AskVisalaw.com

Posted on: October 23rd, 2017
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In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
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QUESTION: Is it true that individuals with TPS, who entered the US without a visa, are now eligible to adjust status in the United States based on a marriage to a U.S. Citizen? I heard that there was a 9th circuit case in Washington. I live in California.

ANSWER: It is true. If someone lives in the 9th circuit, or the 6th Circuit, and previously was ineligible to apply for Adjustment of Status in the US as the spouse of a US citizen solely because they had entered the US without inspection and therefore had not been legally admitted or paroled into the US, they may now be eligible to apply for Adjustment of Status within the 9th or 6th circuit jurisdictions. This is because the 9th circuit, in the case Ramirez v. Brown,  No. 14-35633, __ F.3d __ (9th Cir. 2017), has determined that someone in TPS status is in legal status and therefore has been legally inspected and admitted in that status. The 6th Circuit had previously had a similar ruling in Flores v. USCIS No. 12-3549, slip op. at 7 (6th Cir. June 4, 2013).

This ruling does not affect any other grounds of ineligibility or inadmissibility for applying for Adjustment of Status, so if the spouse of a US citizen had been inspected and legally admitted or paroled into the US the most recent time they entered the US, and they are ineligible to apply for adjustment of status for another reason, this case would not apply to make that person eligible for Adjustment of Status.

Also, it is important to understand that USCIS has not adopted these rulings, so unless they do, this rule only applies to individuals applying under the jurisdictions of the 6th or 9th circuit.

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QUESTION: I was born in India, so was my wife. I have applied for my I-140 in EB2 category. Both my parents were born in Sri Lanka and have their birth certificate. They also had Sri Lankan passport and did their schoolings there. As the situation was bad due to civil war, they had to move to India. They got their jobs and settled in India. Now they have Indian passports. Can I use my parent’s country of birth as Cross chargeability and use for my green card process? Can I use Sri Lanka instead of India for cross chargeability as India has the very long waiting period?

ANSWER: As a general rule, you are only able to use your parent’s country of birth as your country of chargeability where you are applying for permanent resident as their derivative child (a situation where you are unmarried, under 21, one of them is applying for permanent residence as the primary beneficiary/applicant, and you are applying for permanent residence with them as your child). Another exception would be where neither of your parents were residing in India at the time you were born. For example, if your parents were just in India for vacation when you were born in India, then you might be able to claim Sri Lanka as your country of chargeability.

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