USCIS Policy Manual
Volume 7 – Adjustment of Status
Part B – 245(a) Adjustment
Chapter 2 – Eligibility Requirements
A foreign national must meet certain eligibility requirements to adjust status to that of a lawful permanent resident (LPR).
|
INA 245(a) Adjustment of Status Eligibility Requirements |
|---|
|
The applicant must have been: •Inspected and admitted into the United States; or •Inspected and paroled into the United States. |
|
The applicant must properly file an adjustment of status application. |
|
The applicant must be physically present in the United States. |
|
The applicant must be eligible to receive an immigrant visa. |
|
An immigrant visa must be immediately available when the applicant files the adjustment of status application |
|
The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. |
|
The applicant merits the favorable exercise of discretion. |
A. “Inspected and Admitted” or “Inspected and Paroled”
In 1960, Congress amended INA 245(a) and made adjustment of status available to any otherwise eligible applicant who has been “inspected and admitted or paroled” into the United States.
[4]
As originally enacted, section 245(a) made adjustment available only to a foreign national who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, 217 (June 27, 1952). Admission as a bona fide nonimmigrant remained a requirement until 1960. See Pub. L. 86-648 (July 14, 1960). Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant. Since 1960, the courts, legacy Immigration and Naturalization Service, and USCIS have read the statutory language “inspected and admitted or paroled” as:
•Inspected and admitted into the United States; or
•Inspected and paroled into the United States.
This requirement must be satisfied before the foreign national applies for adjustment of status.
[5]
See 8 CFR 245.1(b)(3). If an applicant has not been inspected and admitted or inspected and paroled before filing an adjustment application, the officer must deny the adjustment application.
[6]
See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted INA 245 in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). See S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).
The inspected and admitted or inspected and paroled requirement does not apply to the following foreign nationals seeking adjustment of status:
•INA 245(i) applicants; and
•Violence Against Women Act (VAWA) applicants.
[7]
See INA 245(a).
Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States.
[8]
See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a). Certain special immigrants also meet this requirement.
[9]
See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).
1. Inspection
Authority
Per delegation by the Secretary of Homeland Security, U.S. Customs and Border Protection (CBP) has jurisdiction over and exclusive inspection authority at ports-of-entry.
[10]
See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.
Definition and Scope
Inspection is the formal process of determining whether a foreign national may lawfully enter the United States. Immigration laws as early as 1875 specified that inspection must occur prior to a foreign national’s landing in or entering the United States and that prohibited foreign nationals were to be returned to the country from which they came at no cost or penalty to the conveyor or vessel.
[11]
See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917). Inspections for air, sea, and land arrivals are now codified in the INA, including criminal penalties for illegal entry.
[12]
See INA 231-235 and INA 275. See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).
To lawfully enter the United States, a foreign national must apply and present himself or herself in person to an immigration officer at a U.S. port of entry when the port is open for inspection.
[13]
See 8 CFR 235.1(a). See Matter of S-, 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an foreign national’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See Ex Parte Saadi, 23 F.2d 334 (S.D. Cal. 1927). A foreign national who arrives at a port of entry and presents himself or herself for inspection is an applicant for admission. Through the inspection process, an immigration officer determines whether the foreign national is admissible and may enter the United States under all the applicable provisions of immigration laws.
As part of the inspection, the foreign national must:
•Present any and all required documentation, including fingerprints, photographs, other biometric identifiers, documentation of status in the United States, and any other requested evidence to determine the foreign national’s identity and admissibility; and
•Establish that he or she is not subject to removal under immigration laws, Executive Orders, or Presidential Proclamations.
[14]
See INA 235(d). See 8 CFR 235.1(f)(1).
In general, if the foreign national presents himself or herself for questioning in person, the inspection requirement is met.
[15]
See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), which held that a foreign national who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of INA 245(a); alternatively, a foreign national who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). Nonetheless, if the foreign national enters the United States by falsely claiming U.S. citizenship, the foreign national is not considered to have been inspected by an immigration officer. In addition, the entry is not considered an admission for immigration purposes.
[16]
See Reid v. INS, 420 U.S. 619, 624 (1975) (a foreign national who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or INA 212(a)(6)(C) today, and considered to have entered without inspection).
Inspection Outcomes
Upon inspection, the officer at the port of entry typically decides one of the following outcomes:
•The officer admits the foreign national;
•The officer paroles the foreign national;
•The officer allows the foreign national to withdraw his or her application for admission and depart immediately from the United States;
[17]
See INA 235(a)(4).
•The officer denies the foreign national admission into the United States; or
•The officer defers the inspection to a later time at either the same or another CBP office or a port of entry.
[18]
Deferred inspection is a form of parole. A foreign national who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].
