Interfiling New Immigrant Petition into Pending I-485 Case

Interfiling – also referred to as “conversion” or “transfer” – is a process where a foreign national seeking to adjust status can change the underlying immigration petition (most often an I-140 employer sponsored petition or an I-130 family based petition) forming the original grounds for the I-485 adjustment of status application. Rephrased, interfiling permits the foreign national to substitute the first petition with another category of petition during the pendency of an I-485 application.

Some benefits of interfiling include avoidance of multiple filings and attendant fees should an applicant’s circumstances change in a manner which would otherwise require additional applications. Interfiling also provides an alternative strategic means to reach permanent residency more quickly or more advantageously in certain situations.    

One example where interfiling has historically proven advantageous occurs when a foreign national obtains an approved EB-3 labor certification and I-140 petition and correspondingly submits an I-485 application to adjust status to legal permanent resident based on a visa number current and available at the time of filing. However, due to retrogression, the I-485 application cannot be approved because the visa number is no longer available at the time of adjudication.  

In the above scenario, the I-485 cannot be approved because, in order to adjust status to that of legal permanent resident, an EB-3 immigrant visa number must be current and available to the applicant both at the time of filing the I-485 application and at the time of adjudication. Sometimes, a visa number current and available at the time of filing becomes unavailable at the time of adjudication due to retrogression. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available. If, at the time of the I-485 adjudication, an applicant’s priority date no longer meets the cut-off date published in the applicable Visa Bulletin (due to retrogression) his/her case must be held in abeyance until a visa once again becomes available.

Sometimes, however, the foreign national (through additional job experience or an advanced degree) obtains an approved EB-2 labor certification through the employer during the pendency of the EB-3 case. Interfiling allows our hypothetical applicant to “convert” or “transfer” the pending I-485 application from the existing approved EB-3 I-140 petition to the more recently approved EB-2 I-140 petition such that the applicant does not have to file and pay for another I-485 application.

The interfiling further requests the pending I-485 application be adjudicated using the EB-3 priority date but according to the availability of EB-2 visas. Therefore, the previous EB-3 I-140 petition is replaced with the newly approved EB-2 I-140, while keeping the earlier EB-3 priority date. As a result, the I-485 application can be granted if the retained EB-3 priority date is current in the EB-2 visa category at the time of the interfiling.

As one can see – while interfiling can be a very effective strategy for an accelerated or more beneficial path to permanent residency – there are many variables to consider dependent on the nature of one’s case and circumstances. It is therefore advisable to consult an experienced immigration attorney to determine if interfiling is a viable option. The professionals at Sharma Law Offices, a highly rated immigration law firm in Atlanta, are happy to speak with you regarding interfiling and other immigration matters.

BIA Appeal Reverses Material Misrepresentation on I-485

From time to time, like in our previous writing, Abandonment of LPR (Green Card) Status (Part II), we discuss unpublished/non-precedential decisions of the Board of Immigration Appeals (BIA) made public thru various means. While non-precedential decisions are only binding on the parties to the case – they are nevertheless very instructive because the BIA is the highest administrative body for interpreting and applying immigration laws.

Another such non-precedential decision is the case Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014), wherein the BIA addressed the issue of whether a false signature on a Form I-485 application for adjustment of status constituted a willful misrepresentation of material fact. By statute, Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) renders inadmissible any foreign national seeking to procure a benefit  under the INA through fraud or willfully misrepresenting a material fact.

In Luwaga, the BIA considered an Immigration Judge’s (IJ) ruling that the respondent (Luwaga) willfully misrepresented a material fact on his adjustment of status Form I-485 application by testifying, under oath, that the signature on the application was his when, in reality, it was not. Ultimately, the IJ declared Luwaga inadmissible because there was no properly sworn Form I-485 before the court.

In sustaining Luwaga’s appeal, the BIA stated the general test for assessing whether a misrepresentation is material as “whether the respondent potentially would be inadmissible or ineligible for relief under the true facts, or whether the misrepresentation would tend to cut off a line of inquiry relevant to the respondent’s eligibility for admission or relief.”  

