Chicago Adjustment of Status Attorney

A foreign national may be able to file for adjustment of status to that of a permanent resident if they qualify for a visa. The section of the law that governs this process is INA Section 245, or 8 USC Sec. 1255. A person can only adjust their status if they have an approved visa that is ready under the quota system, or file such a petition with the application for adjustment of status. Most commonly, this is done where a U.S. citizen petitions for his or her foreign national spouse, and the spouse entered the U.S. legally. The primarily advantage to filing for adjustment of status is that the case is resolved here in the U.S., under your attorney's close supervision. Additionally, your attorney can and should accompany you to each and every interview at the government offices. Adjustment of status is also an attractive option because the foreign national will be able to stay in the U.S. while the application is pending. This minimizes separation between the applicant and his family in the U.S.

Adjustment of Status for applicants living in Chicago, Indianapolis, Minneapolis, Milwaukee and Detroit are currently taking about the same length of time. Most applicants are interviewed within 6 months of filing in these cities. The Chicago District Office's procedures differ in some significant ways from the other cities; it is wise to hire a competent immigration attorney to help you prepare the applications, prepare for the interview, and attend the interview with you. You should talk to at least three attorneys before hiring; the biggest factor in your decision should be your comfort with the attorney. There are hundreds of lawyers in Chicago that practice in this area of law, less in Indianapolis, Minneapolis, Milwaukee and Detroit. The web provides a free, initial way to screen attorneys as well.

Persons who entered without inspection ("EWIs") cannot adjust their status, unless they qualify for INA Section 245(i), which allows for adjustment with the payment of a penalty fee to the government. INA Section 245(i) sunset, however, on April 30, 2001. Only persons who filed for a visa through employment or through family before that date can still use it to file for adjustment of status.

Adjustment of status requires that a person be inspected and admitted or paroled. A person is inspected and admitted when he presents himself for inspection and makes no knowing false claim to citizenship. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) [Mexican citizen not questioned at border while riding in a car that was stopped was "inspected and admitted" even though she had no lawful basis to enter]. The applicant must also be in the United States lawfully, unless they are the spouse, child or parent of a U.S. Citizen. INA §§245(c)(2), (c)(7) and (c)(8) do not bar adjustment of status for these groups.

A visa number must be immediately available at time of filing. 8 C.F.R. §§245.2(a)(5)(ii), 1245.2(a)(5)(ii). In other words, if the approved visa petition is in a category for which there is a wait under the quota system, an application cannot be filed. If visa numbers regress after filing so that no visa can actually be issued, the case is held in abeyance until a visa is available. Hernandez v. Ashcroft, 345 F.3d 824, 843-45 (9th Cir. 2003) [Availability of a visa does not mean that the individual must actually possess an allocated visa number to be eligible to adjust].

Next, a person must be eligible under section 245 of the INA, and be admissible to the United States in order to qualify for adjustment of status. This means that the applicant cannot be inadmissible. The grounds of inadmissibility under the INA are covered in section 212 of the INA.

Section 245 includes its own set of ineligibility for adjustment of status. They are contained in Ineligible under INA §§245(c), (d), 8 U.S.C. §§1255(c), (d), and include (1) Alien crewmen, including those with "B" and "C," as well as "D" visas, and (2) persons who worked without authorization (other than immediate relative, or special immigrant under medical doctor, "G" relatives, veterans, or juvenile court dependent category).This does not apply to spouses, children or parents of U.S. citizens. The bar for unauthorized employment does not apply to employment-based petitions where person worked less than 181 days without permission since his last entry into the U.S. INA §245(k).

The other large group of potential applicants who are barred are those people not in legal status (other than immediate relative) on date of filing application or who has failed to maintain continuously a legal status except if it was through no fault of his own for technical reasons.

Another group of foreign nationals not eligible to adjust status are J visa holders not meeting 2 year foreign residency requirement or obtaining waiver. 8 C.F.R. §§245.1(c)(2), 1245.1(c)(2). There are waivers of the two-year foreign residency requirement available for many J visa holders. Even spouses of U.S. citizens are otherwise barred from adjustment of status if they are subject to the J-1 foreign residency requirement.

Other groups of ineligible persons include those who obtained conditional LPR status under INA §216, 8 U.S.C. §1186a; 8 C.F.R. §§245.1(c)(5), 1245.1(c)(5) or INA §216A, 8 U.S.C. §1186b, and seek to adjust on another basis; visa waiver entrants, unless they are petitioning through an immediate relative, 8 C.F.R. §§217.3(a), 245.1(b)(8), 1245.1(b)(8), or grandfathered under former INA §245(i); K visa holders except if s/he is marrying within 90 days pursuant to K status and K petitioner is the petitioner in the I-130. 8 U.S.C. §1255(d), INA §245(d); 8 C.F.R. §§245.1(c)(6), 1245.1(c)(6).

