One thing that is wonderful about the United States is that we are country based on the law. What is stated in the law, and implemented through regulation, is the “word” by which things are followed. Or at least, one tries to do so. Which makes administrative law, of which immigration law is a specialized form of, quite interesting.

A very unusual circumstance presented itself today. In a I-539 change of status \ extension of stay case, we received an approval notice, followed by “Reopen Notice” provided on a I-797C with the same notice date as the approval notice.

 This presents some obvious and very interesting set of questions. 

  • First, did the change of status actually go through, and therefore, which status is the client still in the US on?
  • Second, what is the effect of the reopen notice on the approval?
  • Third, why would DHS ever do something odd like this? On the same day?

I have some personal suspicions, which has to do with the way the system is setup and as to what generates the I-797C notices. Without going into detail, I suspect there was an administrative error during processing, since unlike most reopen notices, this was generated by the service itself and without any request for additional documentation. Usually one has 30 days to provide the additional documents in a motion to reopen. Since nothing was requested, and due to the timing of the notice, it was probably something as simple as hitting the wrong set of keys or buttons, and attempts to fix it using available administrative tools.

Calls did not clarify exactly what status the client is on, and I doubt we will ever get any useful explanation about what happened (At least, I never wrote detailed explanations for messages outbound about errors while I was working for the Feds, and I doubt anyone ever will). But even knowing why will not help the end-client, who obviously deserves certainty in knowing what status they are really in the US on, and if any extensions must be made and what type of extension to ask for, or if they can now engage in the new activity they planned on doing. 

In this I-539, a paradoxically interesting hint was given since it was about getting someone into F (student) status. Students must be part of the SEVIS program, and the status for the client was changed to “Active”. 

Hence, we go back to the joys of administrative law. All methods, including approvals and rejections, abide by a specific set of procedures outlined in the regulations. To reopen a case, for instance, one must follow the procedures for motions to reopen. In the old Adjudicator Field Manual 10.17, some hints are given as to how this occurs when the service itself performs a motion to reopen. The short answer is, it’s in 8 CFR 103.5(a).

Within 8 CFR 103.5(a) contains an interesting nugget in subpart (1)(iv) which states ““Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution of any decision in a case or extend a previously set departure date.” 

Therefore, the section of law that allows for the motion to reopen specifically says the prior “decision in a case” remains valid and is not “stay”ed until a decision is made or “[u]nless the service directs otherwise”. This is most typically used when the service denies an H-1B or L-1A, and while the case is on appeal, no benefits are retained by the denied beneficiary. This is why cases on appeal for H-1B or otherwise frequently seek help from federal courts, as a TRO might be the best option to allow the person to stay in the US and keep working during the pendency of the litigation.

But as demonstrated in this example, this regulation IS a double-edged sword; the logical interpretation of the regulation is if there is an approval, that prior action of approval remains valid because motion to reopen is not stayed, until such time the service directs otherwise. 

Thus the joys of administrative law. Keep in mind, of course, counter arguments can be made against this argument, and the uncertainty is what keeps administrative law fresh and interesting. However, the U.S. remains a country of laws, reasonable results should arise from a fair reading of the law (eventually – after the courts and parties have at it, so it isn’t necessary cheap for a specific client who is forced to be stuck litigating….), and it’s easy to figure out what should happen if one looks.

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This seems to be a very basic question, but it comes up with surprising frequency: Can a beneficiary appeal their immigration petition case? For example, if the husband (petitioner) sponsors the I-130, the case is denied, and the husband doesn’t wish to appeal but the wife does. Can wife (beneficiary) appeal? What about if an employer doesn’t want to keep pushing the H-1B, but the employee does?

No – the beneficiary is out of luck. 8 CFR 103.2(a)(3) says “A beneficiary of petition is not a recognized party” for immigration petitions. But there are some interesting exceptions.

Remember that certain petitions are self-sponsored by the beneficiary. For example, EB-1As and National Interest Waivers are filed by a petitioner who is also the beneficiary.

Second, in the case of AC21 cases, where an employee changes employer and the former employer sponsored petition is being challenged, the employee may step in to appeal the case. In those cases the beneficiary has standing to appeal that revocation, as further detailed in https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-11-11-PM-602-0152-Guidance-Beneficiary-Standing-Matter-of-V-S-G.pdf

Occasionally I receive calls in which someone who married a U.S. citizen is looking at naturalization (N-400). Individuals who are naturalizing through marriage may do so in three years instead of five. But what happens to the children, and what if the parent doesn’t naturalize but the children want to naturalize?

This usually involves step-children of the sponsoring U.S. citizen or LPR, usually the natural issue of the foreign spouse, who entered into the US as derivatives. These children are usually on LPR status in the United States. Sometimes they remain outside of the U.S., staying with a former spouse of the beneficiary of the petition.

Answering this question is deceptively complex, but the principal is simple: If the children aren’t adults, they become citizens when the parents are citizens. If they are adults, they have to naturalize on their own. 

