23.5 Adjustment of Status under Section 245 of the INA.

(Previous paragraph (n) was re-designated as paragraph (p) and new paragraphs (n) and (o) were added; AD10-38, PM-602-0004, dated 07-21-2010)

(Previous paragraph (k) was re-designated as paragraph ( l ) and a new paragraph (k) was added; AD08-16, dated 04-11-08)

(a) General .

Most applications for adjustment of status are filed under section 245 of the Act. This section was created as part of the 1952 Act, and while it was originally envisioned as a somewhat rare exception to the general practice whereby an alien would receive an immigrant visa through a consulate, it has grown to the point where today more aliens gain permanent residence through adjustment of status than through immigrant visa processing.

NOTE: See Chapter 36.3 of this manual for special guidance pertaining to the adjustment of status of aliens present in the Commonwealth of the Northern Mariana Islands (CNMI) on or after November 28, 2009. [Note added 12/15/2010; PM-602-0013, AD10-10]

(b) Eligibility .

(1) Criteria Set Forth in Section 245(a) of the Act .

Subject to the provisions of sections 245(c) and 245(i) of the Act, section 245(a) of the Act provides the criteria that an alien must meet in order to apply for adjustment of status under section 245. These criteria for eligibility are further explained under 8 CFR 245.1(a) . Such alien must:

(A) Have Been Inspected and Either Admitted to or Paroled into the U.S. –

Any type of admission, whether as a nonimmigrant, as an immigrant (unlikely, but possible), or (with limitations) as a refugee, can meet the “inspected and admitted” requirement, but note that persons who were admitted in several categories are barred from adjustment by section 245(c). Likewise, any type of parole under section 212(d)(5) of the Act, whether for urgent humanitarian reasons, for significant public benefit, or for a deferred inspection, meets the “paroled into the United States” requirement. I f someone was neither inspected and admitted, nor inspected and paroled, he or she cannot adjust status under section 245 of the Act, unless he or she is eligible for the provisions of section 245(i) of the Act, or the Violence Against Women Act (VAWA) protections, which are discussed below.

(B) Make an Application –

This is done on Form I-485, in accordance with the instructions on that form and in 8 CFR 245.2 . The application must be accompanied by the correct fee as required in 8 CFR 103.7(b) or a fee waiver request as provided in section 103.7(c). See Chapter 10.9 of this field manual .

(C) Be Eligible to Receive an Immigrant Visa –

The alien must fit into one of the immigrant visa categories set forth under the Act (e.g., must be the beneficiary of an approved immigrant visa petition).

(D) Be Admissible to the U.S. –

Being granted adjustment of status is the same as being admitted to the U.S. for permanent residence. The same inadmissibility grounds in section 212(a) of the Act that can apply at a port of entry can apply to an adjustment applicant. An alien who is not admissible, but is eligible for a waiver of that inadmissibility may apply for such waiver, except that an alien who is subject to the 2-year foreign residency requirement section 212(e) must obtain such waiver before filing for adjustment of status. Further, a foreign medical graduate who has received a waiver of section 212(e) of the Act based on section 214(l) of the Act must satisfy the terms and conditions of the waiver (i.e., his or her employment obligation) before applying for adjustment of status.

(E) Have an Immigrant Visa Be Immediately Available to Him or Her at the Time the Application Is Filed –

If the alien is applying under one of the family-sponsored preference categories set forth in section 203(a) of the Act, the employment-based categories set forth in section 203(b) of the Act, or as a diversity immigrant under the program described in section 203(c) of the Act, a determination must be made as to whether a preference number (formerly referred to as a “quota number”) is available to the alien for his or her country, and for his or her priority date. See Chapter 20.1 for a discussion of visa a vailability, alternate chargeability, and use of the Department of State visa bulletin.

(2) Bars to Adjustment under Section 245(c) of the Act .

Section 245(c) lists a number of situations wherein an alien is ineligible for adjustment of status due to the manner in which he or she entered the U.S. or actions he or she took (or failed to take) since arrival (see 8 CFR 245.1(b) and (c) ). An application filed by an alien who falls within any of these categories must be denied as a matter of statute, unless he or she is eligible for the provisions of section 245(i) of the Act (see subchapter 23.4(c) of this field manual ) or is covered under the VAWA.

(3) Concurrent Filing of Adjustment Applications and Waiver Applications .

Be aware that you can accept and process adjustment applications concurrently with applications for waivers under sections 212(c), (g), (h), or (i), as well as applications for permission to reapply after deportation or removal, and for the benefits of section 212(a)(3)(D)(ii) and (iii) of the Act (exceptions to inadmissibility for membership in a totalitarian party for those who were involuntary members and certain others who are past members).

However, an application for adjustment of status may not be accepted along with a Form I-612 (application for a waiver of the 2-year foreign residence requirement contained in section 212(e) of the Act). Regardless of the strength of an alien's request to do otherwise, the adjustment application cannot be filed until after the waiver has been approved. Further, (as stated above) a foreign medical graduate who has received a waiver of section 212(e) of the Act based on section 214(l) of the Act must satisfy the terms and conditions of the waiver (i.e., his or her employment obligation) before applying for adjustment of status.

(4) Handling of Improperly Filed Applications .

There are many reasons why an application may not be properly filed. Often an applicant is statutorily ineligible for the benefits of adjustment, as with a crewman or an alien who entered without inspection. If a visa number is not currently available, the alien is ineligible to file. Documentary deficiencies may also preclude an alien from properly filing an adjustment application. If an applicant is statutorily ineligible for adjustment or a visa number is unavailable, reject the application. In the case of an application which is mailed or delivered, return the application for adjustment to the alien if a visa number is not available. If a fee was collected, process the application for refund of fee in accordance with Chapter 10.10 of this field manual .

Obviously, you should reject or return any application not supported by a requisite visa petition or visa petition approval notice, as well as any application without the requisite signature and fee (or request for fee waiver).

(5) Procedure for Ordering a Visa Number from the Department of State .

Visa numbers are requested by USCIS offices directly from the Visa Control Office of the Department of State. The request is only to be made after:

· The applicant has been interviewed and found to be eligible for adjustment of status (or, for cases adjudicated at a service center, simply found to be eligible for adjustment of status); and

· The requestor has verified that the current visa bulletin indicates that a visa number is available for the country and classification involved, and that the current bulletin has not been superseded by an advisory from the Visa Control Office.

The Department of State has guaranteed to USCIS that so long as the current visa bulletin and any superseding advisories indicate that a number is available, a number will be assigned.

There are currently two different procedures for ordering visa numbers from the Department of State: by fax and through IVAMS.

(A) Ordering by Fax .

Offices can order a visa number by sending a fax listing the applicant's country of chargeability, preference classification symbol, priority date, and A-number to the Visa Control Office. While visa numbers can be requested at any time, the Visa Control Office can only respond during normal business hours. A sample fax format is contained in Appendix 23-7.

(B) Ordering Through IVAMS (formerly known as INSAMS) .

The Immigrant Visa Allocation Management System (IVAMS) was deployed to all USCIS Field Offices in 2002. Offices using IVAMS are given a special card which (when passed through a reader) allows them direct Internet access into the Visa Control Office's computer system. The visa number is requested on-line and issued instantaneously. Unlike the fax system, IVAMS is available 24 hours a day, seven days a week. IVAMS is now the primary means to order visa numbers. The fax option is used as a backup.

(c) Section 245(i) of the Act: Exemptions to the Section 245(a) and 245(c) Bars to Adjustment for Certain Aliens .

(1) Background .

First enacted in 1994, section 245(i) of the Act allows certain aliens to adjust status in the U.S. despite entering without inspection or being otherwise barred from adjustment under section 245(c). Prior to the LIFE Act, section 245(i) of the Act had sunset at various times, most recently on January 14,1998. The LIFE Act reinstated section 245(i) until April 30, 2001. The regulations for section 245(i) of the Act are found at 8 CFR 245.10 . The LIFE Act also added a physical presence requirement for aliens who can use section 245(i) of the Act to apply to adjust status because they are grandfathered by a visa petition or application for labor certification filed after January 14,1998 and on or before April 30,2001.

