Asylum Denial Does Not Bar Adjustment of Status

Dear Mr. Tasoff:

Your letter of January 28 to Lawrence Weinig has been referred to me, since it relates to eligibility for adjustment of status. I apologize for the delay in responding to you.

In the letter, you ask about the effect of a denial of an asylum application on an alien's eligibility for adjustment of status under section 245 of the Immigration and Nationality Act (the Act). In the example you give, the alien had maintained lawful nonimmigrant status before filing the asylum application. The alien's nonimmigrant status subsequently expired. The alien later filed for adjustment of status under section 245 of the Act. While the adjustment of status application was pending, the asylum application was denied.

You state that your local Immigration and Naturalization Service (Service) office believes that, upon denial of the asylum application, this alien retroactively return to his or her prior immigration status and becomes ineligible for adjustment under section 245(c) of the Act. You question this interpretation and have asked for further guidance.

Please note that this office cannot determine the eligibility of any individual applicant for adjustment of status. Adjustment of status under section 245 of the Act is a benefit which may only be granted at the discretion of the director having jurisdiction over the cases; however, I can provide general information about the issues raised in your letter.

Section 245(c) of the Act generally prohibits the adjustment of status of an alien who has failed to continuously maintain lawful nonimmigrant status before filing the application for adjustment of status or who is not in a lawful immigration status on the date of filing; however, it imposes no penalty on an alien who fails to maintain status only after filing the adjustment application. Therefore, the decision concerning eligibility under section 245(c) of the Act must be made as of the date the adjustment application was properly filed. If the alien was not subject to the bar contained in section 245(c) of the Act based on the true facts of the case on the date of filing, he or she would not later become subject to this bar.

Section 245(c) of the Act also allows failure to meet its requirements to be excused if the alien shows that the failure was "through no fault of his own or for technical reasons." The statute does not further define or limit those cases in which failure to maintain may be excused; however, the regulatory definition at 8 CFR 245.1(c)(ii) explains the meaning of the statutory exemption and provides one example of a technical violation.

Neither the statute nor the regulations restrict technical violations to those cases in which the Service has not acted upon the pending application before the adjustment is approved. Therefore, there is no reason to employ the "technical violation" exemption differently from the statutory requirement to which it applies. The decision concerning whether a violation would be "technical" must also be made as of the date the adjustment application was properly filed. If the alien was excused from the bar contained in section 245(c) of the Act based on the true facts of the case as of the date of filing, he or she would not later be barred from adjustment on this basis.

The alien described in you letter did not continuously maintain lawful nonimmigrant status before the adjustment application was filed; however, based on the information in your letter, the failure to maintain status appears to have been found to be "for technical reasons." If that is the case, the alien would not be subject to the bar contained in section 245(c) of the Act for having failed to continuously maintain lawful nonimmigrant status. Nor would the alien later become subject to this bar because his or her pending asylum application was denied.

I trust this information has been helpful.

Edward H. Skerrett

(Courtesy of Ron Tasoff)

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