These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
245(i)
The First Circuit has determined that the analysis of whether a labor certification is approvable when filed is a “holistic inquiry,” which requires connecting the facts and circumstances of a particular case to the standards for adjudicating labor certifications at the time of filing.
The full text of Oliveira v. Wilkinson can be found here: http://media.ca1.uscourts.gov/pdf.opinions/19-1258P-01A.pdf
The Ninth Circuit has determined that USCIS may rely on the denial of a petition to find that the petition was not approvable when filed so long as the denial was on the merits, and not based on a procedural finding or based on circumstances that changed after the petition was filed. Though USCIS is permitted to reevaluate the merits of a denied petition at the time an applicant is applying for adjustment of status, it is not required to do so.
The full text of Hsiao v. Hazuda can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/01/15-55676.pdf
The Ninth Circuit has determined that if an employer filed a labor certification prior to April 30, 2001, but substituted a new beneficiary of that certification after April 30, 2001, that beneficiary is not grandfathered under section 245(i) of the Immigration and Nationality Act. In so doing, the court deferred to the regulation at 8 C.F.R. 1245.10(j), finding it to be a permissible interpretation of the ambiguous statute found in section 245(i) of the Immigration and Nationality Act.
The full text of Valencia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/02/13-70414.pdf
n 2002, the Correo-Ruiz brothers applied for adjustment of status under section 245(i) of the INA. In 2006, the Ninth Circuit issued its decision in Acosta v. Gonzales, finding that a person who was inadmissible under section 212(a)9)(C)(i)(I) of the iNA for having re-entered the United States without admission after accruing at least one year of unlawful presence could still seek adjustment of status under section 245(i) of the INA. I In 2007, the Board of Immigration Appeals issued its decision in Matter of Briones, coming to the opposite conclusion as the Ninth Circuit in Acosta. This came as unwelcome news to the Correo-Ruiz brothers, who had already expended money for legal representation in their immigration process after the decision in Acosta. In 2012, the Ninth Circuit issued its decision in Garfias-Rodriguez v. Holder, deferring to the Board's decision in Briones, but suggesting that a person who could show detrimental reliance on Acosta might be able to successfully argue against the retroactive effect of Briones and Garfias-Rodriguez.
Though the court recognized that the Correo-Ruiz brothers could not have filed their adjustment applications in reliance on Acosta (which was decided approximately 4 years after they filed their applications), they may relied on the Acosta decision when deciding to continue to pursue their applications with legal assistance after the Acosta decision and before the Briones decision. The money spent on this legal assistance could create the necessary detriment to prevent retroactive application of the decision in Briones.
The full text of Correo-Ruiz v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/30/12-72126.pdf
In the long-awaited follow up decision to its 2012 en banc decision in Garfias-Rodriguz v. Holder, the Ninth Circuit found that an individual who had triggered the so-called "permanent bar" of inadmissibility under section 212(a)(9)(C)(i)(I) of the INA (re-entering or attempting to re-enter the United States without admission after accruing one year of unlawful presence) could still seek adjustment of status under section 245(i) of the INA if they had applied for for adjustment after the Ninth Circuit ruled on February 23, 2006 in Acosta v. Gonzales that adjustment was available to such individuals, and before the Board of Immigration Appeals ruled on November 29, 2007 in Matter of Briones that such individuals were ineligible for adjustment. Applying the retroactivity analysis outlined in Montgomery-Ward & Co v. Federal Trade Commission , the Ninth Circuit determined that the petitioner, who had applied for adjustment of status under section 245(i) in July 2006 by an Immigration Judge, reasonably relied on the 2006 decision in Acosta when applying adjustment and paying the penalty fee under section 245(i) of the INA and by giving up his ability to take voluntary departure and spend the mandatory 10 year period outside the United States to try to seek waiver of the inadmissibility bar contained in section 212(a)(9)(C)(i)(I) of the INA.
The Ninth Circuit rejected the Government's argument that the petitioner could not have reasonably relied on Acosta because the Board of Immigration Appeals had already issued Matter of Torres-Garcia, finding that individuals who were inadmissible under section 212(a)(9)(C)(i)(II) of the INA (re-entering or attempting to re-enter the United States without admission after being ordered removed) were not eligible for adjustment of status under section 245(i) of the INA.
The full text of Acosta-Olivarria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/26/10-70902.pdf
Yesterday, in Prasad v. Holder, the Fourth Circuit became only the second circuit court of appeals (after the Ninth Circuit) to address whether the April 30, 2001 sunset date for adjustment of status under section 245(i) of the INA is a statute of limitations (which could theoretically be tolled) or a statute of repose (which sets an absolute deadline). Prasad had hired an attorney to file a labor certification on his behalf before the sunset date, but to the attorney's incompetence, the labor certification was filed two months late. Prasad argued that his former attorney's ineffective assistance should toll the filing deadline. Unfortunately for Prasad, the court followed the Ninth Circuit's lead in Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008), and found that the sunset date is a statute of repose, not subject to equitable tolling.
The full text of Prasad v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141034.P.pdf