2. Admission
[19]
See INA 101(a)(13)(A). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See Section 301(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-575 (September 30, 1996). INA 101(a)(13)(B) clarifies that parole is not admission.
A foreign national is admitted if the following conditions are met:
[20]
See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”
•The foreign national applied for admission as an “alien” (foreign national) at a port of entry; and
•An immigration officer inspected the foreign national as an “alien” and authorized him or her to enter the United States in accordance with the procedures for admission.
[21]
See 8 CFR 235.1(f)(1).
A foreign national who meets these two requirements is admitted, even if the foreign national obtained the admission by fraud.
[22]
See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 291 (burden of proof). See Emokah v. Mukasey, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the foreign national may be inadmissible and removable. See INA 212(a)(6)(C) and INA 237(a)(1)(A). Likewise, the foreign national is admitted, even if the CBP officer performed a cursory inspection.
As long as the foreign national meets the procedural requirements for admission, the foreign national meets the inspected and admitted requirement for adjustment of status.
[23]
See Matter of Quilantan, 25 I&N Dec. 289, 290 (BIA 2010). See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 245(a). The foreign national is not inadmissible as an illegal entrant under INA 212(a)(6)(A)(i). For more information on admissibility, see Volume 8, Admissibility [8 USCIS-PM]. Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee.
Notwithstanding, if the foreign national makes a false claim to U.S. citizenship or to U.S. nationality at the port of entry and an immigration officer permits the foreign national to enter the United States, the foreign national has not been admitted.
[24]
See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (a foreign national who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under INA 101(a)(13)(A)). A U.S. citizen arriving at a port of entry is not subject to inspection; therefore, a foreign national who makes a false claim to U.S. citizenship is considered to have entered without inspection.
[25]
See Reid v. INS, 420 U.S. 619, 624 (1975). See Matter of S-, 9 I&N Dec. 599 (BIA 1962). A foreign national who makes a false claim to U.S. citizenship is inadmissible for making the claim (INA 212(a)(6)(C)(ii)). The foreign national may also be inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and unlawful presence after previous immigration violations (INA 212(a)(9)(C)).
Similarly, a foreign national who entered the United States after falsely claiming to be a returning LPR is not considered to have been procedurally inspected and admitted because a returning LPR generally is not an applicant for admission.
[26]
Such foreign nationals are inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(6)(A)(i) and INA 212(a)(9)(C). An LPR returning from a temporary trip abroad would only be considered to be seeking admission or readmission to the United States if any of the following factors applies:
•The LPR has abandoned or relinquished his or her LPR status;
•The LPR has been absent from the United States for a continuous period in excess of 180 days;
•The LPR has engaged in illegal activity after having departed the United States;
•The LPR has departed from the United States while under legal process seeking his or her removal from the United States, including removal proceedings under the INA and extradition proceedings;
•The LPR has committed an offense described in the criminal-related inadmissibility grounds, unless the LPR has been granted relief for the offense;
[27]
See INA 212(a)(2). See INA 212(h) and INA 240A(a). or
•The LPR is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
[28]
See INA 101(a)(13)(C). See generally Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997). The foreign national who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and fraud and misrepresentation (INA 212(a)(6)(C)(i)). The foreign national may also be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(9)(C).
Evidence of Admission
An Arrival/Departure Record (Form I-94), including a replacement
[29]
This will typically be documented by an approved Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. when appropriate, is the most common document evidencing a foreign national’s admission.
[30]
CBP or USCIS can issue a Form I-94, Arrival/Departure Record. If admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94. To obtain a paper version of an electronic Form I-94, visit the CBP Web site. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CBP may also be able to obtain a replacement Form I-94 from the CBP Web site without charge. Applicants may also obtain Form I-94 by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS. USCIS charges a fee for this service. The following are other types of documentation that may be accepted as proof of admission into the United States:
•Admission stamp in passport, which may be verified using Department of Homeland Security (DHS) systems;
•Employment Authorization Card (Form I-688A), for special agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application;
•Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the last claimed date of entry on the adjustment application; and
•Border Crossing Card (Form I-586 or Form DSP-150
[31]
Form DSP-150 is issued by the Department of State.), provided it was valid on the date of last claimed entry.
When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record:
[32]
See 8 CFR 235.1(h)(1)(i)-(v).
•A Canadian citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly transit through the United States;
•A nonimmigrant residing in the British Virgin Islands who was admitted only to the United States Virgin Islands as a visitor for business or pleasure;
[33]
See 8 CFR 212.1(b).
•A Mexican national admitted with a B-1/B-2 Visa and Border Crossing Card (Form DSP-150) at a land or sea port of entry as a visitor for business or pleasure for a period of 30 days to travel within 25 miles of the border; and
•A Mexican national in possession of a Mexican diplomatic or official passport.
