Family-based Immigration

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Question Corner - Marta's Choice (April 2015)

Marta is an LPR who is married with three children.  She is eligible to naturalize, but wants to know whether to proceed. She filed an I-130 petition for her husband, Pablo, and named their three children as derivatives.  The I-130 was filed on November 12, 2010 and was approved on April 13, 2011.  The F-2A priority date became current in September 2013, and everyone filed for an immigrant visa within one year. The eldest child, Diana, was born on November 24, 1992. Her middle sister, Luz, was born three years later, and her brother, Tomas, a year after that.  They all entered the country several years ago with nonimmigrant visas, but they have long since overstayed.  They have held off submitting the affidavit of support, so no consular interview has been scheduled.

What advice do you have for her?



Marta is in a bit of a quandary.  If she were to naturalize, her husband, Pablo, would convert to immediate relative.  Since he entered with inspection, he would qualify to file for adjustment of status.  Therefore, he would not face the unlawful presence bar upon leaving the country to consular process.  If Marta were to naturalize, the three children would lose their derivative status, and she would need to file separate I-130s for them. The two younger children, aged 19 and 20, would also qualify as immediate relatives and thus could also adjust status.  But the eldest child, Diana, has already turned 21.  She is currently in the F-2A category based on her adjusted age and the Child Status Protection Act.  Her status is locked in, since she was under 21 using her adjusted age on the date the priority date became current.  If Marta naturalizes and files a new I-130 for Diana, it will be in the F-1 category, which is backlogged several decades for Mexicans.  Diana cannot consular process until Pablo has become an LPR.  In this situation, Marta’s naturalizing would allow her husband and two of her children to benefit immediately, since they would avoid the unlawful presence ground of inadmissibility, but it would work a great hardship on her other child.  The Attorney General has indicated that the USCIS will expand eligibility for the provisional waiver program, which would help Marta’s family should she choose not to naturalize, but the agency will have to publish a regulation and implement that change. There is no easy answer to this question.


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No Marriage Fraud Without a Marriage

By Susan Schreiber

When you read the words "marriage fraud,” you probably think of a marriage entered into for purposes of obtaining an immigration benefit.  Such marriages, among other things, trigger  INA § 204(c) consequences,  i.e. a bar against petition approval where the  beneficiary has previously sought status  based on a fraudulent marriage or "has attempted  or conspired to enter into a marriage for the purpose of evading immigration laws."

What is the reach of this second clause of 204(c), which covers attempts or conspiracy to engage in marriage fraud?   That was the question at issue before the Administrative Appeals Office in a case involving an I-140 petition denied, in part, because of 204(c).  Matter of Christos, 26 I&N Dec.  537 (AAO 2015).  In Christos, the beneficiary of an I-140 petition had also filed for adjustment of status based on a completely fictitious marriage.  Although the I-130  was supported by a marriage certificate, the beneficiary later acknowledged that he had never met or married the petitioner.  When the petitioner's I-140 approval was revoked due to failure to demonstrate the requisite experience required for his labor certification, he appealed to the AAO.   In dismissing his appeal, the AAO affirmed the finding of insufficient evidence of experience.  But it also determined that the revocation was required because the beneficiary was subject to the 204(c) penalty.

In reopened proceedings, the beneficiary cured the evidentiary problems related to his I-140 petition and the AAO revisited its analysis of 204(c) as it applied to the facts of his case.  Taking a second look at the "attempt or conspiracy" language of the statute, the AAO concluded that, while an actual marriage is not required, there must be an attempt or conspiracy to enter into a marriage.  "An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration law, but is not, by such act alone, considered to have "entered into" or "attempted or conspired to enter into" a marriage for purposes of 204(c) of the Act"  Christo at 540.

As the AAO noted, the beneficiary still has to contend with immigration consequences flowing from his actions, which here indicate inadmissibility under INA § 212(a)(6)(C)(i) for a willful material misrepresentation in connection with seeking an immigration benefit.  This issue, however, will impact on the beneficiary when he seeks to apply for an immigrant visa or adjustment of status; it does not bar the approval of the I-140 petition.

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Webinar: Executive Action: Implications for Family-Based Immigration

Price: $25.00

Have you considered how the President’s recent executive actions on immigration may create new opportunities to adjust status and overcome inadmissibility? For example:

  • DACA and DAPA grantees who entered the U.S. EWI but then travel on advance parole will qualify to adjust status if they are immediate relatives
  • No travel on advance parole will be considered a departure for purposes of triggering the unlawful presence ground of inadmissibility
  • More family members of veterans and those in active duty military service will qualify for parole-in-place, and for adjustment of status under 245(a)
  • More family-based immigrants will qualify for a provisional waiver of the unlawful presence ground if consular processing
  • Anticipated national guidance on the extreme hardship standard will likely make it easier for waiver applicants.

To learn more about all of these aspects of the new executive actions that impact on family-based immigration, join Susan Schreiber and Charles Wheeler for this informative discussion.

Executive Action Expanding Parole in Place - Frequently Asked Questions

On November 20, 2014, President Obama announced executive actions to change immigration policy.  One of these reforms will expand the existing “parole in place” program for the spouses, children, and parents of members of the U.S. Armed Forces.  That program was officially recognized and implemented by a November 15, 2013 memo that described eligibility and filing procedures for parole in place.  This FAQ summarizes that memo and the proposed expansion.

What is parole in place? 

Parole in place is a status that allows undocumented family members of those who are in the U.S. Armed Forces the right to reside in the United States and qualify for certain benefits.  Those benefits include eligibility for employment authorization and, for some individuals, eligibility for adjustment of status.  The Department of Homeland Security paroles people into the United States for humanitarian reasons or significant public interest in cases where they would otherwise not qualify to enter with a visa.  Parole in place, on the other hand, is the term used by DHS when granting parole to people who are already physically present in the United States after an entry without inspection.   

Who qualifies?

The spouses, parents, and children of those who:

  • Are serving as active duty members of the U.S. Armed Forces
  • Are current members of the Selected Reserve or the Ready Reserve, or
  • Previously served in the U.S. Armed Forces or Selected Reserve or the Ready Reserve

Is the immigration status of the military member or veteran relevant?

In order to serve in the military one must be either a U.S. citizen or a lawful permanent resident (LPR).  Therefore, it is unlikely that the military member will not be in one of these categories. However, the memo is silent on the necessary immigration status of the military member.  Only the spouses, children, and parents of U.S. citizens – immediate relatives – can qualify to adjust status after being granted parole in place. If the military member is an LPR, the spouse, parent, or child would still benefit from parole in place by being granted permission to remain here and being eligible for employment authorization.

Does it matter if the applicant is inadmissible?

An applicant for parole in place does not have to show that she or he is not subject to the grounds of inadmissibility. However, while the grounds of inadmissibility do not apply, the grant of parole in place is discretionary.  Therefore, criminal conduct, prior immigration violations, or other adverse factors that are revealed through the application process could affect the decision.

How does the family member apply for parole in place?

Applicants need to file the following:

  • A completed Form I-131, Application for Travel Document with the U.S. Citizenship and Immigration Services (USCIS)
  • Evidence of relationship to armed forces member
  • Evidence of active duty membership or past membership in the U.S. Armed Forces, the Selected Reserve, or the Ready Reserve, such as copy of the service member’s military identification card (DD Form 1173)
  • Two identical, color, passport style photographs
  • Evidence of favorable discretionary factors (e.g. statement of hardship to the military service member, applicant’s participation in the community)

The application form and supporting documents should be sent to the USCIS district office having jurisdiction over the applicant’s address.  The USCIS website ( contains a map of the district offices nationwide. There is no filing fee. The applicant will then receive an interview appointment for the taking of biometrics. Practitioners report that it is not necessary to present extensive evidence to support the favorable exercise of discretion absent a significant adverse factor to overcome.

What is the processing time?

The USCIS district offices have not reported the processing times for parole in place applications.  Expect that it will take approximately three months to receive a decision.  But the processing times will vary depending on the district office.

Is the grant of parole automatic?

No, the grant of parole is discretionary. However, the USCIS memo notes that being the spouse, parent or child of an individual who is on active duty in the military or is a veteran “ordinarily weighs heavily in favor of parole in place.”  In addition, the memo notes that, absent a criminal conviction or other serious adverse factor, parole in place would generally be an appropriate exercise of discretion.

What about employment authorization?

