(a) Form and Fee .

Except as otherwise noted in subchapters 23.4 and 23.8 , an alien applies for adjustment of status using Form I-485. Except as otherwise noted in subchapters 23.6 and 23.8 , the applicant must submit the fee specified in 8 CFR 103.7(b) unless he or she has been granted a waiver of fees in accordance with 8 CFR 103.7(c) .

(b) Jurisdiction . [Updated 01-12-2006]

Generally, the U.S. Citizenship and Immigration Services (USCIS) District Director having jurisdiction over an alien's place of residence in the U.S. has jurisdiction over any application for adjustment of status unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1) .

In the case of any alien, other than an arriving alien, who has been placed in deportation proceedings or in removal proceedings, the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file. USCIS may adjudicate an adjustment of status application filed by an alien, other than an arriving alien, who is in removal proceedings only if the immigration judge terminates the removal proceedings.

In the case of an arriving alien who is placed in removal proceedings, USCIS has jurisdiction to adjudicate any application for adjustment of status filed by the arriving alien. An immigration judge does not have jurisdiction over an arriving alien’s adjustment application unless :

·     The alien properly filed the application for adjustment of status with USCIS while the arriving alien was in the United States;

·     The alien departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue the previously filed application for adjustment of status;

·     The application for adjustment of status was denied by USCIS; and

·     The Department of Homeland Security (DHS) placed the arriving alien in removal proceedings either upon the arriving alien's return to the United States pursuant to the grant of advance parole or after USCIS denied the application.

USCIS district offices will also generally complete and conduct closing actions on adjustment of status applications that have been decided by the immigration judge, such as issuance of the Form I-551, Permanent Resident Card, or other temporary evidence of LPR status.

Some precedent decisions which relate to issues of jurisdiction are:

·     Matter of Manneh , 16 I & N Dec. 272 (BIA, 1977). http://www.usdoj.gov/eoir/vll/intdec/vol16/2598.pdf An immigration judge does not have the authority to entertain an application for adjustment of status under section 245 of the Immigration and Nationality Act in exclusion proceedings.

NOTE

This case is now superseded by 8 CFR 245.2(a)(1) and 8 CFR 1245.2(a)(1), but the principle remains the same: Except as provided in these current regulations, the immigration judge lacks jurisdiction of an arriving alien’s adjustment of status application.

·     Matter of Palmieri, 10 I&N Dec. 187 (BIA 1963). http://www.usdoj.gov/eoir/vll/intdec/vol10/1267.pdf A section 245 application cannot be adjudicated nunc pro tunc (“now for then”) as of a time when a visa number was available. 

·     Matter of Hernandez-Puente , 20 I&N Dec. 335 (BIA 1991). USCIS has no authority to grant an application for adjustment of status nunc pro tunc (“now for then”) under section 245 of the Act.

(c) Ineligibility for Adjustment of Status .

(1) General .

Most applicants for permanent resident status are required to be admissible to the U.S. under section 212(a) of the Act. Under some sections of law, only a limited number of inadmissibility grounds apply (e.g., asylee adjustments). You should refer to the discussions under each of the subchapters below to determine which grounds of inadmissibility apply in the case of the specific type of application for adjustment under consideration.

(2) Universal and Near-Universal Bars to Adjustment of Status .

Certain persons are barred from adjustment of status regardless of the provision of law under which they are seeking the benefit. They include:

(A) Citizens of the U.S .

Occasionally, a citizen of the U.S. will want to become a permanent resident in order to renounce citizenship, to protest a particular political issue, to seek a (perceived) benefit not otherwise available, or for some other reason. Regardless of the reason, a citizen cannot apply for, and USCIS cannot entertain, an application for adjustment of status from citizen to LPR. ( Note: When a naturalized citizen is denaturalized, he or she reverts to the status held prior to the naturalization, which is usually that of lawful permanent resident. However, this process is not an adjustment to LPR, it is instead a loss of the naturalization.)

(B) Lawful Permanent Residents of the U.S .

Occasionally, someone who had previously been granted LPR status may wish to “re-adjust” on some other basis. Frequently, this is due to the alien’s discovery that such other basis would entitle him or her (or one of his or her dependents) to additional benefits under the Act or some other law. Before an LPR can apply for and be granted adjustment of status, he or she would first have to lose LPR status, which can only occur through abandonment upon departure, through rescission under section 246, or throug h an order of removal in Immigration Court. If an LPR files an application for adjustment, you must deny the application. However, do not place the alien into removal proceedings (unless the alien is subject to removal proceedings on some other basis, in which case the matter has to be referred to the Investigations Branch for NTA issuance). General Counsel Opinion 89-90 relates.

Note 1

This is not to say that an incorrect decision by USCIS cannot be corrected. For example, an alien seeking registry under section 249 of the Act who is (initially) only able to prove presence beginning after July 1, 1924, and prior to January 1, 1972, can only be granted registry as of the date of approval. If such alien subsequently presents evidence of presence prior to July 1, 1924, the case can be reopened and registry granted as of the claimed date of entry.

Note 2

Occasionally, a new law will contain specific provisions which allow an alien who had already become a lawful permanent resident to receive the benefits of the new law. (For example, Section 2 of the Cuban Adjustment Act of 1966 allowed certain Cuban LPRs to apply for, and USCIS to make, a new recordation of the alien’s permanent residence as of an earlier date which incorporated the rollback provisions of the Cuban Adjustment Act.) Only persons who fall within the specific provisions of such legislation would be allowed to take advantage of these provisions.

(C) Aliens Subject to the Automatic Reinstatement Provisions of Section 241(a)(5) of the Act .

An alien who has reentered the U.S. illegally after having been removed (including “deported” and “excluded and deported”), or after having departed voluntarily while under an order of removal (a “self-deport”) is ineligible for any relief under the Immigration and Nationality Act. Such relief includes adjustment of status under section 209 or 245 of the Act, and registry under section 249 of the Act.

Section 241(a)(5) of the Act does not (directly) preclude relief in the form of adjustment of status under other laws which are separate and apart from the Immigration and Nationality Act, such as the Cuban Adjustment Act. However, anyone seeking adjustment under these laws must be admissible to the U.S. and an alien who was previously deported who is inadmissible under section 212(a)(9) who is also subject to the automatic reinstatement provisions of section 241(a)(5) would be barred from receiving permiss ion to reapply under section 212(a)(9)(iii) and therefore would also be indirectly barred from adjustment under those provisions of law. (The bar to receiving permission to reapply is based both on the “ineligible for any relief” provision of section 241(a)(5) and on the requirement in section 212(a)(9)(iii) that such permission be granted prior to the alien’s reembarkation outside the U.S. for travel to this country or attempt to be admitted.)

If an alien who falls within this category files an application for adjustment (or for any other benefit), hold such application in abeyance and initiate reinstatement proceedings under section 241(a)(5) using Form I-871 (see 8 CFR 241.8 and Chapter 15.7 of the Detention and Deportation Officer’s Field Manual ). ( Note: In some offices, local policy may dictate that only Special Agents or Deportation Officers execute Form I-871.) Once those proceedings have been completed (including the consideration of any rebuttal made by the alien) and the removal order has been reinstated, the alien may be removed from the U.S. and the adjustment application denied.

Note 1

Pursuant to the provisions of the Life Act of 2000, section 241(a)(5) of the Act does not apply to aliens seeking adjustment of status either under the section 202 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) or under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA).

Note 2

Once the Form I-871 has been completed, it does not matter whether the removal of the alien precedes the denial of the application, or visa versa.

