There are some instances where USCIS wrongfully approves an application for adjustment of status. In such cases, pursuant to INA Section 246(a), the Attorney General may rescind that green card within five years of the time of adjustment. The government will initiate the rescission by sending the person a Notice of Intent to Rescind the green card, and give the person 30 days to respond. Once those 30 days have lapsed, or after reviewing the response to the Notice of Intent to Rescind, the government may initiate Rescission Proceedings in Immigration Court.
In Rescission Proceedings, the government has to prove by clear, unequivocal, and convincing evidence that the green card holder was ineligible for adjustment of status at the time they adjusted. Depending if the government meets that burden, the court can then rescind the green card, or order the proceedings terminated. Rescission of the green card means that the green card holder loses their lawful permanent resident status – as if the adjustment had never happened. As such, the government can then initiate removal proceedings by serving the now, unlawfully present, individual with a Notice to Appear.
There are a couple of lessons to learn in this scenario. First, it is important to speak to a knowledgeable attorney at the genesis of your case to make sure that you are eligible for adjustment of status, or any other application. This way, you will not waste time, effort, and money on something that can be taken from you. Second, if for some reason you are granted adjustment of status erroneously, it is important that you speak to an attorney immediately, before trying to fix the problem yourself. That is because there are forms of relief that may be eligible to you, but require planning and strategy. Third, if you entered as an Immigrant Visa holder, and then became a Lawful Permanent Resident, this section will not apply to you. However, that does not preclude the government to initiate removal proceedings against you. Similarly, even if five years has passed since you adjusted status, the government may still initiate removal proceedings against you, even though they cannot rescind your green card.
All these lessons are important to know because whether you will remain in the U.S. as a green card holder or not, depends on a number of different factors. Speak to an attorney if you believe your green card may have been issued in error.