First, ask the “location of children” question. Are they in the US or outside? Are these children of U.S. citizen military members? Children of U.S. citizen military members have special provision. 

Second, how old are the children? Are they under 18?

  • Children over 18 cannot benefit from parent(s) naturalizing, and must seek their own N-400 petition (5 years).
  • Children who are under 18 (and there is some debate on what counts as “under 18”) become U.S. citizens (naturalize) the moment their parents do, when certain conditions are met.
  • Children under 18 cannot naturalize on their own unless they are active members of the U.S. military.

Third, if the children are in the US, do they already have LPR status and does the US citizen parent have legal and physical custody of the child? If they are outside of the US, does the transmitting parent meet the physical presence requirement and can the child be admitted and enter the US? If these prerequisites are met, the child is a U.S. citizen. 

This is a greatly simplified version of the discussion USCIS has on their page. Basically, will a parent naturalize and how old is the kid? If under 18, the kids get only what the parent has and become citizens automatically when certain requirements are met. If over 18, the kids have to naturalize on their own. The details can be found in 12 USCIS Policy Manual, Part H

Suppose the following:

  • You filed an I-140 PERM petition, which is approved but for which a visa number is unavailable.
  • At some point after the I-140 approval, the visa bulletin shows the case has becomes current and an I-485 is filed.
  • One day after the I-485 is pending, suppose the beneficiary marries an American citizen and files an I-130.
  • Two months into the I-485 filing, the I-140 PERM category suffers visa retrogression, and his case is no longer current.
  • The I-485 case is put on hold as at time of adjudication the case cannot be issued.
  • The I-130 is approved.
  • What do you do about the existing I-485? As an immediate relative petition, there is no delay, but the I-485 was filed based on the I-140 PERM petition.  

The answer is what USCIS calls “Transfer of Underlying Basis”, which is detailed in 7 USCIS-PM, Pt. A, Ch. 8

One has to make this request in writing and provide evidence of eligibility in the new category. “The transfer request should be treated as if it were a new filing and the applicant should provide the necessary documentation to establish eligibility for the new adjustment category.” 7 USCIS-PM, Pt. A, Ch 8. Section A-3. This issue can come up if one doesn’t want the “conditional permanent residency” caused by LPR status through marriage, or conversely, if waiting for an employment-based petition would take longer than through the immediate relative status.

There are certain things to keep in mind. First, the original reason for the I-485 has to still be there. For this hypothetical, to have “continuing eligibility to adjust status” means the underlying I-140 PERM has to still be true. You cannot transfer the basis of an I-485 if the original I-485 is based on a basis that is no longer there. 

Second, there cannot be any “funny business”. By this, I mean the first petition should not be fraudulent, cannot be withdrawn or denied, or revoked. You also have to be eligible for the I-485 based on the second petition as if it was a new I-485, meaning the priority date is current for the second petition and there are no immigration bars (since marriage AOS have less bars to AOS than employment AOS). 

Transfer of basis is a discretionary matter for USCIS. They could say no, and USCIS is suppose to figure out if this works out better or worse in terms of processing. If this would cause significant processing delays, USCIS can say no. As a potential example, suppose a mainland Chinese case has an approved EB-1A, files the I-485, the category suffers retrogression, and while the I-485 is still pending, an I-130 through her American Citizen sibling is approved. A request to change the basis of the I-485 from employment category 1(with a wait time of around a year) to family sponsored 4 would probably be denied (with a wait time of around 13 years).

In short, this means another I-485 does not need to be filing, thus saving the client from paying additional filing fees. However, each I-485 can only have one underlying basis, and which basis is used must be clearly “designated in writing”. In concurrent filing scenarios, one may also transfer a previously filed I-485 to the new petition, by stating in writing that they will use a previously filed I-485 (details on how contained in the Policy Manual). This also means an I-485 basis can be transferred from a petition that is already approved to a petition that is pending, although as a practical matter this is probably not a good idea (waiting for approval before making this request would be the better idea). One should also remember transferring basis for a third time is not permitted. 

 

I often am surprised when clients contact me asking how to read the Department of State Visa Bulletin.

It’s a four-part process.

First, what’s your preference category? What is your priority date? Place of birth? Place of birth of beneficiary’s spouse?

Second, are you doing the interview abroad or in the US? If abroad, look for “Dates for Filing” to figure out when NVC can work on the case. If in the US, check the USCIS page about which chart to use. 

Third, select the right chart. For example, if you are an employment based case “E1”, choose employment category 1 in the “Dates for Filing of Employment-based Visa applications” (which is the chart USCIS is currently using for E1 at the time of this post, and as used by NVC for consular processing cases).

Four, read the chart. In the above example, it would be the 4th table in the visa bulletin. For employment category 1, you would put your hand on that row, and move right to the appropriate “country” column. If the beneficiary was born in mainland China, move along the row to the right to that country. Cases with a priority date BEFORE the written date are currently being processed.