[34]
See 8 CFR 212.1(c).
In these situations, an applicant should submit alternate evidence to prove his or her inspection and admission to the United States. This may include a Border Crossing Card, plane tickets evidencing travel to the United States, or other corroborating evidence.
3. Parole
Authority
The Secretary of Homeland Security delegated parole authority to USCIS, CBP, and U.S. Immigration and Customs Enforcement (ICE).
[35]
See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.
Definition and Scope
A foreign national is paroled if the following conditions are met:
•The foreign national is seeking admission to the United States at a port of entry; and
•An immigration officer inspected the foreign national as an “alien” and permitted the foreign national to enter the United States without determining whether the foreign national may be admitted into the United States.
[36]
See INA 212(d)(5)(A).
A grant of parole is a temporary and discretionary act exercised on a case-by-case basis. Parole, by definition, is not an admission.
[37]
See INA 101(a)(13)(B) and 212(d)(5)(A).
Paroled for Deferred Inspection
[38]
See 8 CFR 235.2.
On occasion, CBP grants deferred inspection to arriving foreign nationals found inadmissible during a preliminary inspection at a port of entry. Deferred inspection is generally granted only after CBP:
•Verifies the foreign national’s identity and nationality;
•Determines that the foreign national would likely be able to overcome the identified inadmissibility by obtaining a waiver or additional evidence; and
•Determines that the foreign national does not present a national security risk to the United States.
The decision to defer inspection is at the CBP officer’s discretion.
If granted deferred inspection, CBP paroles the foreign national into the United States and defers completion of the inspection to a later time. A foreign national paroled for a deferred inspection typically reports for completion of inspection within 30 days of the deferral
[39]
CBP generally issues a Notice to Appear 30 days after a foreign national’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP. to a CBP office with jurisdiction over the area where the foreign national will be staying or residing in the United States.
[40]
CBP generally creates either an A-file or T-file to document the deferred inspection.
The grant of parole for a deferred inspection satisfies the “inspected and paroled” requirement for purposes of adjustment eligibility.
[41]
See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under INA 245).
Urgent Humanitarian Reasons or Significant Public Benefit
DHS may parole a foreign national based on urgent humanitarian or significant public benefit reasons.
[42]
See INA 212(d)(5). DHS may grant urgent humanitarian or significant public benefit parole only on a case-by-case basis.
[43]
See INA 212(d)(5). Any type of urgent humanitarian, significant public benefit, or deferred inspection-directed parole meets the “paroled into the United States” requirement.
[44]
Only parole under INA 212(d)(5)(A) meets this requirement.
Parole in Place: Parole of Certain Foreign Nationals Present Without Admission or Parole
A foreign national who is present in the United States without inspection and admission or inspection and parole is an applicant for admission.
[45]
See INA 235(a). DHS can exercise its discretion to parole such a foreign national into the United States.
[46]
See Legacy INS General Counsel Opinion 98-10, 1998 WL 1806685. In general, USCIS grants parole in place only sparingly.
The fact that a foreign national is a spouse, child, or parent of an active duty member of the U.S. armed forces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. armed forces or the Selected Reserve of the Ready Reserve ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such a foreign national.
If DHS grants parole before the foreign national files an adjustment application, the foreign national meets the “inspected and paroled” requirement for adjustment. Parole in place does not permit approval of an adjustment application that was filed before the grant of parole.
[47]
As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See 8 CFR 103.2(b)(1).
Parole in place does not relieve the foreign national of the need to meet all other eligibility requirements for adjustment of status and the favorable exercise of discretion.
[48]
For example, parole does not erase any periods of prior unlawful status. Therefore, a foreign national who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to INA 245(c)(2) or INA 245(c)(8). For example, except for immediate relatives and certain other immigrants, a foreign national must have continuously maintained a lawful status since entry into the United States.
[49]
See INA 245(c)(2). See Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4].
Conditional Parole
Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility.
[50]
See INA 236(a)(2)(B). Neither the statute nor regulations deem a release on conditional parole equal to a parole under INA 212(d)(5)(A). Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007). See Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010). See Delgado-Sobalvarro v. Atty. Gen., 625 F.3d 782 (3rd Cir. 2010). See Cruz Miguel v. Holder, 650 F.3d 189 (2nd Cir. 2011).
Evidence of Parole
Evidence of parole includes:
•A parole stamp on the foreign national’s advance parole document;
[51]
See Form I-512 or I-512L, Authorization for Parole of an Alien into the United States.
•A parole stamp in the foreign national’s passport; or
•An Arrival/Departure Record (Form I-94) endorsed with a parole stamp.
[52]
See 8 CFR 235.1(h)(2). If a foreign national was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the foreign national may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the CBP Web site.
