USCIS recently issued important guidance regarding family-based immigration cases. In updating its policy manual, USCIS emphasized that “fraudulent, frivolous, or other non-meritorious” family-based immigrant visa petitions. The policy update calls for greater scrutiny of marriage-based cases, including additional vetting and mandatory interviews. USCIS can also commence removal proceedings when a beneficiary is removable, even if they’ve submitted a petition. Understandably, this particular point from USCIS’ updated guidance has caused widespread alarm and left many feeling scared and confused. However, as with most aspects of immigration law, this is a complex issue which requires careful consideration and understanding.

Policy Changes

The following language added to the policy manual is of note:

“Removable Aliens: if USCIS determines the alien beneficiary is removable and amenable to removal from the United States, USCIS may issue a Notice to Appear (NTA) placing the beneficiary in removal proceedings. Petitioners and alien beneficiaries should be aware that a family-based petition accords no immigration status nor does it bar removal.”

Following this update, there has been a lot of concern that green card applicants with pending cases based on marriage to a U.S. citizen may face removal. Understandably, this update has created a lot of fear and panic in an already difficult immigration climate. While certainly there is more scrutiny than in this past and applicants should be on high alert, this is still an issue which requires case-by-case evaluation. Consulting an experienced immigration attorney is a necessary step to understand the potential risk factors in any individual case.

Important Clarification

It’s important to understand that a family-based petition refers to the I-130 petition itself, not necessarily the green card application. USCIS is correct in its emphasis that the I-130 petition alone does not confer immigration status. However, a pending I-485 application does allow an individual to remain in the U.S. in a period of authorized stay while waiting for the adjustment of status. While those who apply for a marriage-based green card with lapsed immigration status should be aware of increased risk and we highly recommend consulting with an experienced immigration attorney, this policy update does not mean that applying will automatically trigger removal.

USCIS has the authority to begin removal proceedings any time someone does not have valid immigration status. Applying for a marriage-based green card doesn’t automatically trigger this policy, however. Choosing not to apply and remaining in the U.S. without any immigration status is generally a much bigger risk.

Understanding Immigration Law

It’s important to understand that immigration law explicitly confirms that immediate relatives of U.S. citizens are not barred from adjusting based on overstays, status violations, or unlawful work.  INA § 245(c) states that an applicant for adjustment of status who is an immediate relative may be eligible to adjust status even if:

• The applicant is or was employed in the U.S. without without proper work authorization;

• The applicant is not in lawful immigration status on the date he or she files the adjustment application;

• The applicant has ever failed to continuously maintain a lawful status since entry into the United States; or

• The applicant has ever violated the terms of his or her nonimmigrant status.

Applicants with unauthorized work, visa overstays, or immigration status violations remain eligible to file for adjustment. After an I-485 application is filed, applicant’s don’t need to maintain separate immigration status while waiting on the decision. USCIS policy states “most applicants must maintain their status up until the date of filing for adjustment of status, with the exception of those adjusting as immediate relative.” Immediate relatives don’t need valid immigration status at the time of filing, if the applicant entered the U.S. with inspection. Applicants don’t have to keep a separate immigration status once the application’s submitted. We do generally recommend it where possible, however, in the event the adjustment is eventually denied.

Thus, once the I-130 petition and I-485 application are filed with USCIS, the risk of removal is low. Even if placed in removal, the proceedings would be dismissed based on the pending green card application. Especially since said pending application grants a period of authorized stay until a decision is made. Further, the statutory protections afforded under INA § 245(c) mean that immediate relatives with visa overstays, unauthorized work, or other status violations are not barred and remain eligible for adjustment of status, which provides relief from removal.

Impact on Green Card Applicants

While USCIS’ clarification about removable aliens has caused widespread alarm, it is much more likely that this policy update will impact those who entered the U.S. without inspection. For those who entered without inspection and plan to seek a waiver, they must first file an I-130 petition and then, once approved, apply for an I-601A waiver. This policy update from USCIS will mean that individuals in this situation may be removed after filing the I-130 petition, which does not grant any kind of status, before they have the opportunity to seek a waiver through an I-601A application. By filing the I-130 petition, the U.S. government will become aware the individual is in the U.S. without immigration status, having entered unlawfully, which could then trigger removal proceedings. Individuals in this situation should seek counsel from an experienced immigration attorney, to evaluate the risks before filing any petition.

The recent policy change mandates increased screening and vetting procedures for all marriage-based green card applications. This is so USCIS can verify all specified relationships are genuine. For example, applicants must attend an in-person interview. This policy update merely formalizes what has already been happening in practice, however. Interviews used to be a standard requirement, so this really just a return to pre-Covid policies.

As always, ImmigrationUSA actively monitors ongoing U.S. immigration news. If you have questions about any U.S. immigration related issue, please contact us. Working with an experienced attorney ensures you get the right advice based on the most recent laws and policy updates. In an ever-evolving immigration landscape, it is more important than ever to work with a knowledgeable immigration attorney. We’re with you every step of the way.