Overview of the Permanent Residence Process and Adjustment of Status

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1 NAFSA Reg. Practice Committee, KCISSS Task Force: Practice Advisory on PAA Status Issues Steve Springer, Assistant Director, International Student & Scholar Services, University of Texas at Austin James Dorsett, Director, International Students & Scholars, Iowa State University Robin Catmur, Associate Director, International Office, Dartmouth College Catheryn Cotten, Duke University (Content Review) At the NAFSA National Conference in 2006 the SEVIS Program Office issued updated guidance on how DSO's should treat the SEVIS records of F-1 students who have a filed and pending or approved I-485 adjustment of status application. The following quote is from a footnote on the handout: "Adjustment of Status: When a nonimmigrant student files an Adjustment of Status (Form I-485) but maintains F/M status, the student's SEVIS record should remain active until the adjustment is approved. The DSO should then manually terminate the record for Change of status approved. Note the circumstances in the remarks and provide the student's A-Number or Receipt Number." (Source: "F and M Student Record Termination Reasons In SEVIS" Handout from SEVP, NAFSA National Conference, 2006.) In fact, this footnote on the handout is in conflict with the instructions given earlier in the handout relating to changes of status: "Terminations Reported by SEVIS (Do not use these reasons manually. Request a data fix if the system does not properly terminate a record for one of these reasons.)" Regardless of this conflicting advice, note that the guidance does, in fact, indicate that maintenance of F/M status is possible with a filed I-485. Given this, the KCISSS Regulatory Practice Subcommittee offers the following practice guidelines pertaining to the maintenance of F-1 status and an active SEVIS record for students who have active pending permanent resident applications. **Please note that given the lack of clear regulatory guidance on this topic, the following practice advisory must be tempered by the DSO s best judgment, given each specific situation involving an F-1 student who is processing for U.S. permanent residency.** Overview of the Permanent Residence Process and Adjustment of Status Most routes to LPR in the U.S. involve at least two steps or phases. The initial step is a determination of eligibility for LPR status. For instance, the employer or qualifying family member of the person who seeks LPR might file an immigrant petition on the person s behalf, or the person might be selected through the diversity immigrant visa program ( visa lottery ). The next phase involves either (1) visiting a U.S. embassy/consulate abroad for consular processing of the immigrant visa, or (2) remaining in the U.S. and applying to Department of Homeland Security (DHS) for adjustment of status from the current status to 1

2 LPR. Often family members of someone seeking LPR status may derive eligibility for LPR status as well. In general this derivative benefit must be processed at the same time as or very near in time to the LPR process of the principal beneficiary. A complex system of allotments of immigrant visas among categories, called preferences, determines when someone who has completed the initial eligibility phase may proceed to the adjustment or consular processing phase. When the number of applicants from any country and/or for any preference exceeds the available allotment a backlog results and a queue of applicants forms. Each person s place in the queue is determined by his or her priority date, the date on which the initial petition or labor certification application was filed. Only when the person s priority date is current, meaning that he/she is at the front of the queue as indicated on U.S. Department of State s (DOS) Visa Bulletin ( may the adjustment of status application be filed or the consular processing of the immigrant visa begin. An applicant for adjustment of status may apply for an employment authorization document (EAD) and an advance parole (AP) travel document. The travel document often serves two purposes. It may prevent abandonment of the adjustment application if the applicant leaves the U.S. temporarily, and it may enable the applicant to re-enter the U.S. without a visa. While the adjustment of status application is pending, the applicant is known as a pending adjustment applicant (PAA). Effect of Permanent Residence Process on Nonimmigrant Status Applicants for nonimmigrant visas face a heavy burden in establishing their eligibility. The Immigration and Nationality Act clearly places on the applicant the burden of proof that he/she is eligible to receive the requested visa, entitled to the nonimmigrant status sought, and not inadmissible to the U.S. 1 For most categories, including F-1 student and F-2 dependent, the applicant must establish that he/she has a residence in a foreign country and no intention of abandoning it. 2 Furthermore, the Act creates a presumption that applicants for nonimmigrant visas (except H and L) intend to become immigrants. In order to be eligible for the visa they must overcome this presumption. 3 Nonimmigrant visa applications are frequently denied because the applicant has not shown, to the satisfaction of the consular officer, that he/she meets these eligibility requirements. When the visa holder applies for admission to the U.S. at 1 INA 291 and INA 101(a)(15); see also NAFSA Advisor s Manual INA 214(b) and INA 101(a)(15) 3 INA 214(b) and 22 C.F.R (b) 2

