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USCIS Green Card Memo: Should You File for I-485 Adjustment of Status?

Posted on May 26, 2026 | Comments Off on USCIS Green Card Memo: Should You File for I-485 Adjustment of Status?

Form I-485, Adjustment of Status is for eligible applicants who are already in the United States and are seeking to obtain a green card. USCIS Policy Memorandum PM-602-0199, issued on May 21, 2026, instructs USCIS officers to consider adjustment of status an “extraordinary” relief. This means USCIS may deny adjustment applications, as a matter of discretion, if it determines the applicant should instead apply for an Immigrant Visa at the U.S. Embassy/Consulate abroad.

The policy does not change the eligibility requirements to obtain a green card through the Form I-485 application process. Rather, it emphasizes that adjustment to permanent residence within the United States is a discretionary benefit, instead of an entitlement or normal path to receiving a green card.

USCIS officers are expected to more carefully consider whether a Form I-485 applicant deserves approval, based on the totality of circumstances and the best interest of the United States. The Policy Memo directs USCIS officers to apply higher discretionary scrutiny in weighing the positive versus the negative factors. It notes that unless Form I-485 applicants have unusual or outstanding equities, USCIS may not permit them to bypass the Immigrant Visa application process.

The Policy Memo states that with limited exceptions, the statutory scheme suggests that Congress expects paroled and nonimmigrant applicants to depart for Immigrant Visa processing, rather than apply for adjustment of status. It adds that an attempt to avoid the consular immigrant visa process is usually accompanied by violations of U.S. immigration laws. And these negative factors must be offset by the showing of unusual or even outstanding equities.

New applicants or applicants with pending cases should prepare to show favorable factors to warrant an approval, under the totality of the circumstances. They should also address how any negative factors are not enough to support a denial. Information and documents may be submitted with the Form I-485 application or in response to a Request for Evidence or Notice of Intent to Deny from USCIS.

Positive Factors that USCIS Considers

In deciding whether to approve the Form I-485 application, on discretionary grounds, USCIS considers positive factors. Examples are:

  • Strong family ties, such as a bona fide marriage to a U.S. citizen or permanent resident.
  • Hardship to the applicant or close relatives if the adjustment application is denied.
  • Service in the U.S. armed forces.
  • Long authorized stay and maintenance of valid nonimmigrant status, such as H-1B and L-1.
  • Property, investment, or business ties in the United States, especially when they add to the nation’s economic interests.
  • Education, skills and training that are highly beneficial and are relevant to the applicant’s current or prospective employment.
  • Lack of a criminal record.
  • Compliance with tax laws.
  • Voluntary community service to society.

Negative Factors that USCIS Considers

In determining whether to deny the application, as a matter of discretion, USCIS considers negative factors, such as:

  • Absence of close family and community ties in the United States.
  • Violating the terms of parole or temporary status like F-1 student or B-1/B-2 visitor, by working without authorization, overstaying the authorized period or switching quickly to another status.
  • Fraud or false testimony in dealings with USCIS or any other government agency.
  • Entering a sham marriage to a U.S. citizen or permanent resident for the purpose of obtaining U.S. immigration benefits.
  • Criminal history, especially when it involves serious crimes, multiple offenses, or recent violations.
  • Failure to pay taxes owed or child support.
  • Public safety or national interest concerns, such as applicants who have endorsed or promoted anti-American views or views of a terrorist group on social media.

