Allan Wernick

Selected Issues on Citizenship and Immigration Law:
Adjustment of Status
Thursday February 17, 2011
1:30 p.m. – 3:00 p.m. EST
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Patricia Wonder
CUNY School of Professional Studies
Partner, Johnson Wonder PLLC
Our Panel of Presenters
Alizabeth Newman,
Director of Immigrant Initiatives,
CUNY School of Law
Allan Wernick,
CUNY Citizenship Now
Immigration Law Studies Advanced Graduate
Certificate Program
• Introduction to Immigration Law
• Business Immigration Law
• Family-Based Immigration Law
• Proceedings in Immigration Court
• Naturalization and Citizenship
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The Corps consists of volunteers who provide free
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Complete a registration form at
Adjustment of Status
Allan Wernick
CUNY Citizenship Now!
Adjustment of Status
Allan Wernick
Interview for Lawful Permanent Resident
Status (LPR) (Green Card) in the United
• Requires underlying qualification including:
– Family-based petition – I-130
– Employment-based petition – I-140
– Miscellaneous Categories including:
VAWA, Special Immigrant Juvenile,
• Three categories:
– 245(a) Adjustment
– 245(i) Adjustment
– Miscellaneous other categories
245(a) Adjustment
Allan Wernick
Remember there are 2 layers to the process of
adjustment of status:
1. Is someone eligible to get their
appointment in the United States or will
the only option be consular processing
in the home country.
2. In the interview, will any of the grounds
of inadmissibility make them ineligible
to become a legal permanent resident
in spite of the fact that they have an
approved basis. (family, employment
Adjustment of Status Benefits
Allan Wernick
• Unlawful presence may not apply
• More opportunities to litigate
• Applicant may remain in the U.S.
pending final determination
Immediate Relatives of a U.S. citizen
Allan Wernick
To adjust status, an Immediate
Relative must prove only inspection
and admission or parole by an
immigration officer.
Immediate relatives are:
• The spouse of a U.S. citizen.
• Unmarried children under age 21
of U.S. citizens
• The parents of U.S. citizens over
age 21
Poll Question
Harry is an LPR. His wife Wilma came here as a
visitor and overstayed.
What is your advice to Harry and Wilma
regarding Wilma applying for LPR status?
Inspection and Admission
Allan Wernick
Entry from Canada or Mexico:
• “Waived through” is an inspection and admission
Entrants with false documents:
• Considered an admission
• Applicant must convince USCIS examiner
or Immigration Judge
• Best if the applicant has the false papers
• USCIS often denies - IJ more often approves
• C, and D non-immigrants
• Individuals in transit without a visa (TROVs)
• K-1 fiancé(e) of U.S. citizens who do not marry
the citizen who brought them here.
• In some jurisdictions, K-1 fiancé(e)s who marry
after more than 90 days after entry
Poll Question
Frank is married to a U.S. citizen. He came here
using his brother’s passport which had a valid
visitor’s visa.
Can Frank adjust status to LPR?
Family Based Preference Applicants – I-130
Family Based Preferences are:
Allan Wernick
• First Family-Based Preference – Adult unmarried
sons and daughters (age 21 or older) of U.S.
• Second Family-Based Preference A – Spouse
and unmarried children (under age 21) of
permanent residents.
• Second Family-Based Preference B – Unmarried
sons and daughters (of any age) of permanent
• Third Family-Based Preference (formerly Fourth
Preference) – Married children of U.S. citizens.
• Fourth Relative Preference (formerly Fifth
Preference) – Brothers and sisters of U.S.
citizens if the U.S. citizen is age 21 or older.
Family Based Preference Applicants
Allan Wernick
To adjust status under INA Section
245(a), the applicant must have been:
• Inspected and admitted or paroled
• Never engaged in unauthorized
• Never out-of-status
• Must have visa available
When is a visa available?
