(a) General. Entry as a nonimmigrant, with or without a visa (except a crew-man or a transit without visa), an immigrant, a United States citizen when such entry was not obtained on the basis of a willful balse claim to citizenship, or parolee under 8 CFR 212.5 will support an application under section 245. Although the requirement that the applicant establish that he/she was admitted as a bona fide nonimmigrant has been deleted, admission as a mala fide nonimmigrant shall be considered with other factors in determining whether favorable discretion will be exercised. An otherwise eligible alien who is unlawfully in the United States and who has not heretofore filed a section 245 application shall normally be afforded an opportunity to file such an application p rior to the institution of deportation proceedings. An application filed under section 245 may be filed concurrently with a visa petition Form I-130 or I-140 if approval of the visa petition would make a visa immediately available. A section 245 application and visa petition filed concurrently shall be considered simultaneously at the time of the required section 245 interview.

Upon receipt of Form G-361 from the Visa Control Office stamped "Complete Processing" (see AM 2761) relating to the beneficiary of an approval petition granted voluntary departure until an immigrant visa number is available pursuant to OI 242.1O (b)(1), the file should be examined to ascertain whether the required labor certification in support of the petition is of limited or indefinite validity. If it is of limited validity it shall be considered to be revalidated indefinitely provided it is established that there has been no significant change in the proposed employment conditions and intentions of the employment conditions and intentions of the employer and beneficiary (for procedure to be followed see OI 245.29(c)93)). When and if the certifi cation is revalidated in such a case, and in any other case in which Form G-361 stamped "Complete Processing"is received from the Visa Control Office, the beneficiary shall be furnished Forms I-485, G-325A, and FD-258 and shall be notified by use of Form I-487 or Form I-72 that he/she may apply for status as a permanent resident. When he/she applies, his/her case shall be processed under the preference indicated by the approved petition if an immigrant visa number is "immediately available" for that prefer ence within the meaning of 8 CFR 245.1(g) . However, if the current Visa Office Bulletin on Availability of Immigrant Visa Numbers indicates a preference immigrant visa number is not immediately available but a nonpreference number is, the application shall be processed as a nonpreference case.

Forms DSL-852A and FS-497A shall be distributed to any alien in the United States who is statutorily ineligible for adjustment of status and who inquires concerning procedures to be followed in applying for an immigrant visa.

(b) Members of the U.S. Armed Forces. An alien whose enlistment or induction into the United States Armed Forces occurred within the United States, the Canal Zone, American Samoa or Swains Island should be advised that an application for adjustment of status may not be necessary because a lawful admission for permanent residence is not required for the naturalization of a person who serves honorably in the United States Armed Forces during a period specified in section 329.