Chapter 3 - Filing Instructions
A. Form Instructions
An alien typically applies for adjustment of status using the Application to Register Permanent Residence or Adjust Status (Form I-485). An applicant must file the adjustment application according to the instructions and regulations in existence at the time of filing. The form instructions have the same force as a regulation and provide detailed information an applicant must follow.[1] Therefore, an applicant should access the most recent version of the form on USCIS.gov prior to filing.
B. Definition of Properly Filed
An applicant must properly file the adjustment application. Properly filed refers to an adjustment application filed:
- At the correct filing location with the correct filing fees, unless granted a waiver;[2]
- With the proper signature of the applicant; and
- When an immigrant visa is immediately available.[3]
If the application is filed without meeting these requirements, USCIS rejects and returns the application. The application is not considered properly filed until it has been given a receipt date (stamped to show the actual date of receipt) by the proper location with jurisdiction over the application, including a USCIS Lockbox. Applications that are rejected and returned to the applicant do not retain a filing date.[4]
1. Filing Location
The filing location for an adjustment application is based on the filing category of the applicant. An applicant must verify the filing location by accessing current instructions on USCIS.gov prior to filing. USCIS may relocate an application filed at the wrong location at its discretion or reject the application for improper filing.
2. Signature Requirements
All applications must be properly signed by the applicant.[5]
| Acceptable | Unacceptable |
|---|---|
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3. Visa Availability Requirement
Generally, aliens seeking adjustment under INA 245(a) may only file an adjustment application when an immigrant visa number is available in the classification under which they qualify.[9]
Immediate relatives of U.S. citizens are not subject to numerical limitations. Therefore, an immigrant visa is always immediately available to immediate relatives at the time they file an adjustment application.
In contrast, applicants seeking adjustment under an employment-based or family-based preference category must generally wait until a visa is immediately available before they may file their adjustment application.[10] These applicants can determine if a visa is available and when to file their adjustment application by referring to the U.S. Department of State (DOS) Visa Bulletin.
A new Visa Bulletin is published on a monthly basis. DOS posts two charts per visa preference category in each month’s DOS Visa Bulletin:
- Application Final Action Dates chart, which provides dates when visas may finally be issued; and
- Dates for Filing Applications chart, which provides the earliest dates when applicants may be able to apply.
In general, adjustment applicants must use the Application Final Action Dates chart to determine whether a visa is available. However, if USCIS determines there are immigrant visas available for the filing of additional adjustment applications, the Dates for Filing Applications chart may be used to determine when to file an adjustment of status application with USCIS.[11] USCIS and DOS provide information on which chart should be used in a particular month on the Adjustment of Status Filing Charts from the Visa Bulletin webpage and DOS Visa Bulletin.
C. Concurrent Filings[12]
In general, the beneficiary of an immigrant visa petition may file for adjustment of status only after USCIS has approved the petition and a visa is available. In certain instances, the beneficiary may file an adjustment application together or concurrently with the underlying immigrant petition.
Concurrent filing of the adjustment application is possible only where approval of the underlying immigrant petition would make a visa number immediately available. Concurrent filing of the adjustment application is permitted in the following immigrant categories:
- Family-based immigrants, including immediate relatives, and widow(er)s of a U.S. citizen;
- Violence Against Women Act (VAWA) self-petitioner;
- Employment-based immigrants in the 1st, 2nd, 3rd, or 5th preference categories;
- Special immigrant Amerasians;
- Special immigrant juveniles;
- G-4 international organization employees, NATO-6 employees, and certain family members; and
- Certain members of the U.S. armed forces.
D. Jurisdiction
USCIS has the legal authority to adjudicate most adjustment of status cases, including applications by aliens who have been placed in deportation or removal proceedings as “arriving aliens.”[13] An immigration judge (IJ) of the Executive Office for Immigration Review (EOIR) has jurisdiction in all other cases where an applicant is in removal proceedings, even if the proceedings have been administratively closed or if there is a final order of deportation or removal which has not yet been executed.[14] As an exception to the general rule regarding “arriving aliens,” the IJ also has jurisdiction over an application filed by an alien who has been placed in deportation or removal proceedings as an “arriving alien” when all of the following conditions apply:
- The adjustment application was properly filed with USCIS while the applicant was in the United States;
- The applicant departed from and returned to the United States based on a grant of an advance parole document to pursue the previously filed adjustment application;
- USCIS denied the adjustment application;
- DHS placed the applicant in removal proceedings as an “arriving alien” either upon return to the United States on the advance parole document or after USCIS denied the adjustment application; and
- The applicant is seeking to renew the previously denied application for adjustment of status in proceedings.[15]
The IJ has jurisdiction only with respect to the application filed before the applicant left with the advance parole document. If the applicant is pursuing a new application for adjustment of status based on a new ground such as a new petition, the IJ does not have jurisdiction over the new claim. USCIS has jurisdiction over the application, even if the applicant was placed in proceedings after having been paroled into the United States to pursue a previously filed application for adjustment of status that was ultimately denied by USCIS.
