Adjustment of Status in the United States after a Grant of Voluntary Departure
Posted by: ScottMond Law Firm
October 15, 2012
Topic: U.S. Citizenship
At times, we have clients who come to our office for legal guidance regarding their failure to depart the United States under a grant of Voluntary Departure. For a variety of reasons one may be unable to depart. Eventually, the foreign national may marry and become eligible to adjust status in the United States. However, the individual’s failure to leave the United States as ordered by a U.S. Immigration Judge, can prevent one from adjusting status in this type of situation.
The purpose of this blog article is to give a general overview of the steps that would need to be taken for a client to have the strongest chance of Adjustment of Status in the United States with their new “immediate relative”.
First, it is important to understand that once a grant of Voluntary Departure is not complied with, the Order is converted to a Final Order of Removal (“FOR”). A FOR invokes a 10 year bar which can require the foreign national spouse to consular process back in their home country. However, we describe below a window of possibility to remain in the U.S. and adjust status here successfully.
The first step in this situation, such as described herein, is to hire experienced Immigration legal attorney counsel to file a Motion to Reopen the case in U.S. Immigration Court. If possible, it is ideal to file a Joint Motion to Reopen with the Department of Homeland Security Trial Attorneys. However, this is tricky, and DHS Trial Attorneys usually object, so Immigration Counsel would need to file Sua Sponte.
Once the Motion to Reopen is filed, a U.S. Immigration Judge, in his or her discretion, may agree to allow the spouse to adjust his or her immigration status to a U.S. Permanent Resident in court despite failure of an individual to depart the U.S. pursuant to Voluntary Departure.
Members and Former Employee(s) of the American Immigration Lawyers’ Association (AILA)
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