The BIA applied this test and initially conceded as “obvious” the IJ would have inquired further had Luwaga truthfully admitted his signature did not appear on the application.

However, the BIA gave more weight to the fact no finding was made (by the IJ) that the substantive information in the application itself was false or misleading. Furthermore, the BIA found especially significant Luwaga had previously established prejudice due to ineffective assistance of his prior attorney which may have contributed to his false testimony.

Accordingly, in the absence of a finding of material misrepresentation as to substantive content, the BIA determined the identity of the signer on Luwaga’s original Form I-485 not relevant to his admissibility or eligibility for other relief, particularly in the context of a substantiated claim of ineffective assistance of counsel.      

Happily, it appears substance prevailed over form in this BIA ruling. Sharma Law Offices, a highly rated Atlanta immigration law firm, is available for consultation with respect to adjustment of status issues.     

USCIS no Longer to Deny Religious Worker I-360 Visa Petitions Based on Lawful Status Requirements

On July 5, 2015, and in the wake of the U.S. Court of Appeals for the Third Circuit’s April 7, 2015, decision in Shalom Pentecostal Church v. Acting Secretary DHS, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (PM) on the subject of qualifying U.S. work experience for special immigrant religious workers.

By way of background, the Immigration and Nationality Act (INA) enables a foreign national to obtain a visa as a special immigrant religious worker if the individual meets certain criteria including, among others, the foreign national has been “carrying on” religious work for at least two years preceding the filing of the I-360 visa petition.

In 2008, USCIS – as the Federal Agency empowered to implement this provision of the INA through   regulations – amended its regulations at 8 CFR 204.5(m) to require the religious work carried on by foreign nationals to have occurred continuously for at least the two year period immediately before filing an I-360 visa petition either abroad or in lawful immigration status if in the United States.

In so amending the regulations, USCIS essentially interpreted the “carrying on” provision of the INA statute to mean qualifying work (if gained in the U.S.) must be accomplished while the foreign national is in lawful status.   

Although the foreign national in the Shalom Pentecostal Church case engaged in otherwise qualifying religious work in the U.S. during the two years before his I-360 petition was filed – USCIS denied his petition under the above regulations because he did so without lawful status.

However, the Circuit Court in Shalom Pentecostal held USCIS improperly denied the petition because the regulations at 8 CFR 204.5(m) requiring lawful status for qualifying U.S. religious work constitute an impermissible interpretation of the term/phrase “carrying on” as used in the controlling INA statute, and, therefore, went beyond USCIS’ authority under the law.

The Court found significant the controlling INA statute (itself) did not specifically state the two years of qualifying U.S. religious employment be carried out while the foreign national was in lawful status. The Court reasoned the fact Congress expressly specified “lawful status” in other INA statutes as an operative term was evidence of congressional intent to omit the requirement in the INA statute at issue thereby purposely creating an exception for special immigrant religious workers.    

In acquiescing to the Shalom Pentecostal decision, USCIS states in the July 5 PM that it will no longer deny special immigrant religious worker petitions based on the lawful status requirements at 8 CFR 204.5(m). The USCIS further advises the PM applies to all currently pending I-360 petitions for special immigrant religious worker status and to new petitions filed on or after July 5, 2015 – the date of the Policy Memorandum.     

Please feel welcome to contact the Sharma Law Offices, a highly rated immigration law firm in Atlanta, for assistance with your immigration matters.  

U.S. Supreme Court Decision Broadens Rights Afforded to Same-Sex Couples

In our past news item, DOMA Ruling and Immigration Benefits for Same-Sex Partners, we discussed the implications of a June 2013 Supreme Court of the United States (SCOTUS) decision invalidating an  operative provision of the Federal Defense of Marriage Act (DOMA) affecting same-sex marriages.

More specifically, in U.S. v. Windsor, the SCOTUS struck down Section 3 of the DOMA as unconstitutional. Section 3 of DOMA prohibited the federal government from recognizing same-sex married couples as married for federal purposes.

Prior to U.S. v. Windsor, DOMA, Section 3, had far reaching consequences because many federal laws addressed or hinged upon marital or spousal status.

