Rescission of Adjustment of Status
By Reuben S. Seguritan
October 3, 2018
The adjustment of status of a person may be rescinded if he was in fact not eligible for such adjustment.
The Department of Homeland Security (DHS) can initiate the rescission of the adjustment of status within 5 years from the date on the green card. The DHS must only prove ineligibility on grounds originally asserted for adjustment of status. It is not necessary to discuss other grounds on which the immigrant could have qualified for adjustment of status. However, for immigrants who underwent consular processing, there is no statute of limitations and the DHS can file and begin the necessary procedure to rescind the green card anytime.
If the rescission action has been initiated within the 5 year period and the proceeding is ongoing, the proceeding may continue even though the 5 year statute of limitations has passed.
For marriage-based or entrepreneur-based conditional permanent residents, the 2 year period that he spends as a conditional resident counts as part of the 5 year statute of limitations. For example, if it is discovered that he concealed a criminal record, then the green card may be rescinded within the 5 year statute of limitations.
The DHS always has discretion of whether to file for the rescission of the lawful permanent resident’s (LPR) green card. If the DHS decides not to rescind the LPR’s status despite information that the LPR might be ineligible for adjustment of status, then this decision may not be reconsidered. The only exception is if new facts are discovered that were not known at the time the original decision not to rescind the LPR’s status was made surface, then the DHS can file for the rescission of the LPR’s green card.
The procedure for the rescission of adjustment of status begins with the DHS sending a notice of intent to rescind to the LPR. If the LPR contests the notice of intent to rescind within 30 days, then there will be a hearing before the Immigration Judge. If the LPR does not respond within 30 days, then no hearing is required. If the immigrant requests for an extension to respond and asks for documents, this is deemed not be an answer. Hence, no hearing will be required. For all proceedings for the rescission of adjustment of status, the rules of evidence are not binding and the standard is “clear, convincing and unequivocal”.
The DHS is not barred from initiating removal proceedings of the LPR while the rescission hearing is ongoing. This is because rescission of adjustment and removal proceedings have been interpreted as two separate proceedings and the 5-year statute of limitations only applies to rescission of adjustment and not to removal proceedings. Removal proceedings may be commenced anytime and there is no statute of limitations for this action. Furthermore, the DHS is not required to bring a rescission of adjustment action against an LPR who was already subject to a final order of removal.
If the adjustment of status of the immigrant is rescinded as a result of the rescission proceedings, then the immigrant is considered to be out-of-status and has overstayed in the US. All family members who derived status from the immigrant whose status was rescinded also lose their status and are likewise deemed to be out-of-status and overstaying in the US.