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Book outline for Policy Manual
  • Policy Manual
    • Search
    • Updates
    • Table of Contents
    • Volume 1 - General Policies and Procedures
    • Volume 2 - Nonimmigrants
    • Volume 3 - Humanitarian Protection and Parole
    • Volume 4 - Refugees and Asylees
    • Volume 5 - Adoptions
    • Volume 6 - Immigrants
    • Volume 7 - Adjustment of Status
      • Part A - Adjustment of Status Policies and Procedures
      • Part B - 245(a) Adjustment
        • Chapter 1 - Purpose and Background
        • Chapter 2 - Eligibility Requirements
        • Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2))
        • Chapter 4 - Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8))
        • Chapter 5 - Employment-Based Applicant Not in Lawful Nonimmigrant Status (INA 245(c)(7))
        • Chapter 6 - Unauthorized Employment (INA 245(c)(2) and INA 245(c)(8))
        • Chapter 7 - Other Barred Adjustment Applicants
        • Chapter 8 - Inapplicability of Bars to Adjustment
      • Part C - 245(i) Adjustment
      • Part D - Family-Based Adjustment
      • Part E - Employment-Based Adjustment
      • Part F - Special Immigrant-Based (EB-4) Adjustment
      • Part G - Diversity Visa Adjustment
      • Part H - Reserved
      • Part I - Adjustment Based on Violence Against Women Act
      • Part J - Trafficking Victim-Based Adjustment
      • Part K - Crime Victim-Based Adjustment
      • Part L - Refugee Adjustment
      • Part M - Asylee Adjustment
      • Part N - Legalization
      • Part O - Registration
      • Part P - Other Adjustment Programs
      • Part Q - Rescission of Lawful Permanent Residence
      • Part R - Abandonment of Lawful Permanent Residence
    • Volume 8 - Admissibility
    • Volume 9 - Waivers and Other Forms of Relief
    • Volume 10 - Employment Authorization
    • Volume 11 - Travel and Identity Documents
    • Volume 12 - Citizenship and Naturalization
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  3. Volume 7 - Adjustment of Status
  4. Part B - 245(a) Adjustment
  5. Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2))

Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2))

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An applicant is barred from adjustment of status if the applicant is in an unlawful immigration status on the date of filing the adjustment application. [1] This bar to adjustment does not apply to: 

  • Immediate relatives; [2] 

  • Violence Against Women Act (VAWA)-based applicants;

  • Certain noncitizen doctors and their accompanying spouse and children; [3] 

  • Certain G-4 international organization employees, NATO-6 employees, and their family members; [4] 

  • Special immigrant juveniles; [5] 

  • Certain members of the U.S. armed forces and their spouses and children; [6] or

  • Employment-based applicants who meet the INA 245(k) exemption.

A. Lawful Immigration Status [7]

Noncitizens in the United States who are considered to be in lawful immigration status generally include:

  • Lawful permanent residents (LPR), including lawful temporary residents and conditional permanent residents;

  • Nonimmigrants; [8] 

  • Refugees; [9] 

  • ​Asylees; [10] 

  • Parolees; [11]  

  • Noncitizens in temporary protected status (TPS); and

  • Noncitizens lawfully present in the Commonwealth of the Northern Mariana Islands (CNMI) between November 28, 2009 and November 27, 2011 based on a valid, unexpired, and lawfully obtained period of stay that was CNMI-authorized prior to November 28, 2009 that remains valid on the date of adjustment application. 

Simply filing an application for an immigration benefit or having a pending benefit application generally does not put an applicant in a lawful immigration status. [12] In general, once an immigrant benefit application is approved, an applicant is in lawful immigration status as of the date of the filing of the application. 

B. Unlawful Immigration Status

A noncitizen is in unlawful immigration status if he or she is in the United States without lawful immigration status either because the noncitizen never had lawful status or because the noncitizen’s lawful status has ended. 

Noncitizens in unlawful immigration status generally include those:

  • Who entered the United States without inspection and admission or parole; [13] and

  • Whose lawful immigration status expired or was rescinded, revoked, or otherwise terminated. [14] 

C. Time in Unlawful Immigration Status

If in unlawful immigration status, the noncitizen’s unlawful status generally begins:

  • On the day the noncitizen enters the United States without inspection; 

  • ​On the day the noncitizen violates the terms or conditions of his or her nonimmigrant status; [15] or

  • ​On the day after the noncitizen’s authorized status has been violated, has expired, been rescinded, revoked, or otherwise terminated while he or she is physically present in the United States. [16] 

Unlawful immigration status generally ends when either of the following events occur, whichever is earlier:

  • The noncitizen obtains lawful immigration status, or

  • ​The noncitizen departs the United States.