Although the shift in policy will affect a wide range of applicants, it is likely to have NO or LESS of an impact on:

  • K-1 fiance nonimmigrants who enter the U.S. specifically to marry a U.S. citizen and then apply for a marriage-based green card, plus their K-2 minor children.
  • Immediate relatives of a U.S. citizen because they have statutory exemptions for certain status violations, like failing to maintain lawful status or overstaying the authorized period. (An Immediate Relative is a U.S. citizen’s spouse; a U.S. citizen’s unmarried child under 21; or a U.S. citizen’s parent – if the citizen is age 21 or older).
  • H-1B and L-1 nonimmigrants who are allowed to have dual intent, plus their H-4 and L-2 spouse and minor children.
  • O-1, TN, E-2, and E-3 visa holders who are maintaining continuous lawful status through authorized employment in the U.S.
  • Refugees and asylees who file for adjustment of status under INA 209(c), not 245(a).
  • Humanitarian-based T and U visa applicants.
  • VAWA-based applicants.
  • Special Immigrant Juveniles (SIJs).

Shortly after the Policy Memo went into effect, USCIS began issuing Requests for Evidence to certain Form I-485 applicants, which asks the following:

1. Why did you apply for Adjustment of Status instead of go through consular processing?

2. Are there any factors that prevent you from applying through consular processing?

3. Why did you not return to your home country when your authorized period of stay expired and you became out of status?

4. Do you have any family still living in your home country?

USCIS will issue an RFE when the evidence or information submitted with the application is not enough for them to make a decision. It is not a Notice of Intent to Deny (NOID), which is when USCIS gives you one last opportunity to respond with additional evidence or information after finding that a denial is likely.

Options if USCIS Denies Your Form I-485 Application

When USCIS denies a benefit request, it must issue a written denial notice explaining the specific reasons for the decision. If the denial is based on an unfavorable exercise of discretion, the denial notice must describe the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors.

If USCIS denies your Form I-485 application as a matter of discretion, but you otherwise meet the eligibility requirements to obtain a green card, you have four main options:

Submit a Motion to Reconsider or Reopen to USCIS. This involves timely filing the Form I-290B, Notice of Appeal or Motion with the appropriate USCIS office, explaining how USCIS made the wrong decision or requesting USCIS consider new and material evidence that was unavailable in the prior application.

File a new Form I-485 Application with USCIS. This must include new, material information and documents demonstrating extraordinary circumstances to obtain the “extraordinary” relief of adjustment of status.

Apply for an Immigrant Visa through consular processing. This requires you to depart the United States, submit the Form DS-260 Immigrant Visa application and other required documents to the U.S. Department of State, and attend a scheduled visa interview at the U.S. Embassy/Consulate. You will need to obtain a Form I-601 or I-601A waiver if you are subject to being found inadmissible upon departure from the United States, due to accrual of unlawful presence.

Unlawful presence begins on day one of when you remain in the U.S. beyond your authorized period, if you are age 18 or older, and have no change or extension of status application pending with USCIS. Accruing more than 180 days to less than one year of unlawful presence creates a 3-year bar to re-entry under INA 212(a)(9)(B). The bar is 10 years if the unlawful presence lasted one year or more.

Remain in the U.S. without lawful status and wait to receive a Notice to Appear (Form I-862) in removal proceedings before the Immigration Court from the U.S. Department of Homeland Security. You may present the Form I-485 application as a defense to removal, assuming you are statutorily eligible for this relief, but USCIS denied it as a matter of discretion.

In some cases, pursuing Form I-485 adjustment in removal proceedings might be less risky than consular processing, where you could be stuck abroad due to the unlawful presence bar or other inadmissibility issues, administrative delays, and U.S. travel bans preventing Immigrant Visa grants. But if the Immigration Court denies your I-485 application, you could end up with a Removal Order, instead of a Voluntary Departure grant. This would then make you inadmissible for 10 years under INA 212(a)(9)(A)(ii). You would need an approved Form I-212, Application for Consent to Reapply for Admission, to receive the Immigrant Visa abroad before this 10-year bar expires.

Get proper legal advice to help you choose your best option if your I-485 is denied.

Congress passed laws to make adjustment of status available to Immediate Relatives of U.S. citizens and other eligible applicants. Policies are guidelines on how to apply the laws. They are more flexible and temporary and can be changed or updated more easily. Whether the USCIS Policy Memo will stand up against federal court litigation or other challenges is uncertain. There could be more guidelines on how it affects different categories of applicants on a case-by-case basis.