After being granted parole, the applicant can request employment authorization under category (c)(11).  Individuals who qualify to adjust status and are ready to apply upon approval of parole can request employment authorization in conjunction with the application for adjustment.

If granted, for how long is the parole and employment authorization valid?

The parole and employment authorization will each be valid for one year.  The applicant will be allowed to apply for re-parole at the end of that period.

What if the application for parole in place is denied?

The USCIS memo does not address the issue of when enforcement might be pursued where an application for parole in place is denied.  However, according to the  November 2011 USCIS policy guidance, USCIS will refer an applicant to ICE for consideration of NTA issuance in cases involving certain criminal offenses, a statement of findings substantiating fraud, or a threat to public safety or national security.

Will everyone granted parole in place qualify to adjust status under INA § 245(a)?

If a person is an immediate relative – the spouse, unmarried child, or parent of a U.S. citizen – he or she is eligible to file for adjustment of status under INA § 245(a) after being “inspected, admitted, or paroled” into the United States. Those who entered the country illegally would satisfy that requirement if they are subsequently granted parole in place.  Without the status of parole in place, many would have to depart the country and consular process, thus triggering the unlawful presence ground of inadmissibility. If a person is in one of the family-based preference categories – adult or married sons/daughters of U.S. citizens, siblings of U.S. citizens, and spouses or children of lawful permanent residents (LPRs) – he or she would likely not qualify for adjustment of status after being inspected, admitted, or paroled.  This is because the person would also need to have always maintained lawful immigration status, pursuant to INA § 245(c). This restriction does not apply to immediate relatives.

How did the president’s executive action impact on parole in place?

A November 20, 2014 DHS memo directs USCIS to expand the parole in place program to encompass family members of U.S. citizens and lawful permanent residents who are not yet in the military but are seeking to enlist.  The memo also instructs USCIS to consider making deferred action available to family members of U.S. military service members and veterans who don’t qualify for parole in place because they were inspected and admitted to the U.S., although now out of status.  This would include, for example, family members who overstayed or violated a nonimmigrant visa status.

If a DAPA or DACA-eligible person is also eligible for parole in place, which benefit is better?

Parole in place provides very similar benefits as DAPA and DACA.  They all allow the person to reside in the United States without fear of removal and to work legally.  DAPA and DACA provide for three years of status and employment authorization, while parole in place must be renewed every year.  But if the main purpose of applying for one of these programs is to qualify to adjust status, then the person should simply apply for parole in place.  If that is granted, it would not be necessary to also apply for DAPA or DACA and then seek advance parole.

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CLINIC Newsletter - July 2014 - VOL. XVIII No. 7

In this issue…                        

Protecting the Vulnerable:  Unaccompanied Immigrant Children

U. S. Department of State Updates Foreign Affairs Manual Guidance

News From the Catholic Network

  • New Subscribers
  • Network Affiliate Agency Profile                                                                                                                                                                      

Advocacy Update

Immigration Law Update

Technical Assistance and Trainings



Visa Bulletin

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BIA Issues Three Decisions Examining the Adam Walsh Act

By Sarah Bronstein

The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”) includes three immigration provisions that impose restrictions on the ability of U.S. citizens and lawful permanent residents to petition for family members if the U.S. citizen or LPR petitioner has certain criminal convictions.  Three recent decisions by the Board of Immigration Appeals address various aspects of Section 402(a) of the Adam Walsh Act, which amended INA §§ 204(a)(1)(A)(i) and 204(a)(1)(B)(i).  That section of the law precludes a U.S. citizen or LPR from filing a family-based petition if he or she has been convicted of a “specified offense against a minor” unless the Secretary of Homeland Security determines that the petitioner does not pose a risk to the beneficiary.  These three decisions were all issued on May 20, 2014 and signal an expansive interpretation of this provision.


BIA Lacks Jurisdiction to Review DHS’ “No Risk” Determinations

If the petitioner has been convicted of a specified offense against a minor, the petition will be denied unless USCIS determines that he or she does not pose a risk to both the principal and derivative beneficiaries.  Section 111 of the Adam Walsh Act defines a “specified offense against a minor” as any of the following offenses committed against a person under the age of 18:

(A) an offense (unless committed by a parent or guardian) involving kidnapping;

(B) an offense (unless committed by a parent or guardian) involving false imprisonment;

(C) solicitation to engage in sexual conduct;

(D) use of the minor in a sexual performance;

(E) solicitation to practice prostitution;

(F) video voyeurism as described in 18 USC  § 1801;

(G) possession, production, or distribution of child pornography;

(H) criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; and

 (I) any conduct that by its nature is a sex offense against a minor.


On February 8, 2007, Michael Aytes, Associate Director for Domestic Operations at USCIS, issued an interoffice memorandum titled “Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006.”  In that memo, Mr. Aytes set forth “beyond a reasonable doubt” as the standard the petitioner must meet to demonstrate that he or she does not pose a risk to the beneficiary.  In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the petitioner argued that the “beyond a reasonable doubt” standard was not established in either the statue or the regulations and that USCIS did not have the authority to raise the standard of proof to the level usually reserved for criminal proceedings.

The Board found, however, that it did not have jurisdiction to review matters such as USCIS’ assessment of whether the petitioner posed a risk to the beneficiaries.  The Board held that the language in the statute indicates that Congress intended DHS to have the sole authority to establish a framework for USCIS adjudicators to make “no risk” determinations.  The statute states that the bar to petitioning a family member shall not apply if the Secretary of Homeland Security, “in the Secretary’s sole and unreviewable discretion,” determines that the petitioner does not pose a risk to the beneficiary.  The Board further elaborated that this framework includes the standard of proof to be used.  Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014).


The Petitioner Bears the Burden to Show He or She is Not Ineligible Under the Adam Walsh Act

In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the Board reviewed the issue of how determinations should be made as to whether a crime is a “specified offense against a minor” and who bears the burden in such cases.  The BIA reasoned that the petitioner has the burden of establishing that he or she is eligible to file a visa petition for a family member.  The BIA stated that demonstrating eligibility includes a showing that the petitioner is not ineligible under the Adam Walsh Act.  Therefore, the BIA held that the burden must remain with the petitioner to demonstrate that he or she is not ineligible under the Adam Walsh Act.

Circumstance-Specific Approach to Analyzing Adam Walsh Crimes Is Permissible

The second issue the Board addressed in Introcaso was how to determine whether a particular offense is a “specified offense against a minor.”  The petitioner argued that the determination should be made by using the categorical approach – an approach often used in analyzing the immigration consequences of criminal convictions.  According to the categorical approach, the analysis should focus on the elements of the offense at issue, not the facts underlying the charge.  USCIS argued that the Adam Walsh Act permits an investigation into the facts surrounding the charge to make this determination.

The Board concluded that the language and structure of the Adam Walsh Act necessitate a “circumstance-specific” inquiry into the age of the victim and the conduct that gave rise to the offense.  In reaching this conclusion, the BIA analogized Adam Walsh cases to those at issue in the Supreme Court’s decision in Nijhawan v. Holder, 557 U.S. 29 (2009).  In Nijhawan, the Court looked at the definition of an aggravated felony, which includes an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.”  The Court concluded that “the loss to victim” requirement should be analyzed using a circumstance-specific inquiry allowing the fact finder to review the record of conviction.  If the record of conviction, which includes the charging document, plea agreement and judgment of conviction, is not conclusive, the fact finder may review other reliable documents or evidence.  Matter of Introcaso, 26 I&N Dec. at 308 (citing Nijhawan v. Holder, 557 U.S. at 34–36). 

The BIA cited the first five listed offenses in the definition of a “specified offense against a minor” which are kidnapping, false imprisonment, solicitation to engage in sexual conduct, use in a sexual performance, and solicitation to practice prostitution to demonstrate the need to engage in a circumstance-specific inquiry.  The Board reasoned that because these offenses are not limited to offenses against minors, the age of the victim can only be determined through the record of conviction or other reliable evidence.  Id. at 309.  The Board further reasoned that the last two crimes in the definition of “specific offense against a minor” – criminal sexual conduct involving a minor and conduct that by its nature is a sex offense against a minor – also necessitate a circumstance-specific inquiry into the conduct at issue in the case.  The Board found that the use of the word “conduct” in these two crimes suggested that it was the facts underlying the case that are relevant to the determination rather than the elements of the offense in the particular criminal statute involved.  Id. at 310 (citing United States v. Mi Kyung Byun, 539 F.3d at 992 (9th Cir. 2008)).


