• Life Act and Adjustment of Status
  • November 4, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Who Was Eligible to Take Advantage of LIFE Act Adjustment of Status?

    Under the old section 245(i) of the Immigration and Nationality Act (INA), who would have otherwise been ineligible, to apply for adjustment of status (AOS) were eligible to apply for AOS under the LIFE Act. Section 245(i) waived the following inadmissibility grounds:
    • Entering without inspection (EWI);
    • Having overstayed a nonimmigrant visa;
    • Having engaged in unauthorized employment.
    INA 245(i) does not waive inadmissibility for:
    • Any grounds of inadmissibility listed in section 212(a) except for unlawful entry;[1]
    • The permanent bar of inadmissibility (even though this may only be triggered after EWI);[2]
    • The 3 and 10-year bars of inadmissibility.[3]
    Notwithstanding above, the following aliens were ineligible to apply for LIFE Act AOS:
    • K-1 visa holders;
    • S visa holders (except where recommended by an applicable law enforcement authority);
    • Conditional permanent residents;
    • Persons seeking AOS based upon marriage entered into during removal proceedings (except where there exists clear and convincing evidence that the marriage is bona fide);[4]
    • Stowaways.[5]
    J visa beneficiaries who are subject to the 2-year home residency requirement must obtain a waiver of the home residency requirement before obtaining LIFE Act AOS. A, E, and G visa-holders are required to obtain waivers in order to obtain LIFE Act AOS.

    The Original Filing Requirements for LIFE Act AOS and Grandfathering

    In order to have taken advantage of LIFE Act AOS, an alien must:
    • be the beneficiary of an immigrant visa petition that was filed on or before April 30, 2001;
    • be the beneficiary of a labor certification application (LCA) that was filed on or after January 14, 1998, but on or before April 30, 2001;l and
    • pay a $1,000 fine with the petition; and
    • have been physically present in the United States on December 21, 2000.
    Spouses and children of persons described above are also eligible for LIFE Act AOS provided that the marital or child relationship existed at the time the qualifying petition was filed.[6]

    A principal who meets the above requirements but has not yet adjusted status may be grandfathered in for purpose of LIFE Act AOS eligibility. This means that the alien will be entitled to LIFE Act benefits even with the filing of a subsequent petition, so long as he or she met all of the original requirements for LIFE Act AOS eligibility.[7] There are no limits on the number of subsequent petitions that may be filed where the alien will still be eligible for LIFE Act benefits.[8]

    Derivatives who had a qualifying relationship to the principal at the time of the original petition are not only eligible for LIFE Act AOS, but also eligible to adjust status separate of the principal.[9] An alien who was a child when the original petition was filed may not age out. A spouse will remain eligible even upon separation or divorce unless there is reason to believe that the marriage was a sham. However, the spouse or children of such a derivative will not be eligible for LIFE Act AOS.[10]

    If a principal who has been grandfathered for LIFE Act AOS eligibility marries or has children after the original petition, these new derivatives will be permitted to adjust status as derivatives along with the principal on the grandfathered petition. However, unlike derivatives who had an existing relationship with the principal at the time of the original petition, these derivatives will not be able to benefit from LIFE Act AOS separate of the principal.[11] Furthermore, a derivative in this situation will be unable to benefit from LIFE Act AOS once the principal has adjusted status.[12]

    LIFE Act AOS in Proceedings

    Immigration judges may hear an AOS application for a grandfathered alien in removal or deportation proceedings, and may hear it in conjunction with an application to waive grounds of inadmissibility not covered by section 245(i).[13] AOS may be denied as a discretionary matter.[14]

    Advice for LIFE Act Adjustment of Status

    Persons who have been grandfathered for LIFE Act AOS should consult with an experienced immigration attorney for assistance in finally procuring LPR status. This is especially important if a grandfathered alien is placed in removal proceedings.

    1. Legal Opinion, Martin, General Counsel, INS, CO 245(i), CO 212(a)(6)(A) (Feb. 19, 1997), reprinted in 74 No. 11 Interpreter Releases 499, 516-22 (Mar. 24, 1997)
    2. Matter of Diaz, 25 I&N Dec. 188 (BIA 2010); Matter of Briones, 24 I&N Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)
    3. But see Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771, 779 n.6 (BIA 2012) [departure and return under grand of advance parole will not harm eligibility for LIFE Act AOS)
    4. INA § 245(d); 8 C.F.R. §§ 245.1(c), 1245.1(c) [for the list]
    5. See AFM 40.6.2(d)(3)(ii) for ineligibility of stowaways
    6. Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/23.1 (Mar. 9, 2005)
    7. Matter of Ilic, 25 I&N Dec 717, 719 (BIA 2012)
    8. Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/23.1 (Mar. 9, 2005), published on AILA InfoNet at oc. No. 05031468
    9. Memo, Yates, Assoc. Dir. Operations, USCS, HQOPRD 70/23.1 (Mar. 9, 2005)
    10. Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010)
    11. Matter of Estrada and Estrada, 26 I&N Dec. 180, 182-87 (BIA 2013)
    12. 8 C.F.R. § 245.10(a); Memo, Yates, Assoc. Dir. Operations, USCS, HQOPRD 70/23.1 (Mar. 9, 2005); Landin-Molina v. Holder, 580 F.3d 913, 917-20 (9th Cir. 2009)
    13. Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994); Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)
    14. Usmani v. Att'y Gen. of the U.S., 483 F.3d 1147 (11th Cir. 2007); Westover v. Reno, 202 F.3d 475, 480 (1st Cir. 2000)