USCIS has jurisdiction to adjudicate an adjustment application when the IJ does not have jurisdiction, including when an alien placed in removal proceedings as an “arriving alien” does not meet all of the above criteria.[16] USCIS continues to retain jurisdiction over such an alien’s adjustment application even if the alien has an unexecuted final order of removal.[17] A removal order is considered executed once immigration authorities remove the alien from the United States or the alien departs from the United States.[18]
Effect of Departure
In general, adjustment applicants who depart the United States abandon their applications unless USCIS previously granted them advance parole for such absences.[19] However, USCIS does not consider a TPS beneficiary to have abandoned the adjustment application if the beneficiary travels with authorization under INA 244(f)(3) and, upon returning to the United States, is admitted into TPS under the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991.[20]
Footnotes
[^ 1] See 8 CFR 103.2(a)(1).
[^ 2] See 8 CFR 103.2(a)(1). See Volume 1, General Policies and Procedures, Part B, Submission of Benefits Requests, Chapter 3, Fees [1 USCIS-PM B.3] and Chapter 4, Fee Waivers [1 USCIS-PM B.4]. See Fee Schedule (Form G-1055).
[^ 3] See INA 245(a)(3) and 8 CFR 245.2(a)(2).
[^ 4] See 8 CFR 103.2(a)(7).
[^ 5] For more information on signature requirements, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].
[^ 6] Must contain evidence (such as a physician's statement) indicating that the durable POA is in effect as a result of the person's disability.
[^ 7] For benefit requests filed electronically as permitted by form instructions, USCIS accepts signatures in an electronic format. Benefit requestors must follow the instructions provided to properly sign electronically, see 8 CFR 103.2(a)(2).
[^ 8] In certain instances, a stamped signature may be allowed as provided by the form instructions.
[^ 9] For more information, see Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
[^ 10] USCIS rejects adjustment applications filed before a visa number is available. See 8 CFR 245.2(a)(2).
[^ 11] USCIS considers several factors to determine if there is a greater supply of visas than the demand for those visas. To determine visa availability, USCIS compares the number of visas available for the remainder of the fiscal year with documentarily qualified visa applications reported by DOS; pending adjustment of status applications reported by USCIS; and historical drop-off rate of applicants for adjustment of status (for example, denials, withdrawals, and abandonments).
[^ 12] See 8 CFR 245.2(a)(2)(i)(B) and 8 CFR 245.2(a)(2)(i)(C).
[^ 13] See 8 CFR 245.2(a)(1). See 8 CFR 1245.2(a)(1). See 8 CFR 1.2 for definition of an “arriving alien.”
[^ 14] A temporary protected status (TPS) beneficiary who obtains USCIS’ authorization to travel abroad temporarily (as evidenced by a travel authorization document issued under 8 CFR 244.15(a)) must be admitted into TPS upon return to the United States in accordance with such authorization, unless DHS determines the beneficiary is inadmissible based on certain criminal and security bars (TPS bars) listed in INA 244(c)(2)(A)(iii). See Section 304(c)(1)(A)(ii) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. 102-232 (PDF), 105 Stat. 1733, 1749 (December 12, 1991), as amended. A TPS beneficiary in pending removal proceedings at the time of departure remains a TPS beneficiary in removal proceedings upon authorized reentry into the United States under MTINA, unless those proceedings have been otherwise terminated. See Section 304(c)(1)(A)(ii) of MTINA, Pub. L. 102-232 (PDF), 105 Stat. 1733, 1749 (December 12, 1991), as amended. See Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022). The TPS-authorized travel does not, itself, change whether or not the beneficiary has been placed in proceedings “as an arriving alien,” and therefore does not affect jurisdiction over the adjustment application. However, a TPS beneficiary who met the definition of an “arriving alien” at the time of departure on authorized travel would no longer be an arriving alien if DHS admits the TPS beneficiary into TPS under MTINA upon return. See 8 CFR 1.2. See Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022). Consequently, if DHS places the beneficiary into removal proceedings after returning from authorized travel, USCIS would not have jurisdiction over the adjustment application.
[^ 15] See 8 CFR 1245.2(a)(1)(ii).
[^ 16] See 8 CFR 245.2(a)(1).
[^ 17] See Matter of Yauri (PDF), 25 I&N Dec. 103 (BIA 2009).
[^ 18] See INA 101(g). However, in the case of a TPS beneficiary with an outstanding final removal order, travel abroad does not execute the removal order if the beneficiary received prior authorization to travel under INA 244(f)(3) and DHS admitted the beneficiary into TPS under MTINA upon return to the United States. See Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022).
[^ 19] See 8 CFR 245.2(a)(4)(ii). In certain circumstances, a departure does not cause abandonment of the adjustment application. See 8 CFR 245.2(a)(4)(ii)(B)-(D).
[^ 20] See Section 304(c)(1)(A)(ii) of MTINA, Pub. L. 102-232 (PDF), 105 Stat. 1733, 1749 (December 12, 1991).