(2) Eligibility .

(A) Determining Who Is a Grandfathered Alien .

(i) The term “grandfathered alien” means an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act) of

· A petition for classification under section 204 of the Act (on Form I-130, I-140, I-360, or I-526) which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or

· An application for labor certification (Form ETA 750) under section 212(a)(5)(A) of the Act that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed.

(ii) The term “properly filed” means:

· With respect to a qualifying immigrant visa petition, that the application was physically received on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing as provided in 8 CFR 103.2(a)(1) and (a)(2) ; and

· With respect to a qualifying application for labor certification, that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21 .

(iii) The term “approvable when filed” means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petit ion that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act. See 8 CFR 245.10(a)(3).

(B) Applying for Adjustment .

An alien who is included in the categories of restricted aliens under section 245(c) of the Act and meets the definition of a "grandfathered alien" found at 8 CFR 245.10(a) may apply for adjustment of status under section 245 of the Act if the alien meets the requirements of paragraphs 8 CFR 245.10(b)(1) through (b)(7), listed below as (i) through (vii):

(i) Is physically present in the U.S.;

(ii) Is eligible for immigrant classification and has an immigrant visa number immediately available at the time of filing for adjustment of status;

(iii) Is not inadmissible from the U.S. under any provision of section 212 of the Act, or all grounds for inadmissibility have been waived;

(iv) Properly files Form I-485 (Application to Register Permanent Residence or Adjust Status) on or after October 1,1994, with the required fee for that application;

(v) Properly files Supplement A to Form I-485 on or after October 1, 1994;

(vi) Pays an additional sum of $1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and,

(vii) Will adjust status under section 245 of the Act to that of lawful permanent resident of the U.S. on or after October 1, 1994.

(3) Payment of Additional Sum .

An adjustment applicant filing under the provisions of section 245(i) of the Act must pay the standard adjustment application fee. Each application submitted under the provisions of section 245(i) of the Act must be submitted with an additional sum of $1,000. An applicant must submit the additional sum of $1,000 only once per application for adjustment of status submitted under the provisions of section 245(i) of the Act. The $1,000 fee cannot be waived. However, an applicant filing under the provisions of section 245(i) of the Act is not required to pay the additional sum if, at the time the application for adjustment of status is filed, the alien is:

(A) Unmarried and less than 17 years of age;

(B) The spouse of a legalized alien, qualifies for and has properly filed Form I-817 , Application for Voluntary Departure under the Family Unity Program, and submits a copy of his or her receipt or approval notice for filing Form I-817 ; or

(C) The child of a legalized alien, unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt or approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in 8 CFR.

(4) Physical Presence Requirement .

Aliens who are grandfathered on the basis of a visa petition or LCA filed after January 14,1998, and on or before April 30, 2001, must demonstrate physical presence in the U.S. on December 21, 2000. Only principal aliens must meet this requirement. Dependent aliens do not need to demonstrate physical presence on December 21, 2000, in order to use section 245(i) of the Act.

(5) Asylum or Diversity Immigrant Visa Applications .

An asylum application, diversity visa lottery application, or diversity visa lottery-winning letter does not serve to grandfather the alien for purposes of section 245(i) of the Act.

(6) The Effects of Grandfathering .

A) On Continuing Availability .

Once an alien is grandfathered, he or she does not lose the ability to apply for adjustment of status under section 245(i) of the Act even if the alien does not adjust status on the basis of the petition or LCA that qualifies him or her for grandfathering. For example, an alien who worked without permission and is grandfathered by a second (family) preference visa petition may apply to adjust status under an employment based classification if he or she later becomes the beneficiary of an approved I-140 peti tion with a current priority date.

(B) On an Alien's Nonimmigrant Status .

An alien's nonimmigrant status is not affected by the fact that he or she is a grandfathered alien. Lawful immigration status for a nonimmigrant is defined in 8 CFR 245.1(d)(1)(ii) .

(C) On Unlawful Presence under Section 212(a)(9)(B) and (C) of the Act .

If the alien is not in an authorized period of stay, the fact that he or she is a grandfathered alien does not prevent the alien from accruing unlawful presence under section 212(a)(9)(B) and (C) of the Act.

(d) Section 245(k) of the Act: Exemptions to the 245(c)(2), (c)(7) and (c)(8) Bars to Adjustment for Certain Employment-Based Adjustment of Status Applicants .

(1) General Provisions .

Section 245(k) can render the normal bars to adjustment of status found in section 245(c)(2) , (c)(7) , and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days:

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of his or her admission.

(2) Applicability .

The following classes of employment-based adjustment of status applicants under section 245(a) are eligible for relief under 245(k) :

(A) An alien who is present in the United States pursuant to a lawful admission and whose adjustment of status application is based on an approved immigrant petition for them as the beneficiary in one of the following classifications:

· EB-1 : aliens of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives;

· EB-2 : aliens who are members of the professions holding advanced degrees or aliens of exceptional ability;

· EB-3 : skilled workers, professionals, and other workers; or

· EB-4 : religious workers described in section 101(a)(27)(C) of the Act only.

Other employment-based immigrant classifications and other immigrant classifications are not a basis for consideration under section 245(k).

(B) An eligible derivative of an alien described in AFM Chapter 23.5(d)(2)(A) may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or

otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.

(3) Application Process .

An alien must properly file an adjustment of status application under section 245(a) in accordance with 8 CFR 245.2 and 103.2 . An applicant invoking 245(k) is not required to submit additional application forms or payment of a penalty surcharge. Thus, it is the responsibility of USCIS to determine section 245(k) applicability based on the evidence submitted in support of the adjustment of status application. To the extent evidence is deficient or absent, USCIS may issue a request(s) for evidence or notice of intent to deny asking for specific evidence in support of eligibility for relief under section 245(k).

(4) Counting Against the 180 Day Timeframe in AFM Chapter 23.5(d)(1) .

(A) General Guidelines.

If the adjudicator determines that an employment-based adjustment of status applicant described in AFM Chapter 23.5(d)(2) above is subject to any of the bars to adjustment of status set forth in Sections 245(c)(2) , (c)(7) , or (c)(8) , then the adjudicator must determine whether the aggregate period in which the alien failed to continuously maintain lawful status, worked without authorization, or otherwise violated the terms and conditions of the alien’s admission since the date of alien’s last lawful admission to the United States is 180 days or less.

The guidance below describes the periods of time to be examined for purposes of calculating time against the 180-day period.

· The adjudicator must only examine the period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.

· An alien, however, who entered the United States pursuant to an advance parole document is not “lawfully admitted,” because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k) .

· An alien may be subject to more than one bar or violation described in section 245(k)(2) at the same time. For example, an alien in B-2 status who worked without authorization will also have violated a lawful status and failed to maintain continuously a lawful status.

USCIS reads the phrase “aggregate period exceeding 180 days” in section 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation. Accordingly, the aggregate 180 day period must be calculated by adding together any and all days in which there is one or more of the violations, and each day in which one or more of these violations existed must be counted as one day.

If USCIS reads section 245(k) to permit up to 180 days of each type of violation an alien could potentially accrue more than 180 total days of violations and remain eligible for adjustment of status. USCIS holds that the statute was not intended to permit such egregious violations.

(B) Engaged in Unauthorized Employment .

(i) General .

“Unauthorized employment” means any service or labor performed by an alien for an employer within the United States that is not authorized under 8 CFR 274a.12(a) , (b) , or (c) or exceeds the authorized period of employment. The filing of an adjustment of status application does not, in itself, authorize employment or excuse unauthorized employment, and accordingly the filing of an adjustment of status application will not stop the counting period of unauthorized employment.

Therefore, all periods of unauthorized employment since the date of the alien’s last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application.

· With respect to engaging in unlawful employment, the count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated.

