USCIS Policy Memo: Extension of Status for T and U Nonimmigrants (Corrected and Reissued)

October 4, 2016 PM-602-0032.2 Policy Memorandum (PM)

SUBJECT: Extension of Status for T and U Nonimmigrants (Corrected and Reissued)
Purpose
This policy memorandum (PM) provides guidance about extensions of status for T and U nonimmigrants, including any related Forms I-485, Application to Register Permanent Residence or Adjust Status. This PM rescinds and replaces PM 602-0032.1, as discussed below. This PM revises chapters 39.1 and 39.2 of the Adjudicator’s Field Manual (AFM).

PM 602-0032.1 contained information relating to a derivative T nonimmigrant’s ability to adjust status to a lawful permanent resident (LPR). Under the superseded PM, a derivative T nonimmigrant could not adjust status after the principal had adjusted status and had become an LPR. USCIS reasoned that because the derivative family member’s nonimmigrant status was
derived from the principal, upon the principal’s adjustment of status, the derivative would no longer maintain derivative T nonimmigrant status and therefore would be ineligible for
adjustment of status. This meant that the derivative would have to adjust at the same time as the principal in order to preserve the eligibility to adjust status. USCIS noted statutory differences with the U nonimmigrant program, which requires derivative U nonimmigrants to meet their own physical presence requirement. No similar physical presence requirement applies to adjustment of status for derivative T nonimmigrants.
USCIS has reconsidered this interpretation of the T derivative adjustment of status provision and has edited the policy below accordingly. While applicable regulations require that a derivative T nonimmigrant must hold T nonimmigrant status at the time of filing Form I-485, the revised policy states that the derivative will not lose his or her derivative T nonimmigrant status when
the principal adjusts status and becomes an LPR. Note that family members who have not previously entered or resided in the United States as derivative T nonimmigrants must be initially admitted in T nonimmigrant status before the T principal adjusts status. A derivative T nonimmigrant is eligible for adjustment of status if: (a) the principal has applied for and meets
the eligibility requirements for adjustment of status under 8 CFR 245.23; and (b) the derivative was admitted in T nonimmigrant status and continues to hold such status at the time of the principal’s application for adjustment of status. 8 CFR 245.23(b)(1) and (2).
Applicants may file a motion to reopen a derivative T nonimmigrant’s Form I-485 if U.S.C.I.S denied the application solely because the principal had already adjusted status. Applicants should file a Form I-290B, Notice of Appeal or Motion, and include a copy of the previous denial.

Scope
Unless specifically exempted herein, this PM applies to and is binding on all U.S.C.I.S employees.
Authorities
• Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), div. A; Trafficking Victims Protection Act of 2000 (TVPA), div. B; Violence Against Women Act of 2000 (VAWA 2000), Public Law No. 106-386, 114 Stat. 1464 (2000).
• Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), Public Law No.108-193, 117 Stat. 2875 (2003).
• Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law No. 109-162, 119 Stat. 2960 (2006).
• Violence Against Women and Department of Justice Reauthorization Act – Technical Amendments, Public Law No. 109-271, 120 Stat. 750 (2006).
• William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Public Law No. 110-457, 122 Stat. 5044 (2008).

This information is provided as a matter of courtesy from the Shah Peerally Law Group PC, it is not intended to be legal advice.If you need help with your U visa or T visas please call us at 510 7425887. Visit www.AttorneyOnAir.com