Allan Wernick
• Priority date established when USCIS
receives the petition
• Where preferences are oversubscribed, the
U.S. Department of State issues notice of a
cutoff date (retrogression)
• A visa is available (the priority date is
“current”) when priority date is prior to the
cutoff date
• Visa Bulletin issued by DOS at
Employment-Based Preference Applicants
Employment Based Preferences are:
Allan Wernick
• First Employment-Based Preference — EB1 – Priority
Workers — Individuals with extraordinary abilities,
outstanding professors and researchers, and
multinational executives and managers.
• Second Employment-Based Preference — EB2 –
Members of professions holding advanced degrees
or individuals of exceptional ability.
• Third Employment-Based Preference — EB3 – Skilled
workers, professionals, and other workers.
• Fourth Employment-Based Preference — EB5 –
Certain religious workers, former U.S. government
employees, Panama Canal employees, and certain
foreign-language broadcasters working for Radio
Free Europe or Radio Free Asia.
Employment-Based Preference Applicants I-140
• Same as family-based preferences except:
Allan Wernick
• May have been unlawfully present or
engaged unlawful employment for up to 180
days (245(k)).
— Benefits for Derivatives
— 180 days counted from last admission
— USCIS says 180 days can count time after
application for adjustment of status if
unauthorized employment
— Overstay count ends with filing of
adjustment application
• Priority date established by filing of Labor
Certification application or I-140 petition
Alizabeth Newman
Director of Immigrant Initiatives,
CUNY School of Law
Limitations of 245(a) and (c)
Alizabeth Newman
There are many people with
approved basis for LPR status
who cannot fit into the 245(a)
schema because they entered
without inspection or have some
other 245(c) violation.
They cannot consular process
due to the 3/10 year bars.
(If they leave, they become inadmissible.)
Alizabeth Newman
Allows more immigrants to request AOS in
the United States who would otherwise not
• 3 yr. experiment from 1994-1997
to alleviate backlogs at consulates.
• Extended through 2001, however
9/11/2001 attacks interrupted further
Practical use:
• Allows some people to adjust status in
United States who couldn’t use 245(a)
because they were not inspected,
admitted or paroled, or because of a
245(c) violation.
Alizabeth Newman
• 245(i) is NOT — a path to LPR
• Nor is it protection from 3/10 yr.
bars if person travels.
245(i) Grandfathering
The benefits of 245(i) can be
Alizabeth Newman
Even though law is not currently
available to new applicants, it can be
used if there is a tie back to the old law.
• Applicant filed a family based or
employment based petition filed at:
• Critical dates:
— Before 1/14/1998
— Before 4/30/2001 + presence on
date of enactment of LIFE Act:
12/21/2000 proof.
245(i) Grandfathering
Alizabeth Newman
• Generous Interpretation:
— Right to 245(i) remains with the
person, not the application
• Application can be used if it was:
— Properly filed (timely, signed, fees
attached) &
— Approvable at time of filing (genuine
basis even if later failed.****)
• Benefits extended to derivative
beneficiaries in preference categories.
Poll Question
Elsie is a 46 year old women from Honduras. She entered without
inspection in 1999 and never filed for legal status. She married a USC
who wants to petition for her.
You take a family history and learn that when Elsie was just 10 years
old her mother left her in Honduras to work in the U.S. as a domestic
worker. That employer filed a labor cert. for her mother, but never
followed through and she left the job. The mother still has no status.
Can Elsie benefit from this family history to help her get status now?
Violence Against Women Act (VAWA)
Alizabeth Newman
VAWA AOS: If the basis for LPR
status is a self-petition as the abused
spouse or child of a legal permanent
resident or U.S. citizen, applicant may
AOS regardless of form of entry.
Congressional intent:
— Policy decision to allow battered
spouses to legalize their status and
not remain tied to abusive
— VAWA basis was included in 245(a)
— (still must be IR or have current
priority date)
Poll Question
Annie from France suffered domestic abuse by her
LPR husband. He filed a spouse petition in 1/2009
but they separated. The self-petition you filed was
just approved. Annie and her minor daughter,
June, overstayed tourist visas.
Can they adjust? If so, when?
Other Types of Adjustment
Alizabeth Newman
Other statuses adjust under different
sections of the INA and have different
• 245(h) special immigrant juvenile
• 245(l) trafficking + 3 years GMC, complied
w/reasonable requests to assist in
investigation/prosecution, extreme hardship
• 245(m) U crime victim + 3 yrs. Humanitarian,
family unity, public interest not unreasonably
refused to participate in pros.
