\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 245a -- ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE IMMIGRATION AND NATIONALITY ACT (Heading amended 5/31/95; 60 FR 21039) \ Sec. 245.a2(e)
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Filing of application
(1) The application must be filed on Form I - 687 at an office of a designated entity or at a Service Legalization Office within the jurisdiction of the District wherein the applicant resides. If the application is filed with a designated entity, the alien must have consented to having the designated entity forward the application to the legalization office. In the case of applications filed at a legalization office, the district director may, at his or her discretion:
(i) Require the applicant to file the application in person; or
(ii) Require the applicant to file the application by mail; or
(iii) Permit the filing of applications either by mail or in person.
The applicant must appear for a personal interview at the legalization office as scheduled. If the applicant is 14 years of age or older, the application must be accompanied by a completed Form FD - 258 (Applicant Card).
(2) At the time of the interview, wherever possible, original documents must be submitted except the following: Official government records; employment or employment-related records maintained by employers, unions, or collective bargaining organizations; medical records; school records maintained by a school or school board; or other records maintained by a party other than the applicant. Copies of records maintained by parties other than the applicant which are submitted in evidence must be certified as tr
ue and correct by such parties and must bear their seal or signature or the signature and title of persons authorized to act in their behalf. If at the time of the interview the return of original documents is desired by the applicant, they must be accompanied by notarized copies or copies certified true and correct by a qualified designated entity or by the alien's representative in the format prescribed in § 204.2(j) (1) or (2) of this chapter. At the discretion of the district director, original document
s, even if accompanied by certified copies, may be temporarily retained for forensic examination by the Document Analysis Unit at the Regional Processing Facility having jurisdiction over the legalization office to which the documents were submitted.
(3) A separate application (I - 687) must be filed by each eligible applicant. All fees required by
of this chapter must be submitted in the exact amount in the form of a money order, cashier's check, or certified bank check, made payable to the Immigration and Naturalization Service. No personal checks or currency will be accepted. Fees will not be waived or refunded under any circumstances.
Filing date of application
. The date the alien submits a completed application to a Service Legalization Office or designated entity shall be considered the filing date of the application, provided that in the case of an application filed at a designated entity the alien has consented to having the designated entity forward the application to the Service Legalization Office having jurisdiction over the location of the alien's residence. The designated entities are required to forward completed applications to the appropriate Service
Legalization Office within sixty days of receipt.
Selective Service registration
. At the time of filing an application under this section, male applicants over the age of 17 and under the age of 26 are required to be registered under the Military Selective Service Act. An applicant shall present evidence that he has previously registered under that Act in the form of a letter of acknowledgement from the Selective Service System, or such alien shall present a completed and signed Form SSS - 1 at the time of filing Form I - 687 with the Immigration and Naturalization Service or a designa
ted entity. Form SSS - 1 will be forwarded to the Selective Service System by the Service.
(1) For the purpose of this Act, an applicant for temporary resident status shall be regarded as having resided continuously in the United States if, at the time of filing of the application:
(i) No single absence from the United States has exceeded forty-five (45) days, and the aggregate of all absences has not exceeded one hundred and eighty (180) days between January 1, 1982 through the date the application for temporary resident status is filed, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed;
(ii) The alien was maintaining a residence in the United States; and
(iii) The alien's departure from the United States was not based on an order of deportation.
(2) An alien who has been absent from the United States in accordance with the Service's advance parole procedures shall not be considered as having interrupted his or her continuous residence as required at the time of filing an application under this section.
. An applicant under this part shall be required to submit to an examination by a designated civil surgeon at no expense to the government. The designated civil surgeon shall report on the findings of the mental and physical condition of the applicant and the determination of the alien's immunization status. Results of the medical examinaton must be presented to the Service at the time of interview and shall be incorporated into the record. Any applicant certified under paragraphs (1), (2), (3), (4), or (5)
of the Act may appeal to a Board of Medical Officers of the U.S. Public Health Service as provided in section 234 of the Act and Part 235 of this chapter.
. Each applicant, regardless of age, must appear at the appropriate Service Office and must be fingerprinted for the purpose of issuance of an employment authorization document and Form I-688. Each applicant shall be interviewed by an immigration officer, except that the interview may be waived for a child under 14, or when it is impractical because of the health or advanced age of the applicant. (Amended 6/3/95;
60 FR 21973
Applicability of exclusion grounds
Grounds of exclusion not to be applied
. The following paragraphs of section
of the Act shall not apply to applicants for temporary resident status: (14) Workers entering without Labor Certification; (20) immigrants not in possession of a valid entry document; (21) visas issued without compliance with section 203; (25) illiterates; and (32) graduates of non-accredited medical schools.