Although the USCIS Policy Memo discourages adjustment of status, eligible Form I-485 applicants are not forbidden from applying for it when the law does not prohibit them from doing so.

Consult an experienced U.S. immigration attorney to help you (1) assess your eligibility for Form I-485, adjustment of status, (2) demonstrate the positive factors warrant a favorable exercise of discretion, and (3) supplement your pending Form I-485 application or strengthen a new application.

For more information on the Form I-485 adjustment process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment to Permanent Resident Status: Inspection and Admission OR Inspection and Parole

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

When do you need an I-212 Waiver (and how do you get it)?

The current USCIS Policy Manual – shown below – may be updated after the release of the Policy Memo titled, Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary
Consular Visa Process.

USCIS Policy Manual – Chapter 10 – Legal Analysis and Use of Discretion – as of May 26, 2026Download

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USCIS Policy Manual – Chapter 8- Discretionary Analysis – as of May 26, 2026Download

# # # This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, bona fide marriage, green card, green card, I-485, immigrant petition, immigrant visa, The Legal Immigrant - Immigration Blog, Videos

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Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

Posted on June 26, 2024 | Comments Off on Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

On June 18, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.

Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.

If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.

The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.

Who Will Benefit from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?

Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.

If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.

Even spouses or children of U.S. citizens are not eligible for INA 245(a) adjustment if they have not been inspected and admitted or inspected and paroled into the United States, which is a key requirement.

An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.

Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.

What are the Advantages of the Parole in Place Plan?

1. Eligible parolees may apply for employment authorization and receive temporary protection from removal

In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.

2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)

Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.

A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.

To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.

If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.

Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.

What are the Limitations of the Parole in Place Plan?

1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status

Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.

Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.

2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.

Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.

There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.

In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).

For more information on the I-485 adjustment of status application process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment of Status: Inspection and Admission OR Inspection and Parole

How Will the Parole in Place Program Take Effect?

The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.

Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.

A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.

To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.

Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.

Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.

Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.

To watch YouTube video, click HERE.

To listen to podcast, click HERE.

To read the transcript, click HERE. 

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, green card, green card, immigrant petition, immigrant visa, The Legal Immigrant - Immigration Blog, Videos, waiver

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U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

Posted on January 17, 2020 | Comments Off on U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

After initially refusing our request to vacate the INA 212(a)(6)(C)(i) charge against our client, the U.S. Embassy reconsidered its decision and issued the Immigrant Visa. Persistent follow-ups led to the applicant being cleared of the inadmissibility bar and receiving the visa for admission as a permanent resident. No Form I-601 waiver was needed because the Embassy dislodged the INA 212(a)(6)(C)(i) finding it made in error.

Two years before attending his Immigrant Visa interview, the applicant had sought a K-1 fiance visa at the U.S. Embassy, based on his then-engagement to a U.S. citizen. At the K-1 visa interview, the U.S. consular officer determined his relationship with the K-1 petitioner was not genuine, but entered into solely for U.S. immigration benefits.

The Embassy returned the approved Form I-129F petition to USCIS for further review and revocation. Instead of issuing a Notice of Intent to Revoke, USCIS issued a termination notice almost 6 months later stating the 4-month validity period on the Form I-129F approval notice had expired, but the U.S. citizen fiance may file a new petition for the applicant. By that point, they had ended their relationship and called off the engagement. No further evidence was submitted to prove the bona fide nature of the relationship.

Prior to the K-1 visa application, our client’s mother had filed a Form I-130 immigrant petition for him. USCIS approved the petition within five months, but he had to wait several years for the priority date to become current so he could apply for an Immigrant Visa.

At his Immigrant Visa Interview, he received a refusal worksheet charging him with INA 212(a)(6)(C)(i), as an applicant who sought to procure a visa by fraud or willful misrepresentation of a material fact. The Embassy noted that in adjudicating his K-1 fiance visa application, the relationship was found to not be credible.