· It is completely within the control of the alien as to whether he or she engages in employment without authorization and, as stated above, the filing of an application for adjustment of status does not automatically authorize employment in the United States. Therefore, it is possible for an alien to accrue days of unauthorized employment against the 180 day period after the filing of the application for adjustment of status.

To hold otherwise would not only reward an alien for engaging in unauthorized employment but it would also effectively eliminate the incentive and the need for an alien to maintain a valid employment authorization document in connection with the pending application for adjustment of status. Unlike an alien who has failed to maintain lawful nonimmigrant status, an alien who has worked without authorization may unilaterally avoid the accrual of additional days counted against such violation by simply terminat ing the unauthorized employment.

· An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off.

Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment.

· For periods in which it appears that the alien has engaged in unauthorized employment, the alien bears the burden of establishing that any such periods were authorized or that he or she did not in fact engage in unauthorized employment. In addition, an alien who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document.

(ii) Special Considerations .

For purposes of section 245(c)(8) of the Act, an alien is not considered to be engaged in unauthorized employment while his or her properly filed adjustment of status application is pending final adjudication, if:

· The alien has obtained permission from USCIS to engage in employment based on his or her pending adjustment of status application and such authorization remains valid; or

· The alien had been granted employment authorization prior to the filing of the adjustment of status application and such authorization does not expire while the adjustment of status application is pending.

(C) Failed to Maintain a Lawful Status and/or Violated the Terms of a Nonimmigrant Visa .

(i) General .

Expiration, revocation, or violation of status puts a nonimmigrant out of status, and the alien remains out of status until some adjudication restores status or the alien departs the United States.

In most cases, the 180-day counting period commences on the date the alien’s status expires, is revoked, or is violated following the alien’s most recent admission. In addition, with the exception of a dual intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application with USCIS, because most nonimmigrants who apply for adjustment of status are presumed to be intending immigrants and are no longer e ligible to maintain a nonimmigrant status. Therefore, for purposes of the 180-day counting period, calculation of the number of days for failing to maintain status or violating a nonimmigrant visa will stop as of the date USCIS receives a properly filed adjustment of status application.

Notwithstanding, a properly filed adjustment of status application, in and of itself, does not accord lawful status or cure any violation of a nonimmigrant visa. For example, if an alien applied for adjustment of status three days prior to the expiration of his or her nonimmigrant status and the adjustment of status application was eventually denied, the alien will not be considered to be in lawful status after the expiration of the nonimmigrant status.

Consequently, if the same alien files a second application for adjustment of status, the period after which the nonimmigrant status expired and during which the first adjustment of status application was pending counts against the 180-day period when considering eligibility for relief under 245(k) in the adjudication of the second adjustment of status application.

(ii) Special Considerations .

The adjudicator must consider the following when calculating the number of days an alien has failed to maintain a lawful status or violated the terms of a nonimmigrant visa.

· Fine “lawful immigration status” at 8 CFR 245.1(d)(1) . In examining any period where an application for extension of stay (EOS) or change of status (COS) was ultimately approved, the period during which the EOS or COS had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status regardless of whether the EOS or COS application was timely or untimely filed. The period would not be disqualifying for section 245(c) purposes, and the period would not count against any 180-day period under section 245(k) .

· The period during which an alien has a pending EOS, COS, or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful “status.”

· A period of unlawful status found to result only from a “technical violation” or through no fault of the applicant, as described in 8 CFR 245.1(d)(2) , does not invoke the section 245(c)(2) bar. Thus, such period does not count against the 180-day period.

· An alien who complies with all the terms and conditions of his or her nonimmigrant status does not violate the terms of such status merely by properly filing an adjustment of status application, provided the filing occurred before the alien’s nonimmigrant status expired.

· An F (student) or J (exchange visitor) nonimmigrant is considered in “status” for such authorized period of time before and after completion of his or her educational objective or program in accordance with 8 CFR 214.2(f) and 8 CFR 214.2(j) , respectively, provided that the F or J nonimmigrant has not violated the terms and conditions of his or her status.

· A reinstatement of F status under 8 CFR 214.2(f) or J status under 22 CFR 62.45 cures time out of or in violation of status only for the particular period of time covered by the reinstatement, so that such period does not count against the 180-day period.

(5) Effect of 245(k) Exemption .

A determination of eligibility under section 245(k) renders inapplicable the normal bars to adjustment found in section 245(c)(2) , (c)(7) , and (c)(8) . Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility.

(e) Relative-Based Adjustment Cases . [Chapter 23.5(d) revised 04-03-2006, AD05-34]

(1) General .

Adjudication of relative-based petitions is discussed in Chapter 21 of this field manual . If the petition has not already been adjudicated, it is your responsibility to do so before considering the adjustment application. If the petition was already adjudicated and approved, your responsibility as the adjudicator of the adjustment application is to satisfy yourself that the alien remains eligible for the classification granted by that petition. If the petition is based on a blood relationship and the alien is no longer entitled to the classification (perhaps he or she has “aged out”), see whet her the alien is entitled to automatic conversion to some other classification (see 8 CFR 204.2(i) ). If he or she is not eligible for such conversion, revoke the approval of the petition under section 205 of the Act (see Chapter 20.2 of this field manual ).

If the petition is based on a marital relationship, question the party or parties sufficiently to satisfy yourself that the relationship continues to exist. If it has been terminated through annulment, divorce, or death, revoke the petition.

Furthermore, if the wedding upon which the marriage-based adjustment application is based occurred less than 2 years before the date on which adjustment is granted, the adjusting alien becomes a conditional permanent resident. See Chapter 25 of this field manual for a discussion of the procedures for seeking removal of those conditions.

(2) Aliens who Benefit as Immediate Relatives under

Section 1703 of Public Law 108-136.

(A) Eligibility

An alien who qualifies for a benefit under section 1703 of Public Law 108-136 (see Appendix 21-4) is considered an immediate relative for purposes of adjustment of status under section 245 of the Act. The adjudicator may adjust the status of such alien if the alien is:

(i) the beneficiary of an approved Form I-360 filed in accordance with the requirements of section 1703 of Public Law 108-136 , which classifies the beneficiary as an immediate relative of a U.S. citizen; or

(ii) the beneficiary of an approved Form I-130 filed by a qualifying LPR granted posthumous citizenship under section 329A of the Act or an approved Form I-360 self-petition filed in accordance with the requirements of section 1703 of Public Law 108-136 which classifies the beneficiary as an immediate relative.

(B) Adjustment of Status Applications Filed Prior to the Death of the Qualifying Alien Granted Posthumous Citizenship under section 329A of the Act .

Section 1703(b) of Public Law 108-136 provides that the applications for adjustment of status filed by certain alien spouses or children prior to the death of the qualifying alien granted posthumous citizenship may be adjudicated as immediate relative applications and as if the death had not occurred.

(i) The alien spouse, child, or parent’s Form I-485 must have been pending prior to the death of the petitioner. The adjudicator will generally not become aware of the death of the alien petitioner until the adjudication of the application for adjustment of status. Therefore, either prior to adjudication or at the time of adjudication, the alien should demonstrate that he or she remains eligible for adjustment of status based on section 1703(b) of Public Law 108-136 and provide documentation of his or her eli gibility.

(ii) If the adjudicator becomes aware of any Form I-485 that has been denied because of the death of the petitioner that would have otherwise been approved under the terms of section 1703 of Public Law 108-136, the adjudicator may move to reopen such a case. Similarly, an alien who believes his or her previously denied application now qualifies under section 1703 may file a motion to reopen with the adjudicating office. If that application meets all the other statutory and procedural requirements and falls wit hin the terms of Public Law 108-136, including the effective date provision of September 11, 2001, the adjudicator may reopen and approve the case.

(iii) The adjudicator will only reopen a Form I-485 that was filed based on a qualifying family relationship to the deceased alien. In addition, given that USCIS does not have jurisdiction over a Form I-485 where the alien is in deportation or removal proceedings, such application will not be considered for reopening or determining an alien’s eligibility under section 1703.