3 a port of entry, the applicant s purpose and documents are reviewed by DHS officials. If the documents and the apparent purpose do not match - for example, if someone with a student visa seems to be an intending immigrant - the applicant may face a difficult process and admission may be denied. Any step towards lawful permanent residence can make an application for a nonimmigrant visa and admission to the U.S. in a nonimmigrant classification difficult or impossible. While certain preliminary steps towards lawful permanent residence are very likely to lead to denial of an F-1 visa application, certain others, while sure to complicate the process, do not necessarily render the applicant ineligible. Even consular and immigration officers find it difficult to distinguish between the two. One recent DOS cable instructed consular officers to when examining a student's intent to depart the United States after a course of study, focus on the applicant's immediate and near-term intent. 4 This instruction would suggest that a speculative or indirect step might not render the student ineligible if he/she or he has convincing plans to leave the U.S. after completion of studies if permanent residence has not by then been granted. Such steps might include an application for the visa lottery or an immigrant petition filed on the alien s behalf in one of the long-backlogged relative preferences. Once an adjustment of status application has been filed, though, the applicant is almost certain to be considered ineligible for a nonimmigrant visa. With few exceptions, leaving the U.S. while an adjustment of status application is pending will be considered abandonment of the adjustment application unless the applicant has obtained an advance parole travel document. As complicated as it might seem to anticipate the effects that beginning the LPR process might have on travel and visa applications, discerning its effects on the applicant s nonimmigrant status is even more difficult. Common sense and standard practice of the Department of Homeland Security would suggest that one who properly files an adjustment of status application before the expiration of her or his nonimmigrant status may remain in the U.S. until the application is adjudicated, since the applicant should not be penalized for DHS processing time. While the legal authority for this position seems less potent or reassuring than might be expected, allowing the applicant to remain in the U.S. is a longstanding practice of DHS. 5 The proposition that one may file an adjustment of status application and continue to maintain nonimmigrant status is more directly and clearly supported by legal authority. In Matter of Hosseinpour, the Board of Immigration Appeals 4 See cable STATE R Z MAY INA 245(a) certainly implies that the applicant may wait in the U.S. for adjudication, but this is not clearly stated; most commentators cites as authority INS Operating Instruction 212.1a(23) which provides for deferral of removal proceedings when a nonfrivolous adjustment of status application is pending. 3

4 found that a student s filing of an adjustment of status application did not in itself constitute a failure to maintain his nonimmigrant status. 6 Still, the case leaves many questions about this complicated issue unanswered, and DHS has provided little or no additional guidance. The fact that agency representatives have provided a variety of informal contradictory statements certainly does not help clarify the situation, and indicates that DHS does not have a detailed or thoroughly reasoned policy on the matter. This leaves applicants with many questions about how best to proceed with adjustment, whether using an employment authorization document issued in the adjustment process constitutes a violation of nonimmigrant status, what other actions might constitute abandonment of the nonimmigrant status, whether there are any advantages in trying to maintain the nonimmigrant status, whether they qualify for benefits such as optional practical training connected to the nonimmigrant status, and many more. Advising Students Processing Towards Permanent Residence International student advisors frequently encounter students who have taken steps or who may be derivative beneficiaries of parents or spouses who have taken steps toward obtaining permanent residence. Advisors will face the often difficult challenge of addressing such students questions about their nonimmigrant status while refraining from even giving the impression that advice about the permanent residence process or adjustment of status is being offered. Many questions about how the process might affect visa applications and travel can be answered by the advisor, as these issues clearly fall within the advisor s purview. Beyond providing general information and perhaps references to informational resources, though, advisors should simply encourage these students to seek expert legal advice. In short, while advisors will be able to provide valuable guidance and information to these students, it is obvious that anyone pursuing permanent residence should seek specific legal advice, not only about how best to proceed, but also about how the process may impact nonimmigrant status. 6 Matter of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975); 70 No. 42 Interpreter Releases 1444, (No. 1, 1993). Included in the decision is an interesting discussion of the evolution of section 245 of the Immigration and Nationality Act to allow maintenance of nonimmigrant status while seeking adjustment of status. The 1952 Act provided that Any alien who shall file an application for adjustment of his status under this section (245) shall thereby terminate his nonimmigrant status. A 1958 amendment to the act specifically eliminated this provision. In recognition of this, the BIA determined in Hosseinpour that Congress intentionally eliminated the termination provision so that maintenance of nonimmigrant status would be possible for adjustment of status applicants. 4