Following the Immigrant Visa refusal due to fraud/willful misrepresentation, a close relative of the applicant contacted me for a consultation. After confirming the relationship with the K-1 petitioner was genuine but just did not work out, I agreed to represent the applicant and his mother (the Form I-130 petitioner).

I explained the applicant had the option to file a Form I-601 waiver application, as instructed by the U.S. Embassy. To get this waiver, he needed to prove to USCIS that his mother would suffer extreme hardships if he were denied admission to the United States. The long processing time and the high evidentiary standards made this a challenging path to take. The I-601 filing fee of $930 was also a factor to consider.

Because the applicant had proof of a bona fide relationship with the K-1 petitioner that was not previously submitted to USCIS or to the U.S. Consulate — and USCIS never revoked the Form I-129F approval but instead issued a termination notice — I counseled the applicant on another option, i.e. file a Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for Immigrant Visa directly with the U.S. Embassy. The applicant and his family decided to go with the Motion instead of the I-601 application.

It took several months for the applicant and his family to gather all the written testimonies and documents I had recommended they provide to support the Motion to Reconsider. With this evidence and my legal memorandum arguing how the INA 212(a)(6)(C)(i) charge was made in error, I filed a request with the U.S. Embassy to reconsider the inadmissibility finding and grant the Immigrant Visa.

Upon its first review of our Motion to Reconsider and Rescind Inadmissibility Finding, the Embassy sent a reply within a week, in which it stated the applicant made a material misrepresentation in a prior K-1 visa application and was permanently ineligible to receive a visa. It added it would not accept any further evidence or appeal regarding the visa application and instructed the applicant to file for an I-601 waiver of inadmissibility.

Two weeks later, with the applicant’s consent, I submitted a Request for Supervisory Review to the U.S. Embassy, asking it to confirm whether the Motion to Reconsider was duly reviewed and highlighting the errors in the inadmissibility finding. The Embassy replied it was reviewing my inquiry and there was no guarantee on how long it would take to get a response. It again instructed the applicant to file for an I-601 waiver.

After months of waiting and sending follow-up inquiries, we finally received a response from the U.S. Embassy stating it had completed a supervisory review to reconsider this case and there has been no change to the original officer’s adjudication. It noted the applicant may file for a waiver.

A few weeks later, I filed a Request for Advisory Opinion with LegalNet (U.S.Department of State’s legal adviser for consular affairs). In particular, I asked them to review the legal question regarding whether the U.S. Embassy properly applied INA 212(a)(6)(C)(i) when it denied the Immigrant Visa in this case. I provided them with a copy of the Motion to Reconsider, including the legal memorandum and supporting evidence. LegalNet responded it had followed up on my inquiry and the case was under review.

Several months later, LegalNet sent an update that the U.S. Embassy provided instructions to the applicant to proceed with his Immigrant Visa application. The Embassy instructed him to submit an updated Form I-864, Affidavit of Support, and financial support documents. It further requested he complete a DNA test to verify the biological relationship with his mother (the Form I-130 petitioner).

After complying with the U.S. Embassy’s instructions, the applicant finally received his Immigrant Visa. He was admitted to the United States as a lawful permanent resident to join his mother and other close relatives who were eagerly waiting for this reunion.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in immigrant petition, immigrant visa, immigration fraud, K-1 visa, success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Posted on January 10, 2020 | Comments Off on U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Within 21 days of receiving our Request for Supervisory Review of Immigrant Visa Refusal and Renewed Motion to Reconsider and Rescind Inadmissibility Finding under INA 212(a)(6)(C)(i), the U.S. Consulate removed the lifetime bar and instructed our client to continue the immigrant visa process. Ultimately, he received his Immigrant Visa after the new police certificate and updated proof of his U.S. citizen petitioner’s U.S. domicile and financial support were provided. Because the U.S. Consulate agreed to lift the fraud charge, no Form I-601, Application for Waiver of Inadmissibility, was required.