With respect to federal immigration law, under DOMA, same-sex partners were disallowed immigration benefits conditioned upon the existence of a marriage or spousal status. For example, persons in same-sex unions were excluded from the same immigration benefits obtainable by persons in opposite-sex marriages such as those related to family-based visas, employment-based visas, refugee status, asylum, naturalization, and discretionary waivers.

After Windsor struck down DOMA’s confinement of marriage to heterosexual couples, the U.S. Citizenship and Immigration Services (USCIS) began to recognize same-sex marriages for immigration purposes. In this regard, USCIS issued a series of Frequently Asked Questions (FAQs) specifying how the Windsor decision implicated certain immigration based benefits contingent on marital or spousal status.

In one key FAQ, USCIS concluded the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Therefore, under this “State of Celebration” FAQ, same-sex couples living in a state that did not recognize same-sex marriage could still apply for federal immigration benefits as long as they were validly married in another state that recognized same-sex marriage.

Notably, but for the 2013 SCOTUS Windsor decision, more recent spousal immigration benefits related to the ability to study and work in the U.S. and  discussed in our news items DHS Permits Part-Time F-2 and M-2 Study and Removes DSO Cap and H-4 EAD for Certain Dependent Spouses Now in Effect, would not have applied to persons in same-sex marriages under the pre-Windsor Defense of Marriage Act.

On June 26, 2015, as the title to the present article suggests, the SCOTUS issued another decision in Obergefell v. Hodges which effectively broadens the scope of the Windsor decision.

Whereas Windsor invalidated a provision of a federal law (DOMA), Obergefell addresses the more global issue of whether individual states are permitted to limit the definition of marriage to the union between one man and one woman.

In Obergefell, the SCOTUS found the right to marry is a fundamental liberty protected by the Fourteenth Amendment to the U.S. Constitution that exists between two people of the same sex. In doing so, Obergefell now requires all 50 states to license same-sex marriages and to recognize same-sex marriages legally performed out of state.

Accordingly, de facto expansion of the above mentioned “State of Celebration” FAQ is one result of the Obergefell decision because pre-Obergefell variation in state law as to the validity of same-sex marriage is no longer an impediment to immigration benefits conferred under federal law.

Over the years, Sharma Law Offices, a top rated Atlanta Immigration Lawyer, has handled thousands of marriage-based and employment-based petitions and is proud to work on behalf of individuals and businesses seeking same-sex immigration benefits.

U.S. Supreme Court Solidifies the Doctrine of Consular Nonreviewability

On June 15, 2015, the Supreme Court of the United States issued a decision in Kerry v. Din which reinforces the viability of the judicially created doctrine known as “consular nonreviewability.”

At its broadest, the doctrine of consular nonreviewability is typically understood to mean a consular officer’s decision to deny a visa is not subject to judicial review and scrutiny regarding the underlying bases for such denial. As a narrow exception, the government need only supply a “facially legitimate and bona fide” reason for denying a visa when the denial affects the rights of a U.S. citizen. The end result is an applicant is often bereft of meaningful recourse to test the validity of and/or overcome a consular officer’s decision to deny his or her visa.

The doctrine evolved from case law more or less beginning in the late 1800s at a time when anti-immigration sentiment ran high. The decisions in this line of cases generally found U.S. courts should not interfere with determinations whether to allow foreign nationals into the U.S. because such matters are sovereign and political in nature and rest exclusively within the province of congress. This is sometimes also referred to as “plenary power” of congress to exclude foreign nationals the privilege to enter the United States. 

Under the facts of Kerry v. Din, the foreign national, Kanishka Berashk, a citizen of Afghanistan, is married to Fauzia Din, a naturalized U.S. citizen. Berashk also held a civil servant position (payroll clerk) with the Afghanistan government during a time when the Afghan government was controlled by the Taliban.