(C) Jurisdiction and Filing Instructions .

(i) Refer to chapter 21.11(d)(1) and (2) for jurisdiction pertaining to Form I-360 and Form I-485 , respectively.

(ii) An alien who benefits under section 1703 of Public Law 108-136 should check box “A” in Part 2 of Form I-485. Each alien must file his or her own Form I-485.

(D) Exemption from Section 212(a)(4) of the Act, Public Charge Ground of Inadmissibility .

An alien who qualifies for a benefit under section 1703 of Public Law 108-136 is exempt from section 212(a)(4) of the Act, public charge. Therefore, the alien is not required to execute and submit Form I-864 as part of his or her application for adjustment of status.

(f) Employment-based Adjustment Cases . [Revised 01-23-2007]

(1) Background.

Adjudication of employment based petitions is covered in Chapter 22 of this field manual . Assuming that the petition was already adjudicated and approved, your responsibility as the adjudicator of the adjustment application is to satisfy yourself that the alien remains eligible for the classification granted by that petition. If the alien is already working in the position described in the petition, verify the duties performed, wages paid, and other aspects of the petition. If there are significant discrepancies which show that the alien is performing lesser duties, receiving lower wages, o r is in other ways not meeting the criteria set forth in the petition, consider revocation of the petition under section 205 of the Act (see Chapter 20.2 )

(2) Conditional Permanent Resident .

If the adjustment application is based on an employment creation petition under section 203(b)(5) of the Act, the adjusting alien becomes a conditional permanent resident. As such, he or she must seek removal of the conditions on his or her residence by filing an I-829 , Petition by Entrepreneur to Remove Conditions, within 90 days prior to the second anniversary of the date on which he or she is granted residence. (See AFM Chapter 25 for a discussion of the procedures for seeking removal of those conditions.) In placing conditions upon the alien’s residence, Congress recognized (among other issues) the potential for fraud and the need for increased vigilance to combat it. It is of utmost importance that you, as the adjudicator handling the application for adjustment (and perhaps the Form I-829 petition) exercise such increased vigilance, and avoid the mind-set that combating fraud is the job of the adjudicator who will be handling th e removal of conditions petition two years hence.

(3) National Interest Waiver Physicians.

(A) Concurrent Filing .

The provisions of the statutory amendment at section 203(b)2(B)(ii) of the Act and USCIS regulations at 8 CFR 245.2(a)(2) and 204.5(n) allow for a physician to concurrently file an I-140 petition and an I-485 adjustment of status application (if an immigrant visa number is immediately available) prior to the date by which the physician has completed the 3 or 5-year service requirement. USCIS may not grant final approval of the adjustment application (nor should a visa be issued) until the physician has served his or her 3 or 5 years of aggregate service in a medically underserved area or VA facility. See section 203(b)(2)(B)( ii)(II) of the Act and 8 CFR 245.18(b)(2) . In the case of physicians still in J-1 status, the regulation allows for concurrent filing of the I-140 and I-485 while still in J status; however, the application for permanent residence for such physicians cannot be approved until the conditions for the J-1 waiver are met.

(B) Authorized period of stay with pending adjustment application .

With an approved I-140 petition as a national interest waiver physician and a pending adjustment application, NIW physicians are in an authorized period of stay while serving the 3 or 5 years of aggregate medical service, assuming that they satisfy the interim evidence requirement demonstrating meaningful progress towards completing the medical service requirement. See 8 CFR 245.18(d)(2) and the discussion below concerning interim evidence of compliance.

(C) Eligible for Employment Authorization Document .

With an approved I-140 and during the pendency of the adjustment application, NIW physicians are eligible for an Employment Authorization Document (EAD). See 8 CFR 274a.12(c)(9) and 245.18(d) . NIW physicians must seek an EAD in order to provide the qualified medical service if the physicians are not already authorized to perform such services pursuant to a lawful nonimmigrant status. NIW physicians should submit the application for an EAD ( Form I-765) simultaneously with the adjustment application to ensure timely processing.

EAD issuance is discretionary under 8 CFR 274a.13(d) . To ensure that the physician intends to pursue and complete the type of medical service for which such immigration arrangements are based, USCIS may use its discretion to serve an RFE , requesting evidence of meaningful progress toward completing the NIW employment obligation or of plans to use the EAD for the purpose of completing the medical service obligation.

Such evidence may include documentation of employment in any period during the previous 12 months (e.g. copies of W-2 forms). If there are any breaks in the NIW qualified employment in the previous 12 months, USCIS may request that the physician provide an explanation and proof of the reasons for the breaks and evidence of intent to work in the NIW employment during the period requested for employment authorization. USCIS will be updating the instructions for Form I-485 to reflect this additional evidence as “initial evidence” required for EAD renewal for NIW physician applicants.

Upon reviewing the evidence, USCIS officers may deny employment authorization to a physician who is not making meaningful progress toward the service obligation or where USCIS determines that the physician is using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas. A physician is not required to complete the medical service obligation within a set time, but he or she is not entitled to use the NIW process to obtain employment authorization to pursue other work instead of that obligation.

(D) Advance Parole .

Physicians with pending adjustment applications may apply for advanced parole if they desire to travel during the respective 3 or 5-year service requirement period, and if they no longer have a valid nonimmigrant visa. 8 CFR 245.18(k) sets out the procedures that alien physicians must follow in order to obtain a travel document. Possession of an approved I-131 , however, does not guarantee re-admission to the United States. A physician must still establish that he or she is admissible upon re-entry to continue pursuit of the pending adjustment application.

(E) Unique Requirements for Adjustment of Status .

Officers need to be aware unique processing differences for these physicians as opposed to other adjustment applicants.

NIW physicians cannot adjust to permanent resident status until the physician has completed 3 or 5 years of aggregate service in a medically undeserved area or VA facility. USCIS issued interim regulations to define the special requirements for the National Interest Waiver physicians as they pursue meaningful progress towards their 3 or 5-year medical service obligation.

In Schneider v. Chertoff , 450 F.3d 944 (9th Cir. 2006) http://www.ca9.uscourts.gov/coa/newopinions.nsf/8D6FA79CBF6F8F9B88257186004BF3D0/$file/0455689.pdf?openelement , certain provisions of the interim regulations were overruled, and USCIS subsequently decided to implement the court decision nationally. Thus, officers should refer to the policy memorandum titled, “Interim guidance for adjudicating national interest waiver (NIW) petitions and related adjustment applications for physicians serving in medically undeserved areas in light of Schneider v. Chertoff , 450 F.3d 944 (9th Cir. 2006),” dated January 23, 2007 .

(i) Delayed procedural requirements

· Delayed fingerprints . Physicians will be scheduled for fingerprinting at an Application Support Center after the submission of evidence documenting the completion of the 3 or 5 years of aggregate service. See 8 CFR 245.18(c) .

· Delayed medical report . Physicians will submit the required adjustment medical report, Form I-693, with the evidence submitted at the conclusion of the period of aggregate medical service. See 8 CFR 245.18(c) .

(ii) Counting of the 3 or 5 years of medical practice .

Any qualifying employment in shortage areas and in Veteran Affairs facilities prior to and after the approval of the I-140 that was not performed while in J-1 nonimmigrant status shall count towards the medical service requirement as long as the employment was authorized and the service meets the regulatory criteria established in 8 CFR 204.12(a) .

Physicians must provide a public interest letter from the state department of health or VA certifying that the medical service provided by the physician at the facility was or is in the public interest. The certification must explicitly cover any past periods of employment that the physician wishes to have credited towards his or her service requirement, and must make a present statement for purposes of qualifying future medical service employment. Additionally, the physician must show that, at least at the time the work commenced, the work was in an HHS-designated shortage area or VA facility.

For pending adjustment applications for NIW physicians with an approved Form I-140, adjudicators may issue a request for evidence (RFE) to physicians to provide information on employment prior to the approval of the Form I-140.

