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Department
of State Cable on Unlawful Presence May 30, 2000 The US Department of State has advised its consular posts of the Immigration & Naturalization Service position that unlawful presence does not accrue during the pendency of adjustment of status applications, except in certain cases where the application was filed after a Notice to Appear was received. VISAS - INFORM CONSULS E.O. 12958: N/A TAGS: CVIS SUBJECT: TREATMENT OF ADJUSTMENT APPLICATIONS FOR PURPOSES OF DETERMINING UNLAWFUL PRESENCE UNDER INA 212(A)(9)(B) REFS: A) 98 STATE 60539 (APR 4) B) 99 STATE 105097 (JUN 7) 1. SUMMARY. IN GENERAL, ALIENS WHO HAVE A PENDING APPLICATION TO ADJUST STATUS TO PERMANENT RESIDENCE UNDER INA 245 ARE CONSIDERED IN A PERIOD OF AUTHORIZED STAY FOR PURPOSES OF INA 212(A)(9)(B) ("9B"). THEREFORE, SUCH ALIENS WOULD NOT ACCRUE ANY UNLAWFUL PRESENCE FOR 9B PURPOSES DURING THE PENDENCY OF THE APPLICATION TO ADJUST STATUS. HOWEVER, ALIENS WHO APPLY FOR ADJUSTMENT OF STATUS ONLY AFTER RECEIVING NOTICE TO APPEAR FOR REMOVAL PROCEEDINGS (I.E., A DEPORTATION NOTICE) ARE NOT CONSIDERED IN A PERIOD OF AUTHORIZED STAY, AND COULD ACCRUE UNLAWFUL PRESENCE FOR 9B PURPOSES, DEPENDING ON THEIR PARTICULAR CIRCUMSTANCES. (NOTE: THE ABOVE RULES APPLY ONLY TO APPLICATIONS TO ADJUST STATUS TO PERMANENT RESIDENCE, NOT TO APPLICATIONS TO CHANGE STATUS FROM ONE NIV CATEGORY TO ANOTHER. A SEPARATE ALDAC, SENT OUT SIMULTANEOUSLY WITH THIS ONE, ADDRESSES TREATMENT OF CASES INVOLVING CHANGES OF NIV STATUS.) END SUMMARY 2. IN THE PAST, IT WOULD HAVE BEEN RELATIVELY RARE FOR A POST TO ENCOUNTER A VISA APPLICANT WHO HAD PREVIOUSLY APPLIED FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENT. AS APPLICANTS FOR ADJUSTMENT IN THE U.S., THEY WOULD NOT BE SEEKING AN IMMIGRANT VISA ABROAD AND, ONCE ADJUSTED TO PERMANENT RESIDENT STATUS, THEY OF COURSE WOULD NO LONGER REQUIRE A VISA. IN THE EVENT THEY NEEDED TO TRAVEL ABROAD DURING THE PENDENCY OF THEIR APPLICATION TO ADJUST, THEY WOULD NORMALLY SEEK ADVANCE PAROLE FROM INS, IN ORDER TO AVOID ABANDONING THEIR ADJUSTMENT APPLICATION. 3. HOWEVER, IT IS LIKELY THAT POSTS MAY SEE MORE VISA APPLICANTS WITH PENDING OR PRIOR APPLICATIONS TO ADJUST STATUS, FOR AT LEAST TWO REASONS. FIRST, INS HAS CHANGED ITS RULES CONCERNING ADVANCE PAROLE REQUIREMENTS FOR ALIENS IN H OR L STATUS WHO SEEK ADJUSTMENT OF STATUS. SUCH ALIENS ARE NO LONGER REQUIRED TO OBTAIN ADVANCE PAROLE AND MAY TRAVEL ABROAD DURING THE PENDENCY OF THEIR ADJUSTMENT APPLICATION AND RETURN TO THE U.S. ON THEIR EXISTING, OR A NEW, H OR L VISA WITHOUT BEING DEEMED TO HAVE ABANDONED THEIR APPLICATION TO ADJUST STATUS. SECOND, THE PROCESSING TIME FOR ADJUSTMENT APPLICATIONS IN THE U.S. HAS GENERALLY INCREASED, AND SOME ALIENS WHO HAD APPLIED FOR ADJUSTMENT IN THE U.S. MAY DECIDE TO WITHDRAW THEIR APPLICATIONS AND APPLY FOR IMMIGRANT VISAS ABROAD. IN ADDITION, THERE WILL ALWAYS BE OCCASIONAL CASES WHERE AN ALIEN IS DENIED ADJUSTMENT FOR ONE REASON OR ANOTHER AND IS REQUIRED TO DEPART