4. Commonwealth of the Northern Mariana Islands
A Commonwealth of the Northern Mariana Islands (CNMI) applicant who is granted parole meets the inspected and paroled requirement. On May 8, 2008, the Consolidated Natural Resources Act was signed into law, which replaced the CNMI’s prior immigration laws and extended most U.S. immigration law provisions to the CNMI for the first time in history.
[53]
See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008). The transition period for implementation of U.S. immigration law in the CNMI began on November 28, 2009.
As of that date, all foreign nationals present in the CNMI (other than LPRs) became present in the United States by operation of law without admission or parole. In recognition of the unique situation caused by the extension of U.S. immigration laws to the CNMI, all foreign nationals present in the CNMI on or after that date who apply for adjustment of status are considered applicants for admission
[54]
See INA 235(a)(1). to the United States and are eligible for parole.
Because of these unique circumstances, USCIS grants parole to applicants otherwise eligible to adjust status to serve as both an inspection and parole for purposes of meeting the requirements for adjustment. Under this policy, the USCIS Guam field office or the USCIS Saipan Application Support Center grants parole to an applicant otherwise eligible for parole and adjustment immediately prior to approving the adjustment of status application.
5. Temporary Protected Status
[55]
See INA 244. See 8 CFR 244.
A foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.
[56]
The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee. There is no legislative provision or history to suggest that Congress intended that recipients of TPS be eligible for adjustment.
[57]
Under INA 245(a) or any other adjustment program.
USCIS’s approval of TPS confers lawful immigration status on the foreign national, but only for the stipulated time period and so long as the foreign national complies with all TPS requirements. Recipients of TPS must still meet the threshold requirement that a foreign national has been inspected and admitted or inspected and paroled in order to be eligible for adjustment of status. A grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national.
[58]
See Legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See Legacy INS General Counsel Opinion 93-59 , 1993 WL 1504006. See Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011).
If a foreign national under TPS departs the United States and is admitted or paroled upon return to a port of entry, the foreign national meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred before he or she filed an adjustment application. The applicant, however, must still meet all other requirements to be eligible for adjustment.
DHS has authority to admit rather than parole TPS beneficiaries who travel and return with TPS-related advance parole documents.
[59]
See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, Pub. L. 102-232, 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-546 (September 30, 1996). For purposes of adjustment eligibility, it does not matter whether the TPS beneficiary was admitted or paroled. In either situation, once the foreign national is inspected at a port of entry and permitted to enter to the United States, the foreign national meets the inspected and admitted or inspected and paroled requirement.
6. Asylum
[60]
See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].
An asylee whose adjustment application is based on his or her asylee status adjusts under INA 209(b).
[61]
Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under INA 245(a). An asylee, however, may seek to adjust under INA 245(a) if the asylee prefers to adjust on a basis other than the asylee’s status. This may arise in cases where, for example, an asylee marries a U.S. citizen and subsequently seeks to adjust status as an immediate relative of a U.S. citizen rather than under the asylee provision. In order to adjust under INA 245(a), however, the asylee must meet the eligibility requirements that apply under that provision.
There may be circumstances where asylees are not able to meet certain requirements for adjustment under INA 245(a). For instance, a foreign national who enters without inspection and is subsequently granted asylum does not satisfy the inspected and admitted or inspected and paroled requirement.
[62]
The grant of asylum is not an admission contemplated under INA 101(a)(13)(A). See Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). See Legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892. On the other hand, an asylee who departs the United States and is admitted or granted parole upon return to a port of entry meets the inspected and admitted or inspected and paroled requirement.
7. Waved Through at Port-of-Entry
In some cases, a foreign national may claim that he or she arrived at a port of entry and presented himself or herself for inspection as a foreign national, but the inspector waved (allowed to pass) him or her through the port of entry without asking any questions.
Where a foreign national physically presents himself or herself for questioning and makes no knowing false claim to U.S. citizenship, the foreign national is considered to have been inspected even though he or she volunteers no information and is asked no questions by the immigration authorities. Such a foreign national satisfies the inspected and admitted requirement of INA 245(a) as long as the foreign national sufficiently proves that he or she was indeed waved through by an immigration official at a port of entry.
[63]
See Matter of Quilantan, 25 I&N Dec. 285, 291-92 (BIA 2010). See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). See 8 CFR 103.2(b).
An officer may find that an adjustment applicant satisfies the inspected and admitted requirement based on a claim that he or she was waved through at a port of entry if:
•The applicant submits evidence to support the claim, such as third party affidavits from those with personal knowledge of the facts stated in the affidavits and corroborating documentation; and
The burden of proof is on the applicant to establish eligibility for adjustment of status.