A physician who has completed the service requirement and is submitting supplementary filings as part of his or her adjustment of status application per 8 CFR 245.18 also may submit retroactive certification or attestation letters from relevant states’ department of health or a VA hospital showing that any full-time medical employment completed prior to the approval of the immigrant petition was in fact in the public interest. USCIS will not accept certification letters from local health departments. A public interest letter provided by a state department of health or by the VA as part of a J-1 waiver application of the foreign residency requirement may also be used to prove that past employment was in the national interest.

(iii) Notification Requirement Upon Filing of Form I-485 .

Upon receipt and during the pendency of the I-485 , USCIS may issue supplemental documents to the physician, outlining medical service requirements for completing the adjustment process. See 8 CFR 245.18(f) .

(iv) Interim Evidence of Compliance with Employment Requirement .

Although there is not an absolute time within which the service obligation must be completed, physicians with a 5-year service requirement must provide interim evidence of compliance with the medical service requirement at the post 2-year and 6-year anniversary, if necessary, from the date of the I-140 approval. Physicians with only the 3-year service requirement do not have to submit interim evidence at the 2nd anniversary since they need only submit evidence within 120 days after completing the 3-year service requirement. Normally, the physician must submit employment documentation and an employer attestation letter showing that the physician is complying with the statutory scheme of the Nursing Relief Act and the national interest waiver obligation.

Officers should review the evidence and based on the totality of the circumstances, determine if the physician has been complying with the purposes of the Nursing Relief Act. Evidence of compliance may include (1) employment documentation such as individual federal income tax returns and W-2 forms as proof of the amount of medical service the physician has completed; (2) a contract, an employer’s statement of understanding, or a commitment to self-employment as proof of a commitment to complete the medical service in the shortage area; (3) explanation and proof concerning any breaks in, or any delay in the commencement of, the full-time medical service employment; and (4) proof of other valid immigration status under which any non-qualifying employment has been or is being performed.

Physicians are required to submit the interim evidence within 120 days of the 2-year and 6-year, if necessary, anniversary of the I-140 approval; however, an officer at his or her own discretion may excuse submission delays. See 8 CFR 245.18(g) .

Officers should pay particular attention to whether the physician is using his or her presence in the United States pursuant to an application for adjustment of status based on national interest waiver petition to pursue other activities instead of full-time medical service in shortage areas. If the physician fails to submit sufficient evidence of compliance, USCIS officer may issue a request for evidence.

· If a physician fails to provide any evidence or fails to respond to the Request for Evidence, the I-485 may be denied for abandonment.

· A determination that a physician has failed to comply with the statutory purpose of the Nursing Relief Act may be considered a negative factor that could result in denial of adjustment in the exercise of discretion.

· USCIS officer may revoke a petition if the adjudicator determines that the physician who is the beneficiary of the I-140 does not intend to complete the NIW requirements, that he or she never intended to complete the requirements, or for any other applicable bases for revocation of a petition as permitted under section 205 of the Act and enumerated in 8 CFR 205 .

(v) Evidence for Finalizing the Adjustment of Status .

Within 120 days of completing the 3 or 5-year medical service requirement, the physician must submit all documentation to finalize the adjustment of status application. The documentation includes proof of employment and the required medical examination report. See 8 CFR 245.18(h) and 8 CFR 245.5 . A physician cannot be scheduled for fingerprinting until the final documentation is submitted. The adjustment application cannot be approved without this set of required evidence. At his or her discretion, an officer may excuse a delay in submitting the final evidence.

(vi) An approved I-140 should not be revoked purely on the basis of failure to complete the service requirement. However, a petition may be revoked based on a finding that the physician does not intend to complete the NIW requirements, that he or she never did intend to complete the requirements, or for any other applicable bases for revocation of a petition as permitted under section 205 of the Act and enumerated in 8 CFR 205 .

(F) Portability .

USCIS is statutorily required to allow the filing of an adjustment application before the completion of the medical service requirement that is a statutory prerequisite to approval of adjustment. See section 203(b)(ii)(II) of the Act. The provisions of section 204(j) of the Act, concerning I-140 portability in the event USCIS takes longer than 180 days to adjudicate an adjustment application, do not apply to NIW physicians.

(G) Adjustment Interview .

USCIS shall decide if the physician should be interviewed before finalizing the adjustment application. Officers shall follow the procedures found in 8 CFR 245.6 and policy guidance regarding waivers of the adjustment interview, and apply them accordingly to these cases. See 8 CFR 245.18(j) .

(H) Non-compliance and Denials .

Physicians who fail to comply with the interim evidence requirement at the 2-year post approval of the I-140 may have their I-485 denied and I-140 approval revoked. An officer at his or her discretion may excuse a delay in submitting the required evidence of completed medical service.

(I) Service Center Protocol for Storing Files .

Since the adjustment applications for these physicians will need to remain open and pending for over 3 or 5 years, the Service Centers will need to undertake special procedures for storing these A-files. In particular, each Service Center must dedicate a special area to house these files. The appropriate product line within each Service Center will be responsible for ensuring that all required notices to the applicant are processed in a timely fashion.

(J) Further Guidance .

Officers with questions about this guidance or the provisions of the statutory amendment should be directed through appropriate channels to HQSCOPS.

(g) Fiancé(e) Adjustment Cases .

While K-1 and K-2 aliens adjust under section 245 of the Act, they are also subject to the provisions of section 216 of the Act. Accordingly, the adjusting alien becomes a conditional permanent resident, unless the marriage between the adjustment applicant and the petitioning fiancé(e) is at least 2 years old at the time adjustment is granted. See AFM Chapter 25 for a discussion of the procedures for seeking removal of those conditions.

(h) Diversity Immigrant Visa cases .

Section 201(e) of the Immigration and Nationality Act provides a maximum of up to 55,000 diversity visas (DV) each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the U.S. [NOTE: The Nicaraguan Adjustment and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for us e under section 203 of the NACARA program. (Section 203 is a program which allows natives of El Salvador and Guatemala to be granted cancellation of removal.) This reduction has resulted in the annual limit being reduced to 50,000 for the foreseeable future.] DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

The Department of State makes a determination every year as to which countries and regions have been under represented in immigration to the U.S. and publishes a notification in the Federal Register regarding the DV program for the coming fiscal year. Interested persons from those regions or countries may file for the DV “lottery” in accordance with the Department of State’s instructions. Lottery winners are notified by the Department of State of their lottery rank number. The Visa Bulletin, published month ly by the Consular Affairs Office of the Department of State, details which immigrant numbers in the DV category are available to qualified applicants chargeable to all regions and eligible countries. When an allocation cut-off number is shown in the Visa Bulletin, visas are available only for applicants with DV regional lottery rank numbers below the specified allocation cut-off number. Any person seeking information on filing for the DV lottery program should be referred to the Department of State’s Kentucky Consular Center (KCC) in Williamsburg, KY where diversity visas are processed. The public inquiry phone number for the KCC is (606) 526-7500.

Most DV lottery winners immigrate through consular processing and issuance of an immigrant visa. Although a large number of persons in the U.S. (in either illegal or nonimmigrant status) apply for the DV lottery, the greater number of applicants from outside the U.S. (combined with the fact that many of those who are inside the U.S. are barred by section 245(a) or 245(c) of the Act from applying for adjustment) results in most of the workload falling on the consular posts. However, those lottery winners in the U.S. who are not subject to the bars contained in sections 245(a) and 245(c) may apply for adjustment of status.

Note

DV lottery cases are not able to overcome the 245(a) or 245(c) bars through the provisions of section 245(i) of the Act.

Entitlement to adjustment of status under the DV program lasts only through the end of the fiscal year (September 30) for which the applicant is selected in the lottery. (For example, the year of entitlement for all applicants registered for the DV-2001 program ends as of September 30, 2001, and DV adjustments may not be granted to DV-2001 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2001 principals are only entitled to derivative DV status until September 30, 2001.) For that reason, it is extremely important that every office carefully monitor its DV adjustment caseload and take appropriate steps to ensure that (to the extent possible) all adjustment applications filed by DV lottery winners and their dependents are adjudicated no later than September 30.

