\ 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. 245a.4(b)(6)
Previous Document Next Document
Filing date of application
. The date the alien submits a completed application to a Service 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 office having jurisdiction over the location of the alien's residence. Designated entities are required to forward completed applications to the appropriate Service office within 60 days of rece
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 design
ated entity. Form SSS - 1 will be forwarded to the Selective Service System by the Service.
. (i) For the purpose of this Act, an applicant for temporary residence status shall be regarded as having resided continuously in the United States if, at the time of filing of the application:
(A) No single absence from the United States has exceeded 45 days, and the aggregate of all absences has not exceeded 180 days between July 2l, 1984, 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;
(B) The alien was maintaining a residence in the United States; and
(C) The alien's departure from the United States was not based on an order of deportation.
(ii) 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.
. (i) 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 on Form I - 693, ``Medical Examination of Aliens Seeking Adjustment of Status, (Pub. L. 99 - 603)''. Results of the medical examination must be presented to the Service at the time of interview and s
hall be incorporated into the record. Any applicant certified under paragraphs (1), (2), (3), (4) or (5) of section
of the Act may appeal to a Board of Medical Officers of the U.S. Public Health Service as provided in section
of the Act and Part
of this chapter.
(ii) All applicants who file for temporary resident status are required to include the results of a serological test for the HIV virus on the I - 693. All HIV-positive applicants shall be advised that a waiver is available and shall be provided with the opportunity to apply for a waiver.
. 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 years of age, 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
. Paragraphs (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) of section 212(a) of the Act shall not apply to applicants for temporary resident status.
Waiver of grounds of exclusion
. Except as provided in paragraph (b)(11)(iii) 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 Service office. If an application for waiver of grounds of excludability is submitted after the alien's preliminary interview at the Service 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 persona
l 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 alien's application for adjustment of status was filed except that in cases involving clear statutory ineligibility or fraud, such application may be denied by the district director in whose jurisdiction the application is filed, and in
cases returned to a Service 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 therefore. 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 (b)(11)(ii) of this section:
(A) Paragraphs (9) and (10) (criminals);
(B) Paragraph (23) (narcotics) except for a single offense of simple possession of thirty grams or less of marijuana;
(C) Paragraphs (27) (prejudicial to the public interest), (28) (communist), and (29) (subversive);
(D) Paragraph (33) (participated in Nazi persecution).
(iv) Determination of
Likely to become a public charge
and the special rule.
(A) Prior to use of the special rule for determination of public charge, an alien must first be determined to be excludable under section 212(a)(15) of the Act. If the applicant is determined to be
likely to become a public charge
, he or she may still be admissible under the terms of the Special Rule.
(B) In determining whether an alien is
likely to become a public charge
, financial responsibility of the alien is to be established by examining the totality of the alien's circumstances at the time of his or her application for legalization. The existence or absence of a particular factor should never be the sole criterion for determining if an alien is likely to become a public charge. The determination of financial responsibility should be a prospective evaluation based on the alien's age, health, income and vocation.
(C) 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 under this section. 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 inco
me without recourse to public cash assistance. The Special Rule 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. It is not necessary to file a waiver in order to apply the Special Rule for Determination of Public Charge.
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.
Continuous physical presence since December 22, 1987
(i) 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 December 22, 1987. 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 March 21, 1988, and meet the continuous residence requirements and are otherwise eligible for legalization.
(ii) A brief, casual and innocent absence means a departure authorized by the Service (advance parole) subsequent to March 21, 1988, 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.
. (i) 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 office and the date status as a temporary resident is granted, the alien applicant can 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
(ii) 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:
(A) 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;
(B) Has not been absent from the United States for more than 30 days on the date application for admission is made;
(C) 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;
(D) Presents Form I - 688;
(E) Presents himself or herself for inspection; and
(F) Is otherwise admissible.
(iii) The periods of time in paragraphs (b)(13)(ii) (B) and (C) 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 and casual trip abroad due to emergent or extenuating circumstances beyond the alien's control.
Employment and travel authorization
. Authorization for employment and travel abroad for temporary resident status applicants under this section may be granted only by a Service office. INS district directors will determine the Service location for the completion of processing travel documentation. In the case of an application which has been filed with a designated entity, employment authorization may be granted by the Service only after the application has been properly received at the Service office.
Employment and travel authorization prior to the granting of temporary resident status
(A) 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 eligibility for temporary resident status. (Amended effective 1/29/01;
65 FR 82254
(B) If an appointment cannot be scheduled within 30 days, authorization to accept employment will be granted, valid until the scheduled appointment date. The appointment letter will be endorsed with the temporary employment authorization. An employment authorization document will be given to the applicant after an interview has been completed by an immigration officer unless a formal denial is issued by a Service office. This temporary employment authorization will be restricted to six-months duration, pen
ding final determination on the application for temporary resident status. (Amended 6/3/95;
60 FR 21973
Employment and travel authorization upon grant of temporary resident status
. Upon grant of an application for adjustment to temporary resident status by a Regional Processing Facility, the processing facility will forward a notice of approval to the alien at his or her last known address, or to his or her legal representative. The alien will be required to return to the appropriate INS office, surrender the I-688A or employment authorization document previously issued, and obtain Form I-688, Temporary Resident Card, authorizing employment and travel abroad. (Amended 6/3/95;
60 FR 21973
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. An applicant whose appeal period has ended is no longer considered to be an Eligible Legalized Alien for the purposes of the administration of State Legalization Impact Assistance Grants (SLIAG) funding.
