Adjustment of Status based on Final Exclusion Orders

Have you ever heard of exclusion proceedings?

Exclusion proceedings are a thing of the past, but there are many foreign nationals out there in the United States who are subject to “exclusion” orders.

Prior to 1996, when the immigration laws changed under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), immigration proceedings were divided into “exclusion” and “deportation” proceedings. In 1996, both “exclusion” and “deportation” proceedings were replaced with what we now know as “removal” proceedings. While no post-1996 proceedings can be called “exclusion” or “deportation,” many pre-1996 “exclusion” and “deportation” cases still linger in our immigration system.

Did you know that while a foreign national with a final order of “deportation” or “removal” cannot seek administrative adjustment of status (with the U.S. Citizenship and Immigration Services), a foreign national with a final order of “exclusion” CAN seek such adjustment of status?

Seeking adjustment of status with an exclusion order is a unique benefit. However, the USCIS officers adjudicating such adjustment of status applications often do not understand this legal concept. All-too-often, as soon as a district adjudications officer (“DAO”) sees that a foreign national had an “exclusion” order, the DAO winds up denying the adjustment for lack of jurisdiction with the USCIS. Contrary to such a decision, jurisdiction for adjustment of status lies ONLY with the USCIS when a foreign national is subject to an exclusion order.

While all this sounds pretty simple, it is anything but. Recently, we filed an adjustment of status application for a client who was subject to an exclusion order. With our knowledge and experience with immigration laws, we had no doubt about our client’s eligibility to adjust status with an exclusion order. With the adjustment application, we also filed an application for employment authorization, since a pending adjustment application would entitle our client to work authorization.

The USCIS sent us a notice (called a Request for Further Evidence), asking us to provide proof that our client’s adjustment application had been filed with the Immigration Court and that it was pending with the court. Because we had indicated that our client was at one point in exclusion proceedings, the USCIS is under the impression that our client is still under immigration proceedings. The USCIS refuses to adjudicate our client’s application for employment authorization until we provide them with proof of a pending adjustment application with the immigration court — proof that does not exist. We are now attempting to explain to the USCIS why our client does not have proof that the adjustment application is not pending in court (because she is NOT in proceedings anymore — she already has a final order of exclusion), and why she is eligible to adjust her status despite the exclusion order (as opposed to someone with a “deportation” or a “removal” order).

Lesson: know the differences between an “exclusion,” “deportation,” and “removal” orders! USCIS may not always recognize them (although its officers are supposed to know the “law” under which they are to perform their jobs!).

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Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.