Arriving alien apply for AOS

[Garfield85 13]

Hello everyone!!!Can an arriving alien in removal proceedings who was paroled and inspected (class of addition on I-94 is DT)adjust status directly with USCIS based on a US Citizen child who is over 21?

[Boiler 45,486]

No

[Happymallymute 50]

AOS is a defence for removal proceedings. Does the defendant have a lawyer? This is no longer a DIY process, obtain one. Where in the removal proceedings is the defendant, master hearing? Merits hearing? 

 

If it's early enough in the process...The USC must submit i130 immediately with USCIS. The processing time for i130 for parents or usc are almost 1 year out at this moment. 

 

Your lawyer can submit the i130 receipt to the court. 

 

Later when the i130 is approved, you should prepare the entire i485 packet and the lawyer should submit it to the court because the jurisdiction over the 485 lie with EOIR now, not USCIS. The i485 fee payment can be a tricky situation, follow your lawyer's guidance here. 

 

If everything looks good and nothing else is outstanding about the defendant's case, the current guidelines instruct eoir and the prosecution to forward the i485 case to USCIS for adjudication, closing out the case in the courts.

 

Btw the above is for simple cases. Your individual defendant may need to go through waivers of inadmissibility. This is why you need a lawyer to guide you through the process and interface with the court for you.

Edited September 24, 2022 by Happymallymute

[Garfield85 13]

Thank you for your reply!!!we do have a lawyer and he said that uscis has authority over arriving aliens in removal proceedings,we already did the I 130 and he wants to send it the 485 as well,here is what I found under the jurisdiction on uscis:

D. Jurisdiction

USCIS has the legal authority to adjudicate most adjustment of status cases, including applications by noncitizens who have been placed in deportation or removal proceedings as “arriving aliens.”^[18] An immigration judge (IJ) of the Executive Office for Immigration Review (EOIR) has jurisdiction in all other cases where an applicant is in removal proceedings, even if the proceedings have been administratively closed or if there is a final order of deportation or removal which has not yet been executed.^[19] As an exception to the general rule regarding “arriving aliens,” the IJ also has jurisdiction over an application filed by a noncitizen who has been placed in deportation or removal proceedings as an “arriving alien” when all of the following conditions apply:

• The adjustment application was properly filed with USCIS while the applicant was in the United States;

• The applicant departed from and returned to the United States based on a grant of an advance parole document to pursue the previously filed adjustment application;

• USCIS denied the adjustment application;

• DHS placed the applicant in removal proceedings as an “arriving alien” either upon return to the United States on the advance parole document or after USCIS denied the adjustment application; and

• The applicant is seeking to renew the previously denied application for adjustment of status in proceedings.^[20]

[Happymallymute 50]

Your individual circumstances dictate what you'll need to do, and when it comes to dealing with the court your lawyer will know what to do better than you or me. 

 

I am assisting my mom with her removal proceedings right now, but her case isn't as an arriving alien. 

 

Good luck with your case.

[Garfield85 13]

Thanks!!!