Applying the Adam Walsh Act to Pre-Enactment Convictions Does Not Have Impermissible Retroactive Effect

The issue in Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014), was whether the immigration provisions of the Adam Walsh Act may be applied to a conviction that occurred before the law was enacted without it having an impermissible retroactive effect.  In writing the statute, Congress did not address whether the provisions of the Adam Walsh Act were to be applied retroactively.  The Board cited the Supreme Court in Vartelas v. Holder for the proposition that where a statute addresses dangers that arise after its enactment, it does not operate “retroactively.”  Matter of Jackson and Ernadio, 26 I&N Dec. at 317 (citing Vartelas v. Holder, 123 S.Ct. at 1489–90 & n. 7).  In Vartelas, the Court listed statutes that prohibit people convicted of a sex crime against a victim under age 16 from working in jobs with frequent contact with minors as examples of laws that address dangers that arise after enactment and therefore do not operate “retroactively.”  The Board found that the immigration provisions of the Adam Walsh Act operate in the same way in that they address the potential for future harm on the part of people convicted of a specific offense against a minor.  The BIA concluded that because the Adam Walsh Act addresses dangers that arise after enactment, applying the statute to convictions that occurred before enactment does not have an impermissible retroactive effect. 

In all of these cases, the outcome is that the family members of these U.S. citizens or lawful permanent residents will not be able to immigrate to or obtain status in the United States. 

These cases highlight the importance of conducting careful screening, not only of the beneficiaries in family-based cases, but also of the petitioners.

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CSPA Ruling: Age-Out Derivatives Must Start All Over

The Supreme Court has now weighed in and answered one of the last remaining questions regarding the Child Status Protection Act (CSPA): do derivative children who age out before the principal beneficiary immigrates retain the original priority date when their parent becomes an LPR and files a new petition on their behalf in the F-2B category?  The answer has been no, based on a Board of Immigration Appeals decision, Matter of Wang, 25 I&N Dec. 28 (BIA 2009).  In that case the BIA ruled that there is no appropriate category to which aged-out derivatives other than F-2As could “automatically convert.” But the Second and Ninth Circuit Courts of Appeal ruled differently, relying on a more generous interpretation of the statutory language and perceived congressional intent. In a 5-4 decision issued today, the Supreme Court reversed the Ninth Circuit and found the language of the statute ambiguous, thus deferring to the agency’s interpretation of this provision.  It held that INA § 203(h)(3) allows for the different treatment of aged-out derivatives depending on their preference category.  In accordance with the BIA decision and the agency interpretation, only F-2A derivatives – and not those in any other family-based preference category – convert to the F-2B category when they age out.  Scialabba v. Cuellar de Osorio, 573 U.S. __ (2014).

The USCIS’s interpretation only allows the unmarried derivative children of LPRs to convert to the F-2B category upon turning 21.  They automatically convert and do not require the filing of a second petition.  Should the LPR petitioner file a second petition, the child would retain the original priority date.  For all other aged-out derivatives, when the parent immigrates and files a new I-130 petition, there is no retention of the original priority date. 


To hear a thorough explanation of the CSPA and an analysis of the Court’s recent decision, sign up for CLINIC’s June 19th webinar on this topic.

Register for CSPA: From A to Z

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Parole in Place – Evaluating Successful Parole Requests

By Debbie Smith

Following the implementation of the November 15, 2013 USCIS memo on parole in place, parole applications for the parents, spouses, and children of veterans and active military members have increased dramatically.  In addition to providing authorization to remain in the United States, parole in place offers the parolee the opportunity to adjust status under INA § 245(a), if otherwise eligible.  In a CLINIC newsletter earlier this year, we discussed the requirements and procedure for parole in place requests based on the USCIS memo.  Six months after issuance of the memo, it is useful to examine several applications for parole in place and consider the fact scenarios and forms of evidence submitted as part of a successful request.

Pre-Memo Parole Request

Before the November 15, 2013 memo established USCIS policy on parole in place for the close family of military members, there was an informal parole in place process that DHS Secretary Janet Napolitano referenced in her August 30, 2010 letter to Congressperson Zoe Lofgren.  Unfortunately, the pre-memo policy did not directly address whether parole in place protection was available to the family of military veterans.

In August 2013, several months before the November 15th memo, Vimala Mangoli, an attorney at Catholic Charities Diocese of Palm Beach, Florida, filed a request for parole in place for the spouse of a disabled veteran.  Vimala's case involved a noncitizen spouse who entered the United States without inspection and married a U.S. army veteran.  The U.S. citizen spouse had served in the U.S. Army for 18 years, was in his late 50's, and was 80 percent disabled. 

Analogizing the waiver standard to this parole in place application, Vimala presented evidence of the medical and psychological hardship that the veteran spouse would face if the noncitizen were not permitted to remain with him in the United States.  The documents submitted included medical records demonstrating the veteran's disability, and declarations of the veteran, the applicant, and other family members stating that the applicant was the veteran's caregiver and provided crucial nursing care to the veteran spouse. In addition, Vimala provided evidence that the applicant had no criminal record, was active in community affairs, and was a volunteer at the local church. 

Because the facts of the case involved a veteran, not an active military member, Vimala requested clarification of this issue.  The November 15th memo incorporated family members of veterans in the parole in place policy and Vimala's client was granted parole in place following the issuance of the memo. 

Post-Memo Parole Request, Air Force Service Member

After implementation of the formal parole in place policy on November 15th, Sandra Becerra, immigration counselor at Catholic Charities CYO in San Mateo, California, has filed several successful parole in place applications.  Her most recent request involved the undocumented mother of an active duty member of the U.S. Air Force.  The U.S. citizen military member, a 23-year-old woman who enlisted in the military at age 18, is stationed in Germany and often transports wounded soldiers back to Germany from Afghanistan. While married to another active duty U.S. military member, she relies on her mother for assistance with medical issues, emotional support, and financial problems.  The military member also experiences heightened stress levels due to the fear that her mother will be removed from the United States.

In support of the parole in place application, Sandra submitted declarations from the applicant and her military member daughter and son-in-law, medical records related to the daughter's health problems, support letters from family and friends concerning the applicant's good moral character, and contributions to the community.  Additional evidence included U.S. State Department reports regarding safety concerns in Mexico and a copy of the November 15th memo.

The parole application was filed by mail with the Field Office Director on March 25, 2014. The integrated cover letter and exhibit list was five pages long. In response to the application, USCIS generated a Form I-797C indicating that the case had been received on April 9, 2014.  A biometrics appointment was scheduled and completed, and the parole request was approved on April 29, 2014.  The USCIS approval letter contained information regarding the need to schedule an INFOPASS in order to pick-up the parole document.  The applicant obtained her parole document on May 8, 2014.

Post-Memo Parole Request, U.S. Marine

In another parole in place application filed on January 13, 2014, Sandra requested parole in place for the undocumented mother of an 18-year-old young man, a U.S. Marine.  The military member enlisted in the Marines at age 17 and depended on his mother's support to meet the challenges of military service.  His mother cares for his seven-year-old U.S. citizen brother and lives with his 21-year-old sister.  Worried that his mother would be deported to the drug-related violence in Michoacan, Mexico, the he feared that his job performance in the Marines would be affected. 

The evidence in support of the parole application consisted of declarations of the military member and his mother, birth certificates of the applicant's U.S. citizen children, letters attesting to the good moral character and community involvement of the applicant, evidence that the applicant was a victim of crime, and reports concerning the conditions of drug violence in the applicant's home state of Michoacan.  The application was approved on February 12, 2014, less than one month after it was filed.

Post-Memo Parole Request, U.S. Army Veteran

On December 30, 2013, Sandra filed an application for parole in place for the undocumented spouse of a U.S. Army veteran who served in the army for three years and was deployed to Iraq.  While in Iraq he was exposed to small arms fire, which, along with other serious combat experiences, resulted in Posttraumatic Stress Disorder (PTSD).  He was honorably discharged, but still suffers from anxiety and hearing and memory loss.  The veteran's spouse is actively involved in assisting her husband and coping with his PTSD.  Having been a couple for more than ten years, the veteran counts on his wife to care for their two young children, manage the family finances, and support his rehabilitation.