Din filed and obtained approval of an I-130 petition for her husband “as an immediate relative” so they could be together as husband and wife in the United States. However, after a prolonged waiting period, the consular officer denied Berashk a visa – vaguely citing an INA provision prohibiting admission of individuals engaged in “terrorist activities.” The denial offered no explanation specifying what terrorist activities Berashk engaged in or what Berashk had otherwise done that led to denial of his visa. One can speculate Berashk’s civil servant position under a Taliban controlled government played some part in the denial.   

Din thereafter filed a lawsuit in U.S. district court seeking relief in the form of an extraordinary writ instructing the government to properly adjudicate Berashk’s visa application and provide notice as to the facts upon which the government relied to deny her husband’s visa. The U.S. district court dismissed Din’s claim under the doctrine of consular nonreviewability. Upon Din’s appeal, the U.S. circuit court disagreed with the district court and found the government’s mere citation to an INA statute in the absence of supporting factual allegations was not a facially valid reason to deny Berashk’s visa application.  

The government thereafter appealed the circuit court’s decision to the U.S. Supreme Court.  Unfortunately for Din and her husband, the Supreme Court vacated the circuit court decision and found Din, as a naturalized U.S. citizen, did not have a right to a more detailed explanation than the “facially legitimate and bona fide” citation to the federal INA statute related to terrorist activities, and, ultimately, Din did not have a due process right for judicial review of the consular officer’s denial.

The importance of carefully crafting visa applications at consulates abroad in the first instance is crucial, especially in light of the continued viability of the doctrine of consular nonreviewability rendering it very difficult to upset a consular officer’s decision to deny a visa. Therefore, it is recommended one contact an experienced immigration attorney to consult on such matters, particularly when there may only be one bite at the apple.

Abandonment of LPR (Green Card) Status (Part II)

In Part I, we touched upon principles and concerns surrounding the issue of abandonment as it generally relates to travel abroad and maintaining Legal Permanent Resident (LPR) or “Green Card” status.

Here, in Part II, we will briefly examine an unpublished Board of Immigration Appeals (BIA) decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) as an example of how some of the principles discussed in Part I were applied by an Immigration Judge (IJ) and by the BIA to an interesting set of facts.

Under the facts of the decision, the LPR, Otaifah, is a native citizen of Yemen. Otaifah married and came to the U.S. based on derivative status to his wife – a child of a U.S. citizen.

Otaifah, unable to initially find work in the U.S., returned to Yemen, then came back to the U.S. where he found work for a period of time. However, Otaifah quit his U.S. job and returned to Yemen in July 2003. It was during this last trip to Yemen that Otaifah was arrested and jailed in 2004. 

Otaifah was subsequently acquitted of the charges in Yemen and released from jail. Sometime after his release, Otaifah returned to the U.S. in December 2010. Removal proceedings were thus initiated based on Otaifah’s extended absence (July 2003 – December 2010) from the United States.

At issue before the IJ during the removal hearing was whether Otaifah “intended to abandon his status or … his intent to actually reside in the United States” by virtue of his time abroad in Yemen viewed in light of other evidence regarding Otaifah’s comparative ties to the U.S. and Yemen. The IJ noted since Otaifah was in Yemen for over a year; “The Government is aided by the statutory presumption of abandonment of status by departure for more than one year.”

The IJ found Otaifah was arrested in 2004 and was freed from incarceration around September 2007. The IJ recognized the arrest and jailing for the period between 2004 and 2007 as an unforeseen event excusing Otaifah’s absence for this portion of his last stay in Yemen.

During the removal proceeding, Otaifah testified when he last departed for Yemen in July 2003, he intended to stay 7-8 months, then return. He maintained his failure to return was the result of being taken into custody in 2004 and so precluded from entering the U.S. until his release in December 2010. Therefore, a discrepancy in the evidence existed as to whether Otaifah was released in 2007 versus 2010. 

Nevertheless, the IJ decided Otaifah was freed from incarceration in 2007 and able to return to the U.S. during the period from September 2007 and December 2010. The IJ considered the multiple years between 2007 and 2010 an unexplained absence because Otaifah was free and able to return to the U.S., but did not do so.

