USCIS releases new version of I-485 and I-485A | CLINIC

USCIS releases new version of I-485 and I-485A

Susan Schreiber

On June 26, 2017, USCIS released a new version of Form I-485 Application for Adjustment of Status, along with a revised I-485 Supplement A for those applicants qualifying for adjustment of status under INA Sec. 245(i). In addition, USCIS has also released a new version of I-485 Supplement J that pertains to certain employment-based adjustment applicants. Each new application form is accompanied by revised instructions.

Although the new editions of each form are the only ones now available on the USCIS website, the 01/17/2017 edition of each form may still be submitted until August 24. As of August 25, USCIS will only accept adjustment of status application forms with the edition date of 06/26/2017.

As described below, the revised edition of each form is substantially longer than the prior version, as are the related instructions for each form. The additional length of each application form is the result of revised formatting, additional questions, and lengthier required declarations from applicants, interpreters and form preparers. The related form instructions are also considerably longer than the prior version, due to additional instructions and advisals, as well as detailed specific instructions for different categories of applicants for adjustment of status.

In the FAQs below, we summarize the changes reflected in the revised I-485 and Supplement A application forms and instructions, and address concerns expressed by legal advocates regarding the significance of some of these changes.

 

How does the New Edition of the I-485 Application Compare to the 01/17/2017 Edition?

The chart below summarizes many of the major differences between the two editions of the I-485 Application to Adjust Status.

CONTENT

01/17/2017 EDITION

06/26/2017 EDITION

Pages

6

18

Need G-325

Yes

No: G-325 Questions Incorporated in Application

(incl. other names used, information re marriages, parents, addresses, employment)

Mailing Address

No option for safe address

Option for safe mailing address

Biographic Information

Not included in application

New questions on ethnicity, race, height, weight, eye and hair color

Application Type (basis for application for adjustment)

Lists 8 options, including other

Organized in 7 Categories, with 27 options, including other

Separate Questions for Derivative Beneficiairies

No

Yes

Organizational Affiliations

Since age 16

No age limitation specified

Questions Related to Inadmissibility and Eligibility to Adjust Status

18 multi-part questions calling for 31 responses

91 yes/no questions addressing inadmissibility and eligibility to adjust status

Advisal re Requirement to Report Change of Address

In application

Not in application; included in instructions at p. 16

Applicant Statement

Applicant statement that s/he understands each question and answer on form, in English or through interpreter and that all information is true and correct

Expanded section including contact information, declaration regarding authenticity of documents submitted, and certification that applicant has reviewed and understands all information in the application

Interpreter Statement

Certification of fluency and reading and translation of each question on the application, and applicant’s understanding of each instruction on form, question and answer

Expanded section with new required contact information and essentially same certification content as appears in interpreter section in naturalization application

Preparer Statement

Certification that application prepared at request of applicant and based on all information of which preparer had knowledge

Expanded section with additional required contact information and essentially the same certification content as appears in preparer section in naturalization application

 

Why does the revised application have so many more questions related to inadmissibility and eligibility to adjust status?

The increased number of questions in the revised application form fall into three categories: additional questions on issues covered in the preceding edition of the application; new questions related to eligibility for adjustment; and new questions related to grounds of inadmissibility not addressed in the previous editions of the I-485 application. For example, the 01/17/2017 edition of the I-485 includes 7 questions related to crime-based inadmissibility, while the 06/26/2017 edition includes 21 questions related to this issue. The 01/17/2017 edition of the I-485 includes a single question on whether the applicant is subject to the two-year foreign residence requirement for certain J visa holders, while the 06/26/2017 edition addresses that issue using three questions. Most significantly, the revised edition of the adjustment application has several new questions related to the INA Sec. 245(c) bars to adjustment for those applying to adjust status under INA Sec. 245(a), as well as new questions related to inadmissibility grounds including false claim to U.S. citizenship (INA Sec. 212(a)(6)(C)(ii); failing to attend a removal proceeding without reasonable cause (INA Sec. 212(a)(6)(B); unlawful presence (INA Sec. 212(a)(9)(B); permanent bar (INA Sec. 212(a)(9)(C); and unlawful voting (INA Sec. 212(a)(10)(D).

 

How does the revised application expand the number of questions related to the assessment of crime-based inadmissibility?

New questions on the revised application form cover each of the twelve subsections of crime-based inadmissibility at INA Sec. 212(a)(2), but also include multiple questions focused on determining the outcome of any encounter with law enforcement. While the 01/17/2017 edition of the adjustment application asks a single question related to whether the applicant was arrested, cited, charged, fined or imprisoned for violating any law or ordinance, the revised application now includes five questions related to the outcome of an arrest or charge. In addition, some new questions in the revised application are worded so that the inquiry exceeds the related ground of inadmissibility, including:

  • Question 26: Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with or tried for that crime? Note that inadmissibility based on admission of the essential elements of a crime is restricted to crimes involving moral turpitude (CIMTs) and controlled substance violations. The 01/17/2017 and prior editions of the adjustment application limited the question on admissions to those relating to CIMTs and controlled substance violations.
  • Questions 35 -37 related to engaging in prostitution, procuring prostitutes, or receiving the proceeds of prostitution. Note that these new and revised questions do not reference a time period but the corresponding inadmissibility grounds are limited to such activities within the ten year period preceding the application.

