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September 4, 2012

LAW OFFICES OF NORKA M. SCHELL, LLC: MANOHOR RAO ARRABALLY UPDATED

IMMIGRATION AND POLICY: MANOHOR RAO ARRABALLY UPDATED: Posted by: Norka M. Schell  New York Immigration Attorney Law Offices of Norka M. Schell, LLC www.lawschell.com    Here is the...

MANOHOR RAO ARRABALLY UPDATED


Posted by: Norka M. Schell 
New York Immigration Attorney
Law Offices of Norka M. Schell, LLC

 Here is the amended on the decision of Matterr of Manohar Rao Arrabally and Yerrabelly which was 
decided on August 16, 2012. 

The Board of Immigration Appeals held that the Respondents, who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section
212(a)(9)(B)(i)(II). We hold that they did not.


Background

An alien who leaves the United States temporarily pursuant to a grant of advance parole
does not thereby make a “departure . . . from the United States” within the meaning
of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.

In a decision dated August 20, 2009, an Immigration Judge found the
Respondents inadmissible as charged under section 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006),
as intending immigrants not in possession of valid immigrant visas or other
entry documents. He further found them ineligible for adjustment of status
under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), based on their
inadmissibility under section 212(a)(9)(B)(i)(II), and he ordered them removed
from the United States.

Board of Immigration Appeals

This case presents the question whether the respondents, who left
the United States temporarily under a grant of advance parole, thereby
effected a “departure,” which resulted in their inadmissibility under section
212(a)(9)(B)(i)(II). We hold that they did not. Consequently, the respondents’
Cite as 25 I&N Dec. 771 (BIA 2012).

The respondents seek adjustment of status under section 245(i) of the Act (rather than
section 245(a)) because they “failed . . . to maintain continuously a lawful status since entry into the United States” within the meaning of section 245(c) of the Act. Section 245(i) adjustment is available for a fee to certain aliens who are “physically present in the United States” but covered by section 245(c). Section 245(i)(1)(A)(ii) of the Act. The appeal will be sustained in part and the record will be remanded to the
Immigration Judge for further proceedings.

LAW OFFICES OF NORKA M. SCHELL, LLC: MATTER OF Mahvah AKRAM, Respondent

IMMIGRATION AND POLICY: MATTER OF Mahvah AKRAM, Respondent: Posted by Norka M. Schell, Immigration Attorney Law Offices of Norka M. Schell, LLC www.lawschell.com Decided on August 1, 2012 This c...

MATTER OF Mahvah AKRAM, Respondent

Posted by Norka M. Schell, Immigration Attorney
Law Offices of Norka M. Schell, LLC
www.lawschell.com

Decided on August 1, 2012

This case addresses the question whether an alien who was admitted to the United States as a K-4 non immigrant pursuant to section 101(a)(15)(K)(iii) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(15)(K)(iii) (2006), can adjust status without demonstrating immigrant visa eligibility and availability as the beneficiary of an approved immigrant visa petition filed by his or her stepparent, the United States citizen K visa petitioner. 

(1) An alien who was admitted to the United States as a K-4 nonimmigrant may not
adjust status without demonstrating immigrant visa eligibility and availability as the
beneficiary of a Petition for Alien Relative (Form I-130) filed by his or her stepparent,
the United States citizen K visa petitioner.

(2) A K-4 derivative child of a K-3 nonimmigrant who married the United States citizen
K visa petitioner after the K-4 reached the age of 18 is ineligible for adjustment of status
because he or she cannot qualify as the petitioner’s “stepchild.”

In a decision dated May 21, 2010, an Immigration Judge denied Mahvash Akram's application for adjustment of status and granted her request for voluntary departure. Mahvash Akram appealed from that decision and submitted two motions to remand. 

The case addressed the question whether an alien who was admitted to the United States as a K-4 nonimmigrant pursuant to section 101(a)(15)(K)(iii) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(15)(K)(iii) (2006), can adjust status without demonstrating
immigrant visa eligibility and availability as the beneficiary of an approved
immigrant visa petition filed by his or her stepparent, the United States citizen
K visa petitioner. 

The Board of Immigration Appeals (BIA) concluded that the Respondent, a K-4 nonimmigrant who was over 18 years of age when her K-3 mother married the K visa petitioner, was ineligible to adjust her status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), because she can not qualify as the petitioner’s “stepchild.” The BIA denied the two motions and dismissed the appeal.  

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