Based on his finding, the IJ treated Otaifah’s unexplained absence from 2007 to 2010 as “a permanent resident status adopted but then abandoned by departure for an unexplained, lengthy period of time, well more than a year” and held Otaifah “in fact abandoned his lawful permanent resident status in the United States.” 

In so finding, the IJ considered evidence of Otaifah’s ties to the U.S. during the relevant time period(s) as indicia of his intent (or lack thereof) to maintain permanent residence in the U.S. including: Otaifah did not have a U.S. bank account; he had not paid U.S. taxes; he was estranged from his wife; Otaifah had a child who remained in Yemen; Otaifah was not close to his father-in- law; and, Otaifah had no property in the U.S., but property, a store, work, and land in Yemen. 

The IJ found relevant Otaifah’s first two stays in the U. S. were short (2-3 months). Otaifah was unable to find work during the first stay, and during the second – he found work but apparently quit after a short period of time. The IJ further noted Otaifah last flew to Yemen with no return air ticket to the United States.

The IJ was especially concerned Otaifah “came to the United States, left, came to the United States and left, he never appeared to have fully established himself in the United States; rather, it appeared that he was visiting the United States and returning to a domicile in Yemen.”

Consequently, the IJ ordered Otaifah’s removal to Yemen.  

Otaifah thereafter appealed the IJ’s order. On appeal, the BIA narrowly focused on the evidentiary inconsistency regarding Otaifah’s release date. Specifically, the IJ based his finding Otaifah was released in September 2007 on a prison release form dated 09/07, yet in the body of the form it states he was released in 2010.

Since Otaifah claimed he was released in 2010 – the BIA held the government (despite the presumption of abandonment) did not meet its burden to establish Otaifah, who was in Yemen between 2003 and 2010, intended to abandon his status as a lawful permanent resident. The BIA remanded for clarification as to the actual date on which Otaifah was released from prison in Yemen and thereby free to return to the United States.         

As discussed in Part I, the government must prove intent to abandon LPR status in the United States. The above case illustrates the interplay between factors relevant to finding intent including the length of time and frequency one spends abroad, the nature of those visits, the presumption of abandonment for absences in excess of a year, the importance of documentary evidence demonstrating strong and fixed ties to the U.S., and the importance of accurately documenting the temporary purpose of the trip abroad, or how an unexpected occurrence impeded return within a year. 

Sharma Law Offices, a highly rated immigration law firm, remains available to consult on matters affecting travel and status

Abandonment of LPR (Green Card) Status (Part I)

Maintaining Legal Permanent Resident (LPR) status requires intent to permanently reside in the United States. Accordingly, an LPR is subject to a removal order from an Immigration Judge if found to have “abandoned” intent to live in the U.S. permanently.

The issue of abandonment often arises when an LPR travels abroad. Although the LPR’s intent is controlling – the length of time and frequency one spends abroad are factors weighed by Customs and Border Protection (CBP) to readmit LPRs at the port of entry, and by Immigration Judges to determine whether the LPR abandoned intent to maintain permanent residence in the United States.     

As to length of time, absences in excess of 6 months may give rise to a presumption of   abandonment. Absences from the U.S. for a year or more are likely to face the greatest amount of scrutiny because, for one, the Permanent Resident Card or “green card” becomes technically invalid if the LPR is abroad for over a year. In these instances, the LPR may face a greater burden to overcome the presumption of abandonment than for those staying abroad for less protracted timeframes.

As to frequency, a LPR’s intent to maintain permanent residency may come into question if, for example, the individual lives abroad and routinely returns to the U.S. once every 5 months. Without more, an Immigration Judge may very well consider such person to have abandoned LPR status despite keeping stays outside the U.S. under 6 months.

There are certainly legitimate reasons for LPRs to remain abroad for long periods of time. To care for infirm or elderly relatives is one example. In such instances, presenting evidence to CBP at the port of entry demonstrating strong and fixed ties to the U.S. is important indicia of intent to maintain permanent residence and that the stay abroad was indeed for a temporary purpose.

Such evidence may include filing of income tax returns, family members in the U.S., property ownership, bank accounts, insurance, U.S. Driver’s license, and business affiliations. Things like returning to the U.S. on a one way ticket versus a round trip ticket may also be considered.

