Adjustment of Status Interview Waivers

 

Introduction

Under 8 C.F.R. 245.6, all adjustment of status applicants are required to be interviewed by the United States Citizenship and Immigration Services (USCIS), unless the USCIS decides to waive the interview requirement. The USCIS provides guidance on the interview requirement and waivers in its Policy Manual (PM) at 7 USCIS-PM A.5 [PDF version]. On May 15, 2018, the USCIS released Policy Alert (PA)-2018-04 [PDF version], which amended the PM with regard to adjustment of status interview waivers and case relocations. In this article, we will examine the new guidance on the adjustment of status interview requirement and case relocations.

Regulatory Background

The regulations establishing the adjustment of status interview requirement are found in 8 C.F.R. 245.6. This provides that “[e]ach applicant for adjustment of status … shall be interviewed by an immigration officer.” However, the regulation provides that the adjustment of status interview may be waived in the following cases:

The applicant is under the age of 14;
The applicant is clearly ineligible for adjustment of status under section 245(c) of the Immigration and Nationality Act (INA) or 8 C.F.R. 245.1; or
The USCIS determines that an interview is unnecessary.

The guidance that this article will focus on primarily concerns situations where the USCIS may determine that an adjustment of status interview is unnecessary.

Purpose of the Adjustment of Status Interview

7 USCIS-PM A.5 sets forth the purpose of the adjustment of status interview. Here, it states that “[t]he interview enables USCIS to verify important information about the applicant to determine eligibility for adjustment.”

During an interview, the interviewing officer will:

Verify that the applicant understood the questions on his or her adjustment of status application;
Provide the applicant with an opportunity to revise any answers on his application if they were completed incorrectly or if they have changed since the filing of the application; and
Obtain answers for any unanswered or incomplete questions on the application.

In certain cases, the applicant will not be the only individual required to appear for an interview. In most family-sponsored cases, the USCIS will generally require both the Form I-130, Petition for Alien Relative petitioner and the adjustment applicant to appear for the interview, with limited exceptions. Derivatives are required to appear for the interview regardless of the adjustment category.

Adjustment of Status Interview Waivers, Including New Guidance

As provided in 8 C.F.R. 245.6, the USCIS may waive the adjustment of status interview requirement on a case-by-case basis. The USCIS PM provided the following non-exhaustive list of categories of cases where USCIS officers may generally consider granting an adjustment of status interview waiver:

Applicants who are clearly ineligible (see also 8 C.F.R. 245.6);
Unmarried children (under 21 years of age) of U.S. citizens if they filed a Form I-485, Application to Register Permanent Residence or Adjust Status on their own (or filed Form I-485 together with their family's adjustment applications and every applicant in that family is eligible for an interview waiver);
Parents of U.S. citizens; and
Asylees and refugees who were previously interviewed by a USCIS officer; and
Unmarried children (under 14 years of age) of lawful permanent residents if they filed on their own (or filed Form I-485 together with their family's adjustment applications and every applicant in that family is eligible for an interview waiver).

Regarding asylees and refugees, the USCIS stated in the PM that an asylee are refugee adjustment applicant who was not previously interviewed by a USCIS officer during the asylum or refugee process is required to undergo an adjustment of status interview. There is no waiver available in such cases.

The PA clarified that all adjustment of status interview waivers are discretionary. If the USCIS determines that an applicant covered by one of the foregoing categories or in the regulations should have an interview, no waiver will be granted. Conversely, applicants who are not listed in the above categories or in the regulations may be granted a waiver. All waiver determinations are made on a case-by-case basis.

Notably, the PA explained that the USCIS removed employment-based and fiancé(e)-based adjustment of status cases from the above list of cases where the USCIS may generally consider granting interview waivers.

In addition to the foregoing categories, the USCIS elaborated on three additional specific cases where it may consider granting adjustment of status interview waivers.

First, the USCIS addressed military personnel petitioners. Here, the USCIS states that it may waive the personal appearance of a military spouse petitioner. However, the actual adjustment of status applicant (the beneficiary spouse) must appear for an interview in this case. The PM states that it “makes every effort to reschedule these cases so that both the petitioner and adjustment applicant can attend the interview before deployment.” However, the adjustment applicant may opt to proceed with the interview while the petitioner is abroad.

Second, the USCIS may waive the personal appearance of a U.S. citizen spouse petitioner if he or she is incarcerated and unable to attend the interview as a result. However, in such cases, the adjustment of status applicant is required to appear for the interview. Determinations of whether to waive the appearance of an incarcerated U.S. citizen spouse petitioner are made on a case-by-case basis in consideration of all of the facts and evidence.

Finally, the USCIS may waive the personal appearance of an applicant or petitioner due to illness or incapacitation. In this case, the USCIS officer must obtain supervisory approval to issue an adjustment of status interview waiver.

Relocating Cases for Adjustment of Status Interviews

In cases where the USCIS does not waive the adjustment of status interview requirement, the PM explains that the case should be relocated to the USCIS field office with jurisdiction over the adjustment applicant's place of residence once the time comes to schedule an interview. Here, the PM provides an updated list of reasons that the USCIS may decide to require an interview (quoted):

Need to confirm the identity of the applicant;
Need to validate the applicant's immigration status;
The applicant entered the United States without inspection, or there are other unresolved issues regarding the applicant's manner of entry;
There are known criminal inadmissibility or national security concerns that cannot be resolved at a service center;
There are fraud concerns and the service center recommends an interview;
The applicant's fingerprints have been rejected twice;
The applicant has a Class A medical condition that the service center cannot resolve through a Request for Evidence (RFE);
The applicant answered “Yes” to any eligibility question on the adjustment application, and the service center cannot determine eligibility through an RFE; or
The service center has not been able to obtain an applicant's A-File, T-File, or receipt file (when the applicant has multiple files).

However, as we noted above, determinations about whether to waive an adjustment of status interview are made on a case-by-case basis.

Interpreters

Finally, the PM provides guidance on interpreters for the adjustment interview for applicants who are not fluent in English. The guidance in the PM provides a highly condensed version of the more comprehensive guidance on interpreters for USCIS interviews issued on May 1, 2017. To learn more, please see our full article on interpreters in USCIS interviews [see article].

Conclusion

The USCIS may require any adjustment of status applicant, and petitioners in certain family-sponsored cases, to appear for an adjustment of status interview. The new policy changes made no drastic changes, but generally pointed toward expanding the scenarios where the USCIS will require adjustment interviews. An individual seeking adjustment of status should consult with an experienced immigration attorney throughout the entire process, especially where guidance on case-specific questions is required.