I601 and Adjustment Denials

[Sergi9 110]

Holding in Abeyance Certain Adjustment of Status Denials

Applicants for an I-601 waiver have the right to direct appeal. However, only the field office’s decision on the I-601 waiver is appealed, not the underlying adjustment application (which has no right of direct appeal). While the denial of the adjustment of status is premised on the fact that the waiver has been denied, the waiver denial is a not a final denial. Therefore, it seems legally prudent that the underlying I-485 remain open and pending while the AAO appeal is pending.

AILA respectfully requests that the underlying adjustment application not be denied, but rather, remain pending and held in abeyance while the appeal of the waiver is pending at the AAO. This will allow applicants to remain eligible for an EAD and have a right to remain in the United States while the appeal is pending.

Response: The agency has reviewed this policy and believes that a decision on the underlying Form I-485 application should be made when the Form I-601 is denied. If USCIS issues an NTA, the applicant can generally seek review of the adjustment claim before the immigration judge. 8 CFR 1245.2(a). The immigration judge has jurisdiction to adjudicate a waiver application, 8 CFR 1240.11(a)(2), even if the applicant has appealed the USCIS denial to the AAO.