In addition, obtaining a reentry permit (valid for 2 years) if one knows ahead of time the stay abroad will exceed a year, or applying at a U.S. Consulate abroad for a SB-1 Returning Resident Visa in instances where the LPR is kept away longer than a year due to unforeseen circumstances, are potential preemptive options to consider. In either case, the LPR should be prepared to document the reasons for leaving the U.S., the temporary nature for the stay abroad, and the cause for not returning within a year.

As often the case, travel abroad raises many issues to consider. Having a plan in place to avoid unintentionally abandoning LPR status deserves consideration. Sharma Law Offices, a highly rated Atlanta immigration law firm, is experienced in these matters and is available for a consultation.

In Part II, we will discuss the unpublished Board of Immigration Appeals decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) which is an example of how some of the principles discussed herein were applied by an Immigration Judge and the Board of Immigration Appeals.

What Is a Public Charge?

Determination that a person is a “public charge,” under U.S. immigration law has been used as grounds for inadmissibility and deportation of immigrants for many years, although deportations on public charge grounds are very rare because the standards are very strict. U.S. immigration officials use the term “public charge” in reference to a person who is considered primarily dependent on the government for assistance, specifically cash assistance in order to maintain an income or provide for institutionalization for long-term care.

Although an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge.

The following is a list of cash assistance for income maintenance, which can be considered by immigration officials, and disqualify an immigrant, when determining whether an immigrant will be a public charge:

  • Supplemental Security Income;
  • Temporary Assistance for Needy Families (TANF);
  • State and local cash benefit programs that are for the purpose of income maintenance (often called “General Assistance” but which may exist under other names);
  • Long-term care benefits under Medicaid.

However, there are several other program which provide various assistance, and are not considered as a cash benefit for income maintenance purposes, such as:

  • All government health center programs;
  • Educational benefits (including Head Start);
  • Prenatal care;
  • Food Stamps;
  • WIC;
  • Child care assistance;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Job training programs.

Eligible non-citizens can use all of the services listed above without fear that use of these services will be considered evidence of public charge status. It should also be noted that the totality of the circumstances are taken into account when the USCIS is deciding whether an immigrant is likely to become a public charge. These factors may include the alien’s age, health, family status, assets, financial status, resources, education and skills. No single factor will disqualify an immigrant from becoming a lawful permanent residence, as discretion is used, but the longer an alien has received cash income-maintenance benefits in the past, as well as the greater the amount of benefits, the stronger the implication that the alien is likely to become a public charge.

BIA decision on Priority Date Retention at Odds with Longstanding USCIS Policy

Recently, the Board of Immigration Appeals (BIA) issued a non-precedential decision – In re: Grace Estrellado – that merits attention because the result appears contrary to the U.S. Citizenship and Immigration Services’ (USCIS) policy regarding priority date retention.

More specifically, under past practice, USCIS allows a beneficiary of a new I-140 to retain the priority date from a previously approved I-140 petition after the first I-140 was withdrawn or revoked as a result of the beneficiary’s move to a new employer. An exception to this policy occurs when the original I-140 is revoked based on a government finding of fraud or willful misrepresentation. In another related scenario, USCIS allows for priority date retention occasioned by the beneficiary’s “upgrade” to a different employment based category (i.e., EB-3 to EB-2) than originally approved.

The ability to retain the priority date applicable to an earlier approved I-140 is significant because it enables the beneficiary to change positions or employers without prolonging the wait for a green card based on a later priority date applicable to more recently approved I-140 petition. In the case of an “upgrade”, EB-2 priority dates may become current sooner than the EB-3 category. Therefore, a beneficiary may obtain a green card more quickly if the priority date applicable to the previously approved I-140 (EB-3) ports to a subsequently approved 1-140 under the EB-2 classification.

