Sarmiento v. Holder

Petitioners, citizens of the Philippines, entered the U.S. under nonimmigrant visas in 2003 and 2004. Wife’s employer petitioned on her behalf for alien-worker status, and she applied for adjustment of status She is a nurse, a skilled worker under 8 U.S.C. 1153(b)(3)(A)(i) or (ii). Husband applied for adjustment of status as her spouse. The petition for worker status was granted in late 2004. Subsequent applications for adjustment of status were denied because wife had not submitted evidence of certification to practice nursing; results of an English exam were pending. They reapplied for adjustment of status a few months later. The applications were denied. An IJ ordered removal, finding wife ineligible for adjustment of status under her second application because she filed it after living in the U.S. unlawfully for more than 180 days. The BIA dismissed an appeal and denied reconsideration. Petitioners moved to reopen in 2011, contending that they were newly eligible for adjustment of status because their daughter, a U.S. citizen age 21, had petitioned to adjust status on their behalf; those petitions had been approved. The Board denied the motion as untimely. The Seventh Circuit denied review, finding the Board’s interpretation of the statute and regulation reasonable.