 

The revised application form asks if the applicant has ever worked without authorization, violated the terms or conditions of his or her nonimmigrant visa status or been denied a visa or admission to the United States; if the answer is or may be yes, the applicant must provide an explanation of the events and circumstances. How should applicants comply with this directive?

These new questions are specifically relevant to those adjustment of status applicants who are applying to adjust under INA Sec. 245(a) and who are subject to adjustment of status bars under INA Sec. 245(c). For example, preference immigrants who were inspected and admitted or paroled are nevertheless ineligible to adjust status under INA Sec. 245(a) if they have ever worked without authorization, or been in the United States unlawfully. In contrast, the immediate relatives of U.S. citizens and VAWA self-petitioners are eligible to adjust under INA Sec. 245(a) even if they worked without authorization, or were present in the United States unlawfully. Similarly, applicants for adjustment under INA Sec. 245(i) are also not barred from adjustment eligibility due to unauthorized employment or being out of status. Nevertheless, the revised application requires all adjustment applicants to answer these questions, even when they do not have specific bearing on eligibility to adjust status.

Although legal advocates are understandably concerned about the inclusion of these questions in the application form, it’s important to note that the information requested in these questions is not really new: those applying to adjust using the 01/17/2017 form are essentially providing information about current status, or lack of status, as well as unauthorized employment through responses to questions in both that form and other forms submitted by or on behalf of the applicant, including the I-130 petition, and an I-765 application for employment authorization.

There is no information provided in the instructions to the revised application regarding the directive to explain the events or circumstances of a “Yes” answer or an answer reflecting uncertainty about whether the answer might be yes. Until USCIS provides guidance on what level of detail or explanation is required, applicants may be best served by a limited and short response. For example, an applicant who worked without authorization might state, where appropriate, that she worked in order to support herself and/or her family; an applicant who overstayed a period of authorized stay might reference, where applicable, that he remained in the U.S. to pursue a new relationship, to help a family member, or to be protected from returning to a dangerous situation in his home country. In the case of an applicant who isn’t sure at all what happened, a limited response is the only possible response unless the applicant delays applying for adjustment to pursue obtaining more information. Where the uncertainty relates to the possible assessment of a nonwaivable inadmissibility ground – e.g. Was the denial of admission related to an expedited removal order? Was the denial of a visa related to a determination that the potential applicant engaged in smuggling a sibling to the U.S.? - the best course of action is to delay applying until the circumstances can bedetermined. In other situations, a limited response might involve an applicant reporting that she provided accurate information in an application for a tourist visa but was denied and doesn’t know why. Until there are some case adjudications, and opportunities for advocacy with USCIS on implementation of the new form, we won’t have any specific knowledge of what USCIS is looking for, or what they may want to do with this information.

 

How has USCIS revised the instructions to the I-485 Application?

The revised instructions, at 42 pages, are considerably longer than the 8 pages of instructions accompanying the 01/17/2017 edition of the I-485 application. Now divided into two sections, the 19 pages of the Main Instructions component address general eligibility and procedural issues, and the Additional Instructions include 23 pages of specific information for 13 categories of adjustment of status applicants as follows:

  • Family-Based Applicants
  • Employment-Based Applicants
  • Special Immigrants
  • T and U Applicants
  • Asylees and Refugees
  • Cuban Adjustment Act
  • Dependent Status Under HRIFA
  • Lautenberg Parolees
  • Diplomats or High-Ranking Officials Unable to Return Home
  • Indochinese Parolees
  • Diversity Visa Program
  • Registry
  • Individuals Born under Diplomatic Status in the U.S.

Overall, the revised instructions provide considerably more detail about eligibility to adjust, required fees and documentation, and specific eligibility requirements for different categories of applicants.

 

The revised instructions require the submission of arrest records in connection with any reported charge, even where there is no arrest or where the case was expunged. Can an application for a client with a criminal record be submitted with only the court disposition?

The revised instructions represent a significant departure from the instructions to the 01/17/2017 edition of the I-485 and prior editions by requiring arrest reports as a matter of course instead of relying on the case outcome reflected in the court disposition. Similar directives relating to submission of arrest reports appear in the instructions to other application forms, including the N-400 application for naturalization, the I-821 application for TPS, and the I-821D application for DACA. 