If there is no date listed, e.g. “C”, then all cases are being processed.

If beneficiary’s spouse was born in another country from beneficiary, you can use “chargeability” to change the date used by beneficiary. For example, if a mainland Chinese individual was married to someone from Taiwan, the mainland China beneficiary can use the “All chargeability areas except those listed” category.

Specifics are explained in 22 CFR 42.12(b), (c), (d), and (e), as well as 9 FAM 503.2-4(A) 

I receive many phone calls from people of Chinese ancestry who are U.S. Legal Permanent Residents or citizens, calling about how to go about adopting their Mainland China relatives (P.R.C.). The short answer?

It’s not possible (with rare exceptions).

Having stated the answer, let me explain why. There are three ways to bring a foreigner into the United States through intercountry adoption:

  • Hague Convention adoption
  • Orphan adoption
  • “Immediate Relative”

The Hague Convention adoption is the typical method by which most people adopt children from abroad. It involves qualifying to adopt children from abroad, working with an adoption service provider and a country’s central authority. The problems comes when it comes times to select the child. In the situation of adopting a relative, you have a specific person in mind – a “private placement”. China’s central authority (China Center for Children’s Welfare and Adoption) simply doesn’t handle this sort of thing. Since China’s central authority won’t do it, you cannot use the Hague process to adopt a relative.

The Orphan adoption process exists only for countries who didn’t sign up for the Hague Adoption Convention. China is part of this Convention, so this is not an option.

The immediate relative process excites most people, which appear to be simple: Adopt a kid before they turn 16 (with exception for related birth sibling) and hold two years of physical and legal custody. Sounds easy, right? But what most people fail to realize is they will NOT succeed in fulfilling the “two year” requirement because of how residency is treated under the Hague Convention!

To illustrate: Suppose a Chinese relative arrives in the US. You “adopt” this child in a U.S. court and this child somehow stays in the US for at least two years. Great! Now stick around for two years and you’ve got physical and legal custody, right? Nope.

USCIS memorandum PM 602-0095 explains how the residency question is decided. A key issue is whether the “Central Authority” of the foreign country considers that child a “habitual resident” of the foreign country. In the adoption proceeding, all adoption decrees after Feb. 3, 2014 must include a note that the Central Authority was notified\asked. China’s COO regularly finds their citizen children to be “habitual residents” and does not cooperate in permitting a US-adoption of a Chinese citizen child to be found a resident in the US. The effect of this Chinese policy?

No adoption permitted.

There are exceptions – theoretically, suppose one adopts under Chinese law, with subsequent two year residency and legal custody created by having lived with this person while abroad. This could potentially qualify. For most people this is not an option since foreigners are not allowed to adopt Chinese children outside of the Hague Convention under Chinese law, thus creating a chicken and egg problem for those wishing to adopt relatives as US citizens. But there are certain cases where this situation occurs, such as involving foreigners married to Chinese nationals working in the China, and it requires an intensive examination of the facts to determine if the option to use immediate relative adoption exists. 

I mentioned in an earlier post that I began reading this book after realizing how little I knew procedurally about setting up an adoption. For the tweedledum and tweedledee lawyer who hasn’t a clue how to go about with an adoption in Hawaii, this is where you start.

Most helpful was the references to the Hawaii Revised Statute section 578, which gives the law regarding adoption. I say helpful, since I don’t happen to have a westlaw or lexis research account at this time (that itself is another story…) It lists the kinds of people who can adopt, who must receive notice (such as the “presumed father” and “concerned natural father”), and other useful details that your normal business transactions lawyer would have no clue.

Also useful was a library bank of adoption forms, which are probably outdated by now, in Appendix XI. If and when Family Court moves out to Kapolei, forms such as “Notice of Time and Place of Hearing” will need to be updated as Family Court will no longer be in town. But it is a place to start, after checking that the HRS references and law is still intact and holding, as well as any other things to consider in going about updating the form for current use.

One item that I would say I learned after reading this book was of the unusual status and need to check whether the adopted child is American Indian. This makes me wonder whether there are specific issues to consider when it comes to a Native Hawaiian, and if the Akaka Bill should pass, anything specific adoption-wise when it comes to an adopted child of Native Hawaiian ancestry. Also new to me was the ’10 year old’ getting child’s own input discussion. I’m not sure whether this is still the law, as my recollection from family law class was that they base it on whether the child is capable of stating a preference and not merely age alone. A question, I imagine, for someone with a client, time, money, and need to go look up themselves.

Another useful thing in the book was the types of questions and checklists to look into by the legal support staff to help in doing the filing material, such as the adopting parent’s family background, and other items that will help show the court that the adoption is in the best interest of the child.

If I ever have to do adoptions, I wonder if there is a newer edition of this book (1st Edition, 1984) and where one goes about buying it. The publisher is the Hawaii Institute for Continuing Legal Education. I suppose if I start joining the HSBA sections I’ll start getting the information I need to figure these things out.