USCIS Issues Policy Guidance Regarding Adjustment of Status on New Basis After Termination of Conditional Permanent Residence
On November 21, 2019, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance explaining how USCIS applies the Board of Immigration Appeals' (BIA) case, Matter of Stockwell, and clarifying when USCIS may adjust the status of an individual whose Conditional Permanent Resident (CPR) status has been terminated. Based on the new policy, an Immigration Judge does not need to affirm the termination of CPR status before the individual can file a new adjustment of status application. This is great news, because CPR holders will no longer need to go through the Immigration Court system to readjust on a new basis if they meet the criteria described in the USCIS policy.
An individual obtains CPR status either based on marriage to a U.S. citizen or lawful permanent resident (if the marriage is fewer than two years in duration at the time status is granted), or based on an immigrant investor (EB-5) visa petition. As proof of CPR status, such individuals obtain a two-year permanent resident card. Within 90 days prior to the second-year anniversary of the date CPR status was gained, the individual must file a petition to remove the conditions on permanent resident status. Individuals who obtained CPR status through marriage are required to file Form I-751, Petition to Remove Conditions on Residence and individuals with CPR attained through the EB-5 program must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. USCIS may terminate CPR under certain circumstances, including the failure to file a timely petition to remove the conditions on residence or the failure to submit sufficient evidence with such a petition. In some situations, individuals whose CPR status is terminated may qualify for permanent residence on a new basis. Adjustment of status is the process that individuals can use to apply for lawful permanent resident status when present in the U.S. and meeting certain criteria in section 245(a) of the Immigration and Nationality Act.
An individual with CPR status is generally ineligible to adjust their status on a new basis under the provisions of section 245(a) of the INA. In Matter of Stockwell, the BIA held that an individual whose conditional resident status has been terminated is not barred from adjusting status based on a new eligibility. The immigration agency's previous policy was that an Immigration Judge must affirm the USCIS' termination of CPR status before the foreign national can file a new adjustment of status. That policy forced individuals to go through the Immigration Court system in order to have an Immigration Judge affirm the USCIS' termination of CPR before they could readjust.
Based on the policy guidance announced on November 21, 2019, although the Immigration Judge may review the termination in removal proceedings, the bar no longer applies upon USCIS terminating the CPR status. In other words, it is not necessary that an Immigration Judge have affirmed USCIS' decision to terminate the individual's CPR status before the individual may file a new adjustment application. Under the new policy, USCIS may adjust an individual's status on a new basis if his or her CPR status has been terminated by USCIS and:
- The individual has a new basis for adjustment of status;
- The individual is otherwise eligible to adjust status; and
- USCIS has jurisdiction over the adjustment of status application.
Time spent in the prior CPR status does not count toward the residency requirements for naturalization.
This guidance applies to adjustment of status applications filed with USCIS on or after November 21, 2019.