A US immigration attorney has shared details of a case highlighting how a USCIS error during a marriage-based Green Card process led to a legal immigrant being wrongly placed in deportation proceedings, despite clear eligibility under existing law.
According to Andre Matias, Managing Attorney at Altius Immigration Law, Washington, the incident occurred during a marriage-based adjustment of status interview attended earlier this week.
The attorney had been retained only at the interview stage of the client, a PhD holder, who had entered the US legally on a tourist visa, married a US citizen, and filed his green card application while maintaining lawful status. He had no criminal history, no overstay, and no adverse immigration record, according to Matias.
How did the complication arise?
The complication arose from the client’s prior J-1 researcher visa, which had once subjected him to the two-year foreign residence requirement under INA 212(e).
One basis for triggering this requirement is inclusion on the US State Department’s Skills List, which identifies countries whose nationals are required to return home before adjusting status. However, the attorney explained that Brazil was removed from the Skills List in a 2024 update.
Government guidance clearly states that if an applicant was subject to 212(e) only because of the old Skills List, and their country no longer appears on the updated list, they are no longer subject to the requirement, even if older paperwork still reflects it.
Matias said he anticipated the issue, and carefully walked the USCIS officer through the law during the interview, multiple times.
Despite this, less than an hour after the interview, USCIS issued a denial of the green card application based on INA 212(e) and placed the client in deportation proceedings.
USCIS acknowledges mistake
Following what Matias called a “nightmare” effort to escalate the matter, USCIS later acknowledged that the officer’s decision was wrong and said it would attempt to have the deportation case dismissed. Additionally, he urged applicants to seek legal help before too late. “A denied application can and may lead to an NTA (deportation proceedings) when someone is not ‘lawfully present’ at the time of denial, including situations where a person filed while in valid status but was not maintaining status by the time the denial came down,” he said.