Chapter 3 - Filing Instructions
A noncitizen 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. 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;
With the proper signature of the applicant; and
When an immigrant visa is immediately available.
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.
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.
An adjustment of status applicant must submit the proper fees for both the application and collection of biometrics as specified in the form instructions, unless a fee waiver has been granted. Biometrics fees are not required for applicants under 14 years of age or 79 years of age or older at time of filing. If an applicant turns 14 after the adjustment application is submitted but prior to final adjudication, USCIS notifies the applicant of the requirement to submit the biometric fee.
In order to lessen the financial burden on families with multiple family members applying for adjustment at the same time, children under 14 years of age filing together with at least one parent pay a lower fee. Adjustment applicants filing based on their refugee status are not required to pay any fees.
While adjustment application fees are not generally waived, adjustment applicants in certain categories may apply for a fee waiver due to their inability to pay. An applicant seeking a fee waiver should submit, with the adjustment application, a Request for Fee Waiver (Form I-912) or a written request, along with any required evidence of the applicant’s inability to pay the filing fee.
Refugees adjusting status are automatically exempt from paying the adjustment of status filing fee and biometric services fee and are not required to demonstrate inability to pay.
If USCIS denies a fee waiver request, USCIS rejects the application as improperly filed.
All applications must be properly signed by the applicant.
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. 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. 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
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, or 3rd 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.
USCIS has the legal authority to adjudicate most adjustment of status cases. An immigration judge (IJ) of the Executive Office for Immigration Review (EOIR) has jurisdiction in certain situations. Except if the applicant is an "arriving alien," the IJ (and not USCIS) has jurisdiction if 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.
The IJ does not have jurisdiction of applications filed by noncitizens in deportation or removal proceedings if they are determined to be arriving aliens. However, there is one exception to this general rule as well. The IJ has jurisdiction over an adjustment application filed by an arriving alien in deportation or removal proceedings if all of the following apply:
The adjustment application was properly filed with USCIS while the arriving alien 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 arriving alien in removal proceedings 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 his or her previously denied application for adjustment of status in proceedings.
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 arriving aliens do not meet all of the above criteria. USCIS continues to retain jurisdiction over such an arriving alien’s adjustment application even if the applicant has an unexecuted final order of removal. A removal order is considered executed once immigration authorities remove the noncitizen from the United States or the noncitizen departs from the United States.
Effect of Departure
In general, an adjustment applicant who departs the United States abandons his or her application unless USCIS previously granted them advance parole for such absences.
[^ 11] 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.
[^ 12] 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).
[^ 13] In certain instances, a stamped signature may be allowed as provided by the form instructions.
[^ 16] 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).
[^ 19] A TPS beneficiary who obtains USCIS’ authorization to travel abroad temporarily (as evidenced by an advance parole document issued under 8 CFR 244.15(a)) and who returns to the United States in accordance with such authorization “shall be inspected and admitted in the same immigration status the alien had at the time of departure” unless the noncitizen is determined to be 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. Therefore, unless those TPS bars apply, the TPS beneficiary, upon return to the United States, resumes the exact same immigration status and circumstances as when he or she left the United States. For example, if the TPS beneficiary had an outstanding, unexecuted final order of removal at the time of departure, then he or she, upon lawful return, remains a TPS beneficiary who continues to have an outstanding, unexecuted final order of removal. Similarly, if the TPS beneficiary was in removal proceedings at the time of departure but did not have a final order of removal, then he or she remains a TPS beneficiary in removal proceedings upon lawful return, 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.
[^ 22] See INA 101(g). However, in the case of a TPS beneficiary with an outstanding final removal order, the beneficiary’s departure does not execute the removal order if he or she received prior authorization to travel and departed and returned with a valid advance parole document.