Adjustment of Status on approved i140(EB2NIW), currently asylum pending

[Abip 0]

hello all

I am looking for guidance on my case and hope I can get referred to precedents that will help

I came to the United states on a B2 visa in Dec 2017 and filed for asylum within my 6months visa validity. I was interviewed within my 6months visa validity and referred to the courts. Since then I am yet to go for MCH as the courts keep rescheduling. in the meantime due to my advanced degree I applied for EB2 NIW and due to the nature of my job I was able to prove the 3 prongs and my petition was approved.

 

Several lawyers told me that I am not eligible to file in the US and I had to leave the country. I have a daughter who is 5 and a us citizen the main reason I had to file asylum and leave my life back in my home country because she was going to be circumcised so I cant go back to my home country. A lawyer agreed to take my case saying it was possible to file in the US if DHS agrees to terminate my case, if so then USCIS will have jurisdiction over my case and I would be able to adjust my status.

 

However I found a recent precedent by USCIS saying an asylum seeker cant adjust status as they are not in lawful status and as such cant adjust status in the US. this non precedent is by the Administrative appeal office. I am eligible to adjust my status? what should i do

 

 

 

I. LAW Section 245(a) of the Act provides that the status of noncitizens who were inspected and admitted or paroled into the United States may be adjusted to that of a lawful permanent resident if they are eligible to receive an immigrant visa and are admissible to the United States and have an immigrant visa immediately available at the time the adjustment application is filed. In addition, noncitizens who seek adjustment of status in a category other than immediate relatives ofU. S. citizens or certain special immigrants must demonstrate that they are not subject to any of the bars to adjustment set forth in section 245(c) of the Act. Section 245( c )(2) of the Act disqualifies from adjustment noncitizens who are in unlawful immigration status on the date of filing an adjustment application, have "failed ( other than through no fault of [their] own or for technical reasons)" to maintain continuously a lawful status since entry into the United States, or have accepted unauthorized employment prior to filing an adjustment application. Section 245(c)(7) of the Act prohibits noncitizens who are beneficiaries of employment-based visa petitions from adjusting status if they are not in a lawful nonimmigrant status on the date of filing. Section 245(k)(2) of the Act allows noncitizens who are beneficiaries of employment-based visa petitions to adjust status pursuant to section 245(a) notwithstanding subsections (c)(2), (c)(7), and ( c )(8) it: subsequent to a lawful admission, they have not for an aggregate period exceeding 180 days failed to maintain continuously a lawful status, engaged in unauthorized employment, or otherwise violated the terms and conditions of their admission. II. ANALYSIS The issues before us on certification are: 1) whether the Applicant, through the filing of an asylum application, maintained a lawful status after the expiration of his nonimmigrant visitor status for the purposes of sections 245( c )(2) and 245( c )(7) of the Act, and 2) whether his asylum request, which was pending when he applied for adjustment of status and subsequently denied, was a request to maintain lawful status that qualified him for the technical violation exception under section 245( c )(2). The Director determined that the Applicant was ineligible to adjust status pursuant to section 245( c )(7) of the Act, which specifically bars applicants from adjusting status based on employment if they are not in a lawful nonimmigrant status on the date of filing the Form I-485. The Director further determined that the Applicant was barred from adjustment under section 245(c)(2) of the Act because he did not continuously maintain a lawful status after being admitted to the United States in January 2015, and he did not establish that he qualified for an exception to this requirement. The Director determined that the Applicant did not meet the criteria under section 245(k)(2) of the Act for exemption from the section 245( c )(2) and ( c )(7) bars to adjustment because he had failed to maintain a lawful status for over 180 days subsequent to his last lawful admission prior to filing for adjustment of status. The Applicant does not contest that his nonimmigrant status expired on July 26, 2015, while his asylum request was pending. He asserts that he was nevertheless maintaining lawful status in the United States after July 2015 because U.S. Citizenship and Immigration Services (USCIS) authorized him to remain and work in the United States until a decision was made on his asylum application. He further argues that he failed to maintain his nonimmigrant status for "technical reasons," because USCIS did not timely act on his asylum request, and that his failure to extend his nonimmigrant status after applying for asylum was through "no fault" of his own. He claims that the exception in section 245(c)(2) of the Act therefore applies in his case and allows him to adjust his status despite not having maintained lawful nonimmigrant status. The Applicant was admitted to the United States on January 27, 2015, as a nonimmigrant visitor (B2) for a six-month period until July 26, 2015. In February 2015, while in B-2 nonimmigrant status, he 2 filed a Form I-589, Application for Asylum and for Withholding of Removal (asylum application). USCIS later authorized the Applicant's employment in the United States based on the pending asylum application, and he began working in November 2015. In May 2016, the Applicant requested that his asylum interview be expedited, but the asylum office denied the request citing lack of resources. In February 2017, the Applicant's employer filed an employment-based immigrant visa petition to classify him as an unskilled worker under section 203(b )(3)(A)(iii) of the Act, 8 U.S.C. § ll 53(b )(3)(A)(iii), and the Applicant concurrently filed the instant Form I-485 to apply to adjust status to that of a lawful permanent resident. In[::::]2017, while the adjustment of status application was pending, the asylum office determined that the Applicant had not established eligibility for asylum and referred his claim to the Immigration Court through issuance of a Form I-862, Notice to Appear (NTA). An Immigration Judge dismissed the removal proceedings in I 12018 on motion of the Department of Homeland Security (DHS). The Director's denial of the adjustment of status application followed. A. Effect of Pending Asylum Application on Lawful Status The Director determined that the Applicant was not in and maintaining lawful immigration status when he filed his adjustment application in February 2017 because his B-2 nonimmigrant status had expired and he had not been granted an extension or change of his nonimmigrant status. The Director further found that a pending asylum application did not create any new "lawful status" within the meaning of section 245(c) of the Act. We agree. The regulation at 8 C.F.R. § 245.l(d)(l) defines "lawful immigration status" as limited to six categories and does not include a pending asylum application as one of the categories. 1 Furthermore, policy guidance issued by the former Immigration and Naturalization Service (INS) has consistently recognized that filing an application for asylum does not continue or extend lawful status for the purposes of section 245(c) of the Act. See Memorandum from Louis D. Crocetti, Associate Commissioner, Policy Clar[fication Regarding the Effect of Filingfor Asylum on Nonimmigrant Status (Apr. 23, 1996) (Crocetti Memorandum). The Crocetti memorandum reaffirmed prior guidance stating that the act of applying for asylum does not have the effect of extending nonimmigrant status and does not confer any type of lawful immigration status upon an applicant. Id. at 1. This interpretation is consistent with regulations governing asylum applications, which prescribe different post-adjudication procedures depending on an applicant's immigration status at the time a decision is rendered. Specifically, 8 C.F.R. § 208.14(c)(l) instructs that if asylum is not granted and the applicant appears deportable under section 237(a) of the Act,2 the asylum officer must refer the application to an Immigration Judge for adjudication in removal proceedings. 