5 Given the lack of legal authority to clarify for advisors the effect that pursuing permanent residency might have on a student s nonimmigrant status and especially in light of conflicting informal and written statements from DHS officials, it is crucial for advisors to avoid refusing to authorize students for benefits for which they might be eligible. Most important is the fact that students who are the beneficiaries of immigrant petitions or who have filed adjustment of status applications should not be considered to have abandoned their F-1 status. Advisors should refrain from terminating a student s SEVIS record unless actually required to do so, and they must be mindful of the kinds of complications that can arise from improper terminations. When in doubt about whether a student is eligible for an F-1 benefit because of a pending I-485 application and or an approved work card based on that application, the advisor should encourage the student to seek legal advice and, if the student decides to proceed with the benefit application, authorize the student for the benefit and let DHS decide eligibility. There is no law, regulation, or DHS policy requiring advisors to ascertain a student s nonimmigrant intent before authorizing a student for a benefit such as an extension, a transfer, or even optional practical training. Only consular officers are charged with ascertaining intent in visa applications, and only DHS officials have the authority to determine eligibility for benefits like optional practical training. To date, DHS has not answered directly the question of whether a student who is otherwise eligible for optional practical training becomes ineligible by filing an adjustment of status application. The current DHS practice seems to be reclassification of the I-765 application from an OPT request under 8 CFR 274a.12(c)(3)(i) to a request connected to the I-485 adjustment filing under 8 CFR 274a12(c)(9). DHS then issues the I-766, (the EAD) with an adjustment, rather than an OPT, annotation/citation on the face of the card. Until DHS officials can state whether a student who has filed the I-485 either qualifies for or is ineligible for OPT, it seems improper for an advisor to presume that the student is not eligible and to withhold an OPT recommendation. Rather, the advisor and the student should be prepared to have the OPT request reclassified and the OPT never granted. If OPT after completion of studies is not granted, and instead the EAD under (c)(9) is granted, then extension of the F-1 status is also not granted, and the F-1 status ends while the PAA status continues. Note that advisors will often be in possession of only incomplete information as to the work in which the student has or has not engaged under a (c) (9) EAD, unless the student reports that work or is employed by the institution such that use of the employment-based EAD becomes part of the record. If a student who has engaged in work under another authorization category requests signatures or benefits related to F-1 status, the advisor will normally want to advise the 5

6 student in very strong terms to talk with an immigration lawyer. At the same time, the Advisor is not in a position to judge the status of the individual; that is the job of DHS. A school official might continue to sign travel documents, recommend OPT, and so on, but might wish to make a file note (certainly internally but also, perhaps, in the SEVIS record) that the student had engaged in general work using the (c) (9) EAD. Ultimately, when an F-1 student is also a pending adjustment applicant, it would seem to be the responsibility of CIS and or SEVP to resolve the two statuses, and not the responsibility of the DSO or Advisor. The Advisor should always seek to minimize any risk to both the student and the institution, within the available regulations. Practice Recommendations: In consideration of the recent guidance from SEVP, we offer the following recommendations given varying scenarios. 1) Student shows proof of I-485 receipt notice, but no Employment Authorization Document (EAD) or Advance Parole (AP) document, and the most recent I-94 card still indicates F-1 D/S. a) Ask the student for a meeting, and refer him/her to an immigration attorney to discuss the impact of the I-485 filing on the F-1 student status. b) Remind the student in writing of the requirements for maintenance of F-1 status, including no unauthorized work, a full-time course load, and entry to the U.S. using an F-1 visa (unless Canadian visa exempt) and I- 20 form with recent travel signature. c) Ask the student to provide you with a copy of any new I-94 issued to the student after any new entry to the U.S. and to notify you immediately as to any change in nonimmigrant status. Remind the student that in order to maintain valid F-1 status and an active valid SEVIS record, he/she must be in possession of a recent I-94 card that indicates F-1 D/S. d) Leave SEVIS record active and add note in the student s internal file that student has provided proof of PAA status. Consider entering this information in the Remarks field of the SEVIS record however this will be largely dependent upon your institutional policy regarding the reporting of information in SEVIS that is not explicitly required by the regulations. e) Continue to offer student all valid F-1 benefits to which he/she is eligible as an F-1 student. 2) Student shows proof of I-485 receipt notice, current and valid adjustmentbased EAD, and current and valid AP document, but most recent I-94 card still indicates F-1 D/S. a) Ask the student for a meeting, and refer him/her to an immigration attorney to discuss the impact of the I-485 filing and use of EAD and/or 6

