Issue: Arriving Alien / Adjustment of Status
Nationality: Chinese
Location: Cleveland, Ohio
Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China. Once he arrived at the Miami International Airport, he was inspected by the DHS officer and was paroled into the United States. He applied for asylum, but was later denied by the Immigration Judge in New York in 2002. Thus, he had a final order of removal.
According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”
Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. citizen spouse. Our client and his wife consulted with our firm to see if there’s anything that could be done for them knowing that they already have a final order. We reviewed their file, learned that he was an arriving alien despite the final order, and thus advised them that we can apply for adjustment of status. They retained us in November, 2010.
An arriving alien can adjust his or her status even though he or she has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings. Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.
The January 12, 2007 USCIS memo states that the USCIS can adjudicate an adjustment of stauts application of a parolee with a final order under these interim regulations. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord wit
h this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).
Thus, our office thoroughly prepared and filed the I-130 Petition and Adjustment of Status application in accordance with the regulations. Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time. There was no request for additional evidences.
Prior to the interview, Attorney Sung Hee (Glen) Yu with the help of Arty Wynieski from our office thoroughly prepared our client for their USCIS adjustment of status interview. The preparation lasted for several hours because of the “arriving alien” issue and other possible concerns with regard to our client’s case.
On the interview day, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office. The interview went well, and our client eventually got his green card on March 28, 2010. Despite having a final order since 2002, our client finally became a permanent resident of the United States.
For more success stories in the deportation and marriage areas of immigration, feel free to browse our website and for further questions, please do not hesitate to contact our office for a free consultation.
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