Note 3

While the proceedings set forth in 8 CFR 241.8 and DDFM Chapter 15.7 must be completed before the application can be denied due to the provisions of section 241(a)(5), an adjustment application filed by an alien who is inadmissible under section 212(a)(9) may be denied on that basis regardless of whether the Form I-871 proceedings have been completed.

Note 4

If the Form I-871 process had been completed, and the earlier order reinstated prior to the submission of the application for adjustment of status, such application should be rejected and the fee returned (uncollected) to the applicant. In such situations, the applicant has no right to any further review of the matter.

(D) Aliens Subject to the Provisions of Section 240(b)(7) of the Act for Failure to Appear for a Proceeding .

Since 1991, and with limited exceptions, an alien who is ordered removed in absentia after failing to appear for a removal proceeding is ineligible for adjustment of status under section 245 of the Act or registry under section 249 of the Act for a specified period from the date of the final order. From April 1, 1991 to March 31, 1997, that specified period was five years, since April 1, 1997, it is ten years. Should an alien who is subject to section 240(b)(7) apply for adjustment under section 245 or regi stry under section 249, deny the application because of the section 240(b)(7) prohibition and (following local procedures) immediately refer the alien to the Investigations Branch for removal under the existing order. ( Note: The provisions of section 240(b)(7) do NOT affect applications for adjustment under section 209 of the Act, NACARA, HRIFA, or any other provisions of law not specified in section 240(b)(7) of the Act.)

(d) Exercise of Discretion .

Most applications for permanent residence status are filed under provisions of law which involve the exercise of discretion. However, some sections of law do not provide such discretionary authority. The following table lists both:

APPLICATIONS INVOLVING DISCRETION	APPLICATIONS NOT INVOLVING DISCRETION
·     Section 209(b) of the Act	·     Section 209(a) of the Act
·     Section 245 of the Act	·     NACARA (Nicaraguan Adjustment and Central American Relief Act of 1997)
·     Section 249 of the Act	·     HRIFA (Haitian Refugee Immigration Fairness Act of 1988)
·     Cuban Adjustment Act of 1966	·     8 CFR 101 (Presumption of Lawful Admission)
·     Section 13 cases (Act of September 11, 1957)	·     8 CFR 289.3 (Recording the Entry of Certain North American Indians Born In Canada)

Note

(Although section 209(a) of the Act and 8 CFR 101 and 8 CFR 289.3 cases are technically not “adjustment” provisions, they are included in this discussion because of their similarity to adjustment.)

In adjudicating an application for adjustment of status involving the use of discretion, the adjudicator must first determine whether the applicant meets the statutory, or “threshold” requirements contained in the law. For example, in adjudicating an application for adjustment under section 245 of the Act, the adjudicator would first determine whether the alien is not precluded from applying for adjustment under section 245(c) of the Act, whether he or she is eligible to receive an immigrant visa, whether h e or she is admissible to the U.S., and (if a preference applicant) whether a visa number is immediately available. Only after the adjudicator determines that the alien is able to meet these statutory requirements (or if unable, has been granted a waiver of such ineligibility) should the adjudicator determine whether the application should be granted as a matter of discretion. Discretion cannot be used to approve an application if the applicant does not meet the statutory requirements.

In exercising discretion, the adjudicator must take into account all known positive (i.e., favorable to the applicant) factors as well as all known negative (or unfavorable) factors. In the vast majority of cases, there are no significant negative factors to be considered, and the positive factors inherent in the case (e.g., unification of the family in the case of relative petition-based adjustments; meeting the needs of American business in the case of employment petition-based adjustments; humanitarian a nd other factors in the case of asylee, and special act adjustments) prevail. See also Chapter 10.15 of this field manual regarding the exercise of discretion.

Next, the adjudicator must weigh those positive and negative factors. In so doing, the adjudicator must be familiar with the manner in which discretion has been applied in other cases and with the general philosophy of those in whom the statute has vested discretion (the Secretary) and those to whom discretionary authority has been delegated (the USCIS Director , and the district and center directors). The best way to familiarize oneself with these philosophies is by reading the relevant policy directives (including those contained in these field manual s) and precedent decisions. Even precedent decisions which have been superseded by later decisions or statutory changes may be useful in understanding the process of weighing positive and negative factors.

Among the precedent decisions which relate to the use of discretion in adjustment of status cases are:

·     Matter of Marchena , 12 I. & N. Dec. 355 (RC, 1967) . An adjustment application by an alien who had been convicted of a crime NOT involving moral turpitude was denied as a matter of discretion.

·     Matter of Mesa , 12 I. & N. Dec. 432 (DAC, 1967) . A refugee receiving public aid was found not to be inadmissible as public charge and the positive factors involved (family unity, being an emigre from Cuba, etc.) outweighed negatives ones (having received public assistance, etc), so as to warrant adjustment as a matter of discretion.

·     Matter of Yarden , 15 I. & N. Dec. 729 (RC, 1976) . An adjustment application based on exemption from a labor certification as an investor whose investment was funded through income gained while working unlawfully in the U.S. was denied. See also Matter of Lam - unauthorized employment does not preclude the finding of favorable discretion.

·     Matter of Leung , 16 I. & N. Dec. 12 (DD 1976) . An adjustment application based on a labor certification obtained through experience gained while working unlawfully in the U.S. was denied.

·     Matter of Ro , 16 I. & N. Dec. 93 (BIA 1977) , A preconceived intent to remain permanently at time of arrival as a nonimmigrant was found to be sufficient reason to deny an adjustment application as a matter of discretion despite existence of favorable factors.

·     Matter of Baltazar , 16 I. & N. Dec. 108 (BIA, 1977) . An application for adjustment was denied as a matter of discretion where the judge concluded that the applicant had (1) divorced his spouse in order to obtain immigration benefits and (2) entered the U.S. as a nonimmigrant with a preconceived intent to remain permanently

·     Matter of Marques , 16 I. & N. Dec. 314 (BIA 1977) . An alien who invoked his fifth amendment right to avoid explaining a questionable aspect of his past was determined to have failed to meet his burden of establishing that his application for adjustment should be approved as a matter of discretion.

·     Matter of Lam , 16 I. & N. Dec. 432 (BIA 1978) . An adjustment application was approved as a matter of discretion despite alien’s unlawful employment in the U.S. ( Matter of Leung , a district director decision, and Matter of Yarden , a regional commissioner decision, disapproved by the BIA).

·     Matter of Pimentel , 17 I. & N. Dec. 482 (BIA 1980) . An alien who was statutorily eligible for adjustment based on a labor certification was denied as a matter of discretion due to the applicant’s history of bigamous marriages, lack of good moral character, and other factors.

·     Matter of Khan , 17 I. & N. Dec. 508 (BIA 1980). Unauthorized employment was found to be a negative discretionary factor, but insufficient to warrant denial in the absence of other negative discretionary factors. ( Note: This decision was issued prior to the amendments to section 245(c) of the Act which made unauthorized employment a statutory bar.)

·     Matter of Ibrahim , 18 I. & N. Dec. 55 (BIA 1981). Entry with a preconceived intent to remain was found to be a serious adverse factor. ( Note: Ibrahim had entered the U.S. and applied for adjustment at a time when section 212(a)(19) of the Act (which became section 212(a)(6)(C) of the Act) did not apply to an alien who had previously sought admission through fraud or willful misrepresentation.)

·     Matter of Tanahan , 18 I. & N. Dec. 339 (RC 1981) . The adjustment application of an alien who had absconded from carrier custody (after having been paroled into the U.S. for removal) was denied as a matter of discretion.

