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Chapter 1 - Purpose and Background

A. Purpose

Section 245 of the Immigration and Nationality Act (INA) allows certain aliens who are physically present in the United States to adjust status to that of a lawful permanent resident (LPR). Most adjustment applicants file their adjustment of status applications based on INA 245(a)

B. Background

The Immigration Act of 1924 required all intending immigrants to obtain an immigrant visa at a U.S. embassy or consulate abroad [1] (commonly known as “consular processing”). An alien physically present in the United States could not become an LPR without leaving the United States to consular process abroad.

By 1935, immigration authorities had developed an administrative process of “pre-examination” that enabled an alien temporarily in the United States to obtain LPR status more quickly and easily. [2] Pre-examination consisted of an official determination in the United States of the alien’s eligibility for an immigrant visa, the immigrant’s travel to Canada or elsewhere for an arranged immigrant visa appointment at a U.S. consulate, and the immigrant’s prompt return and admission to the United States as a LPR. From 1935 to 1950, the government processed over 45,000 pre-examination cases. [3] 

In 1952, Congress made the pre-examination process unnecessary by creating INA 245, which allowed eligible aliens to obtain LPR status through adjustment of status without leaving the United States. [4] Congress indicated that adjustment should be used for purposes of family unity or otherwise be in the public interest. [5] 

Over time, Congress revised and consolidated the eligibility requirements for adjustment of status into the current INA 245(a). The bars, restrictions, and special considerations to adjustment are found in INA 245(c) through INA 245(k). Applicable inadmissibility grounds, including public safety and security concerns are found in INA 212

C. Scope

The guidance in this Policy Manual part only addresses adjustment of status under INA 245(a). [6] Certain aliens may be eligible to adjust under other provisions of law, as detailed in other parts of this volume.

D. Legal Authorities

  • INA 245(a)8 CFR 245 – Adjustment of status to that of person admitted for permanent residence

  • INA 245(c) – Bars to adjustment of status

  • INA 245(k) – Inapplicability of certain provisions for certain employment-based immigrants

Footnotes


[^ 1] See Section 13 of the Immigration Act of 1924, Pub. L. 68-139 (May 26, 1924).

[^ 2] See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, Section 7.3a. See Jain v. Immigration and Naturalization Service, 612 F.2d 683 (2nd Cir. 1979).

[^ 3] See Sofaer, The Change of Status Adjudication: A Case Study of the Informal Agency Process, 1 J. Legal Studies 349, 351 (1971).

[^ 4] See Section 245 of the Immigration and Nationality Act of 1952, Pub. L. 82-414 (PDF) (June 27, 1952).

[^ 5] See H.R. Rep. 82-1365 (Feb. 14, 1952).

[^ 6] There are many statutory bases for adjustment. For instance, refugees and asylees may adjust status under INA 209(c), which outlines slightly different rules and requirements for adjustment than under INA 245(a). The basis under which an applicant seeks adjustment of status is therefore key in determining the eligibility requirements for adjustment as well as exceptions, exemptions, waivers, and any other program-specific laws or benefits that may apply.

Resources

Legal Authorities

INA 212(a) - Excludable aliens; classes of aliens ineligible for visas or admission

INA 245(a) - Adjustment of status

INA 245(c) - Bars to adjustment of status

INA 245(k) - Inapplicability of certain provisions for certain employment-based immigrants

INA 2458 CFR 245 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence

Appendices

No appendices available at this time.

Updates

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

POLICY ALERT - Use of Form G-325A

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A).

Read More
POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA).

Read More