[65]
See 8 CFR 103.2(b). See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9]. Accordingly, the applicant must support and sufficiently establish the claim that he or she was admitted as a foreign national and not as a presumed U.S. citizen. For example, if the applicant was in a car with U.S. license plates and with U.S. citizens onboard, the applicant should submit persuasive evidence to establish he or she physically presented himself or herself to the inspector and was admitted as a foreign national.
[66]
For more information, see Subsection 2, Admission [7 USCIS-PM B.2(A)(2)].
B. Properly Filing an Adjustment Application
To adjust status, a foreign national must file an Application to Register Permanent Residence or Adjust Status (Form I-485) in accordance with the form instructions. The adjustment application must be properly signed and accompanied by the appropriate fee.
[67]
See 8 CFR 103.2(a) and 8 CFR 103.2(b). See 8 CFR 103.2(a)(2). See 8 CFR 103.7(b) and 8 CFR 103.7(c). The applicant may submit a fee waiver request. See Form I-912, Request for Fee Waiver. The application must be filed at the correct filing location, as specified in the form instructions. USCIS rejects adjustment applications if the application is:
•Filed at an incorrect location;
•Not filed with the correct fee, unless granted a fee waiver;
•Not properly signed; or
•Filed when an immigrant visa is unavailable.
[68]
See 8 CFR 103.2(a)(7) and 8 CFR 245.2(a)(2)(i). In addition, USCIS should process a fee refund when an adjustment application is accepted in error because a visa was unavailable at the time of filing and the error is recognized before interview or adjudication. For more information on the definition of “properly filed” and fee refunds, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions [7 USCIS-PM A.3].
C. Eligible to Receive an Immigrant Visa
1. General Eligibility for an Immigrant Visa
An adjustment applicant must be eligible to receive an immigrant visa. An applicant typically establishes eligibility for an immigrant visa through an immigrant petition in one of the categories listed in the table below.
|
Eligibility To Receive an Immigrant Visa |
||
|---|---|---|
|
Immigrant Category |
Petition |
Who May Qualify |
|
Family-Based |
Petition for Alien Relative (Form I-130) |
•Unmarried sons and daughters of U.S. citizens (21 years of age and older) •Spouses and unmarried children (under age 21) of LPRs •Unmarried sons and daughters of LPRs •Married sons and daughters of U.S. citizens •Brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older) |
|
Family-Based Based |
Petition for Alien Fiancé(e) (Form I-129F) |
•Fiancé(e) of a U.S. citizen |
|
Family-Based |
Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) |
•Widow or widower of a U.S. citizen •Violence Against Women Act (VAWA) self-petitioners |
|
Employment-Based |
Immigrant Petition for Alien Worker (Form I-140) |
•Priority workers •Members of the professions holding an advanced degree or persons of exceptional ability; or •Skilled workers, professionals, and other workers |
|
Employment-Based |
Immigrant Petition by Alien Entrepreneur (Form I-526) |
•Entrepreneurs |
|
Special Immigrants |
Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) |
•Religious workers •Certain international employees •Panama Canal Zone employees •Certain physicians •International organization officers and employees •Special immigrant juveniles •Certain U.S. armed forces members •Certain broadcasters •Certain Afghanistan and Iraq nationals |
|
Diversity Immigrant Visa |
Not applicable (Diversity visas do not require a USCIS-filed petition) |
•Diversity immigrants |
2. Dependents
The spouse and children of certain family-based, employment-based, and Diversity Immigrant Visa adjustment applicants may also obtain LPR status through their relationship with the principal applicant. Because the spouse and children do not have an independent basis to adjust status apart from their relationship to the principal immigrant, they are “dependents” of the principal for purpose of eligibility for adjustment of status.
Dependents do not have their own underlying immigrant petition and may only adjust based on the principal’s adjustment of status. In general, dependent applicants must have the requisite relationship to the principal both at the time of filing the adjustment application and at the time of final adjudication.
[71]
See 8 CFR 103.2(b)(1).
3. Concurrent Filing
The immigrant petition establishing the underlying basis to adjust is typically filed before the foreign national files the adjustment application. In some instances, the applicant may file the adjustment application at the same time the immigrant petition is filed.
[72]
See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].
D. Immigrant Visa Immediately Available at Time of Filing and at Time of Approval
In general, an immigrant visa must be available before a foreign national can apply for adjustment of status.
[73]
See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed,” Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. An immigrant visa is always available to foreign nationals seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application. Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application.
[74]
See INA 245(a)(3). See 8 CFR 245.1(g)(1), 8 CFR 245.2(a)(5)(ii), and 8 CFR 103.2(b)(1). For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
E. Admissible to the United States
An adjustment of status applicant must be admissible to the United States.