(i) Lautenberg Cases .

Beginning in August 1988, it has been the policy of INS and USCIS to offer humanitarian parole to certain individuals who have been found to be ineligible for refugee classification. Persons eligible for this parole option must be from the former Soviet Union, or from Estonia, Latvia or Lithuania, and include (but are not necessarily limited to) Jews, Evangelical Christians, and Ukrainian Christians of the Orthodox and Roman Catholic denominations. Additionally, prior to mid-1994, similar paroles were also offered to certain Vietnamese, Cambodians, and Laotians. Under a provision of law (commonly referred to as the “Lautenberg Amendment”) first included in the Department of State appropriation bill for fiscal year 1990 and renewed annually ever since, after one year in the U.S., these parolees can apply for adjustment of status to that of LPR under section 245 of the Act, without regard to visa availability. In order to determine whether a paroled alien qualifies for adjustment under the Lautenberg amendment, it is necessary to review his or her A-file. If the issue of whether his or her parole qualifies under the Lautenberg amendment is still unclear after reviewing the file, contact the Headquarters Office of International Affairs by fax. Your fax should explain that you are seeking confirmation of the alien’s claimed Lautenberg status and include basic biographical information (name, date and place of birth, and A-file number). The regulations covering Lautenberg adjustments are found at 8 CFR 245.7 .

(j) Adjustment of Status by S Nonimmigrants .

Under section 245(j) of the Act, USCIS may grant lawful permanent resident status to certain persons who have been admitted to the U.S. under the “S” nonimmigrant classification described in section 101(a)(15)(S) of the Act. Such cases are always handled through the ICE Headquarters in coordination with the Department of Justice and alien’s sponsoring law enforcement agency. No alien may initiate an application for adjustment of status under this provision, and (unless specifically called upon by ICE) your office will have no involvement in any Section 245(j) case. Should an alien independently attempt to file an application for adjustment under Section 245(j) through your office, advise him or her that he or she m ay not do so; if an application for adjustment has been filed independently by an alien through your office, deny the application for the reason that the applicant has neither established that he or she is in possession of a current preference number as required by section 203 of the Act nor established that he or she is exempt therefrom. Any questions regarding this matter should be directed to the ICE. See also 8 CFR 245.11 and Chapter 41.4 of the Special Agent’s Field Manual .

(k) Dependents of Adjustment Applicants and Immigrant Visa Holders .

Generally, an alien who is the spouse or child of an alien who adjusts status or obtains an immigrant visa through consular processing may apply to adjust status or be issued an immigrant visa as a derivative or dependent applicant. [Three notable exceptions to this are the dependent of an alien who immigrates or adjusts as a special immigrant under section 101(a)(27)(B) of the Act, the dependent of an alien who immigrates or adjusts as a special immigrant under section 101(a)(27)(J) of the Act, and the dependent of an alien who immigrates or adjusts through an immediate relative classification under section section 201(b)(2)(A)(i) of the Act (although a child of a deceased citizen may be included in the petition filed by such deceased citizen’s widow or widower).] Usually, but not always, the principal applicant and the dependents all seek adjustment or immigration at the same time and in the same manner. Complications can arise, and special care must be taken, in those cases where the family members are not immigrating or adjusting at the same time. Pay particular attention to the following issues:

· Status of the Principal Alien . Make sure that the principal alien has already been admitted to the U.S. with an immigrant visa, or been granted adjustment of status, before approving the dependent’s adjustment application. Also, make sure that the qualifying relationship between the principal and the dependent existed on the date the principal acquired residence and has continued to exist ever since.

· Preceding vs. Accompanying vs. Following to Join . Most visa classifications, but not all allow the dependent to either accompany or follow to join the principal alien. None of the visa classifications allow the dependent to precede the principal alien.

To be considered to be “accompanying” the principal alien, the dependent’s adjustment application must be approved within six months of the date on which the principal became a permanent resident. On the other hand, a dependent may be considered to be following to join the principal at any point after the principal’s immigration. Classifications which permit dependents to accompany but not follow to join the principal are special immigrants under sections 101(a)(27)(D) ; 101(a)(27)(E) ; 101(a)(27)(F) ; 101(a)(27)(G) ; and 101(a)(27)(H) of the Act. If a dependent of an alien who obtained residence through one of these classifications more than 6 months ago seeks adjustment as a following to join alien, the adjustment application must be denied. Such denial is without prejudice to the principal alien filing an I-130 petition and the otherwise-eligible alien adjusting as a second preference immigrant once a visa number becomes available.

· Married Offspring and Age-outs . Make sure that any son or daughter of a principal alien is still unmarried and under age 21. Note, however, that a second preference child who turns 21 is still eligible for classification under section 203(a)(2)(B) of the Act. Furthermore, certain offspring have extended eligibility under the provisions of the Child Status Protection Act (see Chapter 21.2(e) of this field manual).

· Principal with an Immigrant Visa and Adjusting Dependents . If the principal alien has already immigrated with an immigrant visa, make sure that the dependents have not fallen out of valid nonimmigrant status. It is not unusual, for example, for an L-1 principal alien to consular process while outside the U.S. while his or her L-2 dependents remain here. However, without the principal maintaining status L-1 status, the L-2s automatically fall out of status and acquire an ineligibility for adjustment due to section 245(c) of the Act.

· Adjusting Principal with Dependents Who Will Consular Process . If the principal alien is granted adjustment of status in the U.S. and the dependents are outside the country awaiting consular processing, the principal may file Form I-824 requesting that the consulate where his or her dependents will visa process be notified of the approval of his or her adjustment application. In such cases the Form I-824 is usually adjudicated and approved by the same officer who granted the adjustment and at the same time. The consulate is then notified by cable of the principal alien’s adjustment (a sample cable format for notification of approval of I-485 is contained in Appendix 10-4 of this field manual ).

Note

If a dependent alien has an adjustment application pending when a Form I- 824 is filed indicating that the dependent is overseas and will consular process, the Form I-485 should be terminated as part of the adjudication of the Form I-824.

· Waiver Issues . Once the principal alien has been granted adjustment, he or she can serve as a qualifying LPR relative for a waiver of inadmissibility filed by another family member; however, a dependent alien cannot serve as a qualifying relative for a principal alien, since the dependent cannot be approved for permanent residence until the principal has been approved, and a qualifying relative must be at least an LPR.

(l) VAWA-based Adjustment of Status Applications . [Added 04-11-08, AD08-16]

Under section 245(a) of the Act, the alien beneficiary of a VAWA self-petition may apply for adjustment of status even if the alien is present without inspection and admission or parole. USCIS has determined that this special provision in section 245(a) of the Act, in effect, waives the VAWA self-petitioner’s inadmissibility under section 212(a)(6)(A)(i) for purposes of adjustment eligibility. Thus, a USCIS adjudicator will not find, based solely on the VAWA self-petitioner’s inadmissibility un der section 212(a)(6)(A)(i) , that the VAWA self-petitioner cannot satisfy the admissibility requirement in section 245(a)(2) of the Act. The VAWA self-petitioner is not required to show a “substantial connection” between the qualifying battery or extreme cruelty and the VAWA self-petitioner’s unlawful entry.

As with adjustment applicants under section 245(i) of the Act, this interpretation applies only to inadmissibility under section 212(a)(6)(A) of the Act. Cf. Matter of Briones, 24 I&N Dec. 355 (BIA 2007). A VAWA self-petitioner who, by repeated violations of the Act, has made himself or herself inadmissible under section 212(a)(9) of the Act may obtain adjustment of status only if the VAWA self-petitioner applies for, and obtains, the related form of relief from inadmissibility. Cf. section 212(a)(9)(A)(iii) , (B)(iii)(IV) , (9)(C)(iii) of the Act.