Under the facts of In re: Grace Estrellado, the respondent, Grace Estrellado, was the beneficiary of an approved I-140 petition with a 2006 priority date. Ms. Estrellado subsequently obtained another job and was sponsored by the new employer for a green card. As a result, Estrellado became the beneficiary of a second approved I-140 with a 2011 priority date. Estrellado argued the 2006 priority date should apply to the new I-140 and enable her to immediately adjust status because the old priority date had since become current. However, the Immigration Judge, and the BIA on appeal, determined Estrellado was not eligible to retain the 2006 priority date because the first I-140 had been withdrawn by the earlier employer and its approval thereafter revoked. In so holding, BIA appeared to strictly apply regulations stating revoked petitions do not confer priority dates totally apart from the context of longstanding USCIS interpretation and policy allowing for (in the absence of fraud or willful misrepresentation) priority date retention in instances where the predecessor I-140 had been revoked by operation of changing employers.

It is important to emphasize In re: Grace Estrellado is a non-precedential BIA decision and, as such, is only binding as to the four corners of that particular case. Nevertheless, the holding – that the beneficiary may not utilize the priority date from her original I-140 petition because her prior employer withdrew the I-140 and its approval was thereafter revoked by USCIS – appears to ignore (or affords no weight) to prior government practice to the contrary.

The above case illustrates past government practice is not a guarantee and is – at times – subject to piecemeal and seemingly inconsistent interpretations. At Sharma Law Offices, we strive to keep current with respect to such contingencies, and likewise advise consultation with an experienced immigration attorney prior to a changing one’s employment status.

Advance Parole Does not Trigger Unlawful Presence

Traveling abroad? The Matter of Arrabally and Yerrabelly, 25 I&N Dec.771 (BIA 2012) as an example of the interplay between travel and status.

In the landmark decision Matter of Arrabally and Yerrabelly, the Board of Immigration Appeals (BIA) found a husband (Arrabally) and wife (Yerrabelly) – both of whom resided in the US for over a year after their respective temporary visas expired – could travel outside the US under a grant of “advance parole” without becoming inadmissible by operation of law. While this decision is several years old, well settled, and often cited by immigration lawyers, a brief synopsis of the underlying facts and rationale behind the decision may benefit as an example of issues arising from travel abroad.

Under the facts, Rao Arrabally and Sarala Yerrabelly entered the US as non-immigrants with temporary visas. The couple remained in the US for some years after their respective visas expired. The husband thereafter obtained an approved employment-based immigrant visa petition and the couple accordingly applied to the United States Citizen and Immigration Services (USCIS) for adjustment of status. However, during the pendency of the adjustment of status application, the couple needed to return to India to attend aging parents.

At issue is a federal statute stating a foreign national is barred from admissibility if he or she departs the US and seeks admission within 10 years of the date of such departure if that person was unlawfully present in the US a year or more prior to departure. Here, Arrabally and Yerrabelly were “unlawfully” present in the US more than one year after their respective temporary visas expired. Of concern was whether USCIS would consider the pending adjustment application abandoned as a result of departing the United States. As a result, Arrabally and Yerrabelly applied for (and were granted) “advance parole” which is a travel dispensation typically sought by foreign nationals already inside the US desiring to leave temporarily but fear exclusion as inadmissible upon return.  

Despite the grant of advance parole, upon their return from India, the USCIS denied the couple’s adjustment of status application as ineligible because they departed the US and thereby became inadmissible by strict application of the 10 year bar. The USCIS’s decision to deny the adjustment of status application was later upheld by an immigration judge who further ordered the couple removed from the US as a result.

Fortunately, on appeal, the BIA did not agree with USCIS or the immigration judge.  The BIA rejected the government’s contention that leaving the US under advance parole still effectuates the type of departure that triggers the 10 year bar if unlawfully present for at least a year. In doing so, the BIA reasoned travel under a grant of advance parole is different than a regular departure since the individual is given an assurance he or she will generally be allowed back in the US and permitted to seek the benefit of a previously filed and pending adjustment of status application.

As the Matter of Arrabally and Yerrabelly decision illustrates, foreign travel can give rise to significant and, in some cases, counter intuitive consequences with respect to one’s immigration status in the United States.

Please feel free to contact Sharma Law Offices with questions regarding travel or other immigration matters with respect to your particular set of circumstances.