[75]
If one or more of the grounds listed in INA 212 applies to an applicant then the applicant may be inadmissible. For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM]. An applicant who is inadmissible may apply for a waiver of the ground of inadmissibility, if a waiver is available, or another form of relief. The applicable grounds of inadmissibility and any available waivers depend on the immigrant category under which the applicant is applying.
[76]
See Volume 9, Waivers [9 USCIS-PM].
F. Bars to Adjustment of Status
An applicant may not be eligible to apply for adjustment of status if one or more bars to adjustment applies.
[77]
See INA 245(c). The bars to adjustment of status may apply to foreign nationals who either entered the United States in a particular status or manner, or committed a particular act or violation of immigration law.
[78]
Even if foreign nationals are barred from adjusting under INA 245(a), they may still adjust under another statutory basis as long as they meet the applicable eligibility requirements. The table below refers to foreign nationals ineligible to apply for adjustment of status, unless otherwise exempt.
[79]
An immigrant category may exempt an applicant or make an applicant eligible for a waiver of certain adjustment bars and grounds of inadmissibility. Even if an exemption applies to an applicant who would otherwise be barred from adjustment of status, the applicant may still be denied adjustment as a matter of discretion. For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].
|
Foreign Nationals Barred from Adjustment of Status |
||||
|---|---|---|---|---|
|
Foreign National |
INA Section |
Entries and Periods of Stay to Consider |
Exempt from Bar |
|
|
|
Only most recent permission to land, or admission prior to filing for adjustment |
VAWA-based applicants |
||
|
In Unlawful Immigration Status On The Date The Adjustment Application Is Filed OR Who Failed to Continuously Maintain Lawful Status Since Entry into United States OR Who Continues in, or accepts, Unauthorized Employment Prior to Filing for Adjustment |
245(c)(2) |
All entries and time periods spent in the United States (departure and return does not remove the ineligibility) |
VAWA-based applicants Certain special immigrants |
|
|
Admitted in Transit Without a Visa (TWOV) |
Only most recent admission prior to filing for adjustment |
VAWA-based applicants |
||
|
Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program |
Only most recent admission prior to filing for adjustment |
VAWA-based applicants Immediate relatives |
||
|
Admitted as Witness or Informant |
Only most recent admission prior to filing for adjustment |
VAWA-based applicants |
||
|
Who is Deportable Due to Involvement in Terrorist Activity or Group |
All entries and time periods spent in the United States |
|||
|
Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status |
Only most recent admission prior to filing for adjustment |
VAWA-based applicants Immediate relatives and other family based applicants Special immigrant juveniles |
||
|
Who Has Otherwise Violated the Terms of a Nonimmigrant Visa OR |
245(c)(8) |
All entries and time periods spent in the United States (departure and return does not remove the ineligibility) |
VAWA-based applicants Certain special immigrants |
|
In all cases, the foreign national is subject to any and all applicable grounds of inadmissibility even if the foreign national is not subject to any bar to adjustment, or is exempt from any or all the bars to adjustment.
1. Overlapping Bars
Some bars to adjustment may overlap in their application, despite their basis in separate sections of the law.
[99]
See INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8). For example, a foreign national admitted under the Visa Waiver Program who overstays the admission is barred by both INA 245(c)(2) and INA 245(c)(4). Because some bars overlap, more than one bar can apply to an applicant for the same act or violation. In such cases, the officer should address each applicable adjustment bar in the denial notice.
2. Exemptions from the Bars
[100]
See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].
Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants.
Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference
[101]
This applies to religious workers only. categories from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission.
[102]
Notwithstanding INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8), the officer should treat a foreign national who meets the conditions set forth in INA 245(k) in the same manner as an applicant under INA 245(a).
Footnotes
1.
See Part A, General Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)].
2.
See Part A, General Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
3.
See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].
4.
As originally enacted, section 245(a) made adjustment available only to a foreign national who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, 217 (June 27, 1952). Admission as a bona fide nonimmigrant remained a requirement until 1960. See Pub. L. 86-648 (July 14, 1960). Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant.
5.
See 8 CFR 245.1(b)(3).
6.
See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted INA 245 in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). See S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).
7.
See INA 245(a).
8.
See , which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a).
9.
See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).
10.
See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.
11.
See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917).
12.
See INA 231-235 and INA 275. See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).
13.
See 8 CFR 235.1(a). See Matter of S-, 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an foreign national’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See Ex Parte Saadi, 23 F.2d 334 (S.D. Cal. 1927).
14.
See INA 235(d). See 8 CFR 235.1(f)(1).
15.
See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), which held that a foreign national who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of INA 245(a); alternatively, a foreign national who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013).
16.
See Reid v. INS, 420 U.S. 619, 624 (1975) (a foreign national who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or INA 212(a)(6)(C) today, and considered to have entered without inspection).
