GREEN CARD – STATUS WHILE GREEN CARD IS PENDING

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For many foreign nationals, while their American marriage green card is pending they are considered to be present in the USA legally as a “pending adjustee” or as an individual whose “adjustment of status (AOS) is pending.”  Another name for them is an individual who is “prucol.”

As an immigration attorney who specializes in marriage green cards, I am often asked about the status of a foreign national whose marriage green card is pending.  If you’d like know more about the law, read further.

What is ”PRUCOL” (Permanently Residing Under Color of Law)?

PRUCOL was established by American court judges to address situations in which the federal government has permitted the foreign national to remain in the U.S. but there is no category or name for the foreign national’s status.

These are commonly foreign nationals who:

• Intend to reside indefinitely in the U.S.; and,
• The United States Citizenship and Immigration Services or USCIS (formerly the Immigration and Naturalization Service or INS) knows they are residing in the U.S. AND is not taking steps to enforce their departure.

What does “Permanently Residing in the USA under Color of Law” Mean?

The US Congress has enacted a complex set of statutes on immigration and has created the USCIS as an agency with broad powers, both regulatory and adjudicatory.

Under the Immigration and Nationality Act and its implementing regulations, the USCIS determines the status of each alien in the United States.  The term “color of law” is not clearly defined in the Immigration and Nationality Act.  However, the USA Supreme Court Judges have confirmed that the USCIS has authority in alien matters. Therefore, in making a determination about an alien’s status, the USCIS is acting “under color of law.”

What is an Important Immigration Case Concerning “Color of Law?”

 A case which illustrates this point is Holley v. Lavine. In Holley v. Lavine,* the USCIS sent a letter informing a Canadian citizen with six United States citizen children that she would not be deported at least until her children were grown.

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This discretionary act by the USCIS was pursuant to its “color of law” authority.

For the USCIS to authorize an alien’s legal presence under “color of law,” the USCIS must (1) know of the alien’s presence; and, (2) must provide the alien with official assurance that enforcement of deportation is not planned.

In other words, applicants for adjustment of status to that of a lawful permanent resident (marriage green card holder) are considered PRUCOL (allowed to remain in the USA) so long as their I-485 application is pending, no matter how long it takes.  Their status ends if the I-485 application is denied or if the USCIS otherwise indicates that s/he is not permitted to remain in the USA and/or that his or her departure is being enforced.

What Documents Prove the USCIS Should Not Initiate Deportation of a Person While their Green Card is Pending?

In general, official USCIS receipts showing that the I-485 (application for adjustment of status) and I-765 (application for work authorization) applications are pending suffice as official assurance that enforcement of deportation is not planned.

*Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977), cert. denied, 435 U.S. 947, 98 S. Ct. 1532, 55 L. Ed. 2d 545 (1978).

Need help with your Adjustment of Status marriage green card applications?  

Email: danielle@immigrationworkvisa.com

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