Alert: Reports of ICE Arrests & Detention At Green Card Interviews
In an apparent attempt to meet demanding arrest quotas and contrary to longstanding practice, ICE officers are detaining some individuals who have filed applications for a green card based on their marriage to a U.S. citizen. Officers are detaining these applicants due to a lapse in visa status.
Individuals married to a U.S. citizen generally have 2 paths to pursue their Lawful Permanent Residence in the U.S. (a Green Card):
If physically present in the U.S., they may file an Adjustment of Status (I-485) application with USCIS.
If physically outside the U.S., they may file an Immigrant Visa application with the U.S. Embassy/Consulate in their home country.
Normally, in order to take advantage of Adjustment of Status (AOS) an individual must be present within the U.S. under some type of lawful immigration status. However, for individuals married to a U.S. citizen, their AOS applications cannot be denied based on a lack of visa status or lapse in visa status. Historically, USCIS would properly allow such applicants to continue processing their AOS application with that agency, and if all requirements were met, would approve the case.
But now we are seeing reports suggesting that USCIS may no longer be following this practice. Instead, if USCIS officers come across an AOS applicant whose visa status has expired, some offices are coordinating with ICE officers to have the applicant arrested apparently solely on account of their visa overstay / lapse in visa status. In these reports, there does not seem to be any other basis for removal such as criminal violations. (Overstaying one’s visa status is a civil violation under U.S. immigration law, not a criminal offense.) These individuals are then detained, issued a Notice to Appear (NTA) and placed in removal (deportation) proceedings. Once issued an NTA, these individuals may be able to request a bond hearing where a judge will determine whether they may be released from detention while the judge decides their removal case. Individuals in removal proceedings can still make a case for their green card based on their marriage to a U.S. citizen, but the process is more burdensome and complicated.
What is the impact of this apparent policy shift for TN visa workers married to US citizens who are considering applying for a green card?
1. They should think twice about applying for adjustment status if their TN visa status is soon to expire.
Individuals who file adjustment status applications generally will not be able to obtain a new TN or extend their existing TN visa status.
U.S. immigration officials generally consider a pending adjustment application as a significant sign of immigrant intent that is contrary to the temporary intent requirements necessary to qualify for TN status.
This means that such individuals may have their TN status expire during the adjustments of status process, which could put them at risk of detention as described above.
It may be now prudent to not file for AOS unless an individual has at least two or three years remaining on their TN visa status so that they are more likely to complete the Green Card process before their TN expires.
Of course, there is always the risk that the AOS may take longer to adjudicate, and so this is not an entirely foolproof strategy.
2. Alternatively, TN visa workers could consider applying for their green card through immigrant visa processing (path #2 above) instead of adjustment of status.
This involves breaking the process into two stages: (a) first the filing of an I-130 petition with USCIS, and then once that is approved (b) the filing of an immigrant visa application with the US Consulate in Canada or Mexico.
In this scenario, there is the possibility to renew one's TN visa status during the process, if needed.
In theory, an individual may be able to maintain their TN status until the time comes for their consular appointment. (In order to remain in the U.S. during this process they, in fact, must maintain their TN or obtain another visa status.)
This process does not involve an interview in the US where one may be detained.
Instead, as a final step it involves an interview at the US Consulate in Canada or Mexico where a final decision is made on the case.
If the case is denied for some reason, the individual would not be detained (but they could have issues returning to the U.S. under their TN).
If TN visa workers or other individuals have already commenced the AOS process and their visa status has expired, they should consider the following precautions:
Consult with an attorney to determine their potential risk of arrest. (Currently, this does not appear to be a nationwide practice but there is anecdotal evidence that it may soon become one.)
Consult with or have the contact information for an immigration attorney who specializes in removal / deportation to assist in the event you are detained. (Not all attorneys who handle employment/family-based cases handle removal defense.)
Consider having attorney representation for the AOS interview appointment.