Foreign nationals and immigration practitioners often wonder why USCIS requests all immigration status documents ever issued to an applicant when applying for adjustment of status based on employment. There is a long-standing guidance suggesting that the only relevant periods of being out-of-status under the immigration laws are those that occurred since the applicant’s most recent U.S. entry. However, in its most recent meeting, the agency provided several reasons for why an applicant’s entire immigration status history is reviewed at the time of the adjustment application, not just since the most recent admission.
The main reason is to look for an inadmissibility issue due to unlawful presence and any previous periods of unlawful presence that may trigger one of the bars to admissibility (3 years for 180 days to a year of unlawful presence; and 10 years for 1 year or more of unlawful presence). For example, a foreign national who overstayed his or her previous legal status for a year or more would be ineligible to adjust status for 10 years, unless eligible for an inadmissibility waiver.
Another example for when an applicant’s full nonimmigrant visa history is relevant relates to J-1 exchange visitor visa holders. Exchange visitors may be subject to a 2-year foreign residency requirement, unless a waiver is available.
Since adjustment of status is a discretionary immigration benefit, USCIS considers and weighs any previous violations of status or visa overstays as a negative factor when adjudicating the application. However, legal status since the last lawful entry is most critically examined.
When preparing and submitting your employment-based application for adjustment of status, it is important to carefully review your comprehensive immigration history and relevant documentation in detail. We would be happy to help you and your employer determine and understand any potential inadmissibility issues or a potential home-country physical presence requirement, identify alternative options, and develop an accurate legal strategy in your case.