An approved I-130 (family petition) or I-140 (work-based petition) used to be a prerequisite to filing for adjustment of status. Now, I-130 or I-140 petitions may be filed simultaneously with adjustment of status (I-485) application if the priority date is current. As a practical matter this means that I-130 petitions and the I-485 application can be simultaneously filed only where a U.S. citizen spouse, parent, or adult child is the petitioner, because virtually every category subject to a quota is now backlogged. Significantly, the EB-3 category is now also backlogged; most employment cases are EB-3 category cases. Timing and strategy for dealing with this development is often critical to success.

INA Section 245(i) allows a person to apply to adjust status even ift s/he entered without inspection, overstayed, or worked without authorization. Thus a person who is EWI, notwithstanding INA §245(a), or is within one of the classes of INA §245(c) can adjust status if s/he paid the special fee required (currently $1,000). 8 C.F.R. §§103.7(b)(1), 1103.7(b)(1), as long as s/he (including her spouse and children) is the beneficiary of any labor certification or petition under section 204 (including I-140, I-130, I-360, I-526) that was filed on or before Apr. 30, 2001. The law had previously sunset on Jan. 14, 1998 but was revived under the LIFE Act amendments to include any application filed before Apr. 30, 2001. However, it only includes person who filed after Jan. 14, 1998 and before Apr. 30, 2001 if they were physically present in the U.S. on Dec. 21, 2000. Memo, Cronin, Acting Executive Assoc. Comm. (HQ 70/23.1-P) (Jan. 26, 2001), reprinted in 78 No. 6 Interpreter Releases 325, 346-52 (Feb. 5, 2001) and reprinted as amended 78 No. 10 Interpreter Releases 473, 501-04 (Mar. 12, 2001).

Because 245(i) waives sections 245(a) & (c) but not subsection (d), other persons who are ineligible to adjust or get the benefit of 245(i) include K-1 visa holders, persons who are conditional residents, S visa holders, and persons seeking adjustment based on marriage entered into while in exclusion, deportation or related judicial proceedings, unless there is clear and convincing evidence that marriage is bona fide. 8 U.S.C. §1255(d), INA §245(d), 8 C.F.R. §§245.1(c), 1245.1

The Service has taken the view that it is the individual beneficiary (and his spouse and children) who are grandfathered by filing on or before Apr. 30, 2001 and not the petition, so that a beneficiary can adjust status based on a petition submitted and approved after Apr. 30, 2001 or a diversity visa application submitted after that date as long as there was an application/petition filed on or before Apr. 30, 2001 that was "approvable when filed."

Approvable When Filed. To be grandfathered an immigrant visa petition or labor certification application on or before Apr. 30, 2001 had to be: (1) properly filed and (b) approvable when filed. 8 C.F.R. §§245.10(a)(2), 1245.10(a)(2). Properly filed means that the petition was physically received by the Service on or before Apr. 30, 2001 or if mailed that it was postmarked on or before that date. Applications received without a postmark or with an illegible postmark "shall be considered timely filed if physically received by the Service by the close of business May 3, 2001." Memo, Yates, Deputy Ex. Assoc. Comm. Field Operations (Apr. 26, 2001), reprinted in 78 No. 18 Interpreter Releases 774, 790-93 (May 7, 2001). The same rule applies for private mail service delivered without a legible date and metered mail. Id. With respect to LC, it means that it was properly filed and accepted pursuant to 20 C.F.R. §656.21 by the State Employment Security Agency (SESA).

"Approvable When Filed" means that as of the date of filing, the petition or LC was: (1) properly filed; (2) meritorious in fact; and (3) non-frivolous (frivolous being defined as patently without substance). §§245.10(a)(3), 1245.10(a)(3). This determination is made based on the circumstances that existed at the time the petition was filed and not whether it "was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing." Id; §§245.10(i), 1245.10(i). Such changed circumstances include but are not limited to "a child who has reached age 21 before the principal alien could adjust status, an employer going out of business, or a valid, bona fide marriage ending in divorce before the alien could adjust status." 66 Fed. Reg. at 16385; §§245.10(a)(4), 1245.10(a)(4). For purposes of an LC the DOL/DHS take the view that "approvable when filed" means that the ETA 750 was properly filed. Thus, the Labor Department "considers every properly filed application for permanent labor certification to be approvable when filed for section 245(i) grandfathering purposes. The {} 'approvable when filed' standard can be met merely by properly filing the application on Form ETA-750. The Form ETA-750, as a statement from the employer, will meet the burden of establishing that the employment is non- frivolous and meritorious in fact." Letter, Chang, Director, Residence and Status Branch, INS, HQADN 70/23.1 (May 15, 2001), reprinted in 78 No. 22 Interpreter Releases 931, 980-82 (June 4, 2001).

Family Based: Filed at the CIS District office where adjustment applicant resides, even if petitioner on I-130 is in another venue. The application is then forwarded to the RSC. Employment Based: Filed at the Service Center having jurisdiction over the place of residence. Technically, the A/S in employment cases requires filing at the Service Center where the I-140, I-360, or I-526 was approved. 61 Fed. Reg. 56060-63 (Oct. 30, 1996).