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Eligibility for Adjustment of Status

Given the choice, many foreign nationals who are physically present in the United States choose adjustment of status over consular processing in becoming lawful permanent residents. Adjustment of status offers advantages over consular processing, including eligibility for employment authorization and permission to travel while the adjustment application is pending.

There are several ways to adjust status to permanent residence. Most common is the adjustment of status in Section 245(a) of the Immigration and Nationality Act (INA). To be eligible, the applicant must meet certain requirements at the time of filing. First, the applicant must have been inspected, admitted or paroled into the U.S.

Second, the applicant must also be admissible, that is, not subject to any of the inadmissibility grounds, including health-related grounds, public charge grounds, undocumented entry and immigration status violations, and previous removal or unlawful presence.

There must also be an immediately available immigrant visa for the applicant. Unless he/she is an immediate relative (spouse, parent or unmarried child under 21 of a U.S. citizen), the applicant must have an available visa based on his/her priority date and preference category, as indicated in the visa bulletins released by the Department of State every month.

Certain persons are barred from adjusting status. These include alien crewmen, visa waiver entrants except for immediate relatives, and employment-based immigrant visa applicants who are not in lawful status.

Section 245(k) allows employment-based adjustment applicants who are present in the U.S. pursuant to a lawful admission but who have incurred unlawful status (i.e., engaged in unauthorized employment, fell “out of status”, or otherwise violated the terms of their stay) to adjust status if the total period of their unlawful status is not more than 180 days.

If there is a ground for ineligibility under Sec. 245(c) or if the applicant entered the U.S. without inspection, he may still adjust status if he can benefit from Sec. 245(i). This means that he must be the beneficiary of an approvable immigrant visa petition or labor certification application filed on or before April 30, 2001. If it was filed after January 14, 1998 but on or before April 30, 2001, the foreign national must have been physically present in the U.S. on December 21, 2000.

There are, however, ineligible aliens or those who many not adjust status in any case. For example, one who is admitted to the U.S. as a fiancé(e) (K-1 status) may adjust status only through marriage to the K visa petitioner, and the marriage must take place within 90 days of the fiancé(e)’s entry to the U.S.

Another provision of the INA that allows a path to permanent residence is through the registry provision of the INA. This is available to those who entered the U.S. illegally or are present in the U.S. without lawful status. The applicant must have entered the U.S. before January 1, 1972 and continuously resided here since that time. He also must be of good moral character and not ineligible for citizenship, except for the five-year permanent residence requirement, and not subject to inadmissibility for terrorism, criminal and security grounds, or for alien smuggling.

An adjustment application is usually made to the USCIS but if the applicant is under removal proceedings, the application is made before the immigration judge. Adjustment is a discretionary benefit so even if the applicant meets the eligibility requirements, it may be denied if the USCIS or the immigration judge determines that the applicant does not deserve a favorable exercise of discretion.

Reporting Immigration-Related Discrimination

Immigrants have played an increasingly important role in the U.S. economy. They work in all kinds of occupations in healthcare, management, construction, sales, etc. As of 2009, more than fifteen percent of the entire U.S. labor force were foreign born.

Immigrant workers at times face problems at the workplace. They fall victim to unlawful discriminatory practices of employers.

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently released an information guide on what constitutes immigration-related discrimination and provided contact information to report violations.

In many cases, immigrant workers experience discrimination because of their national origin or citizenship status. For instance, a foreign-born job applicant applying for a position may not be legally denied the position because he/she has a foreign name or because he/she did not look “American”. An employer also may not base a hiring or a promotion on the worker’s accent if it does not materially interfere with the performance of the job.

In other words, when making employment decisions an employer must treat all people equally and regardless of the individual’s place of birth, country of origin, native language, or their perceived nationality or ethnic background.

Another type of discrimination that immigrants are subjected to is citizenship discrimination. An employer cannot treat a person differently because of his/her citizenship or immigration status, but this presupposes that the individual is legally eligible to work. U.S. citizens, recent permanent residents, asylees and refugees are protected from this type of discrimination.

A “U.S. citizen only” hiring policy is illegal unless it is needed to comply with law or government contract. If a qualified green card holder applies for the job but is rejected because of such a policy, the employer may be liable for back pay and civil penalties.

In 2010, a restaurant franchise operator settled a discrimination complaint for $20,000 in back pay and civil penalties after refusing to hire a non-U.S. citizen. The employer had a policy of not hiring immigrants so the employer’s human resources personnel rejected all applicants who sounded or appeared foreign.

It is also discrimination for an employer to require a worker to present his green card and refuse any other proof of identity and work authorization (such as a valid driver’s license together with an unrestricted social security card) before allowing the worker to begin employment.

This practice is an example of document abuse and is usually committed in the I-9 verification process. The employer cannot demand specific documents, require the employee to give more documents than necessary, or reject reasonably genuine-looking documents that relate to the worker.

Retaliation by the employer is also prohibited. An individual may not be penalized for opposing discrimination, filing a complaint, or cooperating in a discrimination investigation or lawsuit.

Many government agencies at the federal, state and local levels enforce anti-discrimination laws.
The Equal Employment Opportunity Commission (EEOC) is in charge of enforcing federal workplace anti-discrimination laws, except citizenship and immigration status discrimination which is handled by the Office of Special Counsel at the Department of Justice.

Those who believe that they were unfairly or unlawfully discriminated against should call the Office of Special Counsel hotline at 800-255-7688 and consider filing a complaint. Time limitations and the size of the employer may determine if and where they can file the complaint.

