What happens when an applicant applying for adjustment of status to permanent residence through form I-485 commits a crime before or during the time that the I-485 is being considered by U.S.C.I.S. and does not have a disposition? This is one of those questions that has different answers depending upon the discretion of the immigration office. In the recent AILA/Chicago Field Office Questions of 4/2/15, AILA asked whether the interviewing officer would hold open the I-485 until the criminal case was resolved or administratively close the I-485 and reopen it when documents are submitted resolving the criminal matter. Chicago CIS answered that the officer would issue an RFE for evidence; that upon timely receipt of the evidence or expiration of the 84 day period, the officer would proceed with a final determination of eligibility; the case would not be held in abeyance; and that whether a pending charge might support denial as a matter of discretion was a matter to be decided on the basis of all the facts in the case. Tampa CIS in a meeting with AILA on 11/4/10 stated that in a situation where the I-485 applicant would not have a disposition until he completed a pretrial intervention (PTI) program that would result in the dismissal of criminal charges and the adjudicating officer chose not to wait but denied the I-485, the burden of proof was on the alien to show that he or she was not inadmissible and if the crime was one involving moral turpitude and the PTI was not completed, then the alien would be inadmissible and require a waiver. Another tack was taken by New York City CIS in a meeting with AILA on 10/1/14 on the question of what would happen where the applicant was waiting for an adjournment in contemplation of dismissal (ACD) period of time to run – that in some cases officers would provide the applicant with an RFE with an 87 day response time, but that timeframe was usually shorter than the ACD period. New York CIS said that District policy was to administratively close the cases, send them to the NRC (National Records Center), and that attorneys could send a request to reopen the cases after the ACD period ran. To practicing attorneys, the policy in New York appears much more sensible in terms of time and expense saved for both the government and the aliens where the District is resolute in calling back the cases from the NRC on a timely basis. For the government, it has the opportunity to finish the case for present and only take it back from the NRC once the ACD paperwork is in. It also does not have to waste government time processing motions to reopen or new I-485 applications. For the alien, such result prevents an unnecessary denial and the need to file time-consuming and expensive motions to reopen, waivers, or new I-485 applications to adjust status.

Reprinted with permission.

About The Author

Alan Lee, Esq. The author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.