·     Matter of Battista , 19 I. & N. Dec. 484 (BIA 1987) . An immigration judge was found to have erred in denying adjustment as a matter of discretion solely due to a preconceived intent to remain permanently at time of entry as a nonimmigrant when there were also positive factors to be considered.

(e) Evaluation of Documentation .

(1) Documents Pertaining to Underlying Applications and Petitions .

Usually, the bulk of the documentation considered by an adjudicator handling an adjustment case has already been evaluated during the Form I-864, Form I-130 or I-140 adjudication process. Issues concerning the evaluation of such documentation are covered in Chapter 20.5 , Chapter 21 , and Chapter 22 resp. of this field manual . Where you are satisfied that the officer who adjudicated the underlying application has done his or her job properly, you may choose to spend little or no time examining the underlying documentation and questioning the adjustment applicant and other parties (e.g., a petitioner) on the merits of the underlying applications or petitions. However, you should always remember that even though you may accept the decision(s) reached by the previous adjudicator(s), the responsibility for making the correct final decision on the adjustment application rests with you, the adjudicator of that application.

At other times, you may find a need to thoroughly examine one or more underlying applications before adjudicating the adjustment application, even though another officer may have already adjudicated and approved the previous application(s) or petition(s). Doing so should not be viewed as indicating a lack of respect for the prior officer(s), but rather as an understanding that the ultimate decision rests with you. Sometimes the passage of time since the earlier adjudication may have caused circumstances to change (e.g., a couple who had previously appeared to be in a bona fide marriage may have had a divorce or separation; likewise, an employer who originally intended to employ and alien may have suffered a business reversal and no longer wish to employ the alien); sometimes the tools that are available to you at the adjustment interview were not available to the previous adjudicator; sometimes parties to a fraud who were well coached at a visa petition interview will have forgotten their prior statements and coaching. If you uncover evidence which indicates that the earlier adjudicator’s decision was incorrect (or is no longer correct), you should initiate appropriate action, which might include one (or more) of the following:

·     Initiate revocation proceedings;

·     Initiate a service motion to reconsider; or

·     Determine whether the alien is eligible for benefits under a different section of law. (For example, a former spouse of a U.S. citizen might not be eligible for adjustment based on a petition filed by his or her former spouse, but might be eligible for classification under the battered spouse provisions. Making this determination might necessitate explaining the procedures for filing a self- petition.)

(2) Documents Pertaining to Adjustment Application .

Carefully review all documents submitted in direct support of the adjustment application. Adjustment applicants have submitted fraudulent birth records (to avoid quota chargeability problems, or to hide a dependent’s having “aged out”), marriage records (in both spousal petition and derivative adjustment cases), police clearances (for obvious reasons), and other documents. If you have doubts about the integrity of a document, but are unable to resolve those doubts during the interview, the same tools that w ould be available in other cases are available here. After obtaining the necessary supervisory review and clearance, you could:

·     Refer the matter for Field Examination (if your office participates in this program);

·     Check with the Forensic Document Lab; or

·     Refer the document for (local or overseas) investigation (see Chapter 10.5(d) of this field manual ).

Remember that after you receive a report from another office, branch or individual, you must make any non-confidential adverse information available to the applicant if you intend to deny the benefit on the basis of said report. You must give him or her an opportunity to review and rebut that report, before your issue your decision.

(f) Preparing for and Conducting an Interview .

If possible, you should perform a number of different steps as part of the adjustment interview process. Prior to the interview, you should review the alien’s file to:

·     Determine whether the alien is or has been the subject of a proceeding to remove him or her from the U.S. (in order to ensure you have jurisdiction).

·     Determine whether there are any other indications in the file that the alien may be inadmissible to the U.S. or otherwise ineligible for adjustment of status.

·     Review any previously-adjudicated underlying (I-130 or I-140) petition so as to be satisfied that the correct decision was made on that petition.

·     Evaluate all supporting documents (including those pertaining to the underlying petition) for possible fraud.

·     Make notes regarding any outstanding issues which should be covered during the interview.

During the actual interview you should:

·     Go over all the questions on the I-485 application to determine whether the applicant understood the questions and answered correctly.

·     Resolve all outstanding issues noted during the pre-interview review or which arose during the course of the interview.

·     If necessary, conduct separate interviews of the applicant and the other parties in the case (such as the petitioning spouse).

·     If necessary, take a sworn statement from the applicant (and/or from other persons, such as the petitioning spouse).

·     Determine whether any additional documentation is needed in order to adjudicate the case and explain to the applicant what additional documentation is needed, why it is needed, and the procedures to be followed in submitting such.

·     If the application is being approved, explain to the applicant the remaining steps in the process (e.g., the generation and delivery of the alien’s Permanent Resident Card, Form I-551, and his or her rights and obligations as a permanent resident of the U.S.).

·     If the application is not being approved, explain to the applicant the remaining steps in the process. Normally, this is simply that the applicant will receive the Service’s decision in the mail, but depending on the circumstances, perhaps a more detailed explanation (e.g., preparation of a formal written decision which will be reviewed by a supervisor, initiation of removal proceedings, and his or her rights and obligations regarding renewal of the application before an immigration judge).

·     Regardless of the outcome of the case, create an adequate record to thoroughly explain and justify the decisions reached.

After the interview is over, you should:

·     If the case has been approved, review your work to ensure that all paperwork has been completed, that lookout checks have been completed and are current (see Chapter 10.3 of this field manual), that all USCIS and DHS systems and records (such as DACS and NIIS) have been or will be updated, and that the file and I-89 are routed to the appropriate service center location for USCIS updating and I-551 generation.

·     If the case is being referred for field examination or for investigation, prepare a memorandum explaining the need for such action, the issues to be resolved and the actions to be taken.

·     If the case is being denied, conduct any additional research into precedent decisions which may be needed, write a formal decision and refer the case for supervisory review.

In practice, however, an interviewing officer may not always have sufficient time to thoroughly review every case before the interview, conduct the interview, and perform the necessary followup work. An officer who is expected to conduct 20 (or more) interviews during an 8-hour day is only allotted an average of 24 minutes (or less) per case, which is insufficient to do all the functions listed above at a relaxed pace. Therefore, an officer must hone his or her time management skills in order to make the mo st effective use of the time available.

Even a brief pre-interview file review will often enable an experienced officer to determine whether the case merits extra attention or not. Examples of cases which merit extra attention include, but are certainly not limited to:

·     An alien who married a citizen only after exhausting other means of remaining in the U.S.

·     An alien whose underlying employment-based petition is for a job which is clearly inconsistent with his or her education and work experience.

·     An alien who is represented by a suspected unscrupulous attorney.

·     An alien who originally came to the U.S. with a nonimmigrant visa which would normally not be issued to an alien who did not have (or at least claim) significant ties in his or her home country (e.g., a spouse), but who now shows no indication of such ties.

·     An alien whose application is based on a marriage with a significant age difference or language barrier. (While not evidence of fraud per se , it is not unusual for strong divergences in a couple’s backgrounds to be an indicator of a marriage arranged solely for immigration purposes.)

·     An alien who has traveled outside the U.S. during the pendency of the adjustment application, especially if the alien had resided in the U.S. unlawfully for 6 months prior to filing for adjustment (the alien’s departure may have triggered a problem involving section 212(a)(9)(B) of the Act).

·     An alien who traveled outside the U.S. during the pendency of the adjustment application, especially if the interview later shows that the alien’s U.S. spouse was unaware of the travel.

It is important to remember that none of these examples are evidence of fraud, but they are indicators of issues needing resolution through the interview process. While many of them should have been discovered and resolved as part of the I-130 or I-140 visa petition proceedings, in the absence of evidence in the file that the issue had already been resolved by the previous adjudicator, it should be explored during the interview.