Waiver of grounds of exclusion
. Except as provided in paragraph (k)(3) of this section, the Attorney General may waive any other provision of section
of the Act only in the case of individual aliens for humanitarian purposes, to assure family unity, or when the granting of such a waiver is in the public interest. If an alien is excludable on grounds which may be waived as set forth in this paragraph, he or she shall be advised of the procedures for applying for a waiver of grounds of excludability on Form I - 690. When an application for waiver of grounds of excludability is filed jointly with an application for temporary residence under this section, i
t shall be accepted for processing at the legalization office. If an application for waiver of grounds of excludability is submitted after the alien's preliminary interview at the legalization office, it shall be forwarded to the appropriate Regional Processing Facility. All applications for waivers of grounds of excludability must be accompanied by the correct fee in the exact amount. All fees for applications filed in the United States must be in the form of a money order, cashier's check, or bank check.
No personal checks or currency will be accepted. Fees will not be waived or refunded under any circumstances. An application for waiver of grounds of excludability under this part shall be approved or denied by the director of the Regional Processing Facility in whose jurisdiction the applicant's application for adjustment of status was filed except that in cases involving clear statutory ineligibility or admitted fraud, such application may be denied by the district director in whose jurisdiction the appli
cation is filed, and in cases returned to a Service Legalization Office for re-interview, such application may be approved at the discretion of the district director. The applicant shall be notified of the decision and, if the application is denied, of the reason therefor. Appeal from an adverse decision under this part may be taken by the applicant on Form I - 694 within 30 days after the service of the notice only to the Service's Administrative Appeals Unit pursuant to the provisions of
of this chapter.
Grounds of exclusion that may not be waived
. Notwithstanding any other provision of the Act, the following provisions of section
may not be waived by the Attorney General under paragraph (k)(2) of this section:
(i) Paragraphs (9) and (10) (criminals);
(ii) Paragraph (23) (narcotics) except for a single offense of simple possession of thirty grams or less of marijuana;
(iii) Paragraphs (27) (prejudicial to the public interest), (28) (communist), and (29) (subversive);
(iv) Paragraph (33) (participated in Nazi persecution).
Special rule for determination of public charge
. An alien who has a consistent employment history which shows the ability to support himself or herself even though his or her income may be below the poverty level, may be admissible. The alien's employment history need not be continuous in that it is uninterrupted. It should be continuous in the sense that the alien shall be regularly attached to the workforce, has an income over a substantial period of the applicable time, and has demonstrated the capacity to exist on his or her income without recourse
to public cash assistance. This regulation is prospective in that the Service shall determine, based on the alien's history, whether he or she is likely to become a public charge. Past acceptance of public cash assistance within a history of consistent employment will enter into this decision. The weight given in considering applicability of the public charge provisions will depend on many factors, but the length of time an applicant has received public cash assistance will constitute a significant factor.
Public assistance and criminal history verification
. Declarations by an applicant that he or she has not been the recipient of public cash assistance and/or has not had a criminal record are subject to a verification of facts by the Service. The applicant must agree to fully cooperate in the verification process. Failure to assist the Service in verifying information necessary for the adjudication of the application may result in a denial of the application.
Continous physical presence since November 6, 1986
. (1) An alien applying for adjustment to temporary resident status must establish that he or she has been continuously physically present in the United States since November 6, 1986. Aliens who were outside of the United States on the date of enactment or departed the United States after enactment may apply for legalization if they reentered prior to May 1, 1987, and meet the continuous residence requirements and are otherwise eligible for legalization.
(2) A brief, casual and innocent absence means a departure authorized by the Service (advance parole) subsequent to May 1, 1987 of not more than thirty (30) days for legitimate emergency or humanitarian purposes unless a further period of authorized departure has been granted in the discretion of the district director or a departure was beyond the alien's control.
(1) During the time period from the date that an alien's application establishing prima facie eligibility for temporary resident status is reviewed at a Service Legalization Office and the date status as a temporary resident is granted, the alien applicant can only be readmitted to the United States provided his or her departure was authorized under the Service's advance parole provisions contained in
of this chapter. (Amended effective 1/29/01;
65 FR 82254
(2) An alien whose application for temporary resident status has been approved may be admitted to the United States upon return as a returning temporary resident provided he or she:
(i) Is not under deportation proceedings, such proceedings having been instituted subsequent to the approval of temporary resident status. A temporary resident alien will not be considered deported if that alien departs the United States while under an outstanding order of deportation issued prior to the approval of temporary resident status;
(ii) Has not been absent from the United States more than thirty (30) days on the date application for admission is made;
(iii) Has not been absent from the United States for an aggregate period of more than 90 days since the date the alien was granted lawful temporary resident status;
(iv) Presents Form I - 688;
(v) Presents himself or herself for inspection; and
(vi) Is otherwise admissible.