The evidence provided in conjunction with the parole application included declarations of the veteran and the applicant, birth certificates of the couple's children, proof of the receipt of veterans benefits, a letter from the a Veterans Administration support center, a letter from a clinical psychologist at the Veterans Administration, a letter from the veteran's employer, information about PTSD, and a report from the Department of State concerning the dangers of travel to Mexico.  The parole application was approved on February 12, 2014 and an application for adjustment of status was filed shortly afterward.  An adjustment interview has been scheduled for June 9, 2014.

Parole in Place Adjudications

The discretionary, case-by-case adjudication process requires representatives to fully document the parole request.  The well-prepared parole applications that Vimala and Sandra submitted resulted in grants of parole.  As the parole in place program continues, we will be able to evaluate how much documentation is enough.

Questions remain regarding whether the parole in place policy will include the widows and surviving relatives of U.S. military members.  While the parole in place memo does not expressly include family members in this situation, family members who would otherwise be eligible for adjustment of status as a widow or 204(l) beneficiary should not be barred from this parole program.

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A Death in the Family: All About Immigrating as a Surviving Relative

Price: $25.00

How can a family member still immigrate after the petitioner has died? How can a derivative immigrate after the principal beneficiary has died? How can a widow self-petition after the death of her U.S. citizen spouse? Are these family members eligible for waivers if they have accrued unlawful presence and have to consular process?  Join CLINIC attorneys Susan Schreiber and Charles Wheeler to learn about the immigration law protections, procedures, and forms for surviving relatives.  We will cover in detail INA Sec. 204(l) provisions, humanitarian reinstatement, and widow self-petitions.

For a copy of the powerpoints used in this presentation, please email Jon Braswell at


Held 4/23/14

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CLINIC Newsletter - December 2013 - VOL. XVII No. 12

In this issue…                        


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No Second I-130 Required for Aged-Out F-2A Derivative

By Charles Wheeler

The USCIS issued a memo on November 21, 2013 clarifying its interpretation of an important provision of the Child Status Protection Act (CSPA). That provision is codified in INA § 203(h)(3) and relates to retention of priority dates for aged-out derivatives.  The government’s position is that this section applies only to derivative children who age out of the F-2A and convert to the F-2B category upon turning 21.  The interpretation of this section of the CSPA is currently before the U.S. Supreme Court and will be decided sometime in 2014. Until the Court reaches a decision, the USCIS will hold in abeyance any applications for adjustment of status from aged-out derivatives in the third or fourth preference who are seeking retention of the original priority date after their parent immigrates and files a new I-130 for them in the F-2B category.

The memo also addresses the issue of how to treat the derivatives in the F-2A category whose “petition shall automatically be converted to the appropriate category and … shall retain the original priority date issued upon receipt of the original petition.”  The USCIS is implementing the BIA’s decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), which held that the derivative child automatically converted to the F-2B category upon turning 21 and did not require the filing of a second I-130 petition.  If the child is now current in the F-2B category and is otherwise eligible for adjustment of status, the child may file an I-485 application without having to file a separate I-130 petition.

This marks a change in the government’s position, which up until now had been that the LPR petitioning parent needed to file a second I-130 for the child. Should the parent file a separate petition for the child, the USCIS will retain the original priority date issued upon the LPR parent’s filing for the spouse.  Since this new memo only addresses those who are seeking adjustment of status, it is unclear whether aged-out derivatives from the F-2A category may seek an immigrant visa from the Department of State without having filed a second I-130 petition.

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Parole in Place: Administrative Relief for Military Families

By Debbie Smith

On November 15, 2013, USCIS issued a memo establishing a formal policy of providing parole on a case-by-case basis to the undocumented parents, spouses, and children of veterans and active military members.  This policy, first referenced in a August 2010 letter to Congress by former DHS Secretary Napolitano, confers parole status and authorization to remain in the United States to the close family members of all active-duty members of the armed forces, the National Guard , reservists, and veterans.  An important benefit of parole status is that, where otherwise qualified, it confers adjustment of status eligibility.  The policy memo amends the Adjudicator's Field Manual (AFM) Chapter 21.1 and Chapter 40.6.

The memo – reportedly three years in the making – offers a model of an administrative measure capable of providing interim relief for other groups of noncitizens, including those unable to adjust status and those awaiting a preference category immigrant petition.

Statutory Authority for Parole

INA § 212(d)(5)(A) permits DHS, in its discretion, to grant temporary entry to noncitizens "on a case-by-case basis for urgent humanitarian reasons or significant public benefit."  The statute specifically states that parole "shall not be regarded as an admission."  The authority to parole includes not only the authority to permit noncitizens to enter the United States from a border station, airport or outside the country's borders but also includes the power to grant parole status to noncitizens already present in the United States.  The grant of parole to those physically present in the United States is called parole in place.

Historically, parole has been used in a variety of circumstances.  Prior to the Refugee Act, parole was the mechanism used to allow those fleeing persecution to enter the United States.  An INS memo dated April 19, 1999, by INS Commissioner Doris Meissner, provides for the parole of individuals otherwise eligible for the Cuban Adjustment Act who entered the U.S. without inspection or admission.  Parole in place has also been used in the case of transitional workers in the Commonwealth of the Northern Mariana Islands, a U.S. territory, to maintain their lawful status during a transition period.

Parole in place for military members conforms to the statutory structure of INA § 212(d)(5)(A).  The purpose of the November 15th parole policy is to abide by the nation's commitment to those who have sacrificed for and served the country – veterans and current members of the armed forces.  Military members face stress and anxiety because of the immigration status of their family members in the United States.  Military preparedness is adversely affected when members of the U.S. Armed Forces are worried about the immigration status of their family.  Citing these humanitarian and significant public benefit concerns, the memo details the effect of parole on inadmissibility and adjustment of status under INA § 245 and parole in place procedure.

Effect of Parole on Inadmissibility and Eligibility for Adjustment

An individual who is present in the U.S. without inspection, admission, or parole is inadmissible under INA § 212(a)(6)(A)(i).  That section states that "an alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General is inadmissible."  If a noncitizen is paroled, he or she is no longer present without admission or parole, and therefore is not inadmissible.  The memo explains that a grant of parole will also eliminate the second clause in INA § 212(a)(6)(A)(i) that bars a person who arrives in the United States at any time or place other than a designated one.  This is because the second clause refers to a noncitizen who is presently arriving in the country without authorization.  For these reasons, an individual who is paroled in place is inadmissible under INA § 212(a)(6)(A)(i).

Although parole in place eliminates inadmissibility under INA § 212(a)(6)(A)(i), it is important to remember that it does not cure other grounds of inadmissibility.  One must still screen potential parole in place applicants for possible grounds of inadmissibility and determine whether a waiver of inadmissibility is available before filing the parole application.

Parole in place allows the parolee to adjust status under INA § 245(a), if otherwise eligible, as a person who has been inspected, admitted or paroled.  Following the grant of parole, a noncitizen who previously entered the United States without inspection and is the spouse, parent or child of a U.S. citizen would no longer be required to depart the country.  Such a departure could trigger the three- or ten-year bars for unlawful presence.  Eligibility for adjustment of status through parole in place eliminates the need to leave the country and thus the triggering of this ground of inadmissibility.

Parole in place will not, in most cases, provide adjustment eligibility to noncitizens in the preference categories.  Because parole does not remove any prior periods of unlawful immigration status, it does not permit noncitizens in the preference categories to adjust status.  Those in the preference categories who have been inspected and admitted or paroled must still have always maintained lawful immigration status in order to be eligible for adjustment of status under 245(a).  This requirement does not apply to immediate relatives.

Procedure for Applying for Parole in Place

An application for parole in place is filed with the director of the USCIS field office having jurisdiction over the applicant's residence.  The USCIS website contains a map of the field offices nationwide at  The following documents must be filed:

1) Completed Form I-131.  No filing fee is required.  Practitioners have noted that not all USCIS district offices understand that there is no fee required.  You may want to cite to the memo and explain that you are not required to include a fee.