(g) Videotaping and Interview Techniques .

The videotaping program is generally discussed in Chapter 11.2 of this field manual . To the extent possible, all adjustment of status interviews should be videotaped. Doing so creates a number of advantages for USCIS , including:

·     Helping to protect the interviewing officer from any false accusations of improper activity.

·     Discouraging the person being interviewed from making false statements (even persons who would be inclined to commit perjury are less likely to lie if they realize their every word is being recorded).

·     Discouraging interviewees (and their attorneys) from disrupting the interview or behaving in an unprofessional manner.

·     Relieving the interviewing officer of the need to take extensive written notes.

·     Relieving the interviewing officer of the need to type a formal sworn statement.

·     Allowing the interview to proceed at a normal pace, instead of stopping and starting to set up for and then conducting a sworn statement.

When conducting an adjustment of status interview, it is of utmost importance that appropriate interview techniques be used. In addition to simply being wrong, inappropriate interview techniques can create a disruptive atmosphere, jeopardize a case, create negative (public and private) opinions of USCIS , and subject both USCIS and the officer to criticism and even lawsuits.

(h) Interview Waivers .

(1) Regulatory Authority .

8 CFR 245.6 allows USCIS to waive interviews of applicants for adjustment of status under Section 245 of the Immigration and Nationality Act (Act). The purpose of this provision is to enhance the ability of directors to efficiently and effectively manage workloads and resources; to enhance directors' abilities to direct resources into the area of fraud detection and deterrence; and, in instances where interviews are unnecessary, to reduce waiting time and burdens on the public. The regulation does not specify which Service officia ls have the authority to waive interviews. It also does not set forth the criteria to be used when determining whether an interview should be waived.

(2)     Delegated Authority .

On November 4, 1992, the Executive Associate Commissioner for Operations issued a memorandum delegating the authority to waive interviews to all district directors and service center directors. These directors are responsible for the application of this provision within their individual jurisdictions. Directors were required to create written local policies and procedures to ensure that the waiver provision is applied only to cases falling within the USCIS -wide guidelines set forth in the memorandum (see paragraph 3). These local policies and procedures were intended to reflect local conditions dictating the need for further restrictions upon the application of the waiver provision. The memorandum further specified that interviews could not be waived merely to reduce backlogs.

(3) Waiver Guidelines .

All adjustment of status applicants under section 245 of the Act will continue to be interviewed, unless an individual determination has been made that an interview is not necessary, and the case falls within both USCIS -wide and local guidelines for interview-waiver cases. The determination as to whether an interview is required must be made on a case-by-case basis. A waiver of the interview requirement may be granted only if:

·     the adjustment application is based upon a petition for an employment-based preference classification (I-140), accompanied by original or certified copies of supporting documents, and the principal alien will continue employment with the same individual or firm for whom he or she is lawfully employed as a nonimmigrant, or the adjustment application has been filed by a derivative spouse or child of such principal alien;

·     the adjustment application is based upon an immigrant petition for an unmarried minor child of a U.S. citizen accompanied by original or certified copies of supporting documents;

·     the adjustment application is based upon an immigrant petition for a parent of a U.S. citizen accompanied by original or certified copies of supporting documents;

·     the applicant has been interviewed in the course of an investigation or field examination, and the adjudicating examiner determines that further interview of the applicant is unnecessary;

·     the applicant is a native or citizen of Cuba filing for adjustment under the Act of November 2, 1966, or the spouse or child of such an alien regardless of their citizenship and place of birth; or

·     sufficient evidence is contained in the record to support a denial of the adjustment of status application.

(4) Reporting Requirements .

The Executive Associate Commissioner’s November 4, 1992, memorandum also requires all district directors to submit consolidated district reports of interview waiver activity for each month (including negative reports, when appropriate). This report must be submitted by FAX transmission (202-514-0198) to the Office of Adjudications not later than the tenth (10th) day of the following month.

(i) The Automated Support System (CLAIMS), Including Use or Updating, Scheduling, and the Flagging of Bad Cases .

At the present time, the CLAIMS system is of limited use in the adjudication of adjustment of status cases, especially those which are handled through local offices. Currently:

·     All adjustment cases adjudicated at service centers are data entered, updated and completed through CLAIMS.

·     Adjustment cases adjudicated at the St Paul office (only) are data entered, updated and completed through CLAIMS.

·     Adjustment applications from applicants within the jurisdiction of the Baltimore office are filed and data entered through CLAIMS at the Vermont Service Center, which then forwards them to Baltimore for adjudication.

·     NACARA (section 202) adjustment applications are filed and data entered through CLAIMS at the Texas Service Center, which then either adjudicates the application or forwards it to the appropriate local office for interview and adjudication. If the latter, upon completion of the adjudication, the local office returns the case to the Texas Service Center for CLAIMS/USCIS updating and ADIT card production.

·     HRIFA adjustment applications are filed and data entered through CLAIMS at the Nebraska Service Center, which then either adjudicates the application or forwards it to the appropriate local office for interview and adjudication. If the latter, upon completion of the adjudication, the local office returns the case to the Nebraska Service Center for CLAIMS/USCIS updating and ADIT card production.

·     USCIS checks are conducted through CLAIMS on all cases data entered at service centers and at the St Paul office.

·     FBI & CIA checks are handled through CLAIMS for all cases data entered at the St. Paul office or at one of the service centers (including both those receipted at a service center and those receipted at local offices which forward copy 2 of the Form I-181, Memorandum of Creation of Record of Lawful Permanent Residence, to the service center).

·     For adjustment applications approved at a local office, copy 3 of Form I-181 is sent from the local office to the appropriate service center for USCIS updating and ADIT card production through CLAIMS.

(j) Effect of Departure While Application Is Pending .

(1) General Rule .

Except as discussed in paragraph (2), if an applicant for adjustment of status departs from the U.S. without first obtaining an advance parole, he or she has abandoned the application for adjustment as of the time of the departure. (See Chapter 54 of this field manual for information regarding the adjudication of an application for advance parole.) If during the course of your adjudication of an application for adjustment you determine that the applicant had abandoned the application before by departing without first obtaining an advance parole, you must terminate the application, citing the alien’s abandonment of it as the reason for the denial. However, such termination is without prejudice to the filing of a new application for adjustment if the alien is eligible to do so. See 8 CFR 245.2(a)(4)(ii) .

(2) Exceptions to the General Rule .

Certain applicants for adjustment of status before USCIS are not considered to have abandoned their applications simply by having departed from the U.S., even if they did not obtain an advance parole prior to their departure. The following aliens fall within the exceptions to the general rule:

(A) H and L Nonimmigrants with “Dual Intent.”

Und er 8 CFR 214.2(h)(16)(i) and 8 CFR 214.2(l)(16) , H-1B, H-1C, L-1A, and L-1B nonimmigrants, and their dependent family members in H-4 or L-2 nonimmigrant classification, may be eligible to maintain and extend their nonimmigrant status while their applications for permanent residence under section 245 of the Act remain pending. The approval of a labor certification or preference visa petition or the filing of an adjustment of status application may not be the basis for a denial of an application for extension of stay by an H-1B, H-1C, or L-1 nonimmigrant or an application for change of status within the H-1B, H-1C, or L-1 classifications.

As long as an H-1B, H-1C, and L-1 nonimmigrant remains compliant with his or her nonimmigrant classification, including restrictions on periods of stay, changes in employers, and conditions of employment, the mere fact that he or she has filed an application for adjustment of status does not render him or her ineligible for an extension of nonimmigrant status. Similarly, the mere fact than an alien has filed an application for adjustment of status does not make him or her ineligible for nonimmigrant classif ication as an H-1B, H-1C, or L-1.