Born stateless, the applicant used to hold a refugee travel document that contained a visitor visa when he was a child. After he acquired citizenship in a country where he was not born, the applicant used the new passport to obtain a second visitor visa and traveled to the United States for a temporary recreational stay.

Despite being married to a U.S. citizen, he complied with the terms of his visitor visa and did not overstay the authorized period or apply for a marriage-based green card within the United States. Based on the approved Form I-130 immigrant petition filed by his U.S. citizen wife, he sought to become a permanent resident through an Immigrant Visa application at the U.S. Consulate overseas.

At the initial Immigrant Visa interview, the applicant presented his passport for visa stamping. About two months later, the U.S. Consulate conducted a re-interview in which it asked about the process he used to acquire the citizenship and obtain the passport. He explained the legal channels he used to get both. Nonetheless, the U.S. Consulate charged him with section 212(a)(6)(C)(i)(fraud/willful misrepresentation of material fact to gain a U.S. immigration benefit), upon noting it was unable to verify his acquired citizenship or the authenticity of the passport when it contacted the government authorities.

The U.S. Consulate instructed him to file a Form I-601, Application for Waiver of Inadmissibility, to be excused from the inadmissibility charge. A section 212(a)(6)(C)(i) finding prohibits applicants from receiving an Immigrant Visa without first getting an I-601 approval from USCIS.

Two months after the visa refusal, the applicant contacted me for the first time to discuss his options. In our Skype (video) consultation, I explained that one solution was to file a Form I-601 application, as the U.S. Consulate instructed. To receive the waiver, he would need to prove the extreme hardships his U.S. citizen wife would suffer if he is denied entry to the United States as a permanent resident. I noted there is never any guarantee the waiver will be granted due to the high standard of proof and the discretion involved in the decision-making.

I further pointed out that if he did not commit fraud or willfully misrepresent material facts to gain the prior B1/B2 visitor visa, the Immigrant Visa, or any other U.S. immigration benefit, he could file a Motion to Reconsider and Rescind Inadmissibility Finding with the U.S. Consulate. If such a motion is granted and the section 212(a)(6)(C)(i) bar is lifted, the I-601 waiver is not required for the visa to be issued.

The client opted to go with the request to reconsider the inadmissibility charge. After we entered into a representation agreement, I counseled him on the information and documents he needed to present to show he did not engage in fraud or willfully misrepresent material facts to receive any U.S. immigration benefit.

To support the Motion to Reconsider, I prepared a legal memorandum describing how the applicant used proper channels to obtain the passport and why the submission of this passport to the U.S. Consulate was actually immaterial to his eligibility for the Immigrant Visa, as well as the prior visitor visas he received.

Five days after receiving the Motion to Reconsider, the U.S. Consulate issued a response stating the section 212(a)(6)(C)(i) bar would remain and the applicant needed to file for an I-601 waiver. The Consulate noted the applicant had no concrete evidence to support his explanation on how he acquired the citizenship. The Consulate added that during its checks with the government authorities, it was determined beyond reasonable doubt the applicant misrepresented his case and deliberately provided false information and documents to receive an immigration benefit. They added he did not rescind his false statements when given the opportunity to do so.

In the Request for Supervisory Review and Renewed Motion to Reconsider and Rescind Inadmissibility Finding, I stressed the important points the U.S. Consulate missed when it issued the response affirming the section 212(a)(6)(C)(i) charge.