2) Evidence of the family relationship (spouse, parent or child of the veteran or active military service member).  The definition of child under INA § 101(b)(1) includes a stepchild, adopted, or illegitimate child.  These documents may include:

  • Birth certificate of applicant
  • Birth certificate of military service member or U.S. passport if applicable
  • Marriage certificate
  • Birth certificates of children
  • Adoption decree

3) Evidence that the applicant's family member is an active duty service member, a reservist, National Guard member, or veteran.  These documents may include:

  • Copy of front and back of the service member's military ID (DD Form 1173)
  • Copy of military deployment orders
  • Defense Eligibility Enrollment Reporting System (DEERS) enrollment documents

4) Two passport style color photos of applicant

5) Evidence of any positive discretionary factors including:

  • Letter from the military service member explaining hardship he or she would experience if applicant were not permitted to remain in the United States (recomended, but not required.)   The stress and anxiety the military service member would experience if the applicant lost access to military benefits, housing, health care, etc.  The letter should include identifying information about the service member – name, date of birth, place of birth, rank in military, branch of service, unit of assignment, and upcoming military deployment.
  • Bona fide marriage
  • Applicant's participation in the community, church, children's school.

Adjudication of Parole in Place

The November 15th memo states that the fact that the parole applicant is a spouse, child or parent of a veteran or active military member "ordinarily weighs heavilyin favor of parole in place."  Unless there are serious adverse factors such as a criminal conviction, parole in place is "generally the appropriate exercise of discretion for such an individual."  This means that USCIS adjudicators should in most cases grant parole in place in the absence of serious negative factors.

Grant of Parole in Place

Generally, if an application for parole is granted, the applicant will receive a Form I-94 stamped "Paroled."  The memo does not provide instructions to USCIS officers regarding the protocol for or documents to be issued indicating a grant of parole in the amendment to the Adjudicator's Field Manual.  Parole will be granted in one-year increments.

Although the November 15th memo did not discuss applicants in removal proceedings, if parole in place is granted, a motion to terminate proceedings or at minimum administratively close proceedings is appropriate.

Generally, following a grant of parole, the applicant may request employment authorization under 8 CFR § 274a.12(c)(11).

Contradictory Approaches to Noncitizens and the Military

While the November 15th memo offers a remedial policy for the immediate relatives of veterans and service members, the U.S. Navy and Marine Corps recently issued a policy barring the enlistment of U.S. citizens and legal residents who live with undocumented dependants.  In response, 32 Congress people signed a letter asking the military for an explanation for this policy.

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BIA Clarifies When Derivatives May Adjust under 245(i)

BIA Clarifies When Derivatives May Adjust under 245(i)

By Charles Wheeler

In a recent decision the Board of Immigration Appeals held that after-acquired derivatives are not eligible to be considered “grandfathered” for purposes of eligibility for section 245(i) adjustment of status. Matter of Estrada, 26 I&N Dec. 180 (BIA 2013).  This decision clarifies but is consistent with prior USCIS memos interpreting this provision.

By way of background, INA § 245(a) allows those who entered the United States with inspection to adjust status if they are either an immediate relative or are in one of the family-based preference categories and have always maintained lawful immigration status, including always working with employment authorization. INA § 245(i) allows for the adjustment of those who entered without inspection or, if they entered with inspection and are in one of the preference categories, overstayed their I-94 or worked illegally.

To qualify for 245(i), a petition (I-130, I-360, I-526, or labor certification) must have been filed on behalf of the beneficiary on or before April 30, 2001, and the beneficiary must have been physically present in the United States on December 21, 2000.  This physical presence requirement is waived for those whose petition was filed on or before January 14, 1998 or who are derivative beneficiaries. The petition must have been “approvable” at the time of filing.

The BIA confirmed the long-standing USCIS policy that both principal and derivative grandfathered aliens are independently eligible to apply for section 245(i) adjustment of status and either may be the principal adjustment applicant under that section. The regulations define “grandfathered” as “an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act)” of a qualifying visa petition or labor certification that was filed on or before April 30, 2001.” 8 CFR § 1245.10(a)(1)(i).

The BIA has clarified that in order to be “grandfathered” and thus eligible for 245(i) adjustment, the relationship establishing the derivative spouse or child must have been in existence on or before April 30, 2001. Spouses and children who were born after that date or whose marriage took place after that date are classified as “after-acquired,” are not considered “grandfathered,” and thus cannot adjust under 245(i).  Nevertheless, if they are considered derivatives (“dependents”) of the principal beneficiary at the time he or she is adjusting under 245(i), they may adjust as a derivative with that parent or spouse. In other words, they may not adjust under 245(i) independent of that relationship.

Example.  Juan, who entered the United States illegally in 1997, is the beneficiary of a fourth preference petition filed on his behalf by his US citizen brother in 2000.  The petition was approved. Juan married his undocumented wife, Juanita, in March 2001. When the F-4 priority date becomes current, both Juan and Juanita are eligible to adjust as grandfathered aliens under 245(i). Should he and his wife divorce before the F-4 becomes current, Juan can still adjust under 245(i) when it does become current, and Juanita can adjust under 245(i) should she become the beneficiary of a separate petition filed in her behalf, such as by a subsequent husband.

Example. Same facts only Juan and Juanita marry in March 2013 and they stay married.  Juanita is considered an after-acquired spouse. Juanita is not grandfathered under 245(i), but is still eligible to adjust with Juan under 245(i), regardless of when she entered the United States.  Since she is not considered grandfathered, she could not divorce Juan, re-marry, be petitioned by an LPR or U.S. citizen spouse, and adjust under 245(i).  She could only adjust under 245(i) as Juan’s derivative spouse.

The facts in the case were a bit complicated.  The husband, Charlemagne Estrada, had a family-based petition filed in his behalf prior to April 30, 2001 by his first spouse, though the couple later divorced.  Because the petition was considered approvable at the time of filing, Charlemagne was grandfathered under 245(i).  However, in order to adjust, he needed a new petition filed in his behalf.  He and his second wife, Vanessa, were married after April 30, 2001, thus making her an after-acquired spouse. But his second wife was also undocumented.  Because she could not file a petition in his behalf, he could not take advantage of his grandfathered status based on their marriage. 

Vanessa had had a labor certification filed in her behalf prior to April 30, 2001, but it was determined by an immigration judge not to have been approvable when filed.  A subsequent labor certification was filed and a Form I-140 approved on her behalf, but not until 2006.  Because she was not considered grandfathered under Charlemagne’s earlier I-130 petition, she was not eligible to adjust under 245(i) based on the second labor certification and approved I-140. Because no subsequent petition had been filed and approved in Charlemagne’s behalf, which would have allowed him to adjust under 245(i), Vanessa cannot adjust with him as his derivative spouse. Hence, the BIA found neither adjustment applicant eligible for 245(i).

The BIA case provides a good review of 245(i) eligibility for adjustment of status, clarifies the definition of after-acquired derivatives, and distinguishes them from those who are grandfathered under that section of the law.

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Court Strikes Down Regulation Limiting K-4 Adjustment

Court Strikes Down Regulation Limiting K-4 Adjustment

 By Charles Wheeler

 The Seventh Circuit Court of Appeals has held that in order to be eligible for adjustment of status, a child who entered the United States on a K-4 visa need only establish that he or she is a minor child of a K-3 parent who married the petitioning U.S. citizen.  Akram v. Holder, No. A096 769 035 (July 9, 2013). The court struck down the regulation at 8 CFR § 245.1(i) that requires the adjustment applicant to qualify as a “child” of the petitioning U.S. citizen parent.  Therefore, children who were over 18 years of age when the marriage took place, and thus do not qualify as stepchildren, may nevertheless adjust status without the need for the U.S. citizen to file an I-130.  This regulation had prevented children over 18 from qualifying as “stepchildren” under the definition of “child,” and thus required them to leave the United States and immigrate based on a separate petition filed by their LPR parent.

The facts in the case were not complicated.  A U.S. citizen married a woman in Pakistan.  At the time the woman had an 18-year-old daughter, Akram.  The U.S. citizen filed an I-130 petition for the spouse, but was unable to file an I-130 for the stepchild because she was not under 18 at the time of the marriage, which is a statutory requirement in the definition of “child.”  He also filed a petition to have the spouse enter as a K-3 nonimmigrant and the stepchild as a K-4.  To qualify for a K-4, the child need only establish that she was the minor unmarried child (under 21) of the K-3.  The spouse adjusted status, but the child was prevented from adjusting, since no I-130 had been filed due to inability to establish a “stepchild” relationship with the U.S. citizen.  The regulationsrequire a K-4 seeking adjustment of status to have filed an I-130 petition showing that he or she is the “child of the U.S. citizen who originally filed the petition for that alien’s K-4 status.”  Failing that, current policy and procedures require Akram to leave the United States after her I-94 expired and wait abroad until her LPR mother could petition for her.

