What we should have said

[B]We can’t get it right[/B]

In our last column we discussed the special situation of immediate relatives of U.S. citizens who are entitled to have their green card applications processed even if they have overstayed their authorized entry; this includes both current residents of the CNMI, and those who enter under the Guam-CNMI Visa Waiver Program, and those Chinese and Russian tourists who are paroled into the CNMI.

A day or so later, Maya was accompanying clients to a green card interview at the USCIS Saipan Application Support Center, when a visiting USCIS official—the same one who corrected an error we made regarding visa waivers in a column last year—said, “You and Bruce just can’t get it right about the visa waiver program.” She responded, “Nice to see you, too,” and then asked what we got wrong this time.

Our error, it turns out, was to state that “U.S. immigration law allows lawfully admitted immediate relatives to process their green card application, and that applies to all immediate relatives of USCs, except for those admitted under the Visa Waiver Program in effect throughout the rest of the U.S.”

That was wrong, and doubly embarrassing because we had it right before. Although the Immigration and Nationality Act Section 245(c)(4) generally prohibits adjustment of status for people who enter pursuant to visa waivers, it contains an exception for immediate relatives of U.S. citizens. As we said last November, quoting the same USCIS official:

Aliens admitted under the Visa Waiver Programs are eligible to adjust status to permanent residence pursuant to the authority in Section 245(c)(4) if they file for adjustment as an immediate relative.  Furthermore an alien from China or Russia who is in Saipan under the parole authority would be eligible for adjustment as having been paroled and is not subject to the restriction in 245(c)(4).

We won’t make that mistake again. But we should have said more about adjustment of status for U.S. citizens’ immediate relatives who have been admitted under the Guam-CNMI Visa Waiver Program, or who are Chinese or Russian citizens paroled into the CNMI under essentially the same terms. And we should have said more about the possibility of removal through action by the sister agencies of USCIS: Immigration & Customs Enforcement and Customs & Border Protection.

[B]Overstaying immediate relatives, including visa waiver & parole visitors, are subject to removal[/B]

As we’ve said several times before, persons admitted to the CNMI pursuant to the Guam-CNMI Visa Waiver Program, and Chinese and Russian parolees, can apply to adjust their status to lawful permanent resident, or LPR, if they are immediate relatives of U.S. citizens, even if they overstay their authorized time in the CNMI. So can immediate relatives who had other forms of lawful admission to the CNMI, whether by the CNMI government or, after Nov. 28, 2009, by the U.S. government. We have had several immediate relatives—both spouses and children of USCs—adjust in this fashion, without problems.

So far, so good. But what happens when an overstaying LPR applicant is detained by ICE before USCIS adjudicates the application? And what happens to the overstayer if USCIS denies the application? According to Ninth Circuit Court of Appeals case law, which is applicable in the CNMI, a lot depends on the kind of admission and the terms of admission, and whether the application is filed before or after the applicant becomes an overstayer.

Keep in mind that although we will keep the discussion simple, this is a developing area of law—the results may be different in other federal Courts of Appeal, and the U.S. Supreme Court has not yet ruled on any one of these types of cases. If you recognize yourself or your immediate relative in the discussion below, you should get legal advice now. (And remember: legal advice comes from attorneys. Don’t listen to rumors. Friends don’t let non-attorney friends give legal advice.)

[B]If you are not a visa waiver/parole visitor and your application is denied[/B]

-Are you still in lawful immigration status? If you have applied for a green card and have been denied, there are several possible courses of action. You may be able to bring a motion for reconsideration, or an application for waiver of a ground of inadmissibility, or an appeal. If the denial was procedural, such as a failure to respond to a request for additional evidence, but too much time has passed, it may be more efficient simply to apply again, despite the expense of additional filing fees. We have done that for several victims of fake attorneys or “legal consultants,” because of the difficulty of untangling what are usually multiple errors.

-Are you already out of status? You may be able to apply again, if you are not successful with any post-denial motion or application. Most lawfully admitted residents of the CNMI will be entitled to removal (deportation) proceedings, and the right to legal representation (but not to an attorney appointed by the government). If you are placed in removal proceedings, you may be able to renew your application to adjust status in front of the immigration judge.

