MOST people who follow immigration law are familiar with adjustment of status, which is the process that allows an alien who was inspected and admitted or paroled into the US to apply for lawful permanent residence (LPR) while in the US. Adjustment applications are often filed under INA 245(a) which requires that an alien be admissible to the US and be eligible for an immigrant visa, which should be immediately available at the time of application. However, not many might have heard about readjustment of status.
An alien who is in removal proceedings may apply for adjustment of status before an Immigration Judge (IJ). In Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996), the Board of Immigration Appeals (BIA) held that the fact that an alien is an LPR does not preclude him from applying for adjustment under INA 245(a) if such alien is removable. This situation arises when an LPR, after becoming an LPR, gets involved in conduct that would make him removable from the US such as a conviction for certain criminal offenses. Hence, an LPR who becomes removable would be placed in removal proceedings and in such proceedings may apply for adjustment of status along with a waiver application if necessary. This then is the readjustment process. It’s simply applying for adjustment all over again after an LPR becomes removable.
We must clarify however USCIS’s policy on this matter. Under the Adjudicator’s Field Manual (AFM) section 23.2(c)(2)(B), an LPR is ineligible for adjustment of status. This section explains that, occasionally, an alien who had previously been granted LPR status may wish to readjust on some other basis when such alien, for example, discovers that such other basis would entitle him or his dependents to additional benefits under immigration laws. Thus, USCIS holds that, before an LPR can apply for and be granted adjustment, he would first have to lose his LPR status through abandonment, rescission or removal order from an IJ.
Under 8 CFR 1.2, LPR status terminates upon entry of a final administrative order of exclusion, deportation, or removal. Thus, an alien whose removal proceedings are pending still has LPR status until the end of the proceedings when the IJ orders his removal. If we follow USCIS policy, an LPR in removal proceedings should not be allowed to apply for adjustment because such LPR has not yet lost his LPR status. But BIA policy, which applies to IJs, allows LPRs to apply for adjustment during removal proceedings. How do we reconcile these seemingly conflicting policies? We don’t necessarily have to because they have different applications.
Generally, an alien who is not in removal proceedings must apply for adjustment with USCIS but an alien who is in removal proceedings must apply for adjustment before an IJ. Thus, if one is applying with USCIS, we follow USCIS policy that disqualifies an LPR from adjusting status. If one is applying before an IJ, we follow BIA policy that allows an LPR to apply for adjustment.
Moreover, as USCIS explained, LPRs who apply for adjustment or readjustment often have valid LPR status. Perhaps USCIS determined that these LPRs are unfairly exploiting opportunities to obtain better benefits that what they already have. On the other hand, LPRs who are in removal proceedings are often found removable and they would in fact be removed unless they apply for relief. Thus, LPRs in proceedings, by necessity, must apply for adjustment. So the BIA allows LPRs in proceedings to apply for adjustment even though technically they have not yet lost their LPR status.
Another important thing to remember with readjustment is that it is allowed for applications filed under INA 245(a) but not necessarily under other adjustment provisions. For example in Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), the BIA held that an alien who was granted asylee status and had adjusted status from asylee to LPR pursuant to INA 209(b) cannot subsequently readjust status in the event such alien is found removable after becoming an LPR. The BIA observed that INA 209(b) is silent on whether asylees who adjusted under its provisions are allowed to readjust. A related provision, INA 209(a), which authorizes adjustment from refugee status to LPR, expressly prohibits readjustment. There is no similar prohibition under INA 209(b) but the BIA found that once an asylee or refugee adjusts status to LPR he would no longer have the status of an asylee or refugee. Without asylee or refugee status, such alien would have no status that would authorize him to readjust.
The fact that readjustment is allowed under INA 245(a) does not mean that readjustment should also be recognized under INA 209(b) because, as the BIA explained, the latter provision has a different language and narrower purposes.
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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.
