A FILIPINA registered nurse licensed in California, her husband, and minor son are in removal proceedings with the Los Angeles Immigration Court ( I.J. Philip J. Costa) because their applications for adjustment of status to permanent residence were denied, despite approval of the underlying employer’s Form I-140 immigrant visa petition for her.
The ground for denial of their I-485 applications for adjustment of status by the USCIS was that the Filipina RN had failed “to provide any documentation showing (she) held a valid nonimmigrant or other lawful status from the time (her) H1B status expired in November 11, 2004 until the…application for adjustment was filed on July 26, 2007, a period in excess of two and one-half years.”
Due to the denial of their individual application for adjustment of status, the entire family of three was placed in removal proceedings by ICE by the issuance of Notices to Appear before the Los Angeles Immigration Court.
Rns caught by delay in visa screen
The Filipina RN is one of many caught by the delay in the issuance of the
VisaScreen by the CGFNS International due to English language requirements and their failure to maintain immigrant status, to be able to adjust to permanent residence in the United States.
Under Section 245(k) of the Immigration and Nationality Act, an applicant for adjustment of status may adjust, provided that he or she does not fail to maintain lawful status, nor engage in unauthorized employment, or otherwise violate the terms and conditions in excess of 180 days.
But even if the failure to maintain nonimmigrant status exceeds 180 days, adjustment of status may still be granted, if the applicant is grandfathered under section 245(i) of the Immigration And Nationality Act, provided he or she is the beneficiary of an immigrant petition under section 204, or labor certification, which was filed on or before January 14, 1998.
Moreover, section 245(i) was further amended on December 21, 2000, to include applicants who are beneficiaries of an immigrant petition under section 204 or labor certification filed on or before April 30, 2001, provided they are physically present in the United States on the December 21, 2000 enactment date.
If grandfathered under section 245(i), they must submit Supplement A to Form I-485 and pay the penalty of $1,000.00.
Alternative remedies in removal proceedings
This Author currently represents the Filipina RN and her family at the removal proceedings before Los Angeles Immigration Judge Philip J. Costa, Presiding Judge of Courtroom L. Their Identities are withheld to protect their privacy and maintain confidentiality.
Prior Immigration Judge David Anderson had allowed the filing of new Form
I-485 applications for adjustments of status for all of the three family members, which are pending adjudication by current Immigration Judge Philip J. Costa. On the basis of which, the Filipina RN and her husband obtained employment authorization up to January 31, 2014.
But the position of the Department of Homeland Security, through its Deputy District Counsel, is that the Filipina RN and her family are not eligible for adjustment of status due to their failure to maintain their immigration status.
If adjustment is not granted by the Immigration Court, the other viable alternative remedies are voluntary departure for the parents and deferred action for the minor child. They have not been in the United States for 10 years to qualify for cancellation of removal; and the Filipina RN and the minor son have no qualifying relatives.
Delay in the issuance of the VisaScreen by the CGFNS International to the Filipina RN, required by the USCIS at that time, cost them their lawful permanent resident status.
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Roman P. Mosqueda has practiced criminal defense and Immigration law for over 20 years. He is a long-time member of the California Public Defenders Association. , and trained as a prosecutor with the Los Angeles City Attorney under the Trial Advocacy Program of the Los Angeles County Bar Association. He is also a volunteer, State-Bar trained arbitrator on attorney’s fees dispute resolution. Send comments or inquiries to [email protected] , or call (213) 252-9481 for free consultation appointment, or visit his website at www.mosquedalaw.com
