants for adjustment of status who filed before April 13, 2009, are considered to maintain T nonimmigrant status until a final decision is made on the adjustment of status application.
3. No other individuals whose T nonimmigrant status expired and who have not been hitherto described should be granted an extension of T nonimmigrant status or permitted to apply for adjustment after the expiration of T nonimmigrant status.

Conclusion

The revised Memorandum on extensions of status and adjustment of status for T and U nonimmigrants provides comprehensive guidance on the rules used by the USCIS for such applications. The revisions in the Memorandum loosen the conditions under which a derivative T nonimmigrant may seek adjustment of status. Now, a derivative T nonimmigrant who has been admitted into the United States in T nonimmigrant status will not lose status merely because the principal has adjusted, and the derivative T nonimmigrant will be eligible to apply for adjustment of status so long as he or she remains a T nonimmigrant and is otherwise eligible.

An individual on T nonimmigrant status should consult with an experienced immigration attorney regarding the rules on T status, and extensions of status, and adjustment of status. This is especially important for individuals who are seeking derivative T nonimmigrants status for qualified beneficiaries and who hope for such derivatives to be eligible for adjustment of status. If an individual who had been on T nonimmigrant status had an adjustment application denied solely because the principal had already adjusted, he or she should consult with an experienced immigration attorney for guidance on whether the Memorandum may allow him or her to reopen T nonimmigrant status..