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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94319
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Adjustment of status from Withholding of Removal to legal

Customer Question

I am a US Citizen and recently married a lady who has Withholding of Removal status. I understand that, although this status does not give grounds for adjustment of status, our new bona fide familial relationship, may.

My question is threefold: (i) must I file the adjustment of status form with the immigration court who granted the status or with the DHS? (ii) If the first, what do I ask the court to do? (iii) is this the kind of complex immigration process for which the specialized services of an immigration lawyer are indispensable?

Thank you for your help.
Submitted: 5 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

I have noticed that your question has been pending for awhile and no one has tried to answer it. I don't want to leave you without an answer, but I will tell you that I need to do some research about if you file with USCIS or with the Immigration Judge (IJ). That is the only thing that I am unsure of. Give me a little time and I will find the answer as it is not readily apparent in any of my texts.

 

If you must file with the IJ, the process will be to file the I-130 with USCIS, have them adjudicate it, then file a motion to reopen your proceedings with the IJ showing the approved I-130 and when the IJ opens your case, then you file the I-485 and everything else with him (or her).

 

It is not that complicated, but it would run smoother with an attorney, especially the part about the motion to reopen.

 

So again, let me verify that for you and I will get back to you in a day or two as I am also somewhat busy these days with my own practice.

Customer: replied 5 years ago.
Thank you for your promise to answer my question. I will wait to hear your answer. As you can understand, certainty on whether to file first with IJ or with USCIS is the essence of a satisfactory answer to my question.

I could well file I-130 with USCIS, wait months or years for an answer, only to be told that they do not have jurisdiction and that I should go to the IJ for his/her ruling, thus going into the vicious circle that I am trying to prevent.

Conversely, asking the IJ to reopen the case may mean reconsideration of the "Witholding of Removal" status and thus deportation and family dislocation while an I-130 is filed and acted upon by USCIS.

I appreciate your effort so far and I am certainly willing to pay for the cost of your service.

E.Talero
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

Sorry for the delay in getting back to you. I have been extremely busy with my own practice and taking care of some community service to underserved children that I do around this time every year. I have done some additional research on your case and I have some additional questions for you. How did your spouse enter the U.S.? Did she use a visa or did she enter illegally? If she used a visa, which type of visa was it?

Customer: replied 5 years ago.
I do not understand how my wife's entry into the US makes any difference, given her present "withholding of removal" status. Anyway, she entered under a tourist visa and then applied for asylum unfortunately past the year deadline. Her asylum was not approved for this reason but she was given "withholding of removal".

E.T
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

It has everything to do with her options. An Entry Without Inspection (EWI) has very limited options and Withholding of Removal just means they will not deport her. This is precicely the reason you want to fix her status, because obviously Withholding of Removal doesn't give her the firm legal status that she would want.

 

But the good news is that since she entered on a tourist visa, she can adjust status without having to leave the U.S.

 

It seems to me you will have to file the I-130 with USCIS and then motion the Immigration Court to reopen proceedings in order to have the Immigration Judge adjudicate the I-485.

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94319
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and other Immigration Law Specialists are ready to help you
Customer: replied 5 years ago.
I want to thank Mr. Senmartin for his follow up and clear answer to my question. I hope to be able to tap his advice as I follow through on his recommendation. I am not sure whether he personally reads this but just in case my email address isXXX@XXXXXX.XXX.

Thank you very much again,

E.Talero
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.
I personally ready it all. Thank you. They just do not let us communicate directly through email. Again, thank you and good luck to you!
Customer: replied 5 years ago.
How do I go about asking a follow up question to the same immigration law expert? (i) do I have to repeat what transpired before (3-19-09)? (ii) how to make sure that the same expert (Mr. Senmarting) answers?

Thanks for directions
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

Hello. I am here. How may I help you?

Customer: replied 5 years ago.
Oh thanks. I hope you remember my case. I am trying to follow your advice to file I-130 with USCIS to petition for my wife in "withholding of removal status" and when USCIS adjudicates it then motion the IJ to reopen her proceedings and file with him the I-485. My question is what to put in Part 2 of I-485, since only option H (Other) would possibly apply. Also, for question 22 of I-130 I do not know what to say with respect to the inmigration office where she will apply for adjustment of status, since the premise to the question is that she is eligible for such adjustment and I know that under "withholding of removal" she is not.
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

You cannot file the I-485 yet. You just file the I-130 now and get that approved first. Once you do, then you file the motion to reopen with the immigration judge. If successful, then you file the I-485 with the Immigration Judge and you check mark box "a" because the I-130 would be approved by then.

 

As far as question 22 goes in the I-130, you write in the city name where you currently live.

Customer: replied 5 years ago.
Thank you, XXXXX XXXXX that I-130 tells USCIS is that my wife has been under immigration proceedings for removal (Question 16) and that she overstayed her visitor visa (Q. 14). Without filing the I-485 how on earth will they approve the I-130 without knowing that I will apply for IJ to reopen case?

Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

You don't think they will know this anyway? The correct procedure is to file the I-130 without the I-485. They will just deny the I-485 saying that they do not have jurisdiction. They only have jurisdiction to adjudicate the I-130. The Immigration Judge has the jurisdiction to adjudicate the I-485. I hope you aren't afraid that they are going to try to deport her again! It doesn't work that way (unless she committed some kind of crime).

 

So file the I-130, yes put that she overstayed and yes, put that she was in immigration proceedings. She has already been absolved of that by being granted Withholding of Removal. When it is approved, file the motion to reopen with the court and the evidence that the I-130 has been approved. Then if it gets reopened, then you file the I-485 with the immigration judge.

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94319
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and other Immigration Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you. XXXXX am afraid that they will ask her to leave the country before her status can be adjusted. However, your answer is reassuring. I am going to file the I-130 by itself (well, with the G325 of course) and wait to see what happens. Thanks for your help again at this late time of the night. I really appreciate it. I am accepting your answer and will get back to you later if I have new one.
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.
No worries. They are not going to try to deport her again unless she committed some crime or they discover that she is a citizen of some other country that they can deport her to. Nothing you should worry about, but I just want to be thorough. Thank you and good luck to you!

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