(m) Clarification of the requirement for form I-508, Waiver of Rights, Privileges, Immunities, and Exemptions Under Section 247(b) of the INA. [Added 08-04-2009, AD09-30]

A Form I-508 is generally required of A, E, and G nonimmigrants seeking adjustment of status. Foreign government officials, representatives to international organizations, treaty traders and treaty investors may have certain rights, privileges, immunities and exemptions not granted to other nonimmigrants. If such a nonimmigrant seeks adjustment of status they must waive those rights, privileges, immunities and exemptions by filing Form I-508 or, in the case of French nationals, Form I-508F .

Section 247(b) of the INA was written prior to the creation of the E-3 classification. An E-3 nonimmigrant, Australian specialty occupation worker, although classifiable under section 101(a)(15)(E) of the INA, has no special rights, privileges, immunities or exemptions to waive and therefore is not required to submit Form I-508 .

(n) Adjustment of Status by T Nonimmigrants [Added 07-21-2010, AD 10-38, PM-602-0004]

(1) Eligibility.

(A) [Reserved]

(B) Physical Presence for a Requisite Period. A T nonimmigrant will not be considered to have failed to maintain continuous physical presence in two circumstances:

If the T nonimmigrant's absence from the United States was necessary to assist in the investigation or prosecution of the acts of trafficking. The applicant should provide an affirmative statement detailing his or her role in the investigation or prosecution of the acts of trafficking. Along with the statement, the applicant must submit a signed statement from an official involved in the investigation or prosecution of the acts of trafficking on official letterhead describing how the applicant's absence from the United States was necessary to assist in the investigation or prosecution.

If an official involved in the investigation or prosecution of the acts of trafficking certifies that the absence from the United States was otherwise justified. The applicant should provide a signed statement from an official involved in the investigation or prosecution of the acts of trafficking on official letterhead describing how his or her absence from the United States was otherwise justified.

(C) Good Moral Character. USCIS may waive consideration of a disqualification from good moral character, including the bars to making a good moral character determination found at INA § 101(f), if the disqualification was caused by, or incident to, the acts of trafficking that formed the basis of the underlying application for T nonimmigrant status. INA § 245(l)(6). A T nonimmigrant applying for adjustment bears the burden of demonstrating that the acts that would otherwise prevent USCIS from making a finding of good moral character were caused by or incident to the acts of trafficking. In order to meet this burden, the T nonimmigrant may submit:

An affirmative statement explaining the relation between the bar-of-good-moral-character finding and the acts of trafficking; and

Any other credible evidence.

(D) Assistance in an Investigation or Prosecution, Extreme Hardship, or Age.

(i) The burden is on the applicant, where applicable, to establish continued compliance with any reasonable requests for assistance. At a minimum, an applicant should submit an affirmative statement describing how he or she continues to be helpful in the investigation or prosecution and any other credible evidence. A non-exhaustive list of evidence includes a statement from a Federal, State or local law enforcement official describing how the applicant complied with any reasonable requests for assistance, trial transcripts, court documents, police reports, and news articles. If an applicant wants to rely on evidence previously submitted as part of the T nonimmigrant application, the applicant need not resubmit that evidence but can instead point to any evidence already contained in her or her DHS file.

(a) If an applicant submitted a Form I-914, Supplement B, along with the application for T nonimmigrant status stating that he or she was assisting law enforcement, but is no longer doing so at the time of the application for adjustment of status, the applicant should describe in the affirmative statement the reasons he or she is no longer assisting. Reasons could include, but are not limited to, the fact that the investigation or prosecution is now over or that a request for assistance was not reasonable. If a T nonimmigrant did not submit a Form I-914, Supplement B, but was granted status on the basis of the applicant's willingness to assist, the applicant should explain in the affirmative statement that he or she continues to be willing to assist and that no requests or reasonable requests were made to assist in any investigation or prosecution.

(b) USCIS will consult the Attorney General as it deems appropriate to determine compliance with the requirement of assistance in the investigation or prosecution of acts of trafficking. Applicants are not required to submit a document issued by the Attorney General or his or designee certifying that the applicant has complied with any reasonable requests for assistance. 8 CFR 245.23(f) is superseded.

(c) An applicant who was granted the trauma exception to compliance with reasonable requests for assistance in an investigation or prosecution at the T nonimmigrant petition phase does not need to demonstrate compliance with reasonable requests for assistance in the investigation or prosecution of the acts of trafficking at the adjustment of status phase.

(ii) An applicant who was under the age of 18 at the time of the trafficking victimization does not need to demonstrate compliance with reasonable requests for assistance in the investigation or prosecution of the acts of trafficking at the adjustment of status phase. INA § 245(l)(1)(C)(iii).

(iii) An applicant can demonstrate extreme hardship involving unusual and severe harm upon removal from the United States instead of demonstrating compliance with reasonable requests for assistance in the investigation or prosecution of the acts of trafficking. INA § 245(l)(1)(C)(ii).

(2) Application Procedures for T Nonimmigrant Adjustment of Status.

(A) Jurisdiction. USCIS has sole jurisdiction over all applications for adjustment of status for T nonimmigrants.

(o) Adjustment of Status by U Nonimmigrants.

(1) Eligibility.

(A) [Reserved]

(B) [Reserved]

(C) Unreasonable Refusal to Assist in the Investigation of Prosecution. USCIS will determine whether the applicant has unreasonably refused to provide assistance in the investigation or prosecution of the qualifying criminal activity. In its descretion, USCIS may consult the Attorney General in making a determination that affirmative evidence demonstrates that the applicant unreasonably refused to provide assistance to a State or local law enforcement official, State or local prosecutor, State or local judge, or other State or local authority investigating or prosecuting qualifying criminal activity.

(p) Precedent Decisions Pertaining to Adjustment of Status .

(1) Some Precedent Decisions Dealing with General Eligibility for Adjustment of Status to That of Permanent Resident :

· Matter of Egbunine , 19 I. & N. Dec. 478 (BIA, 1987) . An alien may not adjust his status if he seeks to receive an immigrant visa on the basis of a marriage which was entered into while the alien was in immigration proceedings.

· Matter of Arthur , 20 I. & N. Dec. 475 (BIA, 1992) . Alien may adjust status based on a marriage entered into after the commencement of proceedings if the alien establishes "by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and ...was not entered into for the purpose of procuring the alien's entry as an immigrant."

· Matter of Ching , 15 I. & N. Dec. 772 (BIA, 1976) . Where a visa petition has not been approved, applicant is statutorily ineligible for section 245 relief.

· Matter of Stockwell , 20 I. & N. Dec. 309 (BIA, 1991) . Section 245(d) of the Act does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

· Matter of Tabcum , 14 I. & N. Dec. 113 (R.C., 1972) . An alien who is the "accompanying spouse" of an exchange visitor's alien is subject to the foreign residence requirement of section 212(e) and is therefore ineligible for adjustment of status.

· Matter of Davis , 10 I. & N. Dec. 441 (BIA, 1964) . An alien who entered the U.S. as a transit without visa is ineligible for adjustment of status.

· Matter of Loo Bing Sun , 15 I. & N. Dec. 307 (BIA, 1975) . An alien admitted with a nonquota immigrant visa procured by fraud is ineligible for adjustment of status if inadmissible under section 212(a)(19) and ineligible for 212(i) waivers.

· Matter of Monteran , 11 I. & N. Dec. 717 (BIA, 1966) . An alien who (1) was born in the U.S., (2) expatriated abroad, and (3) was paroled into the U.S., is eligible for adjustment of status.

· Matter of Krastman , 11 I. & N. Dec. 720 (BIA, 1966) . An alien who, following lawful admission to the U.S. for permanent residence, became deportable because of conviction for crimes involving moral turpitude, is not precluded from establishing statutory eligibility for adjustment of status.