THE U.S., AND SUCH ALIENS MAY SUBSEQUENTLY APPLY FOR A U.S. VISA. 4. SOME POSTS HAVE ALREADY ENCOUNTERED CASES INVOLVING PRIOR ADJUSTMENT APPLICATIONS AND HAVE SOUGHT GUIDANCE FROM THE DEPARTMENT ON THE PROPER TREATMENT OF SUCH CASES FOR PURPOSES OF 9B. POSTS SHOULD BE AWARE THAT INS HAS DETERMINED THAT, IN GENERAL, ALIENS WITH PROPERLY FILED APPLICATIONS FOR ADJUSTMENT OF STATUS UNDER BOTH INA 245(A) AND 245(I) ARE CONSIDERED ALIENS PRESENT IN THE U.S. UNDER A PERIOD OF STAY AUTHORIZED BY THE ATTORNEY GENERAL. SUCH ALIENS WOULD THEREFORE NOT/NOT ACCRUE ANY UNLAWFUL PRESENCE DURING THE PENDENCY OF THE ADJUSTMENT APPLICATION. THIS RULE APPLIES EVEN IF THE ADJUSTMENT APPLICATION IS SUBSEQUENTLY ABANDONED OR DENIED. (IF IT IS APPROVED, THE ALIEN WOULD OF COURSE BECOME AN LPR AND THEREFORE WOULD NOT BE APPLYING FOR A VISA.) 5. TO CONSTITUTE A "PROPERLY FILED" ADJUSTMENT APPLICATION FOR PURPOSES OF THIS RULE, THE APPLICATION MUST MEET THE GENERAL FILING REQUIREMENTS OF INS REGULATIONS AT 8 CFR 103.2, I.E., THE APPLICATION MUST HAVE BEEN COMPLETED ACCORDING TO THE INSTRUCTIONS ON THE FORM, THE REQUIRED FEE MUST HAVE BEEN PAID, AND THE APPLICATION MUST HAVE BEEN SIGNED. IF THESE TECHNICAL REQUIREMENTS ARE MET, THE ADJUSTMENT APPLICATION WOULD NORMALLY BE CONSIDERED PROPERLY FILED, AND THE ALIEN WOULD THEREFORE BE DEEMED TO BE IN A PERIOD OF AUTHORIZED STAY AS LONG AS THE ADJUSTMENT APPLICATION IS PENDING. IF ANY POST ENCOUNTERS A CASE INVOLVING AN ADJUSTMENT APPLICATION THAT MEETS THESE BASIC TECHNICAL REQUIREMENTS BUT THAT APPEARS NOT TO HAVE ANY SUBSTANTIVE BASIS (E.G., THE ADJUSTMENT APPLICANT DID NOT QUALIFY FOR ANY IMMIGRANT VISA CATEGORY, OR THE ALIEN'S PRIORITY DATE WAS NOT CURRENT AND THEREFORE THE ALIEN WAS NOT ELIGIBLE TO APPLY FOR ADJUSTMENT), POST SHOULD REFER THE CASE TO CA/VO/L/A FOR AN ADVISORY OPINION. 6. INS HAS ESTABLISHED AN EXCEPTION TO THE GENERAL RULE THAT PROPERLY FILED ADJUSTMENT APPLICATIONS ARE A PERIOD OF AUTHORIZED STAY. UNDER THIS EXCEPTION, IF THE ALIEN FILES AN APPLICATION FOR ADJUSTMENT ONLY AFTER BEING SERVED WITH NOTICE TO APPEAR FOR REMOVAL PROCEEDINGS (FORM I-862), THEN THE PENDENCY OF THE ADJUSTMENT APPLICATION GENERALLY WILL NOT COUNT AS A PERIOD OF STAY AUTHORIZED BY THE ATTORNEY GENERAL. (NOTE: THIS DOES NOT NECESSARILY MEAN THAT THE ALIEN IS THEREFORE UNLAWFULLY PRESENT FOR 9B PURPOSES. THAT WILL DEPEND ON THE PARTICULAR FACTS OF THE CASE. WHILE MOST ALIENS WHO RECEIVE A REMOVAL NOTICE WOULD PROBABLY BE UNLAWFULLY PRESENT FOR 9B PURPOSES, SOME MAY NOT. FOR EXAMPLE, UNDER THE CURRENT INTERPRETATION OF 9B, AN ALIEN ADMITTED FOR DURATION OF STATUS WHO INS BELIEVES HAS FALLEN OUT OF STATUS AND WHO IS THEREFORE SERVED A NOTICE TO APPEAR FOR REMOVAL PROCEEDINGS WOULD NOT ACTUALLY ACCRUE ANY UNLAWFUL PRESENCE UNLESS AND UNTIL THE ALIEN IS FOUND REMOVABLE FOR HAVING VIOLATED STATUS. THUS, IN CASES WHERE THE ALIEN FILES FOR ADJUSTMENT AFTER RECEIVING NOTICE TO APPEAR FOR REMOVAL PROCEEDINGS, POSTS SHOULD SIMPLY DISREGARD THE ADJUSTMENT APPLICATION ALTOGETHER AND CALCULATE THE ACCRUAL (IF ANY) OF UNLAWFUL PRESENCE ACCORDING TO THE GENERAL 9B GUIDANCE IN REF A ALDAC.) 