IMMIGRATION LAW MONTHLY

May/June 2007

Written by Henry J. Chang

I came to United States in 1989, using an F-1 visa. However, I fell out of status in August 1992 when I stopped taking classes at the college. I reinstated my status in January 1996 and went back to college; I have been in lawful status ever since. I graduated in May 1999, worked pursuant to an Employment Authorization Document (Optional Practical Training) and received an H-1B before my EAD expired. I have been in H-1B status ever since. Will my adjustment of status application be adversely affected because I was out of status from 1992 to 1996? Do I need to go back to my home country and apply at my consulate or can I apply for the adjustment of status? Since I was out of status before April 1997, will the 10 year bar apply to me?

According to a Legacy INS Memo dated May 1, 1997, its position on the issue of adjustment of status after reinstatement was as follows:

An alien will not be deemed to have "otherwise violated the terms of a nonimmigrant visa" merely by filing an application for adjustment of status, provided that such filing was in accordance with 8 CFR 103.2(a) and occurred prior to the expiration of the alien's nonimmigrant status. Further, for purposes of section 245(c)(8) of the Act, an alien will not be deemed to have "otherwise violated the terms of a nonimmigrant visa" if the alien: (a) is eligible for relief under 8 CFR 245.1(d)(2); (b) was granted a change of nonimmigrant status pursuant to 8 CFR 248.1(b); (c) was granted an extension of nonimmigrant stay pursuant to current Operations Instruction 214.1(c)(5) or any analogous previous Operations Instruction; (d) was granted an extension of nonimmigrant stay based on a timely filed extension application which the Service approved after the alien's authorized nonimmigrant stay expired; or (e) was granted reinstatement to student status pursuant to 8 CFR 214.2(f)(16) on the basis of circumstances beyond the student's control.

The successor to Legacy INS, United States Citizenship and Immigration Services ("USCIS"), should also take the same position. So if you were granted reinstatement to student status in accordance with 8 CFR §214.2(f)(16), on the basis of circumstances beyond your control, you are not disqualified from seeking adjustment of status under INA §245(a).

In terms of the three- and ten-year unlawful presence bars under INA §212(a)(9)(B), they did not become effective until April 1, 1997. So any unlawful presence that you might have otherwise incurred prior to that date does not count towards the bars.

My wife is a Canadian citizen and lives with me in the United States. We married last year and I filed a Form I-130 with the USCIS and it was granted. However, they indicated that my wife was not eligible to file for adjustment of status and forwarded the approved petition to the National Visa Center ("NVC"). My wife is at that stage in the process where the NVC will be asking her to file a medical examination report and then she will be scheduled for an interview. Will she have her visa interview here in the United States or will NVC instruct her to go to the U.S. Embassy in Montreal? Will she also be given a green card by NVC or will we have to file an application for it with USCIS after her immigrant visa interview, assuming that the outcome will be successful? Could she in the interim apply for a work permit?

I assume that you are a United States citizen. I find it strange that your wife would be told that she was not eligible for adjustment of status since even a failure to maintain status and unlawful employment cannot form the basis for denying adjustment of status for the spouse of a United States citizen. However, I do not have all of the facts so I cannot comment on whether this is correct. I would recommend you obtain a formal opinion from a qualified attorney before completely giving up on the idea of adjustment of status.

In any event, assuming that your wife really is ineligible for adjustment of status but remains eligible for permanent residence, she will need to apply for an immigrant visa at the United States Consulate General in Montreal. If everything goes well, they will give her an immigrant visa, which she will use to enter the United States as a lawful permanent resident. USCIS should automatically send her real Form I-551 (i.e. green card) shortly thereafter.

I am also concerned about her ability to remain in the United States right now. If she is seeking permanent residence, she is clearly not a bona fide B-2 visitor at the present time. Even if she was still in lawful B-2 visitor status, she would be unable to extend her status under the current circumstances since she has immigrant intent. However, the fact that your wife was denied adjustment of status strongly suggests that she is out of status at the present time. If your wife is really out of status, she should be leaving the United States as soon as possible (assuming that she really is ineligible for adjustment of status).

As for the interim work permit, this is granted to individuals with pending adjustment of status applications. Since your wife is not a pending adjustment applicant (and probably out of status also), she is not going to be entitled to a work permit either.

I am a Canadian permanent resident and I have 10 months remaining before I am eligible for Canadian citizenship. My wife is a United States citizen, she filed a petition for permanent residence on my behalf and I received an IR1 visa (immediate relative). Can I keep both Canadian permanent residence and my United States green card (i.e. permanent residence)? How can I meet the 10-month requirement for Canada without doing anything illegal? I don't want to lose my ability to get Canadian citizenship but on the other hand I don't want to be away from my family.

As you know, in order to apply for Canadian citizenship, you must must accumulate at least three years of residence in Canada within the four-year period preceding the filing of your application. The term "residence" is not defined but, as a general rule, it can be equated to "physical presence."

It is true that an applicant may be absent from Canada and still be considered "resident" here for citizenship purposes, but this occurs in exceptional circumstances only. However, based on my brief review of your fact situation, I have doubts that your situation would be considered exceptional (although I do not have enough facts to give a formal opinion on this issue). So you (and possibly your family as well) may wish to consider staying in Canada until you have obtained your Canadian citizenship.

You should be able to take some steps to protect your lawful permanent resident status while you are in Canada, such as a reentry permit or a commuter alien green card.