Publications

April, 2008

PAROLED ALIENS, ARE ELIGIBLE FOR GREEN CARD

Aliens who are admitted under parole are usually persons the Immigration Service considers questionable, that is, the Adjustment of Status Act (INA 245(a)) authorizes the Attorney General to adjust the status of any alien who was inspected and admitted or paroled into the United States. Previously almost all parolees were placed in removal proceeding and regulations in effect barred any arriving alien in removal proceedings from seeking adjustment of status. This made almost all parolees ineligible. A recent U.S. Court of Appeals decision has recently held that Congress intended to allow most paroled aliens to apply for adjustment of status. The Department of Homeland Security as a result of this case amended its regulations to hold that arriving aliens in removal proceeding who apply for adjustment of status must do so with the United States Citizenship and Immigration Services (USCIS) and consequently deprives Immigration Judges of jurisdiction to adjudicate these applications.

FBI NAME CHECKS

A U.S. District Court Judge in Pennsylvania has recently decided in naturalization cases that the use by Immigration of FBI name checks was never authorized by any statute or regulation. The Judge held that the unreasonable delays caused are improper. Applicants have been delayed between 30 to 47 month due to these FBI name checks, the Judge declared.
The Judge wrote that the USCIS is bound to make a prompt determination on a naturalization application. Reasoning that by the time a person applies for naturalization, one and in most cases two FBI checks have taken place, the Judge questioned why another check was necessary.

The Judge decided he had the power to issue a Mandamus Order. The Judge wrote that the Immigration Service could neither cite any congressional authorization for this FBI name check nor a USCIS regulation. He also found that completion of criminal background checks must be made before a naturalization interview occurs, not after.

ADOPTED CHILDREN UNDER THE AGE OF 18

The Board of Immigration Appeals recently upheld an Appeal sustaining that an alien child adopted under the age of 18, when a natural sibling was subsequently adopted by the same adoptive parent(s) while the 2nd sibling was under the age of 16, may qualify as a child even though the older child adoption preceded that of the younger sibling.
The Act now maintains family unity by permitting an alien child 16 or 17 to qualify as an immediate relative child of the U.S. citizen adopting parents if they also adopt a sibling of that child who is under 16. The sequence as to whether the younger or older sibling is first adopted is not relevant as to whether the older sibling is adopted with or before or after the younger sibling.

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New York Immigration Lawyers > Immigration Publications > April 2008