Although their remedies may be limited, undocumented workers can also file a complaint with the EEOC. However, because of their lack of work authorization they are vulnerable to retaliation so they are advised to consult an attorney if possible.

Proposed Waiver Rule Expected to Benefit Thousands

The Department of Homeland Security on January 6, 2012 announced that it is proposing a rule that will allow spouses and children of U.S. citizens, who are ineligible to adjust status, to apply for a provisional waiver in the U.S. before leaving to process their immigrant visa application abroad. Under the current law, waivers are filed outside the United States.

This was in response to recommendations made by advocacy groups, including the American Immigration Lawyers Association.

Under the law, those who were unlawfully present in the U.S. for more than 180 days but less than one year face a 3 year bar to reentry. If the unlawful presence reached 1 year or more, the bar is 10 years. This bar takes effect when the alien departs from the U.S. If the inadmissibility due to unlawful presence is waived, the bar will not apply.

Adjudication of waivers could take anywhere from three months to several years. If the alien applies for the waiver abroad, he/she will be separated from his/her family in the United States. If the waiver is denied, unless an appeal is successful the alien may have to spend the rest of the 3 or 10 year period overseas and away from his/her family.

This proposal will benefit thousands of families. Stateside processing will bring undocumented immigrants out of the shadows by encouraging them to apply for a green card and file for a waiver while they remain in the United States. It will also streamline the waiver process.

To qualify for the waiver, the alien must establish that he/she is the immediate relative of a U.S. citizen and that the denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent.

Note that only immediate relatives are covered, so sons and daughters over 21 years of age of U.S. citizens, as well as siblings of U.S. citizens, are not affected by this rule change. The rule also will not apply to family members of lawful permanent residents.

The proposal is also limited to waiver of unlawful presence. It does not include waiver of other inadmissibility grounds such as fraud or misrepresentation and criminal conviction. Aliens subject to these inadmissibility bars must obtain a waiver under the normal procedure, i.e. depart the United States and file a waiver application after a finding of inadmissibility at the U.S. consulate.

Since the proposed rule is quite narrow, it is important to seek the guidance of competent counsel before applying for the provisional waiver and leaving the United States.

While this new procedure will keep families together and reduce the time that they are separated, there is no reason why the DHS should not cover adult children of U.S. citizens, and spouses and children of LPRs under the proposal. Hopefully they will be included in the final rule expected to be released this year.

Opting-Out to Prevent Longer Wait for Visa

Because of the visa backlog, it is common for a lawful permanent resident (LPR) parent, usually after living in the U.S. for five years, to become a naturalized citizen while a child waits for a visa on the basis of an approved second preference petition.

Under the Child Status Protection Act (CSPA), when a permanent resident parent naturalizes the beneficiary in an F2B petition (unmarried sons and daughters of LPRs) automatically converts to the F1 (unmarried sons and daughters of U.S. citizens) category upon the naturalization of the parent.

The automatic conversion is good if you’re a national of any country – except for the Philippines. Based on the latest visa bulletin, for other countries a conversion from F2B to F1 is advantageous because the waiting time would be cut short by over one year (about 4 months for Mexico).

But for the Philippines, the cut-off date for F2B beneficiaries is September 1, 2001, while for F1 it is April 15, 1997. In other words, for Philippine nationals the conversion actually adds more than 4 years to the wait since the F1 category is more backlogged than F2B.

Section 6 of the CSPA remedies this inequity by allowing the F2B beneficiary to “opt-out” of the conversion by electing to remain an F2B beneficiary. This is done through a written request to the officer in charge of the appropriate U.S. embassy, who then issues a decision and sends it to the beneficiary and the Department of State’s visa issuance unit.

If the opt-out request is approved, the beneficiary’s eligibility will be determined as if the parent had never naturalized and the beneficiary will remain in F2B.

To illustrate, let’s say X is the 33-year old son of a Filipino mother who recently became a naturalized U.S. citizen. On August 30, 2001, the mother filed an I-130 petition on X’s behalf when X was only 23 years old. The F2B priority date is already current, but since his mother recently naturalized, X automatically moved to the F1 category where the waiting time is longer by over 4 years compared to F2B. X can avoid the backlog in F1 by opting out of the conversion by sending a formal request to the USCIS in Manila.

This provision of the CSPA applies retroactively, that is, even to those F2B preference petitions filed before the law was passed on August 6, 2002, and regardless of the age of the beneficiary. Note that the opting-out can be done even after the conversion takes place because the law specifically allows a conversion to be revoked.

It used to be that only beneficiaries of petitions initially filed in F2B could benefit from opting out, and not those who started out in F2A and later moved to F2B when they turned 21 years old. This interpretation resulted in older brothers and sisters being able to immigrate under F2B much earlier than their younger siblings who had to wait longer under F1.

To illustrate, say X in the example above was under 21 when his mother filed the I-130. Since he started out in the F2A category and converted to the F1 category when his mother naturalized, under the old interpretation of Section 6 he could not opt out of the conversion. He would have to remain under F1 and wait until a visa becomes available.

Because of the unfairness that resulted, in 2006 the USCIS reevaluated its reading of Section 6 and later allowed it to be applied to all beneficiaries 21 years and over in the F2B category, regardless of whether they started out as F2A or F2B.

In the example above, this means that it does not matter if X was under 21 or over 21 at the time the I-130 was filed by his mother. If he turns 21 before his mother naturalizes, his petition would be automatically transferred to F1 category, but he can then opt-out if it is more beneficial to remain in F2B.

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