Green Card & Visa News

Litigation surrounding section 245(i) of the Immigration and Nationality
Act often involves complex factual and legal issues. Matter of Miguel
LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section
245(i) is such an example.  In LEMUX, the
BIA held that adjustment of status under section 245(i) is unavailable to an
alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II)
of the Act, without a waiver.

Section 245(i) was enacted in 1994 by Congress to allow certain
applicants for adjustment of status in the U.S.
to be eligible to receive their permanent resident status even though they
entered the U.S.
without having been formally inspected by an immigration officer first.  However, Section 301 of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed
two additional
grounds of inadmissibility for foreigners who have prior violations of
immigration laws.  First, section
212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those
who have been present in the U.S.
unlawfully.   Second, section
212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to
reenter the U.S.
after prior violations. 

In this case, the foreigner reentered the U.S.
without authorization after having been present in the U.S. for more than one year.  He then applied for adjustment of
status.  Both the immigration court and
the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of
the Act.