Issues in Immigration Law
By Attorney Jon Wu

A recent class action settlement will shorten waiting times for green card applications and result in a significant victory for plaintiffs. The court in the case of Ngwanyiav v. Gonzales is currently waiting for the two parties to officially accept the settlement.

The action was brought by non-US citizens who had been granted asylum by the Immigration and Naturalization Service (“INS”), now known as the U.S. Citizenship and Immigration Services (“CIS”). The approval of the settlement of the lawsuit would create two very significant benefits to aslyees: shortening the waiting time for conferring immigration benefits to immediate relatives by petition and shorting the waiting time to see loved ones in the home country.

As background information, the plaintiffs applied for “adjustment of status” (aka green card applications) after they were granted asylum by an asylum officer or by an immigration judge. An adjustment application or green card application is filed to become a lawful permanent resident of the United States without having to leave the United States. There is a limit to the number of green cards that may be issued each year to those granted asylum. The applicable annual numerical limitation on issuance of green cards to aslyees is 10,000. The number of applicants each year far exceeds the availability of visas, so the overflow results in waits of many years.

Plaintiffs complained that INS had not used all 10,000 numbers they were allowed to use. The failure contributes to the years of waiting by aslyees to adjust status. In addition to anxieties flowing from “hurry up and wait,” an asylee waiting for adjustment of status cannot confer immigration benefits on parents or, spouses acquired after asylum was granted and unmarried sons and daughters.

They must wait for approval of the adjustment application. Under normal circumstances, adult U.S. citizens have legal status to petition CIS to immigrate parents, spouses, and son and daughters. Aslyees granted adjustment or lawful permanent residents have legal status to petition CIS to immigrate their spouses and unmarried sons and daughters.

Adult children under U.S. immigration laws are referred to as sons and daughters. A complete discussion of sponsorship of relatives is beyond the scope of this article, but suffice to say, asylees do not have the legal authority to sponsor parents, after-acquired spouses and sons and daughters.

Another reason the Ngwanyia v. Gonzales class action is important relates to international travel. Asylees may for one reason or another find themselves with the need to travel abroad during the many years that they are waiting for their immigration status to be normalized. Aslyees may travel, of course and they are issued refugee travel documents. Any perceived stigma attached to the refugee status would be avoided by adjustment of status and the related issuance of the green card.

But even if the asylee is not phased by being classified refugee during the time that the adjustment application is pending, the asylee wanting to see relatives in the home country must meet them in a third country. Asylees traveling to the home country before his or her adjustment is granted risks being denied readmission as a refugee or ultimately being denied adjustment of status based on the asylee status.

Asylees currently pending adjustment of status should contact an immigration attorney to ensure that the waiting period is not unnecessarily delayed. More information on the class action suit may be obtained from this link: http://uscis.gov/graphics/lawsregs/NGWANYIA_5_10_05.pdf

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Since 1973, Jon Wu has been practicing Immigration Law upon receiving his J.D. from the Boston University School of Law. Wu began his law career as a clinical prosecutor for the Suffolk County District Attorney Office. His immigration expertise relates to prosecution of visas, including E-1, F-1, H-1B, L-1, RIR, National Interest, Multinational Executives, Exceptional and Extraordinary Ability, Adjustment of Status, 601 waivers, family-based IV, consulate processing and defense of deportation in immigration and federal courts.