7 travel under AP on the F-1 student status. Advise the student to discuss carefully work and travel issues with the attorney if he/she is considering using the AP to enter the U.S. and the EAD to accept work. b) Remind the student in writing of the requirements for maintenance of F- 1 status, including no unauthorized work, a full-time course load, and entry to the U.S. using an F-1 visa (unless Canadian -- visa exempt) and I-20 form with recent travel signature. c) Ask student to provide you with a copy of any new I-94 issued to the student after any new entry to the U.S. and to notify you immediately as to any change in nonimmigrant status. Remind the student that in order to maintain valid F-1 status and an active valid SEVIS record, he/she must be in possession of a recent I-94 card that indicates F-1 D/S. d) If student chooses to work using the EAD, remind him/her to re-verify any previous I-9 form completed by using F-1 work documentation. e) Leave SEVIS record active and add note in the student s internal file that the student has provided proof of PAA status. Consider entering this information in the Remarks field of the SEVIS record however this will be largely dependent upon your institutional policy regarding the reporting of information in SEVIS that is not explicitly required by the regulations. f) Continue to offer the student all valid F-1 benefits to which he/she is eligible as an F-1 student. 3) Student shows proof of I-485 receipt notice and most recent I-94 card indicates recent entry to U.S. under Advance Parole. a) Take a copy of the I-94 card, and verify that it indicates entry to the U.S. under Advance Parole. b) Ask the student for a meeting, and refer him/her *IMMEDIATELY* to an immigration attorney to discuss the impact of the I-485 filing and the entry to the U.S using Advance Parole. Advise the student to discuss carefully work and travel issues with the attorney. c) Tell the student in writing that his or her SEVIS record will be terminated for the reason "change of nonimmigrant status," with an entry in the Remarks section explaining that the student entered the U.S. under Advance Parole and that the I-485 application is still pending as of that date. Remind the student that as the I-94 card shows a recent entry to the U.S. under Advance Parole, the student no longer holds F-1 student status. As a result, he/she is no longer required to meet all obligations of F-1 student status but also is ineligible for all F-1 student benefits, including on-campus work eligibility, OPT, and CPT employment. d) Advise the student that if he/she is employed on-campus or off-campus under valid F-1 student authorized employment, he/she must immediately contact the employer and re-verify the I-9 form by presenting new evidence of employment eligibility. e) Contact the office on your campus responsible for re-verification of I-9 forms, and notify them of the termination of the student's F-1 status. 7

8 f) to have the SEVIS termination flag (imposed upon manual termination) removed. g) Do not offer student any F-1 benefits. 4) Upon reviewing student's SEVIS record, the DSO finds that the SEVIS record has been automatically terminated by SEVP for the reason: "change of status approved." a) Ask the student for a meeting immediately. Verify that the student has a filed and approved I-485 application, and take a copy of the approval notice or I-551 green card if possible. b) Refer him/her to an immigration attorney to discuss the impact of the automatic SEVIS termination and the I-485 approval. Advise the student to discuss carefully work and travel issues with the attorney. c) Tell the student in writing that his or her SEVIS record has been automatically terminated by SEVP for the reason indicated (usually change of status approved). Remind the student that since the SEVIS record was terminated, the student no longer holds F-1 student status and is no longer required to meet all obligations of F-1 student status. d) Advise the student that if he/she is employed on-campus or off-campus under valid F-1 student authorized employment, he/she must immediately contact the employer and re-verify the I-9 form by presenting new evidence of employment eligibility. e) Contact the office on your campus responsible for re-verification of I-9 forms, and notify them of the termination of the student's F-1 status. f) Toolbox.SEVIS@dhs.gov to have the SEVIS termination flag (imposed upon manual termination) removed. g) Do not offer student any F-1 benefits. 5) Student indicates that he/she has an approved I-485 application, I- 551(temporary permanent residency) stamp in his/her passport, or other proof of LPR approval, and the SEVIS record has not been automatically terminated by SEVIS. a) Ask the student for a meeting immediately. Verify that the student has been approved for LPR status, and take a copy of the approval notice, temporary LPR stamp, or I-551 green card. b) Refer him/her to an immigration attorney to discuss the impact of the automatic SEVIS termination and the I-485 approval. Advise the student to carefully discuss work and travel issues with the attorney. c) Tell the student in writing that his or her SEVIS record will be manually terminated by you (the DSO) for reason of "change of status approved." Remind the student that he/she no longer holds F-1 student status and is no longer required to meet all obligations of F-1 student status. d) Advise the student that if he/she is employed on-campus or off-campus under valid F-1 student authorized employment, he/she must immediately contact the employer and re-verify the I-9 form by presenting new evidence of employment eligibility. 8

9 e) Contact the office on your campus responsible for re-verification of I-9 forms, and notify them of the termination of the student's F-1 status. f) to have the SEVIS termination flag (imposed upon manual termination) removed. g) Do not offer student any F-1 benefits. 9