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INS Eases Rules on Adjustment of Status


by: Sonya & Carl Shusterman, Attorney-At-Law

In a memo published on June 17, 1997, INS has made it easier for persons to adjust their status to lawful permanent residents under the new immigration law. The new memo particularly benefits persons who live in cities where the average waiting times to receive interviews exceed 300 days.

The Original Interpretation

The immigration law signed by President Clinton on September 30, 1996 provides that persons who are "unlawfully present" in the U.S. for 180 days after April 1, 1997 who then depart and return to the U.S. are prohibited from seeking immigration benefits for three years (spent outside of the U.S.) absent a waiver. The initial 180-day period is scheduled to end at midnight on September 27, 1997. If an applicant remains in the U.S. unlawfully for one year, the bar increases to ten years outside of the U.S.

However, in defining what constitutes "unlawful presence" the law provides that persons who file timely applications for "extensions of stay" or "changes of status" are not considered to be in unlawful status for the first 120 days after they submit such an application.

Since the law did not expressly use the words "adjustment of status", INS originally took the position that if a person remained in the U.S. without any other legal status after filing an application for adjustment for status would be barred from receiving any immigration benefits if it took them more than 180 days to obtain permanent residence. In other words, the submission of an application for adjustment of status by a person in lawful status does not act to confer lawful presence on the application, this despite the fact that INS routinely grants such persons a work card and a travel permit while they await their interviews.

For example, it currently takes INS over one year to schedule an interview for adjustment of status in Los Angeles and many other cities, these applicants would be barred from receiving green cards!


INS Revises Its Position

Early this year, INS began to retreat from this extreme position. They reasoned that the words "change of status" were generic rather than a legal term of art. Therefore, when Congress wrote this words into the law, they meant to include persons applying for either another temporary status or for permanent residence. In either case, the effect would be to "toll" or stop the unlawful presence clock from running for 120 days.

This represented an improvement from INS's earlier position, effective granting the applicant another 120 days to receive an approval of his application for adjustment of status. However, 180 days plus 120 days still add up to only 300 days, still too short a time for INS to process applications in many cities across the U.S. Like King Solomon, INS was offering to split the baby, and to give half a baby to each of two mothers.


INS Bows to Reality

What the revised INS policy mean in reality was that persons who applied for adjustment of status in cities with short waiting times would be able to adjust their status while those who applied in citis like Los Angeles with waits of 300 days or longer would be ineligible for adjustment of status. Could this absurd result really be what Congress intended?

Finally, on June 17, 1997, INS issued a memo announcing that the submission of an application for adjustment of status would "toll" the period of unlawful presence as long as the application remained pending. The result would be the same even if the application were denied and had to be renewed before an Immigration Judge.

This final memo ended nearly a year of hard work by certain members of the American Immigration Lawyers Association in persuading the INS to revise its interpretation of the law, and represents a great victory for immigrants.


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