My employment-based green card has been denied – now what?
The USCIS has been denying a greater percentage of employment-based application for adjustment of status than ever before over the past several months. With the denial of these applications, the USCIS is almost immediately issuing a Notice to Appear (NTA) in removal proceedings. With the USCIS sending almost all employment cases to the Nebraska Service Center (NSC), employers and their sponsored workers can almost expect to receive a Request for Evidence (RFE) from USCIS on the I-140, I-485 or both at some point during the protracted process. The USCIS is brazenly issuing denials on tenuous, and in some cases, patently incorrect, legal bases, leaving applicants and attorneys confused as to do next. An applicant for adjustment of status who has been placed in removal proceedings, however, may have several legal options and must assert his rights in court in order to exercise them.
Among the most controversial issues involving denials of employment-based applications for adjustment of status is the USCIS’ interpretation of Section 245(k). Along with Section 245(i), Section 245(k) is an exception to the general rule that in order to adjust status in the US, an applicant must be in “valid nonimmigrant status” at the time of filing the application. Section 245(k) provides that an employment-based immigrant may still be eligible for adjustment of status, as long as the applicant has not failed to maintain “a lawful status” for a period in excess of 180 days. In interpreting Section 245(k), the USCIS has taken the narrow position that “lawful status” means “valid nonimmigrant status.”
At the heart of the controversy is the question whether the period during which an applicant had a prior I-485, Application for Adjustment of Status, pending with the USCIS is a period during which the applicant was in “a lawful status” for the purposes of 245(k). This situation has arisen many times, where USCIS denies an employment-I-485 because an applicant failed to provide a document to USCIS in response to an RFE or could not obtain a document in time, such as a Visa Screen, due to delays by a third-party such as the CGFNS. In this latter situation, common to many Registered Nurses, the visa screen was the only document needed to complete the adjustment of status process and the inability to provide the document was completely beyond their control!
Since an applicant for adjustment of status is required to remain in the US, must appear for biometrics and fingerprinting and is issued a work authorization document while the I-485 is pending, common sense would suggest that the applicant’s status is “lawful” during this period. Therefore, if the applicant’s properly filed and meritorious I-485 were denied on some technical basis, Section 245(k) should allow the applicant to re-file for adjustment of status within the 180 day “grace period” after the denial. The USCIS, however, has taken the position that the period during which the prior adjustment of status application was pending was not a period of “lawful status,” and that an applicant is ineligible for adjustment under Section 245(k) if more than 180 days has elapsed since the applicant’s “nonimmigrant status” expired.
The USCIS’ position is in direct conflict with the plain meaning of Section 245(k). The USCIS’ recent memo purporting to justify its position only adds insult to injury: If the period during which an application for adjustment of status is pending is only “lawful” if the application is approved, Section 245(k) would be rendered virtually meaningless. Unfortunately, only expensive and time consuming litigation will resolve this legal dispute.
Another controversy has been caused by the USCIS unwillingness at apply the exceptions built into Section 245(a) and (c) to excuse certain violations of status, that might otherwise render an applicant inadmissible to adjust status. For example, Section 245(c) sets forth classes of individuals who are not eligible to adjust status for having “violated the terms of a nonimmigrant visa,” yet excepts from that category persons whose violations were “due to circumstances beyond their control.” In many instances, an applicant for adjustment of status may have technically violated his previous nonimmigrant status, but due to such circumstances as poor advice of a previous attorney, employer or representative. While these types of violations should surely be considered beyond the control of the applicant, the USCIS is not applying this exception in an even-handed manner and denying cases involving even the most minute, technical violations.
Once the USCIS denies an employment-based application for adjustment of status, the only option in response is to fight. Workers whose applications have been denied must fight for the correct interpretation of these laws, which only makes common sense, at the USCIS level, in the Immigration Courts and in the US District Courts, until the USCIS correctly interprets the law and institutes appropriate policy to implement the law fairly across the board.
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