In reply to this Request and Renewed Motion, the U.S. Consulate sent a response 21 days later stating the section 212(a)(6)(C)(i) charge had been lifted. Five months later — following the completion of administrative processing — my client received the Immigrant Visa to join his wife in the United States, without needing to file for and obtain an I-601 waiver.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, green card, immigrant petition, immigrant visa, immigration fraud, INA 212(a)(6)(C)(i), success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Posted on August 16, 2019 | Comments Off on Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

A U.S. citizen may file a Form I-130 immigrant petition for his or her spouse in the immediate relatives category. If the citizen dies, the widow(er) may still seek permanent residence in the United States under section 201(b)(2)(A)(i) of the Immigration & Nationality Act, when certain conditions are met.

Who Qualifies for Widow(er) Benefits Under INA 201(b)(2)(A)(i)?

U.S. immigration statute permits widow(er)s of U.S. citizens to be classified as immediate relatives and continue the Immigrant Visa or Adjustment to Permanent Resident Status application process if they:

  • Were legally married to a U.S. citizen and not divorced or legally separated from the U.S. citizen at the time of death
  • File a Form I-360 self-petition within two years of the U.S. citizen spouse’s death or have a pending or approved Form I-130 filed by the U.S. citizen spouse prior to death, which will be automatically converted to a Form I-360 petition
  • Show they entered into the marriage in good faith and not solely for immigration benefits
  • Are admissible to the United States
  • Are not remarried before they receive the green card or immigrant visa (NOTE: If there is a remarriage, the applicant may still be able able to pursue section 204(l) relief if he or she was residing in the United States when the petitioner died and continues to reside in the United States).

How to Apply for Widow(er) Benefits

If there is a pending or approved Form I-130 petition, the widow(er) must notify USCIS of the U.S. citizen’s death. The agency will then automatically convert the I-130 to an I-360 self-petition. If there is no pending or approved I-130 at the time of death, the widow(er) must submit the Form I-360 self-petition to USCIS within two years of the U.S. citizen’s death.

Widow(er)s in the United States may file a Form I-485, application to adjustment to permanent resident status, either at the same time the I-360 is filed or after the I-360 is filed, whether it is pending or approved. If an I-485 application was already submitted based on a pending or approved I-130 filed by the deceased spouse, there is no need to file a new one.

A widow(er) who is living abroad may go through the I-360 approval or I-130/I-360 conversion process to apply for an immigrant visa at the U.S. Consulate overseas.

Admissibility Requirement

A Form I-864, Affidavit of Support, is not required for widow(er)s to establish they will not become a public charge under INA § 212(a)(4). The applicant instead claims an exemption from filing the Affidavit of Support with the Immigrant Visa request or Adjustment of Status application.

Widow(ers) are not exempt from the 3/10 year bars to re-entry under INA 212(a)(9)(B)(i) if they accrue more than 180 days of unlawful presence in the U.S. and depart for consular processing of the immigrant visa. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) do not have. When possible, widow(er)s should apply for Adjustment of Status within the U.S. and avoid triggering the 3/10 year bar by departing the U.S.

If there are no significant negative factors, and a previously filed I-130 has been converted and approved as an I-360, USCIS will normally exercise discretion favorably in a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, of a widow(er) who is inadmissible due a prior removal order.

Children of Widow(er) of U.S. Citizen

Unmarried children under the age of 21 may be included in the immigrant petition as derivative beneficiaries. As “immediate relatives,” derivative children qualify for benefits under the Child Status Protection Act (CSPA), which “freezes” their ages as of the filing date of the Form I-130 or Form I-360, whichever is applicable. CSPA protects them from aging out if they turn age 21 prior to their being granted a green card or immigrant visa. Still, they must meet any other eligibility criteria or filing requirements. 

Consult a Qualified U.S. Immigration Attorney

A qualified U.S. immigration attorney can help with verifying your eligibility for widow(er) benefits and submitting a request for I-130 to I-360 conversion or filing a properly documented I-360 self-petition. It’s also important to seek counsel in the Adjustment of Status application within the United States or in the Immigrant Visa request at the U.S. Consulate abroad.

For information on other possible remedies for surviving relatives, read our related articles:

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Comments Off on Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

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