[B]Are you a visa waiver/parole visitor?[/B]

-Look at your terms of admission. CPB Form I-736, the Guam-CNMI Visa Waiver Information form, contains two conspicuous statements. First, the form states, “You may not apply for:…(2) adjustment of status to temporary or permanent resident…” Second, “Waiver of Rights: I hereby waive any rights to review or appeal a CBP Officer’s determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in removal proceedings.”

The first statement is misleading with regard to immediate relatives of U.S. citizens, who can adjust status and become LPRs while on visa waiver or parole. The second statement, which allows expedited removal—that is, removal without any deportation proceedings in front of an immigration judge—may be incorrect if the application to adjust status was filed before the individual became an overstayer. (It is also incorrect with regard to asylum, which pursuant to the Consolidated Natural Resources Act is not available to visitors to the CNMI until January 2015.) The I-736 is available online at http://forms.cbp.gov/pdf/cbp_form_i736.pdf.

-You can file for adjustment of status either before or after becoming an overstayer. Neither INA § 245(c) nor the applicable federal regulation, 8 CFR 245.1, limit the right of an immediate relative to file an application for adjustment of status, and neither limits the ability of USCIS to adjudicate the application. What happens if the application is denied, or if the applicant is detained by ICE prior to adjudication, depends a lot on when the application was filed.

-If you applied to adjust status during your term of lawful admission, then Ninth Circuit case law indicates that if your application is denied, you are entitled to removal proceedings, including a hearing before an immigration judge during which you can renew your application to adjust status. Note that if you are not detained by ICE but USCIS denies your application, USCIS will consider referring you to removal proceedings through a Notice to Appear, NTA.

-If you applied to adjust status after your term of lawful admission expired, then the case law is less favorable. USCIS will not issue an NTA if it denies your application. Instead, you will be referred for removal under the terms and conditions of the visa waiver program, and you will not be entitled to renew the application to adjust status in removal proceedings. That is, your eligibility to adjust status will not be a defense to deportation.

-If you are detained by ICE prior to adjudication of your application to adjust status, the nature of your admission, and the filing date of your application, will be critical. If you were lawfully admitted to the CNMI but not as a visa waiver or parole visitor, you will likely be given an NTA, and during the removal proceedings you can use your eligibility to adjust status as a defense to removal. If you are a visa waiver or parole visitor who has an application to adjust status pending, whether you filed before or after the last day of your period of admission will be very important.

-If you are detained by ICE before filing your application to adjust status, the chances are that you will be leaving the U.S. very quickly via summary removal proceedings, unless you are eligible for some extraordinary form of relief—or unless you are charged with a crime, in which case you may stay longer, but not necessarily in very pleasant accommodations.

[B]Special deadline for some L-1 and EB-1C visa applicants: Nov. 27, 2011[/B]

In our last column we left out a very important filing deadline for some L-1A (nonimmigrant international manager or executive transferee), L-1B (special knowledge nonimmigrant employee transferee) or EB-3 (immigrant equivalent of L-1A) applicants. All three of these visas require that the employee must have worked in the same capacity for the foreign parent, subsidiary, affiliate or branch of the U.S. company to which the employee is being transferred, for at least one of the past three years. Employees who have only worked for a CNMI company, but in the same qualifying positions, have a limited opportunity to “transfer” into their own jobs, obtaining a nonimmigrant visa or immigrant visa (green card) in the process.

This is because all CNMI companies were considered “foreign” for immigration purposes prior to Nov. 28, 2009, and “U.S.” thereafter. So, if the employee has worked for the requisite period of time, in the same capacity, and if after Nov. 28, 2009, the company still has a “foreign component”—foreign parent, subsidiary, affiliate or branch—then the employer should consider making the necessary application.

This is a one-time opportunity, and it will go away after Nov. 27, 2011. After that date, no CNMI-only employee will be able to include a full year out of the last three as working for the “foreign” CNMI company, and any application filed after Nov. 27 will be too late. Note that this deadline does not apply to L-1 or EB-3 applicants who still can show a full year’s employment for the foreign component, out of the past three years; that is, the deadline will not affect people who actually do transfer from foreign to U.S. companies in the CNMI.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com. [/I]