[PaulaCJohnny 713]

Short answer. No, you cannot. You already read the law. If there is no exception, you cannot adjust.

 

Sorry for that and good luck

 

 

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~~ Topic moved from Progress Reports to Process & Procedures ~~

[Boiler 45,525]

I remember seeing some discussion about Asylum claim being considered status at the beginning of the year, a Lawyer on YT saying watch this space, coming soon and then nothing. I never understood the logic of it but seems to have gone away.

 

On the plus side I have seen people waiting 7 years just for the Asylum Office interview for their asylum claim to proceed so you seem on a really fast track.

 

Maybe ask your Lawyer what can be done to speed up your Court case?

Edited November 16, 2022 by Boiler

[Family 3,988]

You consulted a few attorneys who told you pending asylum is NOT the same as maintaining status . Then you found one who said “ Yes , pending asylum DOES qualify you to adjust..pay retainer “. 
 

Ask that attorney to provide you with case law or similarly granted decisions he has won/ argued..even if you need to be aggressive. 
 

Whatever you do, work closely with your asylum/ removal defense attorney to strengthen the asylum claim and / or COR. 
 

Random internet attorney website and general consensus is still NO.

 

The single most critical thing that you must understand about having a pending asylum application is that it is different from “being in status.” A pending asylum claim gives you permission to be in the United States, but does not give you a legal status or a visa of any kind.

https://zontlaw.com/what-does-it-mean-if-my-asylum-status-is-pending/

[Rrejab 0]

Dear Abip,

 

I have a similar situation. Were you able to adjust your status?

 

Thanks,

Rrejab

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Zombie thread closed. OP hasn’t logged on in 2 years.

 

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