D. Difference between Lawful Immigration Status and Period of Authorized Stay

Lawful immigration status is distinct from being in a period of authorized stay. Periods of authorized stay are only relevant when determining a noncitizen’s accrual of unlawful presence for inadmissibility purposes. [17] Although a noncitizen in a lawful immigration status is also in a period of authorized stay, the opposite is not necessarily true. Those in a period of authorized stay may or may not be in a lawful immigration status.

Officers consider the difference between lawful immigration status and a period of authorized stay when determining whether an applicant is in lawful immigration status for purposes of the INA 245(c)(2) adjustment bar.

E. Effect of Pending Application or Petition

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an applicant. In addition, a pending application or petition does not automatically afford protection against removal if the noncitizen’s status expires after submission of the application. The noncitizen may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved. 

1. Extension of Stay or Change of Status

A noncitizen may file an adjustment application after expiration of his or her nonimmigrant status while the noncitizen’s timely-filed EOS or COS application is pending. [18] In such cases, the officer should defer adjudication of the adjustment application until USCIS adjudicates the EOS or COS application so long as there are no other grounds for denial. 

If USCIS ultimately approves the EOS or COS application, then the noncitizen is considered to be in lawful immigration status on the date the adjustment application is filed. If USCIS denies the EOS or COS application, then the noncitizen is generally considered to be in unlawful immigration status as of the expiration of the noncitizen’s current nonimmigrant status and likewise on the date the adjustment application is filed. In this instance, the INA 245(c)(2) bar would apply, unless an exemption is available. 

The following scenario illustrates the distinction between lawful immigration status and a period of stay authorized by the Secretary of Homeland Security. The scenario provides an example of when an applicant may be considered to be in unlawful immigration status after filing multiple applications to extend and change status.

Example: Effect of Multiple Applications to Extend or Change Status 

Date

Event

September 28, 2007

A noncitizen is admitted to the United States as a B-2 nonimmigrant visitor.

March 16, 2008

An employer timely filed an L-1 petition (Petition for a Nonimmigrant Worker (Form I-129) for the B-2 nonimmigrant visitor, including a request on behalf of the nonimmigrant to change status to an L-1 nonimmigrant intracompany transferee nonimmigrant classification. 

March 28, 2008

The B-2 nonimmigrant visitor’s authorized stay expires, as indicated on the Arrival/Departure Record (Form I-94).

September 10, 2008

The noncitizen untimely filed an application to extend B-2 nonimmigrant visitor status after the employer receives a Request for Evidence (RFE) on the L-1 petition.

December 7, 2008

The RFE goes unanswered and USCIS denies the L-1 petition and the accompanying COS application.

January 11, 2009

The employer untimely files a second L-1 petition (Form I-129) for the noncitizen.

February 8, 2009

USCIS denies the noncitizen’s application to extend B-2 nonimmigrant visitor status because it was filed after the expiration of his authorized stay. 

February 11, 2009

USCIS approves the second L-1 petition (Form I-129) for the noncitizen but denies the accompanying application to change status from B-2 nonimmigrant visitor to L-1 because the noncitizen was out of status at the time the petition was filed. 

This example highlights that a noncitizen seeking an EOS or COS cannot indefinitely avoid any time out of or in violation of lawful status just because of a pending application to extend or change status. 

When USCIS denied the first L-1 petition and COS application on December 7, 2008, the applicant was out of B-2 status as of March 29, 2008. Even though USCIS ultimately denied the first L-1 petition and COS request, the petition was timely filed. Accordingly, the petition provided the noncitizen a period of authorized stay while the petition was pending from March 16, 2008 through final adjudication on December 7, 2008. 

Notwithstanding, the untimely filed application for extension of B-2 status did not provide the noncitizen any period of authorized stay. In addition, the applications and petitions filed did not grant any lawful status to the noncitizen or create a “bridge” of continuing lawful status stemming from the first timely filed petition.