(3) The periods of time in paragraph (m)(2)(ii) and (m)(2)(iii) of this section may be waived at the discretion of the Attorney General in cases where the absence from the United States was due merely to a brief temporary trip abroad due to emergent or extenuating circumstances beyond the alien's control.
Employment and travel authorization; general
. Authorization for employment and travel abroad for temporary resident status applicants under section
of the Act may only be granted by a Service Office. INS district directors will determine the Service location for the completion of processing of travel documentation. In the case of an application which has been filed with a designated entity, employment authorization may only be granted by the Service after the application has been properly received at the Service Office. (Amended 6/3/95;
60 FR 21973
Employment authorization prior to the granting of temporary resident status
. (i) Permission to travel abroad and accept employment may be granted to the applicant after an interview has been conducted in connection with an application establishing prima facie eligibility for temporary resident status. Permission to travel abroad may be granted in emergent circumstances in accordance with the Service's advance parole provisions contained in
of this chapter after an interview has been conducted in connection with an application establishing prima facie eligiblity for temporary resident status. (Amended effective 1/29/01;
65 FR 82254
) (Amended heading effective 10/4/96;
61 FR 46534
(ii) If an interview appointment cannot be scheduled within 30 days from the date an application is filed at a Service office, authorization to accept employment will be granted, valid until the scheduled appointment date. Employment authorization, both prior and subsequent to an interview, will be restricted to increments of 1 year, pending final determination on the application for temporary resident status. If a final determination has not been made prior to the expiration date on the Employment Author
ization Document (Form I-766, Form I-688A or Form I-688B), that date may be extended upon return of the employment authorization document by the applicant to the appropriate Service office. (Amended 6/3/95;
60 FR 21973
) (Revised effective 10/4/96;
61 FR 46534
Employment and travel authorization upon grant of temporary resident status
. Upon the granting of an application for adjustment to temporary resident status, the service center will forward a notice of approval to the applicant at his or her last known address and to his or her qualified designated entity or representative. The applicant may appear at any Service office and, upon surrender of the previously issued Employment Authorization Document, will be issued Form I-688, Temporary Resident Card, authorizing employment and travel abroad. (Amended 6/3/95;
60 FR 21973
) (Revised effective 10/4/96;
61 FR 46534
Revocation of employment authorization upon denial of temporary resident status
. Upon denial of an application for adjustment to temporary resident status the alien will be notified that if a timely appeal is not submitted, employment authorization shall be automatically revoked on the final day of the appeal period.
. The applicant shall be notified in writing of the decision, and, if the application is denied, of the reason therefor. An appeal from an adverse decision under this part may be taken by the applicant on Form I - 694.
. An adverse decision under this part may be appealed to the Associate Commissioner, Examinations (Administrative Appeals Unit). Any appeal with the required fee shall be filed with the Regional Processing Facility within thirty (30) days after service of the notice of denial in accordance with the procedures of
of this chapter. An appeal received after the thirty (30) day period has tolled will not be accepted. The thirty (30) day period includes any time required for service or receipt by mail.
. The Regional Processing Facility director may sua sponte reopen and reconsider any adverse decision. When an appeal to the Associate Commissioner, Examinations (Administrative Appeals Unit) has been filed, the INS director of the Regional Processing Facility may issue a new decision that will grant the benefit which has been requested. The director's new decision must be served on the appealing party within 45 days of receipt of any briefs and/or new evidence, or upon expiration of the time allowed for th
e submission of any briefs. Motions to reopen a proceeding or reconsider a decision shall not be considered under this part.
. The Regional Processing Facility director may, in accordance with
of this chapter, certify a decision to the Associate Commissioner, Examinations (Administrative Appeals Unit) when the case involves an unusually complex or novel question of law or fact. The party affected shall be given notice of such certification and of the right to submit a brief within thirty (30) days from service of the notice.
Date of adjustment to temporary residence
. The status of an alien whose application for temporary resident status is approved shall be adjusted to that of a lawful temporary resident as of the date indicated on the application fee receipt issued at Service Legalization Office.
Limitation on access to information and confidentiality
. (1) No person other than a sworn officer or employee of the Justice Department or bureau of agency thereof, will be permitted to examine individual applications, except employees of designated entities where applications are filed with the same designated entity. For purposes of this part, any individual employed under contract by the Service to work in connection with the legalization program shall be considered an "employee of the Justice Department or bureau or agency thereof."
(2) Files and records prepared by designated entites under this section are confidential. The Attorney General and the Service shall not have access to these files and records without the consent of the alien.
(3) No information furnished pursuant to an application for legalization under this section shall be used for any purpose except: (i) To make a determination on the application; or, (ii) for the enforcement of the provisions encompassed in section
of the Act, except as provided in paragraph (t)(4) of this section.
