My asylum was pending for so long, and during this period I managed to get an I-140 approval. I then waited for my individual hearing b/c I couldn't use the I-140 at that time b/c I was out of status (but I was lawfully staying in the country without accumulating any illegal days). On my Individual hearing the judge and the USCIS officer agreed to terminate my asylum case based on the fact that I can adjust status b/c I have an approved I-140 and my PD is current. I then applied for I-485, and they requested an RFE proofing my lawful stay in the country since last admission and until I applied for I-485. I replied to RFE, and since then, I have been waiting for so long; I`m worried about if they intend to deny my GC application b/c I am out of status, and simply deny the court decision.I also never worked without a valid EAD.
No, USCIS will not be able to "ignore" the court decision. Rest assured of that.
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There does not appear to be a real 'court decision' which stated that you qualified for adjustment ... rather the IJ merely 'closed' your removal file, probably w/o prejudice.
Have you thought of meeting with an attorney in private? As you can see, this is too complex for you to work out without professional help.
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
In employment-based adjustment of status cases, USCIS takes the position that even if you applied for asylum while still in valid non-immigrant status, that this does not count as maintaining lawful presence for the purposes of INA 245(a). Consequently, a strong legal argument is needed to convince them otherwise, for even one day of not having maintained valid non-immigrant status will disqualify you from being eligible to adjust status through employment. Just sitting and waiting is not a good strategy - you need to push forward. make inquiries and retain a highly experienced immigration lawyer to present a very good legal argument. Even the best immigration attorney might not ultimately succeed in convincing USCIS. One final point: termination in immigration court does not automatically entitle you to have your status adjusted. Making it happen would require considerable effort on your part. Good luck!
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The fact that the court terminated proceedings to allow you to pursue AOS, even with the agreement of DHS' attorney, does NOT automatically mean that USCIS will determine that you maintained your status, a requirement for an employment-based AOS. Termination means that the removal proceedings are ended, but unless the IJ terminated with prejudice, they do not constitute a specific legal finding that USCIS must follow. From your description and without reading the decision, I am assuming the IJ terminated without prejudice and that the purpose of the termination was for you to seek AOS. A decision to terminate without prejudice is not a specific holding that USCIS must apply or obey. The IJ may not have been aware of how USCIS interprets the maintenance of status requirement of 245(a) with respect to asylum seekers. Contact an attorney to work with you and USCIS on this.
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