Maryland State Bar Association’s Immigration Law Section Presents: Tips and Advice When Seeking To Apply for Adjustment of Status in Immigration Proceedings Edward W. Neufville, III Silver Spring, Maryland
8121 Georgia Avenue, Suite 502, Silver Spring, MD, 20910 * www.neufvillelaw.com INTRODUCTIONS • I am a person who stutters so if there is something that I say that is unclear, do make note and ask for clarification at the end • Focus of the webinar is on immigration proceedings before Immigration Courts, specifically Baltimore • Webinar will provide advice and tips on applications for adjustment of status based on spousal petitions, parent/child petitions, asylee or refugee applications, and employment based • Will not cover Cuban Adjustments; NACARA; Cancellation of Removal; or HRIFA
I Want To Litigate Adjustment Applications in Court, Where do I Start?
• Immigration and Nationality Act – INA Sections 245; 209; 216
• Title 8 of the Code of Federal Regulations
• Title 8 of the United States • Immigration Court Practice Manual. Read and download it for free at http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm
What are Immigration Removal Proceedings?
• Check out INA Section 240 – All you need to know about removal proceedings in Immigration Court.
• United States government taken steps to determine whether to remove a foreign national from the U.S.
• Foreign national has a chance to seek relief from being removed • 8 C.F.R. Section 1245.2 provides Immigration Courts with jurisdiction to review application for adjustment of status for foreign nationals in immigration proceedings GENERAL ELIGIBILITY FOR ADJUSTMENT OF STATUS
• Must have been inspected and admitted or paroled in the United States • Have an approved immigrant petition or concurrently files an immigrant petition with application for adjustment • In the case of cases before the Immigration Judge, the immigrant petition must be approved before Immigration Judge can adjudicate adjustment application • Eligible to receive immigrant visa and is admissible to the United States • An immigrant visa is available
Eligibility continued
• Adjustment of Status may be granted in the exercise of discretion
• Burden of Proof for establishing eligibility rests with the applicant
Filing Adjustment of Status Application with the Immigration Court • Pre-order Instructions for Submitting Certain Applications in Immigration Court and For Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services • Fees are paid to the Texas Service Center with a copy of the I-485 (no supporting documents needed), copy of the hearing notice, and copy of EOIR-28 • File proof of payment or receipt notice with Court along with supporting documents • Texas Service Center will issue fingerprints appointment notice for applications WHAT DOCUMENTS SHOULD I PROVIDE IN SUPPORT OF MY APPLICATION AND WHEN? • Proof of applicants eligibility – Evidence of approved immigrant petition – Evidence of qualifying relationship – No inadmissibility issues – Medical examination – Affidavit of support • Applications for waiver of inadmissibility • I-601 waivers • INA 212 (i) • INA 212 (h) • Proof of payment of applications and filing of application and supporting evidence • Read the Immigration Court Practice Manual Adjustment of Status Hearings in Immigration Court • Adversarial hearing • Government is represented by Office of Chief Counsel • Pre-try cases with Department of Homeland Security before the hearing • Burden of proof is on the applicant
Common Issues Facing Practitioners in Immigration Court
• Case Sample 1: • Foreign national beneficiary of an approved spousal I-130 and denied Form I-485 – How did this case get before the Immigration Court? – What should the practitioner do in this situation? – What issues should the practitioner be aware of in this situation? • Case Sample 2: • Foreign national beneficiary with a denied spousal I-130 and I-485 – How is that possible? – What are the possible reasons for the denial of the Forms I-130 and I-485 – What happens now in immigration removal proceedings • Common issues a practitioner must consider and investigate
• Case Sample 3: – Foreign national is placed in immigration removal proceedings and marries U.S. citizen – Burden of Proof of higher (clear and convincing evidence) – INA Section 204(g) and 8 C.F.R. Section 204.2(iii) prohibits the approval of a visa petition filed on behalf of a foreign national by a United States citizen or a lawful permanent resident spouse if the marriage creating the relationship occurred on or after November 10, 1985, and while the foreign national was in proceedings. – Regulations allows for the US citizen to make a bona fide exemption request which must be made in writing. See 8 CFR Section 204.2 (a)(1) (iii). – File the I-130 with USCIS – Seek continuance with the Immigration Judge • Case Sample 4: – Foreign national is the son or daughter of a U.S. citizen
• How did the applicant end up in removal proceedings in this case?
• Issues to be aware in removal proceedings? • Case Sample 5: – Asylee or Refugee is placed in removal proceedings due to criminal issues • INA 209 (c) issues and eligibility • When would this happen? • How do I prepare for a case like this? • Case Sample 6: – Applicant has an approved I-140 and is in removal proceedings • Issues regarding admissibility – INA 245 (i) – INA 245 (k) • Ability to pay issues with the employer • Derivative applicants
Questions & Answers
• Edward W. Neufville, III [[email protected]] • Address: 8121 Georgia Avenue, Suite 502, Silver Spring, Maryland, 20910 • Phone: 301-562-7995; Fax: 301-562-8199 • Web address: www.neufvillelaw.com