Improper Denials of Adjustment of Status Applications Under 245i on the Rise

By: Attys. Robert L. Reeves and Nathan Graham

The California Regional Service Center of U.S. Citizenship and Immigration Services has increased its efforts to reject applications for adjustment of status in recent weeks as reported by various immigration organizations. The latest practice of the Service Center has been to return adjustment applications without acceptance for processing where the applicant is grandfathered under 245i for adjustment but is actually seeking to become a permanent resident on a different basis.

The 245i law provides that an individual on whose behalf an employment-based immigrant visa petition, family-based immigrant visa petition, or a labor certification was filed on or before April 30, 2001 is grandfathered by that petition for purposes of adjustment. This means that even if that person cannot subsequently use this petition for adjustment, they will have a date locked in for 245i purposes. That person can then file another immigrant visa petition at any later time, and adjust status based on the new petition even though it was filed after April 30, 2001, and even though they may have status problems that would otherwise make them ineligible to adjust. However, recently many applications recently have been returned by the California Service Center on the basis that the immigrant visa petition being used to seek adjustment of status was filed after the April 30, 2001 deadline. Anyone seeking to apply for adjustment of status should be aware that any petition that was filed on or before April 30, 2001 will be effective to grandfather them, so long as the application was not frivolous or without merit, and there is no requirement that the grandfathering petition also be the actual basis for adjustment of status.

Improper rejection of such applications by the CSC can have harsh consequences for applicants, as the rejection of an application can mean loss of a proper receipt date, and loss of valuable time spent waiting for employment authorization. Anyone whose application for adjustment of status has been rejected on these improper grounds is urged to contact competent immigration attorney.