· Matter of Sanchez-Linn , 20 I. & N. Dec. 362 (BIA, 1991) . An applicant for registry under section 249 of the Act must prove he or she is at present a person of good moral character, and has been such for a reasonable period of time preceding the application.

· Matter of Naulu , 19 I. & N. Dec. 351 (BIA, 1986) . A derivative beneficiary "accompanying or following to join" the principal alien cannot precede the principle. However, once the principal acquires permanent resident status, the spouse and/or child is not barred from adjustment by reason of having preceded him as a nonimmigrant.

(2) Some Precedent Decisions Dealing with Whether an Alien Has Been Inspected and Admitted or Paroled .

· Matter of Areguillin , 17 I. & N. 308 (BIA, 1980) ; Matter of V-Q- , 9 I. & N. Dec. 78 (BIA, 1960) ; Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) . Physically presenting oneself for questioning and making no knowing false claim to U.S. citizenship constitutes being inspected and admitted for section 245 purposes.

· Matter of Areguillin , 17 I. & N. Dec. 308 (BIA, 1980) . The alien bears the burden of proving presentation of inspection to establish eligibility for adjustment of status.

· Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) ; Matter of Woo , 11 I. & N. Dec. 706 (BIA, 1966) . An alien who gains admission to the U.S. by a knowing false claim to citizenship has not been "inspected and admitted".

· Matter of Robles , 15 I. & N. Dec. 734 (BIA, 1976) . Entry after intentionally evading the inspection required by the immigration laws and regulations is an entry without inspection, and the alien cannot be deemed inspected and admitted.

· Matter of Lim , 10 I. & N. Dec. 653 (BIA, 1963) . An alien who entered as a member of the U.S. Coast Guard is ineligible for adjustment of status, because he was not inspected and admitted, or paroled into the U.S.

(3) Some Precedent Decisions Dealing with Crewman Arriving by or Destined to a Vessel :

· Matter of Rebelo , 13 I. & N. Dec. 84 (BIA, 1968) distinguished; Matter of Campton , 13 I. & N. Dec. 535 (BIA, 1970) . An alien who is a crewman by occupation and whose last entry was sought and gained solely as a crewman is ineligible for adjustment of status notwithstanding an earlier admission as a temporary visitor for pleasure. (What matters is the most recent entry. For example, if an alien who is a crewman by profession last sought entry as a visitor for pleasure and was admitted as such (or paroled), he or she is eligible to apply for adjustment of status.

· Matter of Goncalves , 10 I. & N. Dec. 277 (BIA, 1963) . An alien's entry in transit as a seaman to join a ship and depart constitutes entry as a crewman, and he or she is therefore ineligible to apply for adjustment of status.

· Matter of Quintero-Correa , 11 I. & N. Dec. 343 (BIA, 1964) . Arrival as a "workaway" does not preclude adjustment of status in the case of an alien who has no background as an occupation seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a temporary visitor for pleasure.

(4) Some Precedent Decisions Dealing with Unauthorized Employment :

· Matter of Raol , 16 I. & N. Dec. 466 (BIA, 1978) . An alien's employment is unauthorized unless the Service has specifically approved the employment. A labor certification issued by the Secretary of Labor does not, in itself, authorize an alien's employment in the U.S.

· Matter of Tien , 17 I. & N. Dec. 436 (BIA, 1980) . When the basis for an alien's application for adjustment has ceased to exist (e.g., if the alien no longer intends to work for the employer who obtained his or her labor certification), the application is deemed abandoned, and the alien is no longer exempted from section 245(c) of the Immigration and Nationality Act.

· Matter of Hall , 18 I. & N. Dec. 203 (BIA, 1982) ; A alien who engages in fund-raising activities as part of his missionary work and receives full support is considered to have engaged in unauthorized employment and is therefore barred from adjusting status.

(5) Some Precedent Decisions Dealing with an Alien Who Is Likely to Become a Public Charge :

· Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977) . Where the record reflects applicants were receiving public assistance with no prospects for their earning a livelihood or providing self support the application for adjustment of status would be denied.

· Matter of Perez , 15 I. & N. Dec. 136 (BIA, 1974) . The fact that an alien has been on welfare does not, by itself, establish likelihood of becoming a public charge.

· Matter of Harutunian , 14 I. & N. Dec. 583 (R.C., 1974) ; Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977). A determination as to the likelihood of becoming a public charge should take into consideration factors such as an alien's age, incapability of earning a livelihood, a lack of sufficient funds for self-support, and lack of a person willing and able to assure that the alien will not need public support.

(6) Some Precedent Decisions Dealing with Discretionary Denials :

· Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . An applicant for adjustment who meets the objective prerequisites is merely eligible for adjustment of status and is in no way entitled to adjustment.

· Matter of Arthur , 20 I. & N. Dec 475 (BIA, 1992) . Motions to reopen for consideration of applications for adjustment of status based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) (married while in proceedings) will not be granted.

· Matter of Lee , 13 I. & N. Dec. 236 (BIA, 1969) ; Matter of Tayeb , 12 I. & N. Dec. 739 (BIA, 1968) . Consideration must be given to an advisory report from the Department of State which indicates the alien's adjustment would have an adverse effect on relations with the applicant's government.

· Matter of Barrios , 10 I. & N. Dec. 172 (BIA, 1963) . The favorable exercise of discretion is warranted when an alien entered the U.S. as a nonimmigrant fully intending to comply with the terms of admission and did not formulate a specific intention to become a permanent resident until after arrival.

· Matter of Francois , 10 I. & N. Dec. 168 (BIA, 1963) ; Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . Good moral character is a factor which must be considered in determining whether discretion should be exercised in a particular case.

· Matter of Khan , 17 I. & N. Dec. 508 (BIA, 1980) . Unauthorized employment alone should not ordinarily result in the discretionary denial of adjustment to those individuals who are statutorily eligible for that relief, no other negative considerations being present.

· Matter of Aguirre , 13 I. & N. Dec. 661 (BIA, 1971) . An officer must make an independent exercise of discretion on all the facts present.

· Matter of Blas , 15 I. & N. Dec. 626 (A.G., 1976) . Although family ties will ordinarily result in favorable exercise of discretion, they neither must nor should be used where it appears that the alien has engaged in a course of deception designed to produce those very ties.

· Matter of Kai Hing Hui , 15 I. & N. Dec. 288 (BIA, 1975) . An alien who gained entry by using a nonresident alien Mexican border crossing card obtained by misrepresentation is excludable under section 212(a)(6)(C)(i), and the case does not merit the favorable exercise of discretion.

· Matter of Tanahan , 18 I. & N. Dec. 339 (R.C., 1981) . Adjustment of status under section 245 was not designed to supersede the regular consular visa-issuing processes or to be granted in non-meritorious cases.

· Matter of Arai , 13 I. & N. Dec. 494 (BIA, 1970) ; Matter of Leung , 16 I. & N. Dec. 12 (DD, 1976) . Where adverse factors are present in a given application for adjustment of status, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. In the absence of adverse factors, adjustment will ordinarily be granted as a matter of discretion.

· Matter of Garcia-Castillo , 10 I. & N. Dec. 516 (BIA, 1964) . Entry as a nonimmigrant with a preconceived intention to remain is a serious adverse factor to be considered.

· Matter of Cavazos , 17 I. & N. Dec. 215 (BIA, 1980) . In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain.

· Matter of Ibrahim , 18 I. & N. Dec. 55 (BIA, 1981). The benefits of Matter of Cavazos , supra , are limited to immediate relatives, and an application for adjustment by a fifth preference immigrant with a preconceived intention to remain is properly denied in the exercise of discretion.

· Matter of Baltazar , 16 I. & N. Dec. 108 (BIA, 1977) . Evidence indicating that the alien obtained a sham divorce primarily to obtain immigration benefits is a significant adverse factor bearing on discretion.

· Matter of Ozcan , 15 I. & N. Dec. 301 (BIA, 1975) . An alien who has misstated or at least materially overstated qualifications on an application for a labor certification does not warrant the favorable exercise of discretion.