The court analyzed the statute, § 1101(a)(15)(K)(iii), and decided that its intention was for K-4s to enter the United States and later adjust status.  It found nothing limiting K-4s to adjust based on their relationship to the K-4 petitioner.  That restriction exists only in the regulation, 8 CFR § 245.1(i), which the court found frustrated the statutory goal.  The court stated: “Nothing in the statute suggests that Congress intended for K-4s like Akram to come to the United States as mere temporary visitors.” Therefore, the court found that the regulation was invalid in its requirement that the stepchild’s adjustment be based on a relationship to the U.S. citizen petitioner.

In this case the K-3 mother adjusted status and filed an I-130 petition for the son, which was still pending at the time the court case was decided.  The court went further and addressed the issue about whether Akram could adjust based on that petition, assuming it was approved and the priority date was current.  It concluded that she could, and thus also struck down that part of the regulation that required that adjustment be based only on a petition filed by the U.S. citizen who filed the K-4 petition.  According to the court, it “is the K-3’s marriage, not the K-4’s relationship to the petitioning citizen, that matters.”  This presumes, of course, that Akram would have satisfied other eligibility requirements for adjustment of status as a preference category beneficiary, which include always maintaining lawful immigration status.

To summarize, in the Seventh Circuit, that portion of 8 CFR § 245.1(i) that provides that a K-4 cannot adjust status “in any way other than as a … child of the U.S. citizen who originally filed the petition for that alien’s …K-4 status” has been struck down.  It remains to be seen if the USCIS will agree to apply this holding nationwide or limit it to the states within that federal circuit (Illinois, Indiana, and Wisconsin).

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Updates on Family-Based Immigration from the VSC and NVC

Updates on Family-Based Immigration from the VSC and NVC

By Jennie Guilfoyle

On July 9-10, 2013, CLINIC conducted a training on family-based immigration in Manchester NH. Representatives from the Vermont Service Center, the National Visa Center, and the Manchester USCIS field office attended the training and answered questions. The training was followed on July 11 by a tour of the NVC, at which NVC staff answered further questions. This article summarizes the highlights of remarks by staff from the VSC and the NVC.

Vermont Service Center

Background on the VSC

The VSC has approximately 1,500 employees, of which 1,000 are federal government employees, and 500 work for a contractor.  The VSC has two facilities, in St. Albans and Essex, Vermont. In the family-based immigration section, there are 200 adjudications officers, 21 supervisors, and 4 section chiefs. Adjudicators receive basic immigration law training when they begin work at the VSC, and then start by working on one specific form type. After a few months, they are moved to another form type. New adjudicators are paired with mentors, and supervisors review all their work at first. Supervisors review some portion of every adjudicator’s work each month.

General Case Processing

The VSC adjudicates Forms I-129F, I-130, and I-751. Forms I-129F and I-130 are sent to the lockbox, which fees them in, issues receipt notices, and then forwards them to the VSC. Forms I-751 are sent directly to the VSC. When any of these forms arrive at the VSC, they are put on the shelf in receipt date order, and that is the order in which they are processed. The VSC indicated that processing times for all these petitions are now in what they consider the normal range, which is about five months.


The VSC discussed waivers of the requirement that an I-129F petitioner and beneficiary must have met in person in the two years prior to filing the I-129F. When there are medical reasons for the failure to meet, they look for supporting documentation that demonstrates that a meeting would entail extreme hardship; financial hardship generally will not suffice. The documentation would need to include specific information about why the petitioner and beneficiary cannot travel to meet each other, including why they are unable to meet in a third country between the United States and the beneficiary’s home country. There is a high bar to getting a medical waiver for the in-person meeting requirement.

The VSC indicated that they do not receive many waiver requests based on religious or cultural factors. If there are religious and/or cultural reasons for the failure to meet in person, they expect to see evidence from a religious leader that this is the custom in that country or locale. In their experience, they expect that even in religions or cultures that ban meetings of the intended spouses alone, that there may be ways for them to meet with a third party present; such a meeting satisfies the in-person meeting requirement. Their understanding is that such chaperoned meetings are acceptable in most countries these days.

Retention of Priority Dates

CLINIC inquired how the VSC is handling assignment of priority dates in cases in which an LPR spouse has filed an I-130 for a spouse and derivative children, and subsequently files a new I-130 for the children because the principal spouse is inadmissible and thus cannot immigrate.  Will the VSC assign the priority date from the earlier petition to the subsequent I-130s for the derivatives? The VSC indicated that they are currently not making decisions in such cases, but are awaiting guidance from USCIS Headquarters that they understand will be forthcoming.

I-130 Interviews

Advocates at the training noted that USCIS field offices seem to be doing interviews on I-130s for people who are not in removal proceedings. The VSC responded that they have stopped receiving stand-alone immediate relative I-130s for adjudication, and that these I-130s are now being distributed to district offices for adjudication, and that perhaps some district offices have decided to conduct interviews.

If the marriage took place after the beneficiary was put into removal proceedings, the case would be subject to 204(g), and sent to the district office for interview, no matter how strong the evidence of bona fide marriage might be.

I-130 and I-129F Revocations

The VSC does not have statistics on how often I-130s and I-129Fs are sent back from consulates with requests for revocation.  Consular officers return petitions for many reasons, the most typical being that the beneficiary has died, or has already immigrated another way. Other reasons include requesting an additional look into the bona fides of a family relationship, or at whether the relationship is still valid for immigration purposes.

Once cases are returned to the VSC, the VSC does not have a standard processing time. They work these cases as they are received back from the consulate, and as resources and time allow. Sometimes they work easier revocations first. They are currently training a new group of officers to work them.

The VSC does not send receipt notices to applicants when it receives consular returns. The VSC advises that advocates can reach out to VSC and ask for a status report on a returned case.  The VSC should be able to confirm whether or not they have the case, and where it stands in the process.

204(l) Cases

The VSC indicated that if the petitioner or principal beneficiary dies while the petition is at the VSC, that they would like to be informed about the death as soon as possible, even if the priority date will not be current in the near future.

Adam Walsh Act Cases

Since March 2011, the VSC has had sole jurisdiction over Adam Walsh Act cases (cases in which the petitioner has been convicted of a “specified offense against a minor”).  The VSC has a team of seven officers who adjudicate all Adam Walsh cases. The VSC reported receiving about 400 AWA cases last year. It has not yet finished processing all of them, but has approved only two cases, representing about one percent of the total number of cases adjudicated.

Changing Basis of I-751 Waiver After Filing

CLINIC inquired about how to proceed after a couple has filed a joint I-751 petition, and then divorce while the petition is pending. The VSC indicated that upon request, they can in this situation change the petition from a joint petition to a waiver, but that this is the only situation in which they can do so. In any other situation (e.g. changing from a jointly filed petition to a waiver based on death, battery or extreme cruelty, or extreme hardship), the applicant would have to file a new I-751.  This is based on a USCIS Headquarters directive.

Interviews for I-751s

The VSC said that interviews are most likely to occur in cases that lack sufficient evidence of a bona fide marriage. Before they would send a case for interview, they would issue an RFE asking for proof of good faith continuing marriage.  They recommend including evidence from each year of the marriage. Detailed evidence is encouraged; they especially like to see evidence of financial interrelationship. When advocates submit evidence of joint bank accounts, the VSC likes to see a transaction history for the accounts, to demonstrate that the couple really uses the account. Waiver cases, they said, are no more likely than any other cases to be interviewed.

Late Filing I-751s

USCIS may accept late-filed I-751s (filed after the two-year anniversary of the adjustment of status) if the applicant shows “good cause” for the failure to timely file. The VSC noted that there is now language in the instructions for the I-751 that states: “if your failure to file was through no fault of your own, you may file your petition late with a written explanation and request that USCIS excuse the late filing. Failure to file before the expiration date may be excused if you demonstrate when you submit the petition that the delay was due to extraordinary circumstances beyond your control and that the length of the delay was reasonable.” The VSC said that they might consider health or family issues as good causes. They did not provide any time period beyond which it would be too late to file an I-751, but encouraged practitioners to submit a late I-751, with a reasonable explanation for the late filing.  They said that their “policy is pretty liberal, and they aren’t trying to give people trouble.”  They also indicated that in cases in which an I-751 is not timely filed, it generally will take them a long time to put the applicant into proceedings.