17.
See INA 235(a)(4).
18.
Deferred inspection is a form of parole. A foreign national who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].
19.
See INA 101(a)(13)(A). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See Section 301(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-575 (September 30, 1996). INA 101(a)(13)(B) clarifies that parole is not admission.
20.
See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”
21.
See 8 CFR 235.1(f)(1).
22.
See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 291 (burden of proof). See Emokah v. Mukasey, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the foreign national may be inadmissible and removable. See INA 212(a)(6)(C) and INA 237(a)(1)(A).
23.
See Matter of Quilantan, 25 I&N Dec. 289, 290 (BIA 2010). See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 245(a). The foreign national is not inadmissible as an illegal entrant under INA 212(a)(6)(A)(i). For more information on admissibility, see Volume 8, Admissibility [8 USCIS-PM].
24.
See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (a foreign national who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under INA 101(a)(13)(A)).
25.
See Reid v. INS, 420 U.S. 619, 624 (1975). See Matter of S-, 9 I&N Dec. 599 (BIA 1962). A foreign national who makes a false claim to U.S. citizenship is inadmissible for making the claim (INA 212(a)(6)(C)(ii)). The foreign national may also be inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and unlawful presence after previous immigration violations (INA 212(a)(9)(C)).
26.
Such foreign nationals are inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(6)(A)(i) and INA 212(a)(9)(C).
27.
See INA 212(a)(2). See INA 212(h) and INA 240A(a).
28.
See INA 101(a)(13)(C). See generally Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997). The foreign national who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and fraud and misrepresentation (INA 212(a)(6)(C)(i)). The foreign national may also be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(9)(C).
29.
This will typically be documented by an approved Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.
30.
CBP or USCIS can issue a Form I-94, Arrival/Departure Record. If admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94. To obtain a paper version of an electronic Form I-94, visit the CBP Web site. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CBP may also be able to obtain a replacement Form I-94 from the CBP Web site without charge. Applicants may also obtain Form I-94 by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS. USCIS charges a fee for this service.
31.
Form DSP-150 is issued by the Department of State.
32.
See 8 CFR 235.1(h)(1)(i)-(v).
33.
See 8 CFR 212.1(b).
34.
See 8 CFR 212.1(c).
35.
See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.
36.
See INA 212(d)(5)(A).
37.
See INA 101(a)(13)(B) and 212(d)(5)(A).
38.
See 8 CFR 235.2.
39.
CBP generally issues a Notice to Appear 30 days after a foreign national’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP.
40.
CBP generally creates either an A-file or T-file to document the deferred inspection.
41.
See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under INA 245).
42.
See INA 212(d)(5).
43.
See INA 212(d)(5).
44.
Only parole under INA 212(d)(5)(A) meets this requirement.
45.
See INA 235(a).
46.
See Legacy INS General Counsel Opinion 98-10, 1998 WL 1806685.
47.
As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See 8 CFR 103.2(b)(1).
48.
For example, parole does not erase any periods of prior unlawful status. Therefore, a foreign national who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to INA 245(c)(2) or INA 245(c)(8).
49.
See INA 245(c)(2). See Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4].
50.
See INA 236(a)(2)(B). Neither the statute nor regulations deem a release on conditional parole equal to a parole under INA 212(d)(5)(A). Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007). See Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010). See Delgado-Sobalvarro v. Atty. Gen., 625 F.3d 782 (3rd Cir. 2010). See Cruz Miguel v. Holder, 650 F.3d 189 (2nd Cir. 2011).
51.
See Form I-512 or I-512L, Authorization for Parole of an Alien into the United States.
52.
See 8 CFR 235.1(h)(2). If a foreign national was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the foreign national may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the CBP Web site.
53.
See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008).
54.
See INA 235(a)(1).
55.
See INA 244. See 8 CFR 244.
56.
The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee.
57.
Under INA 245(a) or any other adjustment program.
58.
See Legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See Legacy INS General Counsel Opinion 93-59 , 1993 WL 1504006. See Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011).
59.
See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, Pub. L. 102-232, 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-546 (September 30, 1996).
60.
See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].
61.
Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under INA 245(a).
62.
The grant of asylum is not an admission contemplated under INA 101(a)(13)(A). See Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). See Legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892.
63.
See Matter of Quilantan, 25 I&N Dec. 285, 291-92 (BIA 2010). See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). See 8 CFR 103.2(b).
64.
Any documentary evidence of admission should be consistent with entry information provided in the adjustment application or in oral testimony and should not contradict any other admission or departure evidence in DHS records. For example, when there is no Arrival/Departure Record or passport with an admission stamp, an officer may rely on information in DHS records, information in the applicant’s file, and the applicant’s testimony to make a determination on whether the applicant was inspected and admitted or inspected and paroled into the United States.
