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Understanding the Legal Landscape for Arriving Aliens: Expert Insights

Understanding the legal landscape for arriving aliens is complicated. Even decades after the 1990 Immigration Act was passed, the process for how an intending immigrant can legally enter the United States is ever-evolving. Changes to the 1990 Immigration Act have been implemented almost every other year. At Virguez Law, we know firsthand what arriving aliens face because we are immigrants. While we hope this article shares expert insights for understanding the legal landscape for arriving aliens, it’s best to speak to an immigration attorney to navigate the process. If you have questions about immigration law or your rights as an arriving alien, please call our law firm at 678-300-0000.

Who Are Arriving Aliens?

Arriving aliens come to the United States and either seek admission at a designated entry point or have been intercepted in international or U.S. waters and brought into the country, even if not through a designated entry point. They are still considered arriving aliens even if they were allowed entry on parole (temporary permission) and this parole has been terminated or revoked. Most commonly, arriving aliens seek admission at a designated entry point and are allowed to enter temporarily but have yet to be officially admitted.

Before the year 2006, there were regulations in place that prevented intending immigrants from changing their status to permanent residents if they met two criteria:

(1) They were considered “arriving aliens”

(2) They were in the process of removal proceedings.

These regulations were outlined in 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) in 2005.

However, these rules faced legal challenges. Four different appeals courts ruled that these rules went against the adjustment of the status statute (8 U.S.C. § 1255(a)). They argued that intending immigrants who arrived and were in removal proceedings should be able to apply for adjustment. In response to these court decisions, in 2006, the United States Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) decided to remove these rules and introduced interim regulations. Surprisingly, these interim rules have been in effect for seventeen years without ever being finalized.

With one exception, these interim rules give USCIS the authority to decide on adjustment applications for arriving aliens in removal proceedings. The USCIS is a primary source of information for intending immigrants in the United States. Their website provides valuable resources, including visa information, application forms, and updates on immigration policies. USCIS offers materials in Spanish to assist Spanish-speaking individuals in navigating the legal processes. For more information, visit the USCIS Website.

Understanding “Applicants for Admission”

The term “applicant for admission” is not defined in the law. Still, it broadly includes any intending immigrant present in the United States without being officially admitted or any intending immigrant who arrives in the United States, whether at a designated entry point or after being intercepted in international or U.S. waters. Applicants for Admission” refers to intending immigrants seeking permission to enter the United States. This term typically applies to individuals who are not U.S. citizens or permanent residents and wish to enter the country for various purposes such as tourism, work, or study.

While all arriving aliens are applicants for admission, the reverse is not always true. Some individuals who enter the United States without inspection are considered applicants for admission but are not arriving aliens because they didn’t seek admission at a designated entry point. It is important for arriving aliens to understand the requirements and procedures in applying for admission to ensure a smooth entry into the United States.

How to Determine if Someone Is an Arriving Alien

Whether someone is classified as an arriving alien affects various legal aspects, such as whether the Department of Homeland Security (D.H.S.) can charge them as inadmissible or deportable and which agency has jurisdiction over their adjustment application. For individuals in removal proceedings, D.H.S. may allege they are arriving aliens in the Notice to Appear (NTA). To contest this, individuals can provide evidence regarding how they entered the U.S. If they didn’t enter through a designated entry point, the arriving aliens allegation on the NTA may need to be corrected.

Agency Jurisdiction Over Adjustment Applications

The regulations determine which agency, USCIS or EOIR, has jurisdiction over adjustment applications for arriving aliens in removal proceedings. USCIS typically has jurisdiction unless specific conditions give an immigration judge jurisdiction. These regulations clarify the procedural question of agency jurisdiction over adjustment applications but don’t affect eligibility requirements. USCIS adjudicators apply the same standards to adjustment applications for paroled arriving aliens as to any other adjustment application.

These regulations were established to provide a forum for arriving aliens in removal proceedings to apply for adjustment of status in line with the statutory framework. Courts have upheld these regulations in various legal challenges.

Under U.S. immigration law, the Department of Homeland Security (D.H.S.) has jurisdiction over the processing and adjudicating of adjustment applications for arriving aliens. This includes individuals who have entered the United States without inspection or have overstayed their authorized admission period. D.H.S. operates the Adjustment of Status (A.O.S.) process for these individuals, which allows them to apply for lawful permanent residence in the United States.

We hope this expert advice on understanding the legal landscape for arriving aliens has been helpful. The landscape for arriving aliens can be complex and daunting, especially for individuals who do not speak fluent English. However, with credible sources like USCIS, AILA, the Department of State, ILRC, and NIJC, intending immigrants can access valuable information to make informed decisions and successfully navigate the legal processes involved in their immigration journey. Remember that legal counsel from a qualified immigration attorney is also essential for personalized guidance and assistance in your specific situation. Please call Virguez Law at 678-300-0000 if you have further questions about arriving aliens.

Here are a list of helpful resources for information on arriving aliens:

  • Department of State – Visa Information

The Department of State offers a comprehensive guide to U.S. visas, including application procedures, eligibility criteria, and visa categories. Spanish-speaking individuals can find essential information in Spanish to help them navigate the visa application process.

Source: Department of State Visa Information

  • Immigrant Legal Resource Center (ILRC)

The ILRC is a nonprofit organization that provides legal resources and training to immigration attorneys and organizations. Their website offers a wide range of resources in Spanish, including manuals, webinars, and F.A.Q.s, making it a valuable source for understanding the legal aspects of immigration.

Source: ILRC Website

  • National Immigrant Justice Center (NIJC)

NIJC offers legal services and advocacy for immigrants in the United States. Their website provides resources on immigration rights, asylum, and detention issues. Spanish-speaking individuals can access crucial information on their rights and legal options.

Source: NIJC Website

Please note that this article provides simplified explanations and should not be considered legal advice. For personalized legal advice, consult Virguez Law at 678-300-0000.

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