Advocates have good reason to object to the submission of arrest reports, given both their hearsay and prejudicial nature, frequent lack of correspondence with the ultimate charges, and the difficulty of obtaining these records. To date, advocates have often been successful in limiting document submissions related to criminal charges to certified dispositions notwithstanding USCIS instructions to the contrary; it remains to be seen whether USCIS will require the submission of arrest reports in connection with adjustment applications.

 

The revised instructions relating to proof of admission recognize a limited number of documents as primary evidence and presume entry without admission in the absence of such primary evidence. How does this affect the applicant’s ability to establish admission or parole for eligibility to adjust under INA Sec. 245(a)?

The revised instructions at pp 9 and 10 direct the applicant to submit a copy of his or her passport page with admission or parole stamp, passport page with nonimmigrant visa; and Form I-94 Arrival-Departure Record. Applicants who lack this evidence may submit secondary evidence consisting of other records maintained in the ordinary course of business to support the claimed admission or parole. Finally, applicants may also seek to establish admission or parole though written statements from the applicant and others with personal knowledge of the admission or parole. The instructions note that, in the absence of primary evidence of admission or parole, or DHS records of the admission or parole, the USCIS will presume that the applicant entered without inspection.

In contrast to the revised instructions, the USCIS Policy Manual guidance on documentation for adjustment of status applications under INA Sec. 245(a) at Volume 7, Chapter 4 references any one of the following as evidence of admission or parole: Copy of the entry or parole stamps in the applicant’s passport issued by U.S. Customs and Border Protection (CBP); Arrival/Departure Record (Form I-94); Form I-94 issued by USCIS at the bottom of a Notice of Action (Form I-797); or Authorization for Parole of an Alien into the United States (Form I-512 or I-512L). Advocates should continue to argue that any one of these documents may constitute sufficient primary evidence of admission or parole.

 

What changes have been made in the revised edition of the I-485 Supplement A Form?

At 4 pages, the revised I-485 Supplement A is now twice the length of the 01/17/2017 edition of the form. The new text includes more accurate categories of eligibility, now allowing the applicant to indicate eligibility to adjust under INA Sec. 245(i) based on being a grandfathered derivative beneficiary or an “after-acquired” spouse or child accompanying or following-to-join a grandfathered spouse or parent. The form is also longer because of the new and longer certification text for applicants, interpreters and form preparers similar to the text that appears in the revised I-485 application.               

 

What new information is included in the instructions to the revised I-485 Supplement A?

The 11 pages of revised instructions to the I-485 Supplement A are considerably more detailed than the instructions to the 01/17/2017 edition of the form. In particular, the revised instructions recognize that the applicant may be applying as a grandfathered principal beneficiary, derivative beneficiary or after-acquired spouse or child, and review the required documentation to prove derivative or after-acquired status. Note, however, that the instructions erroneously state that a grandfathered derivative beneficiary must show that the claimed relationship existed at the time the petition was properly filed. This interpretation contradicts the BIA decision in Matter of Estrada, 26 I&N Dec. 180 (BIA 2013), where the BIA held that a derivative is grandfathered if the spouse or child relationship is established by the INA Sec. 245(i) deadline of April 30, 2001. For example, where an F4 petition is filed by a U.S. citizen for his sister in December 1997, and the sister marries in June 2000, the spouse should be considered a grandfathered derivative beneficiary because the relationship was established before the 245(i) deadline of April 30, 2001.

The revised instructions also review the physical presence requirement that applies to INA Sec. 245(i) applications based on a qualifying petition filed between January 15, 1998 and April 30, 2001. In this situation, the Supplement A must include documentation to show that the principal beneficiary was physically present in the U.S. on December 21, 2000. This evidence must be submitted even if the applicant is the grandfathered derivative beneficiary, not the principal beneficiary.                       

 

Do the changes to the I-485 application affect an applicant’s ability to represent himself or herself at an adjustment of status interview?

Both the number of questions and the legal terminology used in the questions will likely make it more difficult for potential applicants to complete an adjustment of status application without legal assistance. Currently, many nonprofit programs limit representation to eligibility assessment and application preparation without providing in-person representation. Given the complexity and ambiguity of many new questions on the form, advocates should also consider how this affects the need for representation at adjustment interviews, and how their programs can devote more resources to meet this need.

 

Which edition of the application form should I submit before August 25?

Applicants may continue to file for adjustment of status using the 01/17/2017 edition of the I-485 Application Form through August 24; as of August 25, USCIS will only accept the 06/26/2017 edition. Given the increased length of the newest edition, as well as the problematic nature of many of the questions, it will generally be advantageous to use the prior edition of the I-485 until August 25.

 

How can CLINIC assist Affiliates with any issues that arise relating to the revised I-485 Application?

CLINIC affiliates are encouraged to call or email the CLINIC hotline with any questions relating to the revised I-485 application.  For liaison assistance with USCIS relating to I-485 adjudications, please contact our advocacy section at advocacy@cliniclegal.org.