Under 8 CFR 245.2a(4)(ii)(C) , H-1/H-4 or L-1/L-2 nonimmigrant adjustment of status applicants who are not in exclusion, deportation, or removal proceedings are not required to seek advance parol e to travel abroad. They may be readmitted to the United States in the same status they maintained at the time of their departure, provided that they are able to demonstrate to the immigration officer at a port of entry that they:

·     remain eligible for H-1/H-4 or L-1/L-2 classification,

·     are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required), and

·     are coming to resume employment with the same employer for whom they had been authorized to work as an H-1 or L-1 nonimmigrant (or, in the case of dependents, the spouse or parent through whom they received their H-4 or L-2 status is maintaining his or her H-1 or L-1 status).

If there has been a recent change of employer or extension of stay, the applicant, in order to comply with the third requirement noted above, must have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer’s name, or a notice of action, Form I-797, indicating approval.

(B) K-3 and K-4 Nonimmigrants .

Aliens present in the U.S. in a K-3 or K-4 nonimmigrant classification may travel outside of the U.S. and return using their nonimmigrant K-3 or K-4 visa, even if they have filed for adjustment of status in the U.S. prior to departure. USCIS recognizes that although the K-3 and K-4 statuses are nonimmigrant classifications, aliens entering with this status have an intent to stay in the U.S. permanently. The definition of a K-3 or K-4 nonimmigrant alien does not require that such an alien have a foreign residence that he or she has no intent of abandoning. Such aliens are married to a U.S. citizen (or the child of a U.S. citizen) and are coming to the U.S. to live with their spouse (or parent). Accordingly, USCIS will not presume that departure constitutes abandonment of an adjustment application that has been filed.

Note

This rule is different for a K-3 or K-4 nonimmigrant than for fiancés and their children (K-1 and K-2). USCIS notes that applicants for adjustment of status who entered as a K-1 or K-2 nonimmigrant, and who later filed to adjust status, will continue to be required to obtain advance parole to avoid abandonment of their adjustment application upon departure, as provided in 8 CFR 245.2(a)(4). This is the case because K-1 and K-2 aliens have only a 90-day period of admission prior to being required to marry the citizen petitioner and file for an adjustment application. Unlike those in K-3 or K-4 status, K-1 and K-2 a liens will have no status or visa to fall back on following the filing of their adjustment application.

(C) V-1 and V-2 Nonimmigrants .

A V nonimmigrant with a pending Form I-485, Application to Register Permanent Residence or Adjust Status, does not need to obtain advance parole prior to traveling abroad. Section 1102(d) of the LIFE Act amends section 214 of the Act to include V nonimmigrants in the list of nonimmigrant classifications that may have dual intent. This means that an alien in V nonimmigrant status may be considered a nonimmigrant despite the fact that he or she is an intending immigrant with a filed application for adjustment of status or an immigrant visa. Aliens with dual intent, including V nonimmigrants, do not need to obtain advance parole to protect their pending applications for adjustment of status from being considered abandoned when they depart the U.S.

Note

An alien who obtained a V nonimmigrant visa from a consular office abroad may be inspected and admitted to the U.S. in V nonimmigrant status after traveling abroad as long as the alien possesses a valid, unexpired V visa and remains eligible for V nonimmigrant status, even if he has applied for adjustment of status. However, as a general matter, an alien who was granted V nonimmigrant status in the U.S. by USCIS will need to obtain a V visa from a consular office abroad in order to be inspected and admitted to the U.S. as a V nonimmigrant after traveling abroad. (The alien will not need to apply for a V visa abroad in order to be admitted if he or she has traveled to contiguous territories or adjacent islands, had previously been admitted on another valid visa, and is eligible for automatic revalidation.) Procedures for obtaining a V nonimmigrant visa abroad are found in the Department of State regulations at 22 CFR 41.86 . In addition, the alien must remain eligible for admission in V nonimmigrant status. (See IFM Chapter 15.3 regarding automatic revalidation.)

(D) Applicants for Permanent Residence under Section 209 of the Act ,

Applications for adjustment of status filed by asylees and refugee are governed by 8 CFR 209, not by 8 CFR 245. Unlike 8 CFR 245, there is no provision in 8 CFR 209 which mandates that the asylee or refugee’s adjustment application be considered abandoned by the alien’s departure from the U.S. while the application is pending. Instead, 8 CFR 209 holds that (among other requirements) in order to be eligible for adjustment, the alien’s status as a refugee or asylee in the U.S. must not have been terminated. M ere departure from the U.S. does not terminate an asylee or refugee’s status in the U.S.; however, such person is required to obtain a Refugee Travel Document in order to travel outside the country.

(k) Diplomatic Immunity Waiver Cases . [Revised 07-11-2006]

An alien cannot hold both lawful permanent resident status and diplomatic immunity. If an alien who has diplomatic immunity applies for adjustment of status, he or she must complete the Form I-508 (and if a French national, also Form I-508F ) and submit it as part of the adjustment application packet.

The adjudicator must place the Form I-508 (and Form I-508F, if applicable) with original signature in the alien’s file.

If the adjustment application is approved , copies of the Form I-508 (and Form I-508F, if applicable) must be forwarded to the following addresses:

If:	Then, mail one copy to:	And another copy to:
The principal alien was employed at a foreign embassy or consulate, or at an international organization other than the United Nations in New York	Office of Foreign Missions Tax and Customs Program 3507 International Place, NW Washington, DC 20008	Internal Revenue Service 1111 Constitution Avenue, NW LE 4423 SBSE International SE:S:SP:IN:PSP Washington, DC 20224
The principal alien was employed at a foreign government’s mission to the United Nations or with the United Nations Secretariat in New York	U.S. Mission to the United Nations 799 United Nations Plaza New York, NY 10017	Internal Revenue Service 1111 Constitution Avenue, NW LE 4423 SBSE International SE:S:SP:IN:PSP Washington, DC 20224

Please note that the Office of Records (or Central Office as it was referred to on earlier versions of the Form I-508) no longer requires a copy of the Form I-508/Form I-508F. This office decided that since this form is placed in the alien’s A file, there is no need to maintain a separate copy of it at USCIS Headquarters.

Note

If an alien who is currently a lawful permanent resident is appointed to a position which entitles him or her to diplomatic immunity, he or she must waive such immunity (by completing and submitting a Form I-508 (and I-508 F, if applicable) or his or her status must be adjusted to that of a nonimmigrant under section 247 of the Act.

Aliens in A or G classification requesting adjustment to lawful permanent residence are also required to include in their adjustment packets a Form I-566 . Endorsement by the Office of Foreign Missions (formerly referred to as the “Department of State”) or by the U.S. Mission to the United Nations is not required prior to the adjudication of the adjustment application.

However, following the approval or denial of the adjustment application, the adjudicator must complete Part 8 of the Form I-566 and forward a copy of this form to one of the following addresses:

If:	Then, mail a copy of the Form I-566 to:
The principal alien was employed at a foreign embassy or consulate, or at an international organization other than the United Nations in New York	Office of Foreign Missions 3507 International Place, NW Washington, DC 20008
The principal alien was employed at a foreign government’s mission to the United Nations or with the United Nations Secretariat in New York	U.S. Mission to the United Nations 799 United Nations Plaza New York, NY 10017

By forwarding the completed Form I-566 to the Office of Foreign Missions or to the U.S. Mission to the United Nations, USCIS notifies these Department of State entities whenever the status of a nonimmigrant previously in A or G status has been adjusted to that of a lawful permanent resident alien. In this regard the Office of Foreign Missions and the U.S Mission to the United Nations update their databases and take steps to secure the individual’s diplomatic ID card, diplomatic license plates, and tax-free card and undertake other appropriate actions.

