By Law Offices of Sholeh Iravantchi, PsyD, Esq.
GENERAL OVERVIEW OF FAMILY BASED PETITION
PART II
In Part I, we discussed who can petition for a family member. In this section we will look at How you can petition for your relative (I-130) and how to move forward with adjustment of status.
PETION FOR ALIEN RELATIVE (I-130)
This petition is simply establishing the relationship between the petitioner and the beneficiary. Please note that approval of this petition, simply means that the beneficiary is eligible to go forward with adjustment of status if otherwise eligible. The approval of I-130 does not grant legal status or other benefits.
There are several factors that will affect how you can adjust your status, such as the manner your entered into the United States, your current status, whether you are “admissible” into the United States or if you require to request particular “waivers.”
ADJUSTMENT OF STATUS
Section 245(a) of the Immigration and Nationality Act (INA) requires that an applicant for adjustment of status to have been admitted or paroled, admissible, and there is an immediate immigration visa available. Additionally, they are not subject to bars associated with the adjustment of their status.
What Affects Adjustment of Status?
Method of Entry – “Admission, Inspection”
One of the determinative factors is the manner of entry into the United States. “Admission” is defined as the “lawful entry of the alien into the United States after inspection by an immigration Officer.” For example, entries with a visa such as tourist visa (B-2), student visa (F-1), or any other nonimmigrant visa are considered entry with inspection or admitted. Even if the overstay occurred, still they satisfy that requirement. With exception of individuals that were part of visa waiver program. With other types such as Temporary Protected Status (TPS), their admission status depends upon their jurisdiction such as in the Ninth Circuit, the TPS holder is considered to be “admitted” for purpose of adjustment of status.
Grant of “parole” is at the dissection of the Attorney General and provides the individual to stay or enter into the United States without having been legally “admitted.” With regards to advance parole, certain immigrants were granted the ability to re-enter, such as immigrants with TPS, DACA, or other recipients. However, it should be noted that leaving the United States, even with the advance parole, comes with a risk as individuals still with be evaluated by the Customs and Border Protection (CBP) regarding their eligibility for admission.
Admissible vs. Inadmissible
There are many grounds that may make an individual “Inadmissible.” The Grounds of Inadmissibility vary such as having criminal convictions, people with communicable diseases, drug abusers and traffickers, violators of immigration law, and convictions involving crimes of moral turpitude.
It is important to evaluate inadmissibility of an individual by knowing if there were prior deportation or removal orders. If that individual re-enters into the United States unlawfully, there may be barred from adjusting status. This bar known as “Permanent Bar,” makes that individual inadmissible if they were unlawfully present for period of more than one year or they have an order of removal and entered without being admitted. For example, for ones that try to re-enter after expedited removal, the individual will not be able to adjust status because he/she is inadmissible and must remain outside for the time associated with the bar.
However, there is a distinction between person that has been unlawfully present but never left the United States and the person that re-entered after removal order. In this case, since unlawful presence is triggered by leaving the U.S. if the person after entering never leaves, she/he may still be eligible to adjust if otherwise eligible.
For individuals with unlawful presence inadmissibility (212(a)(9)(B)), the waiver can be submitted with the adjustment application. However, if they had prior removal and are inadmissible under 212(a)(9)(C), they must remain outside for 10 years and the waiver could be requested before their entry as they are ineligible for adjustment of status.
There are several factors that may affect your adjustment of status. For example, the method of entry (“Admission”) to the United States, which will determine if you are admissible or inadmissible. In certain cases of inadmissibility, there are “Waivers” that will provide a relief to applicants seeking adjustment of status.
Please refer to upcoming “Part III” for information related to “Waiver for Unlawful Presence and Waiver of Grounds of Inadmissibility.”
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