• 209 Asylees & refugees + 1 yr Continues to be
refugee & not firmly resettled in 3rd country
Procedure for Applying for Adjustment of Status
Allan Wernick
File USCIS form I-485, Application to
Register Permanent Residence or Adjust
• Medical exam from USCIS certified
— For more information and to locate
a doctor go to
With petition if immediate relative or
applicant has a current priority date
Procedure for Applying for Adjustment of Status
Allan Wernick
File USCIS form I-485, Application to Register
• Filing fee $1070 (Including $85 Biometric Fee)
— $985 for applicants 79 or older (No
Biometric Fee Required)
— $685 for children under 14 if filing with parent
— No fee for USCIS form I-765, Application for
Employment Authorization
— Additional fees required for simultaneous filing
* $420 for family petition, USCIS form I-130
* $580 for employment-based petition,
form I-140
* $1500 for petition for alien entrepreneur,
form I-526
Affidavit of Support
Required in MOST family immigration cases
from petitioner
Allan Wernick
• Joint or co-sponsor if petitioner
has insufficient income
If petitioner is deceased
• substitute sponsor
• U.S. citizen or permanent resident
• Spouse, parent, mother or father-in-law,
sibling, child at least 18 years of age,
son or daughter, son or daughter-in-law,
sister or brother-in-law, grandparent, or
a legal guardian
Must live in the United States
Procedure for Exception Areas: 245(i)
Alizabeth Newman
In addition to the adjustment of status
forms mentioned above an applicant using
245(i) must also file:
• Form: 485A and pay fee of $1000. This
is required for each family member 17
years old.
• Must show proof of the earlier
application qualifying them for 245(i).
• Must show proof of physical presence on
date of enactment 12/21/2000 if filing
after 1/14/1998.
Procedure for Exception Areas: VAWA
Alizabeth Newman
• Remember people with an approved
VAWA self-petition will adjust status
under 245(a) and will never have to pay
the fines associated with 245(i).
• Medical exams are required.
• Since there is no sponsor, no affidavit of
support is needed. Applicant will file the
I-864W, a waiver of the affidavit of
(Note: the applicant can still be found
inadmissible as a public charge, so other
evidence of ability to support herself is
Procedure for Exception Areas: Other
Alizabeth Newman
• Applicants for adjustment of status using
other basis have different processes:
• Fewer grounds of inadmissibility apply
— Generally terrorist grounds, ag. Felonies apply,
but most status violations do not app.) (Check
specific statute section.)
• Generally there is no interview- all done
on paper (except criminal convictions)
• Some must be in specific non-immigrant
status for specific time (asylum 1 yr; U/T
3 yrs)
Procedure for Exception Areas: Other
Alizabeth Newman
• 245(h) special immigrant juvenile
• 245(l) trafficking &
• 245(m) U crime victim
• 209 Asylees & refugees
Questions and Answers
Q&A: Our Panel of Presenters
Patricia Wonder
CUNY School of
Professional Studies and
Partner, Johnson Wonder
Alizabeth Newman,
Director of Immigrant Initiatives,
CUNY School of Law
Allan Wernick,
CUNY Citizenship Now
Recorded Web Seminar
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• Paul Russo
• Allan Wernick
• Kelley Kawano
• A. Sofia Carreño
• Antonia Levy
• David Sturniolo
Director of Online Programs
CUNY School of Professional Studies
Instructional Technology Fellow
CUNY School of Professional Studies
Instructional Technology Fellow
CUNY School of Professional Studies
CUNY Citizenship Now!
Communications Coordinator
CUNY Citizenship Now!
Communications Assistant
CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant
CUNY Citizenship Now!
For further questions regarding the information
presented during this webinar please contact
Patricia Wonder
Selected Issues on Citizenship and Immigration Law:
Immigrant Eligibility
for Public Benefits
Thursday March 17, 2011
10:00 a.m. – 11:30 a.m. EST