Filing Tips from the VSC Adjudicators

Organization of Documents

The VSC indicated that there is no one way they prefer files to be organized, but that organization is extremely helpful to them.  They encouraged advocates to think about how to make it easier for the reader to navigate and comprehend the contents of the file. They find tabs and tables of contents to be hugely helpful.

Translations of Birth Certificates

Advocates inquired whether or not it is necessary to translate every word of a long form birth certificate, or if it is sufficient to translate only the portions that refer specifically to the individual listed on the certificate. The VSC indicated that they prefer to read everything on the birth certificate, no matter how long it is. They added that USCIS Headquarters has told them to ask for full translations of the document, and advised that advocates may therefore begin to see more RFEs asking for full translations.

Communicating with the VSC

The VSC indicated that the National Customer Service Center 800 number is their preferred method for communication. Advocates may also use the email addresses; emails sent to this address are directed to the VSC.

National Visa Center

Role of the NVC

The National Visa Center, which opened in 1994, is part of the Department of State. It handles all immigrant visa pre-processing. The NVC does not do any adjudication; it receives approved petitions from USCIS, and then ensures that all consular processing forms are filled out, all fees are paid, and many of the required documents collected for consular processing. The NVC forwards these completed files to the appropriate consular posts abroad, and in most cases schedules consular interviews and informs applicants about their interview dates. Because the NVC does not adjudicate petitions, there are only five State Department employees at the NVC, and more than 500 contract employees.

The NVC receives approved petitions from all four USCIS Service Centers, and from the NBC; they received I-130s, I-129Fs, I-140s, I-730s, and adoption-related petitions. Currently the NVC is receiving between 8,000 and 10,000 petitions per week.  The NVC stores these cases until they are close to being ready for consular processing.  Currently there are approximately 2.4 million files at the NVC.

The NVC noted that historically, once USCIS approved a case, the NVC would receive it within 15 days. Over the past six months, that timing has changed dramatically. The NVC is finding it is currently taking longer – in some cases as many as six to eight weeks – for cases to be sent to NVC once they are approved. Therefore, they now advise applicants to wait eight weeks following USCIS approval to inquire with the NVC about a case’s whereabouts.

For family-based immigrant visa cases, the NVC keeps track of which priority dates are close to becoming current, and begins to request forms, fees, and documents from applicants. They consider cases to be “document qualified” when the DS-230 or DS-260, the I-864, and all police certificates have been completed and submitted.  Some posts require that also all civil documents have to be submitted to the NVC before the case is considered document qualified.

Once a case is document qualified, and there is a visa available, the NVC considers the case ready for scheduling.  The NVC currently schedules interviews for all consular posts except Guangzhuo, China. Interview dates are typically scheduled 6-8 weeks before the actual interview. Once the interview is scheduled, the NVC sends a letter or email to the petitioner or agent, the representative (if there is one), and the applicant (if there is no agent designated). This letter lists the date and time of the interview, and directs the applicant back to the consulate’s website for further instructions. The NVC currently schedules about 25,000 interviews per month.

Electronic Filing and Processing

The NVC staff said that they are moving forward with Transformation, the process by which all immigration-related processing will take place online.  Eventually the immigrant visa process will be entirely electronic. Currently 80 percent of consular processing fees are paid online, and there are several pilot sites at which immigrant visa applicants must scan all their required documents and submit them to the NVC via email: Ashgabat, Turkmenistan; Damascus, Syria; Kabul, Afghanistan; Ciudad Juarez, Mexico (MEP cases only); Sana’a, Yemen; and Amman, Jordan.  Electronic processing is optional at Guangzhou, China and Montreal, Canada.

Even at all these electronic processing sites, though, the processing is still not fully electronic; USCIS still sends a paper file to the NVC. The NVC then scans that paper file into their system, and asks applicants to submit documents via email. This cuts down case processing time by about half. The NVC said that eventually the entire process will be electronic, and that applicants will be able to scan and upload documents directly into their system, without having to email them.

The DS-260, the fully online immigrant visa application form, is currently in use for cases at 11 posts: Kabul, Afghanistan; Montreal, Canada; Athens, Greece; Baghdad, Iraq; Amman, Jordan; Ciudad Juarez and Mexico City, Mexico; Islamabad, Pakistan; Lima, Peru; Damascus, Syria; and Sana’a, Yemen. DOS plans to expand use of the DS-260 to all other posts, possibly as soon as the end of this summer.

The DS-260 must be filled out online, but it does not appear on screen as a fillable PDF, the way USCIS forms do. Those filling out the form go through it question by question. Advocates at the training asked whether it is possible to get a complete copy of a blank DS-260 as a sample, to aid in working with clients. The NVC said that this is not possible.

DOMA Issues

On the date of the CLINIC training, the NVC was awaiting guidance from the State Department Visa Office on how to handle same-sex marriage issues, in the wake of the Supreme Court decision, U.S. v. Windsor, that struck down the Defense of Marriage Act.

Note that following the conference, on August 2, the State Department issued a cable with guidance on same-sex marriage issues:

Provisional Waiver Process: I-601A

Applicants for LPR status who will consular process, and will trigger the three- or ten-year unlawful presence bar when they depart the United States, and who are not subject to any other grounds of inadmissibility, may now file a “provisional waiver” application on Form I-601A before departing the country. USCIS then adjudicates that application before the applicant leaves the United States. The NVC stated that as of mid-July, USCIS had received approximately 7,000 provisional waiver applications, and had adjudicated a few hundred of those.

When USCIS approves an I-601A, it notifies the NVC. There is no need to notify the NVC when filing an I-601A, as USCIS does that. Once the NVC learns that an I-601A was filed on a particular case, they put the case on hold, and do not schedule the case for an interview until USCIS notifies the NVC about USCIS’s decision on the provisional waiver application. The NVC indicated that when applicants file I-601As with USCIS, they must keep processing their case with the NVC.  The NVC also advised advocates that I-601A applicants must send their immigrant visa fee receipts along with the I-601A application; the majority of the applications rejected thus far were rejected for failure to include the fee receipt.

Fraud Prevention Unit

The NVC has a Fraud Prevention Unit, established in 2003, that pre-screens certain cases. The unit is staffed by State Department employees, one USCIS officer, and 35 contract support staff.  The unit runs queries in commercial and government databases, as well as through social media sites like Facebook, to give consular officers more information in certain cases. For example, a petitioner might allege that he is divorced, but a search of such databases might reveal that he and his ex-wife have bought property together, and live together. The Fraud Prevention Unit would then provide this information to the consular officer in a memo.

Consular Returns

When a consular officer feels after the consular interview that a petition approval should be revoked, the officer writes a memo explaining why, and sends the case back to the NVC, which then sends the case back to USCIS. If USCIS reaffirms the approval, they return the case to the NVC, which sends the case back overseas to the consulate.

In 2012, the NVC received about 28,000 consular returns, which it generally forwarded to USCIS within 6 or 7 days of receipt. The NVC also returned another 16,000 petitions directly to USCIS, without ever sending them to post, in cases in which it learned that the beneficiary would no longer be eligible for a visa. The NVC noted that when a petitioner (for instance, a U.S. citizen spouse) dies while the petition is at the consular post, the consular officer does not have the authority to convert the case to a widow/er self-petition, and would have to return the case to USCIS.

Tips for Working with the NVC

Communicating with the NVC

If you call the NVC, be aware that Mondays are their busiest day of the week. Their phone lines are open from 7 a.m. to midnight Monday to Friday, and they recommend that the shortest wait times are before 10 a.m. Eastern time, and after 8 p.m. Eastern.

If you email the NVC at, put the NVC case number in the email subject line. In the body of the email, make sure to include the petitioner’s name and date of birth, the principal beneficiary’s name and date of birth, and your office information.

When You Receive a Series of Identical RFEs on the Same Case

Several advocates at the training mentioned getting a series of identical RFEs (which the NVC calls “checklist letters”) from the NVC, asking for something that the advocate believed he or she had already sent. The NVC explained that they use template checklist letters, and that advocates who find themselves in this situation can email the NVC and ask for the case to be escalated to a supervisor for review and clarification. The NVC also noted that they are working on modifying their checklist letters so that if they need to respond to an advocate a second or third time on the same case, they will not necessarily send a checklist letter identical to the first one they sent.

