In previous articles, we have discussed the requirements and implications of grandfathering under INA 245(i). We have also focused on the question of when a petition or application is approvable when filed, which is an important element of grandfathering. In this last article on the series, we’ll examine how specific grounds of inadmissibility limit adjustment under INA 245(i).
INA 245(i) allows an alien, who is physically present in the U.S. and who entered without inspection, is in unlawful immigration status, fails to maintain status or has accepted unauthorized employment, to adjust status to lawful permanent residence (LPR) if he meets the requirements of grandfathering. INA 245(i) provides an exception to the general rules of adjustment. However, INA 245(i) applicants are not exempt from establishing admissibility, i.e. they must show they are not disqualified from getting a visa or admission into the U.S. based on various grounds of inadmissibility.
Since INA 245(i) condones unlawful presence to some extent, it’s fair to ask whether grounds of inadmissibility related to physical presence would bar INA 245(i) adjustment.
Under INA 212(a)(6)(A)(i), an alien who is present in the U.S. without being admitted or paroled is inadmissible. In Matter of Lemus-Losa, 25 I&N Dec. 734 (BIA 2012), the Board of Immigration Appeals (BIA) ruled that INA 212(a)(6)(A)(i) does not bar an alien from adjusting under INA 245(i). Entry without inspection is one of the requirements for INA 245(i) adjustment. If we deem INA 245(i) applicants inadmissible under INA 212(a)(6)(A)(i), then entry without inspection would become both a qualifying and a disqualifying condition for INA 245(i) adjustment. This absurd result could not have been intended.
However, there won’t be an absurd outcome if INA 212(a)(9)(B)(i)(II) applied to INA 245(i) applicants. INA 212(a)(9)(B)(i)(II) bars an alien, who has been unlawfully present in the U.S. for one year or more, from seeking admission within 10 years from the alien’s departure or removal from the country. INA 212(a)(9)(B)(i)(II) is similar to INA 212(a)(6)(A)(i) because both may refer to aliens who entered without inspection but that’s where the similarity ends. INA 212(a)(9)(B)(i)(II) may also cover aliens who entered with inspection but have overstayed.
The crucial difference between INA 212(a)(6)(A)(i) and INA 212(a)(9)(B)(i)(II) is that aliens inadmissible under the first ground are present in the U.S. while those under the second ground are often outside the U.S. because departure is the main conduct the triggers the application of INA 212(a)(9)(B)(i)(II). An alien who enters without inspection and never leaves would be inadmissible under INA 212(a)(6)(A)(i) but he would be inadmissible under INA 212(a)(9)(B)(i)(II) if he departs after accruing unlawful presence of at least one year. Since INA 245(i) aims to cure entry without inspection, an INA 245(i) applicant cannot be barred from adjusting on account of INA 212(a)(6)(A)(i). However, an INA 245(i) applicant could be barred under INA 212(a)(9)(B)(i)(II) because the prohibited conduct is different. If barred under INA 212(a)(9)(B)(i)(II), an INA 245(i) applicant can only adjust if he applies for a waiver.
Despite this principle, on a practical level, an INA 245(i) applicant needs more than a waiver to overcome the complications arising from his INA 212(a)(9)(B)(i)(II) inadmissibility. An alien inadmissible under INA 212(a)(9)(B)(i)(II) would most likely be outside the U.S. However, if an alien is outside the U.S., this would disqualify him from adjustment unless he is able to return. But of course, he cannot lawfully return because he is inadmissible under INA 212(a)(9)(B)(i)(II). If he returns through unlawful means, then he would be inadmissible under INA 212(a)(9)(C)(i)(I).
INA 212(a)(9)(C)(i) bars an alien from entering the U.S. for a period of 10 years if: (1) he has previously stayed in the U.S. unlawfully for more than 1 year or has been ordered removed; and (2) he later enters or attempts to reenter without admission. Those who have accrued the required unlawful presence and who apply for permission to enter the U.S. lawfully would be barred under INA 212(a)(9)(B)(i)(II) but those who attempt to enter unlawfully, whether successful or not, are barred under INA 212(a)(9)(C)(i), which is a more serious violation for which no waiver is available.
The only way an alien, who has accrued at least a year of unlawful presence, may depart and then return to the U.S. without becoming inadmissible under INA 212(a)(9)(B)(i)(II) would be if the alien had obtained advance parole before leaving. In Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012), the BIA held that a departure under a grant of advance parole was not considered a departure for purposes of INA 212(a)(9)(B)(i)(II) because such departure and return were authorized. Such authorization also had the effect of preserving an alien’s eligibility for adjustment. Thus, the alien would not be inadmissible under INA 212(a)(9)(B)(i)(II) if he leaves and then returns through an advance parole.
I hope our discussions on INA 245(i) have left you with more answers than questions and a better appreciation of the potential issues that could complicate your application.
