You are hereFrequently Asked Questions / EB-5 Law & Related U.S. Law / [HOT] [Q] Can you adjust and obtain CPR based on 2nd I-526 after giving up current CPR status, per Dec 11, 2009 Neufeld Memo?

[HOT] [Q] Can you adjust and obtain CPR based on 2nd I-526 after giving up current CPR status, per Dec 11, 2009 Neufeld Memo?

For the reasons explained below, we believe there is no legal support under the current U.S. immigration law for the outlined procedure of reacquiring CPR status just given up via Form I-407 by filing I-485 adjustment of status application. What the Memo is espousing is in fact a violation of the U.S. immigration law.

The December 11, 2009 Neufeld Memorandum states that the conditional resident who abandons his or her conditional residence via Form I-407 is eligible to adjust status to a new two years period of conditional residence. But upon detailed examination, this position appears not to have legal support.

First, INA Section 245(f) prohibits the adjustment of status of an alien lawfully admitted for conditional residence under Section 216A -- which presumably includes any aliens who initially obtained CPR status under Section 216A, even if the CPR status was abandoned through submission of Form I-407 -- but in Matter of Stockwell, 20 I & N Dec. 309 (BIA 1991), the Board has interpreted the implementing regulations (8 CFR Sec. 245.1(c)(5)) as allowing adjustment of status to those aliens whose conditional status have been terminated, which presumably supports the underlying assumption in the Neufeld Memo that if the investor abandoned his CPR status via Form I-407, then he can adjust again to reacquire the new CPR status.

But the problem with the above argument is that INA Section 245(c)(7) prohibits adjustment of status for any alien seeking adjustment under employment based categories and is not in a lawful nonimmigrant status. In essence, the adjusting alien must have a lawful NONIMMIGRANT status in order to adjust, but if the alien gives up his CPR status, which is NOT a nonimmigrant status anyway, where is the lawful NONIMMIGRANT status required for adjustment of status? There simply is no lawful nonimmigrant status from which to adjust status. By filing I-407 concurrently with the new I-485 adjustment of status application, the alien may be in a lawful immigration status, but the alien certainly is not in any lawful NONIMMIGRANT status, which is a clear requirement.

Lastly, from a practical perspective, USCIS examiners looking at the new I-485 adjustment of status application will probably deny such I-485 application under the existing immigration laws governing I-485 adjustment of status, no matter what the Dec 11, 2009 Neufeld Memo says. After all, the Neufeld Memo is not a law, as the Memo states at the end.

This shows you that the procedure outlined in the Dec. 11, 2009 Neufeld Memo lacks legal foundation. Basically, you can't carry out what is outlined in the Memo without violating the existing U.S. immigration law!