(4) If a determination is made by the Service that the alien has, in connection with his or her application, engaged in fraud or willful misrepresentation or concealment of a material fact, knowingly provided a false writing or document in making his or her application, knowingly made a false statement or representation, or engaged in any other activity prohibited by section
of the Act, the Service shall refer the matter to the United States Attorney for prosecution of the alien or of any person who created or supplied a false writing or document for use in an application for adjustment of status under this part.
(5) Information obtained in a granted legalization application and contained in the applicant's file is subject to subsequent review in reference to future benefits applied for (including petitions for naturalization and permanent resident status for relatives).
Termination of temporary resident staus
Termination of temporary resident status; General
. The status of an alien lawfully admitted for temporary residence under section
of the Act may be terminated at any time in accordance with section
of the Act. It is not necessary that a final order of deportation be entered in order to terminate temporary resident status. The temporary resident status may be terminated upon the occurence of any of the following:
(i) It is determined that the alien was ineligible for temporary residence under section
of this Act;
(ii) The alien commits an act which renders him or her inadmissible as an immigrant, unless a waiver is secured pursuant to
(iii) The alien is convicted of any felony, or three or more misdemeanors;
(iv) The alien fails to file for adjustment of status from temporary resident to permanent resident on Form I - 698 within forty-three (43) months of the date he/she was granted status as a temporary resident under
of this part.
Termination by the Service
. Except as provided in paragraph (u)(2)(ii) of this section, termination of an alien's temporary resident status under paragraph (u)(1) of this section will be made before instituting deportation proceedings against a temporary resident alien and only on notice sent to the alien by certified mail directed to his or her last known address, and to his or her representative, if any. The alien must be given an opportunity to offer evidence in opposition to the grounds alleged for termination of his or her sta
tus. Evidence in opposition must be submitted within thirty (30) days after the service of the Notice of Intent to Terminate. If the alien's status is terminated, the director of the regional processing facility shall notify the alien of the decision and the reasons for the termination, and further notify the alien that any Service Form I - 94, Arrival-Departure Record or other official Service document issued to the alien authorizing employment and/or travel abroad, or any Form I - 688, Temporary Resident
Card previously issued to the alien will be declared void by the director of the regional processing facility within thirty (30) days if no appeal of the termination decision is filed within that period. The alien may appeal the decision to the Associate Commissioner, Examinations (Administrative Appeals Unit). Any appeal with the required fee shall be filed with the regional processing facility within thirty (30) days after the service of the notice of termination. If no appeal is filed within that period,
the I - 94, I - 688 or other official Service document shall be deemed void, and must be surrendered without delay to an immigration officer or to the issuing office of the Service. (Amended 5/31/95;
60 FR 21039
Termination upon entry of final order of deportation or exclusion
. (A) The Service may institute deportation or exclusion proceedings against a temporary resident alien without regard to the procedures set forth in paragraph (u)(2)(i) of this section:
) If the ground for deportation arises under section
of the Act (8 U.S.C. 1251(a)(2)(A)(iii));
) If the ground for deportation arises after the acquisition of temporary resident status, and the basis of such ground of deportation is not waivable pursuant to section
of the Act (8 U.S.C. 1255a(d)(2)(B)(ii)); or
) If the ground for exclusion arises after the acquisition of temporary resident status and is not waivable pursuant to section
of the Act (8 U.S.C. 1255a(d)(2)(B)(ii)).
(B) In such cases, the entry of a final order of deportation or exclusion will automatically terminate an alien's temporary resident status acquired under section
of the Act. (Paragraph (u)(2)(ii) added 5/31/95;
60 FR 21039
Termination not construed as rescission under section 246
. For the purposes of this part the phrase
termination of status
of an alien granted lawful temporary residence under section
of the Act shall not be construed to necessitate a rescission of status as described in section
of the Act, and the proceedings required by the regulations issued thereunder shall not apply.
Return to unlawful status after termination
. Termination of the status of any alien previously adjusted to lawful temporary residence under section
of the Act shall act to return such alien to the unlawful status held prior to the adjustment, and render him or her amenable to exclusion or deportation proceedings under section
of the Act, as appropriate.
Ineligibility for immigration benefits
. An alien whose status is adjusted to that of a lawful temporary resident under section
of the Act is not entitled to submit a petition pursuant to section
or to any other benefit or consideration accorded under the Act to aliens lawfuly admitted for permanent residence.
Declaration of Intending Citizen
. An alien who has been granted the status of temporary resident under section
) of this Act may assert a claim of discrimination on the basis of citizenship status under section
of the Act only if he or she has previously filed Form I - 772 (Declaration of Intending Citizen) after being granted such status. The Declaration of Intending Citizen is not required as a basis for filing a petition for naturalization; nor shall it be regarded as a right to United States citizenship; nor shall it be regarded as evidence of a person's status as a resident.