Correcting Mistakes in Previously Submitted DS-260

The DS-260 is submitted online; once an applicant submits the completed form, there is no way to go back and correct any mistakes. The NVC informed participants at the conference that if an applicant needs to correct a previously submitted DS-260 for a case that is still at the NVC, the advocate can contact the NVC (via email or telephone) and they can “unlock” the form so that the applicant can go back in and amend it.  Once the case has been scheduled for an interview, however, the NVC can no longer unlock the form, and the applicant would have to inform the consular officer of the correction during the interview.

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Sixth Circuit Finds that TPS Creates Eligibility for Adjustment Under Section 245(a)

Sixth Circuit Finds that TPS Creates Eligibility for Adjustment Under Section 245(a)

By Jennie Guilfoyle

Many non-citizens with Temporary Protected Status (TPS) initially entered the United States without inspection, and over the many years they are present in the United States with TPS, some of them become immediate relatives of U.S. citizens. The question for them, at that point, is whether or not they can be eligible for adjustment of status.  One of the basic eligibility requirements for adjustment of status under INA § 245(a), the section that governs adjustment in family-based cases, is that the non-citizen have been “inspected, and admitted or paroled” into the United States. Admission at the border in a nonimmigrant category (such as B-2 or F-1) clearly fulfills this requirement, as does a grant of parole. Entry without inspection clearly does not. Advocates have argued that a grant of TPS should permit a non-citizen who entered the United States without inspection to adjust status under INA § 245(a). The Sixth Circuit recently agreed. In Flores v. USCIS No. 12-3549, slip op. at 7 (6th Cir. June 4, 2013), the Sixth Circuit held that a grant of TPS satisfies the admission-related requirements in 245(a).

The appellants in this case are a married couple, Stacey and Saady Suazo. Ms. Suazo is a U.S. citizen, while Mr. Suazo is a citizen of Honduras. He entered the United States without inspection in March 1998, and then gained TPS in 1999.  He had not left the United States since his first entry. The couple married in August 2010, and a month later Ms. Suazo filed an I-130 for her husband. The I-130 was approved, but Mr. Suazo’s application for adjustment of status was denied because Mr. Suazo had entered the United States without inspection. The couple then filed a complaint in district court. USCIS filed a motion to dismiss, which the district court granted.  The Suazos appealed that dismissal.

The court in Flores found that eligibility for adjustment is created by INA § 244(f)(4), holding that the plain language of the statute indicates that persons granted TPS have satisfied the admission-related requirements in INA § 245(a). INA § 244(f)(4) states that “for purposes of adjustment of status under section 245 and change of status under 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”  The court found that this, along with the broad inadmissibility waiver in the TPS statute, creates adjustment eligibility for those with TPS.

In so finding, the court appears to have conflated two separate eligibility requirements: that of being “inspected and admitted” and that of being “admissible.” In a footnote, the court noted that there was a dispute between the parties over the relevance of Mr. Suazo’s I-94, the document he received when he was granted TPS. The court noted that “the document is a registration document that is normally issued to aliens only upon their admission, following inspection, to the United States. Under a standard ‘inspection’ and ‘admission,’ the process only takes a few minutes. However, when receiving this form through TPS application, the process takes several months to complete, allowing the USCIS to more carefully review the case.” The court engages in no further analysis as to whether or not such careful scrutiny is the functional equivalent of an admission at the border, saying that it has already discovered adjustment eligibility in the language of INA § 244(f)(4).

The decision is notable not only for its holding, but also for the court’s stern words for the government, which it says engages in “incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.” The government’s position – that Mr. Suazo could only become an LPR by leaving the United States and consular processing – “would be absurd. . . [this would be] a waste of energy, time, government resources, and will have negative effects on his family – United States citizens.”

Impact of the Decision

This decision is limited to the Sixth Circuit, and another circuit recently came to the opposite conclusion. In Serrano v. USCIS, 655 F.3d 1260 (11th Cir. 2011), the Eleventh Circuit found that TPS does not create an admission that would allow adjustment under 245(a) for a non-citizen who had initially entered the U.S. without inspection. Furthermore, since Mr. Suazo first applied for adjustment of status, the Board of Immigration Appeals issued a decision, Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), whose interpretation by USCIS has shifted the landscape for TPS holders who entered the United States without inspection and wish to adjust status as immediate relatives. Arrabelly held that an adjustment applicant who traveled on advance parole did not trigger the unlawful presence bar at INA § 212(a)(9)(B). USCIS’s unwritten interpretation, as reflected in numerous approved adjustments since then, as well as in a draft of new instructions for the I-131 advance parole application, is that Arrabelly applies to TPS holders who travel on advance parole. Thus, TPS holders who travel on advance parole will not trigger the three- or ten-year unlawful presence bar.  Upon returning to the United States, they will be paroled in – and may therefore satisfy the requirement in INA § 245(a) that they have been “inspected and admitted or paroled.” Thanks to Arrabelly, they will be able to adjust status without the need for an unlawful presence waiver.

A person in Mr. Suazo’s position therefore now has the option of leaving the United States without triggering an unlawful presence bar, returning lawfully to the United States, and adjusting status without the need for a waiver. This does, however, require significant time and financial resources, both for the TPS holder and for the government.  Adjustment without departing the United States will still be significantly better for TPS holders than having to travel on advance parole in order to adjust. It will be interesting to see if other circuits follow the Sixth Circuit’s reasoning in Flores, even in the wake of Arrabelly.

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Supreme Court Strikes Down DOMA

Supreme Court Strikes Down DOMA

By Jennie Guilfoyle and Susan Schreiber

On June 26, 2013 the Supreme Court issued a decision in United States v. Windsor finding the Defense of Marriage Act (DOMA) unconstitutional.  Under DOMA, marriage was defined to exclude same-sex spouses for purposes of qualifying for rights and benefits under federal law.  For this reason, lawfully married same-sex couples were ineligible for immigration benefits, including filing petitions for same sex spouses.  As a result of the Supreme Court decision, legally married same-sex spouses will no longer be barred from qualifying as spouses under immigration law. Currently thirteen states (CA, CT, DE, IA, MA, MD, ME, MN, NH, NY, RI, VT, WA) and the District of Columbia., as well as fifteen countries, allow same-sex marriage. 

 Impact on Immigration Benefits

 This decision has consequences for every aspect of immigration law in which a marital relationship has significance.  These include:

 Family-Based Immigration:

  •  Immediate Relative petitions (U.S. citizen petitioning for his or her spouse)
  •  F-2A petitions (LPR petitioning for his or her spouse)
  • Derivative spouses in the F-3 (married sons and daughters of U.S. citizens) and F-4 (sisters and brothers of U.S. citizens 21 and over) preference categories
  •  Step-children (children of same-sex spouse will now be children for immigration purposes if they otherwise meet the definition of step-child in the INA)
  •  K visa (petition for fiancé(e) of a U.S. citizen)
  •  Affidavit of support (same-sex spouses may now be considered "household members" for purposes of the affidavit of support)
  •  VAWA Self-petitions for abused spouses of U.S. citizens and LPRs


  • Qualifying relatives for waivers (many inadmissibility waivers require a showing of "extreme hardship" to a U.S. citizen or LPR spouse, child, or parent)

Humanitarian Benefits

  • Asylee and refugee relative petitions (petitions for spouses of asylees and refugees to obtain derivative asylee or refugee status)
  • Derivative spouses for U status (for victims of certain crimes)
  • Derivative spouses for T status (for victims of human trafficking)

Relief from Removal

  • Qualifying relatives for cancellation of removal

 Employment-based Immigration

  •  Derivative spouses on employment-based petitions in both the immigrant and non-immigrant categories

DHS Response

In a statement issued after the ruling, Secretary of Homeland Security Janet Napolitano said that DHS will work with federal partners, including the Department of Justice, to "implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

Since the ruling, CIS has issued FAQs regarding implementation of the Supreme Court decision. CIS is now adjudicating same-sex marriage I-130 petitions and has already approved some petitions as well as applications for adjustment of status.

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At-Risk Reports

In 2000-2001, CLINIC published a series of reports on immigration issues based on numerous case studies. These are not current reports.

The reports identify, track, and examine the impact of our nation's laws and immigration policies on at-risk immigrants. They illustrate particularly compelling problems faced by immigrants, clear explanations of the law at the root of such problems, and other research.

To order hardcopies of these reports, please complete this form and mail a $10 check or money order to CLINIC, 415 Michigan Ave. NE, Suite 200, Washington DC 20017.