65.
See 8 CFR 103.2(b). See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].
66.
For more information, see Subsection 2, Admission [7 USCIS-PM B.2(A)(2)].
67.
See 8 CFR 103.2(a) and 8 CFR 103.2(b). See 8 CFR 103.2(a)(2). See 8 CFR 103.7(b) and 8 CFR 103.7(c). The applicant may submit a fee waiver request. See Form I-912, Request for Fee Waiver.
68.
See 8 CFR 103.2(a)(7) and 8 CFR 245.2(a)(2)(i). In addition, USCIS should process a fee refund when an adjustment application is accepted in error because a visa was unavailable at the time of filing and the error is recognized before interview or adjudication. For more information on the definition of “properly filed” and fee refunds, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions [7 USCIS-PM A.3].
69.
See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.
70.
Diversity visas do not rely on a USCIS-filed petition to obtain a visa. The diversity visa lottery is conducted by the Department of State.
71.
See 8 CFR 103.2(b)(1).
72.
See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].
73.
See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed,” Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
74.
See INA 245(a)(3). See 8 CFR 245.1(g)(1), 8 CFR 245.2(a)(5)(ii), and 8 CFR 103.2(b)(1). For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
75.
If one or more of the grounds listed in INA 212 applies to an applicant then the applicant may be inadmissible. For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM].
76.
See Volume 9, Waivers [9 USCIS-PM].
77.
See INA 245(c).
78.
Even if foreign nationals are barred from adjusting under INA 245(a), they may still adjust under another statutory basis as long as they meet the applicable eligibility requirements.
79.
An immigrant category may exempt an applicant or make an applicant eligible for a waiver of certain adjustment bars and grounds of inadmissibility. Even if an exemption applies to an applicant who would otherwise
be barred from adjustment of status, the applicant may still be denied adjustment as a matter of discretion. For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].
80.
It is service as a crewman that triggers the bar to adjustment, not the actual nonimmigrant status. This bar applies if the foreign national was actually permitted to land under the D-1 or D-2 visa category. The bar also applies if the foreign national was a crewman admitted as a C-1 to join a crew, or as a B-2 if serving on a crew.
81.
This does not apply to foreign nationals who failed to maintain lawful status through no fault of their own or solely for technical reasons, as defined in 8 CFR 245.1(d)(2).
82.
The INA 245(c)(2) bar addresses three distinct types of immigration violations.
83.
See 8 CFR 245.1(d)(3).
84.
See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.
85.
See special immigrants described in INA 101(a)(27)(H)-(K).
86.
If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(2) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
87.
See INA 212(l) and INA 217.
88.
See INA 101(a)(15)(S) and INA 245(j). The applicants are beneficiaries of a request by a law enforcement agency to adjust status (Form I-854, Inter-Agency Alien Witness and Informant Record).
89.
See INA 237(a)(4)(B).
90.
Although VAWA-based applicants are exempt from all INA 245(c) bars per statute, a VAWA-based applicant may still be determined to be removable (INA 237(a)(4)(B)) or inadmissible (INA 212(a)(3)) due to egregious public safety risk and on security and related grounds.
91.
INA 245(c)(7) does not apply to VAWA-based applicants, immediate relatives, family-based applicants, or special immigrant juveniles because these foreign nationals are not seeking adjustment as employment-based applicants. See 8 CFR 245.1(b)(9).
92.
If an employment-based adjustment applicant is eligible for the INA 245(k) exemption, then he or she is exempted from the INA 245(c)(7) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
93.
This is also referred to as a foreign national who has violated the terms of his or her nonimmigrant status.
94.
There are no time restrictions on when such a violation must have occurred while physically present in the United States. Violations either before or after the filing of Form I-485 will render a foreign national ineligible to adjust status under INA 245(a). An alien seeking employment during the pendency of his or her adjustment applicant must fully comply with the requirements of INA 274A and 8 CFR 274a. See 62 FR 39417 (July 23, 1997).
95.
The INA 245(c)(8) bar addresses two distinct types of immigration violations.
96.
See 8 CFR 245.1(d)(3).
97.
USCIS interprets the exemption listed in INA 245(c)(2) for immediate relatives and certain special immigrants as applying to the 245(c)(8) bar in addition to the 245(c)(2) bar. See 62 FR 39417 (July 23, 1997).
98.
If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(8) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
99.
See INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8).
100.
See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].
101.
This applies to religious workers only.
102.
Notwithstanding INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8), the officer should treat a foreign national who meets the conditions set forth in INA 245(k) in the same manner as an applicant under INA 245(a).
Updates
POLICY ALERT – Adjustment of Status Policies and Procedures and 245(a) Adjustment
February 25, 2016
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA).