(l) Transferring an Adjustment of Status Application from One Underlying Eligibility Basis to Another .

(1) Background .

From time to time an alien who is an applicant for adjustment under section 245 of the Act based on one (preference or immediate relative) category will prefer to have his or her application considered under another category. Likewise, an applicant for adjustment under one section of law may prefer to seek adjustment under an altogether different section of law. Examples include:

·     An alien who originally applied for adjustment based on an approved I-140 petition and married a U.S. citizen while the I-485 was pending, but who now prefers to adjust based on an I-130 filed by the new spouse;

·     An alien who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to be granted adjustment under an employment-based category in order to avoid having to deal with the conditional residency requirements of section 216 of the Act;

·     A Cuban national who applied for adjustment under section 202 of NACARA, but who now prefers to be granted adjustment under the Cuban Adjustment Act in order to receive the “rollback” provisions of the latter. (See Chapter 23.11(m)(2) of this field manual for an explanation of “rollback.”)

While in many cases it is perfectly legal to convert the pending adjustment application to the new basis without requiring a new adjustment application or a new fee, there are a number considerations which must be taken into account before granting adjustment under the new basis. These considerations are discussed in Chapter 23.2(l)(2) of this field manual .

Note

8 CFR 204.2(i) sets forth instances where a petition is automatically converted from one preference category to another (e.g., upon the naturalization of the petitioner, a second preference petition for a spouse is automatically converted to an immediate relative petition). In such cases, obviously, the conversion is automatic and officers need take no action. However, in such cases affected aliens may now be able to file for adjustment of status as an immediate relative; conversely, an alien may lose his or her current priority date (such as a child of an LPR who turns 21).

(2) Guidelines .

When considering a request by an adjustment applicant to convert the basis of his or her application, an adjudicator should take the following into account:

(A) New Application or Fee Not Required .

If the criteria contained in this section are met, neither a new application nor a new fee is required.

(B) Refund of Fees Where an Alien Unnecessarily Filed a Second Adjustment Application .

Unless there was a USCIS or INS error involved in the alien filing an unnecessary second adjustment application, the fee paid by the alien should not be refunded (even including the penalty fee under section 245(i) of the Act). However, if the alien or his or her legal representative was advised by USCIS or INS that a new application and fee were required in order to convert from one adjustment basis to another, the alien may request and USCIS may approve, a refund of any fees paid on the second I-485 (incl uding the penalty fee under section 245(i)).

(C) The Request for Conversion Must Be Made in Writing .

If an alien verbally requests conversion of an adjustment application, perhaps during the adjustment interview itself, he or she should be asked to date and sign a written statement to that effect (at which point such interview could proceed without further delay provided he or she is eligible to immediately adjust under the new classification).

(D) Continuing Eligibility and Continuing Pendency .

In order to convert an adjustment application from one basis to another, there must be no break in the continuity of the underlying eligibility for adjustment prior to the submission of the conversion request. If the applicant does not maintain eligibility up until the point the conversion request is made, conversion may not be granted. (For example, if an alien whose original adjustment application was based on an I-130 filed by an LPR comes to an adjustment interview with a divorce decree dissolving that first marriage, along with a marriage certificate and I-130 based on a marriage to a U.S. citizen, he or she has failed to maintain continuity of eligibility since the first petition was automatically revoked at the moment the first marriage was dissolved. Accordingly, the adjustment application cannot be converted.)

Likewise, if there is a break in the continuity of the adjustment application (e.g., the applicant chose to withdraw the application or the application was denied because he or she failed to appear for a scheduled interview without sufficient justification), it cannot be converted.

(E) Section 245(c) Considerations .

Except as provided in this paragraph, if an alien who meets all the considerations for conversion of an adjustment application set forth in this discussion was not barred from applying for adjustment because of the provisions of section 245(c) of the Act at the time of the original adjustment application, he or she is also not barred by those provisions at the time of conversion. The exception to this arises when the alien is converting from a basis which enjoys an exemption from 245(c) to one which does no t. For example, if an alien who entered the U.S. under the Visa Waiver Program and originally sought adjustment as the child of a U.S. citizen turns 21 years of age and wishes to convert to an applicant for adjustment as the unmarried son or daughter of a citizen, he or she acquires a bar to adjustment under section 245(c) (because he or she is no longer an immediate relative).

(F) Section 245(i) Considerations .

If an applicant for adjustment (who was barred by section 245(c) at the time of the original I-485 filing) has already received a waiver of such bar under the provisions of section 245(i) by paying the penalty fee, he or she need not pay that penalty fee again. However, if the fee was not previously paid and the applicant is still eligible to seek the section 245(i) waiver (i.e., he or she falls within the grandfathering provisions), he or she may pay the section 245(i) penalty fee and seek relief under tha t section as part of this process.

(G) Dependent Adjustment Applications .

In order for a dependent applicant for adjustment (e.g., an alien whose original adjustment application was as the spouse of a sibling of a U.S. citizen) to convert his or her adjustment application, the principal adjustment applicant (in this case the sibling of the U.S. citizen) must maintain continuing eligibility up until the time of the conversion request and the relationship between the principal and dependent adjustment applicants must continue to exist. If there is a break either in the principal’s eligibility (e.g., due to the death of the U.S. citizen petitioner) or in the relationship between the principal and dependent (e.g., they get divorced), the dependent’s adjustment application cannot be converted.

Note

However, (assuming that all other considerations are met) the dependent is not required to convert to another dependent category. For example, an alien who meets all the other considerations could convert from applying for adjustment as the spouse of the sibling of the U.S. citizen to applying for adjustment as principal applicant under a first employment based category.

(H) Fraud .

If the original application for adjustment was based on a petition which is determined to have been filed fraudulently or with willful misrepresentation, the principal adjustment applicant (i.e., the beneficiary of that petition) is considered to have never had eligibility for adjustment of status and therefore cannot meet the continuing eligibility requirement. Likewise, anyone whose adjustment application is dependent upon that principal adjustment applicant’s eligibility (e.g., a spouse of a “sibling” of a U.S. citizen where the underlying I-130 is based on fraudulent birth certificates) is equally ineligible. (The principal’s I-485 is denied first based on the determination of fraud; the dependent’s application is then denied based on there being no provision under law on which he or she can file for adjustment.)

(I) Revocation vs. Revocability of Earlier Petition .

If the petition upon which the pending I-485 was originally based has been revoked (under section 205 of the Act) before the alien makes a legitimate request for conversion, the alien does not meet the continuing eligibility requirement discussed above. In some cases (as set forth in 8 CFR 205.1 ), revocation of a petition is automatic and takes effect as soon as a triggering event occurs; in other cases (see 8 CFR 205.2 ), USCIS must go through the revocation process before the revocation takes effect. Continuing eligibility, as discussed above, ends as soon as the revocation takes effect. If the new basis of eligibility is not sought (e.g., if the new petition is not filed) before the revocation takes effect, the adjustment application cannot be converted.

(J) Visa Number Usage .

In general, it is USCIS policy that if an alien is eligible to adjust status under both a preference category (as delineated in section 203 of the Act) and a non-quota category (e.g., as a section 201 immediate relative), USCIS should adjust him or her under the non-quota category in order to avoid using up a preference number which could be used by someone else. However, an alien is not entitled to immediate relative classification unless and until a visa petition has been both filed by the pertinent U.S. citizen relative and approved by USCIS (or a previously-approved preference petition is upgraded upon the petitioner’s naturalization). Accordingly, if that U.S. citizen relative does not file a petition (or withdraws a previously filed petition), the alien is unable to adjust under the non-quota category and this general policy does not apply.