7. THE GENERAL RULE THAT A PENDING ADJUSTMENT APPLICATION CONSTITUTES A PERIOD OF AUTHORIZED STAY IS OF PARTICULAR IMPORTANCE IN CASES INVOLVING ADJUSTMENTS UNDER INA 245(I). UNDER SECTION 245(I), ALIENS WHO ARE OUT OF STATUS MAY BE ELIGIBLE TO APPLY FOR ADJUSTMENT. ALTHOUGH THE LAW WAS TO SUNSET, CONGRESS ENACTED A GRANDFATHERING PROVISION WHICH ALLOWS OUT-OF-STATUS ALIENS TO CONTINUE TO BENEFIT FROM ITS PROVISIONS AS LONG AS THE ALIEN'S IV PETITION OR APPLICATION FOR LABOR CERTIFICATION WAS FILED ON OR BEFORE JANUARY 14, 1998. ALTHOUGH SUCH ALIENS IN MANY CASES WOULD OTHERWISE BE ACCRUING UNLAWFUL PRESENCE UNDER 9B, THEY ARE DEEMED TO BE IN A PERIOD OF AUTHORIZED STAY DURING THE PENDENCY OF THE ADJUSTMENT APPLICATION (PROVIDED THE APPLICATION WAS NOT FILED AFTER THE ALIEN RECEIVED NOTICE TO APPEAR FOR REMOVAL PROCEEDINGS). HOWEVER, THE FILING OF AN ADJUSTMENT APPLICATION DOES NOT "CURE" ANY PREVIOUS PERIODS OF UNLAWFUL PRESENCE THAT THE ALIEN MAY HAVE ALREADY ACCRUED PRIOR TO FILING THE APPLICATION. 8. AT THIS POINT AN EXAMPLE MAY BE HELPFUL. SUPPOSE AN ALIEN ENTERED THE U.S. WITHOUT INSPECTION ON JUNE 1, 1993, THE ALIEN SUBSEQUENTLY APPLIED FOR ADJUSTMENT UNDER 245(I) ON JUNE 1, 1997, INS DENIED THE APPLICATION ON MAY 1, 1999, AND THE ALIEN DEPARTED THE U.S. ON JUNE 1, 1999. AS 9B ONLY WENT INTO EFFECT ON APRIL 1, 1997, THE ALIEN WOULD HAVE ONLY BEGUN ACCRUING UNLAWFUL PRESENCE AS OF THAT DATE. THE ALIEN WOULD THEN CEASE ACCRUING UNLAWFUL PRESENCE ON JUNE 1, 1997, THE DATE ON WHICH THE ADJUSTMENT APPLICATION WAS FILED. THE ALIEN WOULD NOT RESUME ACCRUING UNLAWFUL PRESENCE UNTIL THE APPLICATION CEASED BEING PENDING, ON MAY 1, 1999. THE ALIEN WOULD THEREFORE HAVE ACCRUED ONLY THREE MONTHS OF UNLAWFUL PRESENCE (APRIL 1, 1997 TO JUNE 1, 1997, AND MAY 1, 1999 TO JUNE 1, 1999), AND THEREFORE WOULD NOT BE SUBJECT TO 9B. (NOTE: ALTHOUGH PERIODS OF UNLAWFUL PRESENCE ACCRUED IN CONNECTION WITH SEPARATE/SEPARATE TRIPS TO THE U.S. CANNOT BE AGGREGATED TOGETHER WHEN DETERMINING WHETHER 9B'S MINIMUM OF 181 DAYS HAS BEEN MET, PERIODS OF UNLAWFUL PRESENCE ACCRUED DURING THE SAME/SAME STAY ARE/ARE COUNTED TOGETHER.) 9. THE ABOVE GUIDANCE RELATES ONLY TO APPLICATIONS TO ADJUST, REPEAT, ADJUST STATUS TO PERMANENT RESIDENCE UNDER INA 245. APPLICATIONS TO CHANGE/CHANGE STATUS, I.E., TO MOVE FROM ONE NIV CATEGORY TO ANOTHER NIV CATEGORY, ARE GOVERNED BY SEPARATE RULES. DEPARTMENT HAS PREPARED A SEPARATE ALDAC ON THE TREATMENT OF CHANGE OF STATUS APPLICATIONS FOR 9B PURPOSES, TO BE SENT OUT SIMULTANEOUSLY WITH THIS CABLE, AND POSTS SHOULD REFER TO THAT ALDAC FOR CASES INVOLVING PRIOR APPLICATIONS TO CHANGE NIV STATUS OR EXTEND NIV STAY. 10. AS ALWAYS, IF POSTS HAVE ANY QUESTIONS CONCERNING THIS ALDAC OR ANY OTHER GUIDANCE RELATED TO THE INTERPRETATION OF 212(A)(9)(B), PLEASE LET US KNOW VIA CABLE OR E-MAIL, AND SLUG ANY CABLES FOR CA/VO/L/A. TALBOTT 5.30.2000 |
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