More Q's and A's on Adjustment of Status Changes
1. Summary: The following are issues of interest that arose during a recent teleconference on changes to laws affecting adjustment of status and IV issuance. The teleconference, organized by the American Immigration Lawyers Association; AILA, included participants from CA/VO and INS. AILA estimates the teleconference reached between 300 to 500 listeners. Much of the conference focused on procedural matters for applicants filing with INS. However, many questions dealt with overseas visa processing. < p> 2. Question: Regarding the 90 day waiting period in section 212;0, what is the definition of "lawful nonimmigrant status?"
Answer: Under the new section 212;0, a foreign national who was in the U.S. cannot receive an immigrant visa within 90 days following departure from the U.S.
Unless he/she was maintaining lawful nonimmigrant status at the time of departure, or is a beneficiary of the Family Unity Provisions of IMMACT 90.
INS has indicated that for purposes of this rule, "maintaining lawful nonimmigrant status" would mean that on the date of departure from the U.S. the applicant held a status listed under INA section 101;A;15, as well as NATO and NAFTA nonimmigrant categories. Other conditions, such as extended voluntary departure, temporary protected status, or parole would not exempt an applicant from the 90-day waiting period.
If post is uncertain whether an applicant's situation at departure constituted lawful nonimmigrant status, post should inquire with the department. The department will then ask INS for a determination on the applicant's status.
3. Question: Who is exempt from paying INS the surcharge when adjusting status?
Answer: Basically, any applicant who could have adjusted status before the recent changes; i.e., under old section 245 would not pay the surcharge under the new rules. In addition, the new rules exempt applicants under 17 years of age, and beneficiaries under the Family Unity program.
4. Question: If a visa applicant is subject to the 90 day bar on receiving a visa, must those 90 days be spent in his/her country of residence?
Answer: A: The 90 days can be spent anywhere outside the United States.
5. Question: If a visa applicant is subject to the 90 day bar on receiving a visa, can posts interview him/her before the 90 days have passed?
Answer: Posts can set their own policy on whether to interview an applicant before the 90 days are up. However, the applicant's visa could not be issued until he/she has been outside the U.S. for 90 days. If interviewed before the 90 day period has passed, the applicant would likely have to make a second trip to the consular section to pick up the issue visa. There are no rpt no provisions in the regulations for issuing an immigrant visa with a post-date validity period.
6. Question: To avoid the 90-day waiting period, must an applicant have maintained continuous lawful status while in the U.S.?
Answer: A visa applicant need only have been in lawful status at the time of departure from the U.S. to avoid the 90 day waiting period. However, the standard is different when determining whether an applicant for adjustment of status in the U.S. must pay the additional surcharge. To avoid the surcharge, applicants for adjustment of status must have maintained lawful nonimmigrant status continuously while in the U.S.
7. Question: How do the new rules affect derivative IV status for spouses and children who may be outside the U.S.?
Answer: There are no changes to these procedures.
8. Question: Can someone who is refused an immigrant visa by a post overseas later enter the U.S. and apply for adjustment of status with INS?
Answer: The changes to section 245 do not waive any grounds of exclusion under section 212;A.
9. Question: Should applicants/lawyers request that posts transfer IV petitions to INS offices?
Answer: No. Applicants who wish to apply for adjustment of status should contact their local INS office, and present a notice of approval, DV-1 winners notification letter, or other proof of entitlement to status. If INS determines that it needs the case file to proceed with the adjustment, it will request the file from post. Post should not rpt not return a file to INS unless specifically requested by INS to do so.
10. Question: If a person who was illegally in the U.S. obtained an IV overseas before October 1, is he/she now ineligible to use that visa until outside the U.S. for 90 days?
Answer: No. The 90 day provision of section 212;O= only applies to applications adjudicated after October 1.
11. Question: Are K visa applicants who were out of status also subject to the 90-day provision?
Answer: No. Section 212;O applies only to applicants for immigrant visa not nonimmigrant visas.
12. Because of the changes to adjustment of status rules, the department will also change procedures involving stateside beneficiaries of "homeless" immigrant visa petitions. Until now, Amconsul Ciudad Juarez was designated to process IV cases for nationals of Afghanistan, Bosnia, Cuba, Iran, Iraq, Lebanon, Libya and Somalia who were in the U.S. and ineligible to adjust status with INS. In addition, Ciudad Juarez processed certain stateside Haitian applicants and stateside dependents of persons adjusted under the Chinese Student Protection Act.
13. The recent changes to INA section 245 will now permit these persons to adjust in the U.S. Therefore, NVC will no longer forward these homeless cases to Ciudad Juarez when they become current.