Section 245 Adjustment of Status for a person that is out of status and has a timely filed asylum
This practice guide addresses the common enough situation in which USCIS denies AOS unless eligibility is briefed under Matter of Orban, AAU Newark Dec. 23, 1993 - where AOS sought by the asylum applicant who filed I-589 while in status, then fell out of status, and adjusts not through a US citizen.
An asylum applicant that filed I-589 while in status falls out of status for technical reasons“The fact that the Service has not yet acted upon the applicant’s request for asylum by the time he properly filed for adjustment of status under section 245 of the Act may be viewed as a technical violation, and through no fault of the Applicant.” Matter of Orban, AAU, Newark Dec. 23, 1993. This precedent is issued by the Administrative Appeals Unit in Newark in the case where a foreign national was admitted, applied for asylum while in status, and then fell out of status. (Legacy) INS denied that person's I-485 because the applicant was not in status at the time of making the I-485 application. AAU reversed and granted I-485, holding that a pending asylum application filed while that person was in status renders the failure to maintain status technical, or that that person fell out of status for technical reasons.
Terms definitions in statute, regulations and the BIA's precedentUnder the statute governing adjustment of status
“The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.”
INA §245(a) codified as 8 USC §1255(a). The adjacent sections of the same statute, upon careful examination, do not restrict this Applicant from adjusting her status.
“Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title,1 (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa.” (Emphasis added.)
INA §245(c) codified as 8 USC §1255(c). The term “technical reasons” is interpreted in the federal regulations and the BIA precedent In re L-K-, 23 I&N Dec. 677 (BIA 2004).
The federal regulations on point provide as follows,
“A technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). An individual whose refugee or asylum status has expired through passage of time, but whose status has not been revoked, will be considered to have gone out of status for a technical reason.” 8 CFR §1245.1(d)(2)(ii).
What asylum application is timely?The Applicant’s request for asylum was timely as she filed her I-589 Application for Asylum 1) while she was still in the valid non-immigrant status, and 2) within one year of the last entry to the United States. The one-year deadline is counted from the applicant’s last entry into the United States. 8 C.F.R. §§ 208.4(a)(2)(ii), 1208.4(a)(2)(ii); Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008) (last arrival is unambiguous and refers to the person’s trip into the U.S. even if he was in the U.S. for many years and took a brief trip out of the country].
When reliance on In re L-K-, 23 I&N Dec. 677 (BIA 2004) is an error of law?When the direct language of the precedent expressly limits the precedents reach, it is an error of law to apply the precedent outside of its reach.
The following language expressly sets limits to application of In re L-K-, 23 I&N Dec. 677 (BIA 2004),
“Our holding is narrow and limited to the factual scenario at issue in this case. In particular, our decision relates only to those situations in which an asylum application was filed while the alien was in nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court by the DHS prior to the time the alien applied for adjustment of status. Moreover, we point out that our decision does not impact those aliens who are not subject to the section 245(c) restrictions—for instance, aliens who seek adjustment of status as immediate relatives or special immigrants, or aliens who can qualify for section 245(i) adjustment notwithstanding the section 245(c) restrictions.” (Emphasis added.)
In re L-K-, 23 I&N Dec. 677 (BIA 2004) at 682.