Adjustment of Status

Most commonly, a foreign national seeking to adjust their status to that of a lawful permanent resident will have their I-485 Application to Adjust Status to Permanent Resident decided by an Immigration Officer with U.S. Department of Homeland Security’s Citizenship and Immigration Services (DHS/CIS). There are circumstances, however, where an I-485 applicant may have their application decided by an Immigration Judge and as a defense to removal proceedings. To optimize your chances of success in such a context, seek the assistance of a lawyer experienced in providing counsel to foreign nationals in defending against removal proceedings and call Richard Hanus of the Law Offices of Richard Hanus.

The requirements for a foreign national to adjust status to permanent residence in the U.S. are numerous, and include A) having an approved family or employment based visa petition – and with current visa availability, B) having maintained their nonimmigrant visa status throughout their stay in the U.S. (exceptions for “Immediate Relative” beneficiaries, or those grandfathered by Section 245(i) of the Immigration and Nationality Act) AND C) being “admissible”, i.e. not being subject to a long list of disqualifying, mostly criminal related, bases of ineligibility.

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The most common scenarios where an Immigration Judge will decide a foreign national’s Application for Adjustment of Status include:

  1. The foreign national marries a U.S. Citizen after the commencement of removal proceedings. When a foreign national facing removal proceedings marries a U.S. citizen, it is presumed the marriage is a desperate attempt to avoid deportation and entered into for the sole purpose of facilitating a green card. As a result, the parties – following submission of an I-130 visa petition on behalf of the foreign national spouse – will have to overcome a heightened burden to demonstrate that their marriage is indeed bona fide and genuine. The test of the sincerity of the marriage is ultimately determined by a local DHS/CIS office, but after the parties pass the test and the I-130 petition is approved, the final decision on his/her I-485 Application for Adjustment of Status (green card application) is typically made by an Immigration Judge.
  2. A foreign national is placed in removal proceedings after their initial I-485 Application for Adjustment of Status is denied by a local DHS/CIS office and now the matter is before an Immigration Judge to review that DHS/CIS decision. This scenario will usually unfold because a local DHS/CIS office made a legal determination that the foreign national committed an act or crime disqualifying them from U.S. residence, i.e. leading to a finding of “inadmissibility”. The finding may be based on the foreign national’s criminal act or conviction, a statement made on the record found to be untruthful and thus a “material misrepresentation”, a false claim to U.S. citizenship, or a significant immigration violation from the past. In this circumstance, the Immigration Judge has the power to review and possibly overturn the prior DHS/CIS finding of ineligibility if it is determined that the finding was without a proper legal basis.
  3. A foreign national is placed in removal proceedings following the local DHS/CIS office’s denial of their I-601 Application for Waiver of Inadmissibility. This scenario will arise under circumstances set forth in #2 above, except the DHS/CIS office gave the foreign national an opportunity for their disqualifying or inadmissible act to be excused or “waived”. Typically, the basis of ineligibility can be excused when the foreign national can demonstrate that the denial of their application will cause an extreme, or extraordinary level of hardship to a U.S. citizen or lawful permanent resident parent, spouse and/or under 21 year old child. If the local DHS/CIS office denies this request, the foreign national can get another bite at the apple and ask the Immigration Judge in removal proceedings to review and reconsider the previous decision.

Being called to defend oneself in removal proceedings is never simple and most of the time is a scary experience. When this happens, a foreign national must take all measures to even the playing field by retaining competent, experienced immigration counsel. By calling Richard Hanus at the Law Office of Richard Hanus, a foreign national takes the first step toward this goal, in gaining a deep understanding of the proceedings he/she is facing and finding a solution to remain in the U.S.