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

www.lawschell.com 

 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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