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Adjustment Of Status – Life Act Controls Despite Unlawful Illegal Reentry

The U.S. Court of Appeals for the Tenth Circuit recently reviewed in a precedent decision two contradictory¬Ě laws to determine whether the Attorney General could adjust the status of an alien who illegally reentered the U.S. after having been unlawfully present in the U.S. for more than one year. The alien married a U.S. citizen who filed an alien relative petition for him prior to April 30, 2001 under the Life Act.

The alien traveled to Mexico for his immigrant visa interview and was denied it because the U.S. Consul decided that he was inadmissible as an alien who had been unlawfully present in the U.S. for more than one year. As a result he was inadmissible for a period of 10 years. The alien returned to the U.S. without a visa because his wife was sick. The Court of Appeals held that the Life Act, Section 245(I) of the Immigration & Nationality Act could confer adjustment of status on this alien in spite of the fact that he illegally reentered the U.S. and had been illegally present in the U.S. for more than one year.


Does a failure to comply with a Voluntary Removal Order render an alien ineligible to adjust status in the U.S.? In a recent decision by the U.S. Court of Appeals in the 2nd Circuit, it was held that equitable relief would enable an alien to adjust status in extraordinary circumstances, e.g. such as where an immigration agent had misinformed the alien and the alien’s representative only advised her of a Voluntary Removal Order a day after she was required to depart the U.S., and the representative also misinformed the alien that even if she failed to depart voluntarily as prescribed, she could avoid being statutorily ineligible by demonstrating that there were exceptional circumstances beyond her control.

The case was remanded to the Board of Immigration Appeals to determine if Courts may grant exceptions to the 10 year ineligibility period incurred as a result of failure to comply with a Voluntary Departure Order. The U.S. Court of Appeals, Second Circuit, retained jurisdiction to grant the exception to the ten year ineligibility bar if the Board did not heed the decision of the Court.


The Administrative Appeals Office (AAO) in a recent precedent decision extended an H-B classification beyond 6 years, allowing the alien to recapture time spent outside the U.S. The AAO held that the language of the statute indicates that the six year period accrues only during periods when the alien is lawfully admitted and physically present in the U.S.. Thus only the time actually spent in the U.S. counts toward the six years. The AAO stated that each time the alien beneficiary (H-1 or L-1) is outside the U.S., it does not count against the six year running time, and hence on returning to the U.S., the alien beneficiary (H or L) may recapture the lost time while abroad. The United States Citizenship & Immigration Services has officially adopted that the six year period includes only the actual time spent in the U.S.

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