. The applicant shall be notified in writing of the decision. If the application is denied, the reason(s) for the decision shall be provided to the applicant. An appeal from an adverse decision under this part may be taken by the applicant on Form I - 694.
Appeal process. An adverse decision under this part may be appealed to the Associate Commissioner, Examinations (Administrative Appeals Unit), the appellate authority designated in
. Any appeal shall be submitted to the Regional Processing Facility (RPF) with the required fee within 30 days after service of the Notice of Denial in accordance with the procedures of
of this chapter. An appeal received after the 30-day period will not be accepted. The 30-day period for submission of an appeal begins three days after the Notice of Denial is mailed as provided in
8 CFR 103.8(b). If a review of the Record of Proceeding (ROP) is requested by the alien or his or her legal representative and an appeal has been properly filed, an additional 30 days will be allowed for this review beginning at the time the ROP is mailed. A brief may be submitted with the appeal form or submitted up to 30 calendar days from the date of receipt of the appeal form at the RPF. Briefs filed after submission of the appeal should be mailed directly to the RPF. For good cause shown, the time within
which a brief supporting an appeal may be submitted may be extended by the Director of the Regional Processing Facility.
(Amended effective 11/28/11;
. 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 granting 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 the submi
ssion 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 § 103.4 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 decision on an appealed case subsequently remanded to the Regional Processing Facility director will be certified to the Administrative Appeals Unit.
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 the Service office.
Termination of temporary resident status
Termination of temporary resident status (General)
. The status of an alien lawfully admitted for temporary residence under
of this part may be terminated at any time. 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 occurrence of any of the following:
(A) It is determined that the alien was ineligible for temporary residence under
of this part;
(B) The alien commits an act which renders him or her inadmissible as an immigrant unless a waiver is obtained, as provided in this part;
(C) The alien is convicted of any felony, or three or more misdemeanors;
(D) The alien fails to file for adjustment of status from temporary resident to permanent resident within 31 months of the date he or she was granted status as a temporary resident.
. Termination of an alien's status will be made only on notice to the alien sent by certified mail directed to his or her last known address, and, if applicable, to his or her representative. The alien must be given an opportunity to offer evidence in opposition to the grounds alleged for termination of his or her status. Evidence in opposition must be submitted within 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 reason for the termination, and further notify the alien that any Service Form 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 30 days if no appeal of the termination decision is filed within that period. The alien may appeal the decision to the Associate Commissioner, Examination
s (Administrative Appeals Unit). Any appeal along with the required fee, shall be filed with the Regional Processing Facility within 30 days after the service of the notice of termination. If no appeal is filed within that period, the 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.
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 this section shall not be construed to necessitate a rescission of status as described in section 246 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 shall act to return such alien to the status held prior to the adjustment, and render him or her amenable to exclusion or deportation proceedings under sections
of the Act, as appropriate.
Ineligibility for immigration benefits
. An alien whose status is adjusted to that of a lawful temporary resident under
of this part is not entitled to submit a petition pursuant to
, nor is such alien entitled to any other benefit or consideration accorded under the Act to aliens lawfully admitted for permanent residence.
Declaration of intending citizen
. An alien who has been granted the status of temporary resident under
of this part 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.
Limitation on access to information and confidentiality
(i) No person other than a sworn officer or employee of the Department of Justice or bureau or agency thereof, will be permitted to examine individual applications. 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 Department of Justice or bureau or agency thereof
(ii) No information furnished pursuant to an application for temporary or permanent resident status under this section shall be used for any purpose except:
(A) To make a determination on the application; or,
(B) for the enforcement of the provisions encompassed in section
of the Act, except as provided in paragraph (b)(23)(iii) of this section.
(iii) 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.
(iv) Information contained in granted legalization files may be used by the Service at a later date to make a decision on an immigrant visa petition (or other status petition) filed by the applicant under section
, or for naturalization applications submitted by the applicant.
Adjustment from temporary to permanent resident status
. The provisions of
of this part shall be applied to aliens adjusting to permanent residence under this part. --
Application period for permanent residence
. An alien who has resided in the United States for a period of 18 months after the granting of temporary resident status may make application for permanent resident status during the 12-month period beginning on the day after the requisite 18 months of temporary residence has been completed. Applications for lawful permanent residence will be accepted at Service offices beginning on September 21, 1989.
The provisions of
of this part
. The provisions of this part shall be applied to aliens adjusting to permanent residence under this part.