2. Adjustment

A pending adjustment application does not put an applicant in a lawful immigration status. For example, if USCIS previously denied adjustment of status to an applicant and the applicant reapplies for adjustment, the period the first application was pending does not count as time spent in lawful immigration status.

3. Petition

A pending or approved petition does not confer lawful immigration status on the beneficiary. An immigrant petition merely classifies the beneficiary in a particular immigrant visa category, which forms the basis for the beneficiary’s adjustment application.

Footnotes


[^ 1] See INA 245(c)(2). See 8 CFR 245.1(b)(5). This chapter only addresses one of the three immigration violations described in the INA 245(c)(2) bar. For more information on the other two immigration violations, see Chapter 4, Status and Nonimmigrant Visa Violations - INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4] and Chapter 6, Unauthorized Employment – INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.6].

[^ 2] See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and noncitizens admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.

[^ 3] See INA 101(a)(27)(H). 

[^ 4] See INA 101(a)(27)(I). 

[^ 5] See INA 101(a)(27)(J). 

[^ 6] See INA 101(a)(27)(K). 

[^ 7] See 8 CFR 245.1(d).

[^ 8] See INA 101(a)(15).

[^ 9] See INA 207.

[^ 10] See INA 208.

[^ 11] See INA 212(d)(5)(A).

[^ 12] For more information, see Section E, Effect of Pending Application or Petition [7 USCIS-PM B.3(E)].

[^ 13] USCIS systems may indicate an entry without inspection as “EWI.”

[^ 14] For example, a noncitizen who was admitted as a nonimmigrant is in an unlawful status if the noncitizen has violated any of the terms or conditions of the nonimmigrant status – such as by engaging in unauthorized employment, termination of the employment that was the basis for the nonimmigrant status, failing to maintain a full course of study, or engaging in conduct specified in 8 CFR 212.1(e)-(g). The noncitizen’s status also becomes unlawful if the noncitizen remains in the United States after DHS terminates the noncitizen’s nonimmigrant status under 8 CFR 214.1(d).

[^ 15] The relevant terms or conditions include those that apply to all nonimmigrants, such as 8 CFR 214.1(e)-(g), as well as those that apply to the specific nonimmigrant classification. For example, a B-2 visitor who worked without authorization and an F-1 student who failed to maintain a full course of study would both be out of status. 

[^ 16] Extension of stay or change of status applications, once approved, may retroactively confer lawful immigration status. For more information, see Section E, Effect of Pending Application or Petition [7 USCIS-PM B.3(E)].

[^ 17] See INA 212(a)(9)(B) and INA 212(a)(9)(C). Those in a period of stay authorized are protected from accruing unlawful presence. For example, a noncitizen whose adjustment of status application is pending is in a period of stay authorized and does not accrue unlawful presence. However, although a noncitizen is in a period of stay authorized, it may be that the noncitizen is in unlawful status. See Section E, Effect of a Pending Application or Petition [7 USCIS-PM B.3(E)].

[^ 18] In some cases, USCIS may excuse untimely filing and approve an extension of stay or change of status request. For more information, see Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8), Section E, Exceptions, Subsection 3, Effect of Extension of Stay and Change of Status [7 USCIS-PM B.4(E)(3)].

Resources

Legal Authorities

8 CFR 208.24 - Termination of Asylum

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

Forms

AR-11, Change of Address

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-129, Petition for Nonimmigrant Worker

I-539, Application To Extend/Change Nonimmigrant Status Application To Extend/Change Nonimmigrant Status

Other Materials

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

No appendices available at this time.

Updates

Technical Update - Replacing the Term “Alien”

May 11, 2021

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, 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”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

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

May 21, 2020

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, 350.49 KB) between the AFM and the Policy Manual.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

Technical Update - Replacing the Term “Foreign National”

October 08, 2019

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”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

POLICY ALERT - Use of Form G-325A

October 25, 2018

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
Affected Sections

7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures

7 USCIS-PM B - Part B - 245(a) Adjustment

7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment

7 USCIS-PM L - Part L - Refugee Adjustment

7 USCIS-PM M - Part M - Asylee Adjustment

7 USCIS-PM O - Part O - Registration

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

February 25, 2016

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
Affected Sections

7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures

7 USCIS-PM B - Part B - 245(a) Adjustment

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