DOS Cable with Q&As on Adjustment of Status Changes
Ref: State 233214
1. The following questions and answers on the recent immigration law changes affecting adjustment of status and IV issuance (Reftel) address some of the concerns raised by posts. CA/VO appreciates posts' efforts to implement these significant processing changes with very little notice.
2. Question: Are all aliens in the United States who are out of status now eligible to apply for adjustment of status to permanent residence?
Answer: Yes. All aliens who entered the United States without inspection or who are not in lawful visa status may apply for adjustment. Those classes of aliens listed in INA Section 245 (c) are now eligible to apply for adjustment of status.
3. Question: Do priority dates still matter? Can aliens, regardless of priority dates, now immediately apply for adjustment of status?
Answer: All immigrant applicants (whether applying at INS offices or abroad) must have priority dates earlier than any applicable visa cut-off dates to be granted a visa or adjustment of status. This has not been altered by recent amendment to the INA.
Under the terms of INA 245, INS will not accept an application for adjustment of status from an applicant in a numerically limited category unless a visa number is available for the case priority date when the application is filed. All IV applicants will continue to be processed in order of priority date whether cases are processed at posts or through INS.
4. Question: Presumably consular posts will now need to determine if an immigrant visa applicant, previously resident in the United States, was in lawful visa status before departing the United States. What kinds of proof of status should the applicants be asked to produce?
Answer: Those aliens in lawful visa status in the United States could always apply for adjustment of status. Those who opt for processing at a consular post must prove that lawful visa status in order to be exempted from the requirement to remain outside the United States for at least 90 days before visa issuance. These applicants, many of whom entered the United States on F, H, or J visas, can submit copies of their I-94 (arrival/departure record) (assuming the originals are turned into INS upon departure). Passports with an NIV, entry and departure stamps, and any other documentation that would corroborate a claim to lawful visa status in the United States.
5. Question: Should posts notify aliens in lawful status resident in the United States who have opted or will opt for processing at an overseas post of the need to document their status?
Answer: Posts may add the following paragraph to the cover letter with Packet 4 (Reftel, Para G), cover letter in lieu of Packet 4 (Para 7 of Reftel), and to the special notice and amended Packet 3 Para 9 of Reftel): Quote: If you are in the United States and are in lawful visa status, these changes do not affect you. However, please notify us if you wish us to continue processing your case. In addition, at the time of your visa interview, you must present proof of your lawful visa status in the United States to establish that you are not subject to the 90 day waiting period outside the United States. End quote.
6. Question: How Are Family Unity Beneficiaries affected by 245(C)?
Answer: Spouses and unmarried children of individuals who obtained temporary or permanent resident status under Section 210 or 245A of the Immigration and Nationality Act or Section 202 of the Immigration Reform and Control Act of 1986 are exempt from the 90 day requirement, if they opt for processing at an overseas post, if, a) as of May 5, 1988, they were already in the relationship of spouse/unmarried child and had already entered and were residing in the United States and b) have applied for benefits under Section 301(a) of the Immigration and Nationality Act of 1990 (Family Unity Provision).
7. Question: How can posts identify Family Unity Applicants?
Answer: INS advises that the petition form does not contain any information on whether an applicant applied for Family Unity Benefits. In fact, such an application could have been made after the petition had been approved. However, applicants should have the INS notice of Family Unity Benefits. If an applicant say he/she misplaced the form, he/she can obtain a duplicate from INS by completing Form I- 824 (application for action on an approved application or petition).
8. Question: What is the role of the National Visa Center (NVC) in implementing these changes?
Answer: NVC is amending Packet 3 (and Packet 4 for diversity visa applicants) to include in the language contained in Reftel. In addition, NVC is asking applicants in the United States who intend to apply for adjustment of status to inform NVC of their decision, so that NVC can hold the petitions for eventual disposition, rather than forwarding them to posts.
9. Question: What kinds of proof can applicants present to demonstrate that they have remained outside the United States for at least 90 days?
Answer: Applicant can submit their passports with entry stamps from other countries, airline tickets, receipts from purchases made/rents paid outside the United States, etc. Consular Officers will have to consider whatever documentary evidence applicants present and exercise judgment, as they do in other aspects of IV processing. Applicants applying at Ciudad Juarez and Canadian posts will obviously have a more difficult time establishing physical presence outside the United States, given the informal entry/exit procedures at the borders.
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