(K) Special Programs Containing Filing Deadlines .

Certain programs (e.g., HRIFA with regard to principal applicants and NACARA section 202 with regard to principal and dependent applicants) require that an applicant apply for adjustment of status by a given statutory deadline. In order to convert the basis of an adjustment application from something else to one of these special programs, the applicant would have to make the request no later than the filing deadline of the special program.

(L) The Priority Date must Be Current for the Basis to Which the Applicant Wishes to Convert .

In order to convert an adjustment application to a new basis involving a preference classification, the alien must be the beneficiary of an approved visa petition (pertaining to that new basis) which has a current visa availability date. With limited exceptions, a priority date is NOT transferrable from one preference category to another, or from one petition to another.

Note

The request for conversion of the adjustment application is a totally separate issue from the priority date determination. Priority dates for preference visa categories are determined in accordance with the provisions of 8 CFR 204.1(c) and (d) for family-based petitions or 8 CFR 204.5(d) , (e) and (f) for employment-based petitions and are generally not transferable. The only exceptions to this general rule are:

·     Conversion within the first three employment based categories (sections 203(b)(1), (2), and (3), as provided in 8 CFR 204.5(e) ; and

·     Conversion from a preference category under an obsolete section of law, as provided in 8 CFR 204.5(f) .

(M) Motions to Reopen and Motions to Reconsider .

If an alien meets the requirements set forth in 8 CFR 103.5 , he or she may file a motion to reopen or a motion to reconsider, as appropriate. In some cases where USCIS finds that an error was made, USCIS could choose to reopen or reconsider the case on its own initiative. Once you decide to reopen or reconsider an adjustment application, the original decision has been set aside and a new decision must be reached. If all other considerations are met, between the time the decision is made to reopen or reconsider and the time the new decision is reached, the adjustment application may be converted.

Note

If the original adjustment application was based on a petition that was also denied, the alien can only establish continuing eligibility if both the adjustment application and the petition are reopened or reconsidered.

(m) Anti-Fraud Techniques .

Lawful permanent resident status in the U.S. is a valuable benefit. People will go to great lengths to obtain this benefit, and many of those who are not eligible for this benefit will resort to fraudulent methods to obtain it. One of the most important responsibilities of an adjudicator is to combat fraud; to deter, detect, and prevent fraud, and (when appropriate) to assist the Enforcement Branch in the criminal prosecution of persons who commit fraud. There are a number of techniques and tools available to assist you in meeting this responsibility, including:

·     Interviews . Effective interviewing of applicants for adjustment is one of the key methods of combating fraud. Developing the skills of an experienced interviewer takes time and dedication, but is well worth the effort. Interviewing is discussed in Chapter 15 of this field manual .

·     Videotaping . Interviews can be especially effective when combined with the videotaping capabilities available in most offices. Videotaping is also discussed in Chapter 15 of this field manual .

·     Field Examination . For those offices who participate in the Field Immigration Examiner (FIE) program, this can be an extremely effective way of resolving fraud concerns when the record does not warrant referral for a full investigation. The FIE program is discussed in Chapter 17 of this field manual .

·     Investigation . Requesting a full investigation by an ICE Special Agent is another method of resolving domestic or foreign fraud concerns. Of course, acceptance of the case by the Investigations Branch is subject to the resource availability and priorities of that Branch. Procedures for referring a case for full investigation are discussed in Chapter 10.5(d) of this field manual . (See 8 CFR 103.2(b)(18) regarding withholding of adjudication while an application is under investigation.)

·     Other Sources . In conjunction with either a Field Examination or a full investigation, and subject to certain restrictions, other sources of information may be used. Many of these other sources are discussed in Chapter 4 (Conducting Investigative Research; Obtaining Records) and Chapter 5 (Law Enforcement Support Operations) of the Special Agent’s Field Manual .

(n) Decision Procedures .

(1) Approvals .

If the decision to approve the application is made during the course of an adjustment interview:

·     Verbally advise the alien that his or her application has been approved;

·     Process him or her for a Form I-551 (i.e., complete Form I-89);

·     Endorse his or her passport with the “Processed for I-551" (or “ADIT”) stamp and make appropriate annotations as to his or her new status; (See Appendix 23-7 for statistical codes for immigrant visas and adjustments of status);

·     Explain his or her basic rights and responsibilities as a lawful permanent resident (e.g., eligibility to apply for naturalization once he or she has accumulated sufficient residence, necessity for carrying Form I-551 at all times if 18 years of age or older, necessity for presenting Form I-551 at a port of entry or when requested to do so by a DHS officer, necessity of applying for removal of conditions after 21 months if admitted conditionally, etc.);

·     Issue Form I-357, Welcome to the United States, in the language with which the alien is most comfortable if a current version of such is available;

·     Answer any immigration or status-related questions the alien might have.

·     Annotate the departure copy of his or her Form I-94 with the word “ADJUSTED”, followed by the date, office, and your officer ID number, and forward it to the NIIS data entry center;

·     Make all appropriate endorsements on Form I-181 in the alien’s file and on the relating processing worksheet (Form I-468);

·     Clear any relevant docket controls and take care of any pending issues; and

·     Forward the case (including the completed Form I-89) to the appropriate service center for I-551 production and USCIS updating.

If the application is approved at a time subsequent to the interview, or if the interview has been waived, mail written notice of approval to the alien and his or her attorney (if the alien is represented), and instruct him or her on the proper procedures to follow for processing for the Form I-551 (if he or she has not already been so processed) and for obtaining a “processed for Form I-551" endorsement (i.e., the “ADIT” stamp) in his or her passport. Perform those actions listed above which are possible t o do (e.g., if you have the departure copy of his or her Form I-94, annotate and forward it as indicated above).

Note

For certain types of adjustment cases (e.g., HRIFA) where Congress has mandated special statistical reporting requirements, it is imperative that the CLAIMS system be updated upon completion of the case in order to capture the necessary data. Such updating is normally done at the controlling service center, but may be handled at the local office in some locations. If CLAIMS is updated locally before the case is forwarded to the service center for card production and USCIS updating, annotate the file accordingly.

(2) Denials .

If the adjustment application is being denied, the applicant is entitled to a clear explanation of the reasons why and to an opportunity to have the decision reviewed by either an immigration judge (as a renewed application in removal proceedings) or by the Office of Administrative Appeals (through certification of the decision if the alien is not being placed in such proceedings). There is no appeal from a denial of adjustment of status, except as provided in 8 CFR 245.1(c)(9)(viii) .

(A) General .

Using either Form I-291 (local offices) or Form I-797 (service centers), prepare a formal decision explaining in detail the reasons why the application for adjustment is being denied. It is generally preferable to set forth all the reasons for the denial (both statutory and discretionary), but it is not required that you discuss the discretionary grounds where the statutory ones are clear. Failure to list discretionary reasons does not invalidate the decision to deny the application on a statutory basis. Ci te the relevant sections of law and regulations and precedent decisions, as appropriate. If the decision is based in whole or in part on information of which the applicant is unaware or could not reasonably be expected to be aware (e.g., investigative reports, information from informants, school or employment records other than those submitted by the applicant), issue a Notice of Intent to Deny first in order to give the applicant an opportunity to review the information (unless, of course, the information itself is classified) and submit a rebuttal. See 8 CFR 103.2(b)(16)(iv) .

