A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, September 29, 2011

Third Circuit Appeal Court held section 245(i) does not overcome 10-year illegal presence bar

Section 245(i) of the Immigration and Nationality Act allows certain foreigners in the United States who would not normally qualify to apply for adjustment of status in the U.S. to apply for a green card even though they entered the U.S. without inspection, worked in the U.S. without authorization, and, for those who entered legally, failed to keep their lawful status since entry.  The LIFE Act amendment extended the filing deadline for section 245(i) relief to April 30, 2001.

However, Congress also passed another piece of legislation which punishes foreigners who had stayed in the U.S. without lawful status.  Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two bars to admissibility for foreigners who were unlawfully present in the U.S.  Individuals who have been unlawfully present in the U.S. for more than 180 but less than 365 days, and then depart from the U.S., are not eligible to return for the next three years. Similarly, foreign nationals who have been unlawfully present in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years (the 10-year bar).

The question arises as to whether a person in the United States who is subject to the 10-year bar may still apply for a green card through adjustment of status by invoking section 245(i) as a defense.  Recently, the 3rd Circuit Court of Appeal held that an Indian software engineer who is subject to the 10-year bar may not adjust her status under section 245(i).  In the case of Cheruku v. Att’y Gen. of the U.S. decided on September 22, 2011, the 3rd Circuit analyzed the above issue and concluded that Congress does not intend section 245(i) to overcome the 10-year-bar to admission.

Cheruku is a software engineer from India who first entered the U.S. on a B-1 business visa in 1995. She stayed in the U.S. and was offered a job by a U.S. employer.  Her employer filed a labor application and immigrant visa petition on her behalf, both of which were approved.  Cheruku filed an I-485 adjustment of status application on December 21, 2001 to apply for lawful permanent residence status.  While the I-485 was pending, she travelled outside of the U.S. and used her advance parole return to the U.S. in 2002. In 2004, her I-485 was denied based on the 10-year-bar.  Both the Immigration Court and the Board of Immigration Appeal found her barred from applying for a green card.  She petitioned the 3rd Circuit Court to review her case. 

Adopting the reasoning of the BIA, the Third Circuit first acknowledges that Congress passed section 245(i) and the LIFE Act with the intention to waiver some general grounds of inadmissibility such as entry without inspection and overstaying of status.  However, it also found the 10-year-bar contained in the IIRIRA was intended to punish the more culpable class of foreigners who was present illegally in the U.S., then departed or deported, and then reentered the U.S. The LIFE Act does not explicitly excuse this type of behavior.  In fact, Congress requires that foreigners who are subject to the illegal presence bars must first apply for a waiver from outside of the U.S. to obtain permission to reenter the U.S.  Cheruku actually was paroled into the U.S. by using her advance parole (AP) travel document.  The advance parole document is an auxiliary benefit of the adjustment application.  However, the document itself contains a conspicuous warning that using the AP to travel may trigger and does not overcome the illegal presence bar to admissibility.  The 3rd Circuit Court found no difference between Cheruku and those who reentered the United States illegally. 

It is interesting to note that other federal circuits have reached different conclusions on this issue.  While the 10th Circuit also adopts the BIA approach and held that the 10-year bar trumps section 245(i), the 7th Circuit held the other way.  This remains to be an unsettled area of the law, to say the least.  Suffice to say that foreign nationals who have been unlawfully present in the U.S. should not travel outside of the U.S. if they intend to use section 245(i) to apply for lawful permanent residence status.

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