(B) Initiation of Removal Proceedings .

In the vast majority of circumstances, an alien whose adjustment application is being denied is likely to be deportable as an overstay or a status violator, and perhaps under additional grounds as well. If so, and except as provided in paragraph (2)(C) or local policy, the alien should be placed into removal proceedings by issuing the denial notice (Form I-291) and the Notice to Appear (Form I-862) concurrently. It if is not possible to issue the NTA and Form I-291 concurrently, the NTA should be issued as soon after the Form I-291 as possible. Ideally, the NTA is issued by the same authority who issued the denial. There are several reasons why it is important to initiate removal proceedings as soon as possible:

·     It expedites the removal of an alien who is in the U.S. illegally;

·     It enables the alien to renew the application for adjustment in the removal proceedings;

·     It enables the alien to seek new employment authorization once the adjustment application has been renewed;

·     It minimizes the amount of unnecessary paperwork and case review, especially if the same individual (Center Director, District Director, Assistant District Director for Examinations, etc.) signs both the Form I-291 and the NTA;

·     It increases the likelihood of the alien receiving notification of the proceedings, as the shorter the time between the issuance of the decision and the issuance of the NTA, the less likely the alien is to have changed his or her address; and

·     It decreases the number of cases pending in the operating unit, and thereby decreases the level of resources which must be committed to managing the Adjudications caseload.

(C) Exceptions to Policy on Issuance of NTAs to Denied Applicants .

Under the following circumstances, an office may decide not to place the denied adjustment applicant into removal proceedings:

·     The alien is granted prehearing voluntary departure - Since the 1996 changes to the statute, prehearing voluntary departure (for a period not to exceed) of 120 days) can only be granted if:

–     The alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4)(B) of the Act;

–     The alien agrees to depart voluntarily under the conditions set by USCIS or DHS, as appropriate, and at his or her own expense;

–     The deciding official (e.g., district or center director) is satisfied the alien will depart in accordance with the provisions set forth; AND

–     If required, a suitable bond is posted in the alien’s behalf.

·     The alien is placed under “deferred action” - See Chapter 14.9 of the Special Agent’s Field Manual .

·     The alien is maintaining valid nonimmigrant status. Essentially, applying for adjustment or asylum does not necessarily end an alien's nonimmigrant status, since in and of itself, the filing of a permanent or temporary visa petition or the filing of an application for adjustment or asylum is an action which neither preserves nonimmigrant status, nor violates such status. It may be that the person can show that he fully intends to leave, if required to do so, should the attempt to become an LPR fail. It may be more difficult for some (B-2s, for example) to show that they really do intend to stay only if allowed to do so, but it's not impossible. There is a lengthy discussion of the effect of filing for asylum and employment authorization on nonimmigrant status contained in General Counsel Opinion 94-39 . There is also an extensive discussion of the effect of filing an adjustment application on maintenance of nonimmigrant status in Matter of Hosseinpour , 15 I. & N. Dec. 191 (BIA 1975). There are a number of factors which must be taken into account when determining the impact of such filing on maintenance of nonimmigrant status, including (but not limited to):

–     Whether the specific nonimmigrant category requires the alien to maintain a residence in a foreign country which he or she has no intention of abandoning. The B, F, H (other than H-1), J, M, O, P, and Q categories require such residence (in fact, the Q-2 categories require that such residence be in Northern Ireland or certain designated counties of the Republic of Ireland). The other categories do not contain such requirement.

–     Whether the alien is an H-1 or L nonimmigrant. Section 214(h) of the Act specifically provides that being a beneficiary of an immigrant visa petition or an applicant for adjustment shall not constitute evidence of an intention to abandon foreign residence by an H-1 or L nonimmigrant. (Although section 214(h) of the Act does not extend this statutory provision to the H-4 dependent of an H-1 nonimmigrant, it should be treated as if it does.)

–     Whether the alien seeks or obtains any ancillary benefits which are inconsistent with his or her nonimmigrant status (e.g., requesting an employment authorization document (EAD) based on his or her pending adjustment or asylum application).

–     Whether the alien has continued to perform those duties or functions which are consistent with the nonimmigrant status (e.g., if admitted as nonimmigrant student, continuing to maintain a full course of studies).

–     Whether the alien has not performed any duties or functions which are inconsistent with his or her nonimmigrant classification (e.g., if admitted as a nonimmigrant visitor for business, accepting employment or enrolling as a full-time student).

–     Whether the alien’s authorized period of stay as a nonimmigrant has expired. Once the authorized stay has expired, the question of whether the alien violated status by applying for adjustment or asylum becomes moot. He or she no longer has a lawful nonimmigrant status and therefore becomes deportable. (Of course, the alien may be allowed to remain in the U.S. while his or her adjustment or asylum application is pending.)

–     Whether the alien is the moving party in another proceeding. If the alien is seeking a benefit (e.g., extension of stay or change of status), he or she bears the burden of proving that he or she is eligible for such benefit. Conversely, if USCIS is the moving party in an action (such as the issuance of a Notice to Appear), the burden shifts to USCIS . This is not to say that the fact that the alien had applied for adjustment or asylum cannot be a very persuasive factor in meeting the USCIS's burden, it is simply an acknowledgment of where the burden lies.

(3) Certification of Decisions .

In general, decisions on adjustment of status applications may be certified to the Administrative Appeals Office (AAO) in a limited number of situations. Cases involving facts which are so unique that the district or center director determines that the existing regulations, precedent decisions, and other available resource material are inadequate to provide needed guidance on the adjudication of the application may be certified at the discretion of the district or service center director. Additionally, Head quarters may direct an application or class of applications to be certified to the AAO. Typically, a class of adjustment applications may be designated for directed certification when a new law is being implemented and there is a need to establish a body of case law. At the present time, the classes of applications which have been designated for directed certification are:

·     The denial of any I-485 where the applicant is maintaining valid nonimmigrant status and will not be placed in removal proceedings (where the alien would normally be able to renew the application before the immigration judge), such as an I-485 filed by an alien who is maintaining valid A or G nonimmigrant status;

·     The denial of any I-485 filed under the Cuban Adjustment Act, except for cases denied for lack of prosecution such as those where the alien fails to appear for an interview or fails to respond to a request for additional documentation;

·     The denial as a matter of discretion of any I-485 where the applicant has applied for a waiver of ineligibility under section 245(i) of the Act. This requirement is in accordance with policy memorandum HQ-245-P of September 29, 1994 entitled “Adjustment of Status Benefits of Public Law 103-317.” However, the broader requirement of that memorandum which stated that “any denial of adjustment of status applications under section 245 of the Act that is based on discretion [regardless of whether it involved an a lien who applied for a waiver under section 245(i) of the Act] must be certified” is hereby rescinded.

You must conduct certain follow-up actions after the AAO issues a decision to affirm or reverse your decision, or remands the case for additional action:

·     If the AAO affirms the decision to deny the adjustment application (or on certification reverses your decision to grant it), and sends the case back to your office for follow-up action, place the alien in removal proceedings, if appropriate, following the instructions set forth in paragraph B.

·     If the AAO affirms on certification the decision to grant the adjustment application (or reverses your decision to deny it) and sends the case back to your office for follow-up action, process the alien for an ADIT card, and endorse and forward Form I-181 to the appropriate service center for USCIS updating and card production, as you would with any other approved adjustment case.

·     If the AAO remands the case for further adjudication , re-adjudicate the case in accordance with the instructions from the AAO (including conducting a new interview, if appropriate) and render a new decision. If so directed by the AAO in the order of remand (or if it is otherwise merited), re-certify the case to the AAO.

23.3 [Reserved]