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Policy Manual
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INA
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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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  4. Part B - 245(a) Adjustment
  5. Chapter 5 - Employment-Based Applicant Not in Lawful Nonimmigrant Status (INA 245(c)(7))

Chapter 5 - Employment-Based Applicant Not in Lawful Nonimmigrant Status (INA 245(c)(7))

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  • Updates (5)
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Any employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing for adjustment is barred from adjusting status, even if the applicant is lawfully present in the United States. [1] For example, a parolee is barred from seeking employment-based adjustment, because a parolee is not a lawful nonimmigrant status. [2] 

Employment-based applicants may be eligible for exemption from this bar under INA 245(k). [3] The INA 245(c)(7) bar also does not apply to Violence Against Women Act (VAWA)-based applicants, immediate relatives, family-based applicants, special immigrant juveniles, or certain members of the U.S. armed forces because these applicants are not seeking adjustment as employment-based applicants. [4] 

For purposes of this bar to adjustment, the term “lawful nonimmigrant status” refers to: 

  • An applicant in a lawful status classified under the nonimmigrant statutory provisions; [5] and

  • An applicant in temporary protected status. [6] 

Lawful nonimmigrant status does not include parolees, asylees, or certain other noncitizens who are otherwise authorized to be physically present in the United States. 

Period of Time to Consider and Effect of Departure

In determining whether this adjustment bar applies, an officer should only consider the applicant’s immigration status on the date the applicant filed the current adjustment application. Any time the applicant was not in lawful status prior to filing the adjustment application is irrelevant for INA 245(c)(7) purposes. 

Furthermore, this bar does not apply to applicants who were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. Advance parole simply allows the applicant to resume the processing of the adjustment application without abandoning the application because of a brief departure. 

The examples below highlight when this adjustment bar applies and when it does not apply.

Example: Effect of Current and Prior Immigration Status on INA 245(c)(7) Bar

Date

Event

April 26, 2009

A noncitizen is admitted as a B-2 nonimmigrant visitor and departs the United States on August 5, 2009.

September 2, 2009

The noncitizen is paroled into the United States on public interest grounds until September 1, 2010.

December 20, 2009

The noncitizen is approved as the beneficiary of a second-preference employment-based immigrant visa petition on December 20, 2009.

January 7, 2010

The noncitizen files an adjustment of status application on January 7, 2010.

In this case, even though the applicant had previously been a B-2 nonimmigrant, the applicant was a parolee at the time of filing for adjustment of status. Therefore, INA 245(c)(7) bars the applicant from adjustment of status as the beneficiary of an employment-based petition. 

Example: Effect of No Lawful Status on INA 245(c)(7) Bar

Date

Event

January 2, 2008

A noncitizen is admitted as an H-2B nonimmigrant.

January 1, 2009

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

April 1, 2009

A company files an employment-based immigrant visa petition for the noncitizen concurrently with the filing of an adjustment of status application.

In this case, the applicant stayed past the time authorized to remain in the United States and was not in a valid nonimmigrant status at the time his adjustment application is filed. INA 245(c)(7) bars the applicant from adjusting status under an employment basis. The applicant, however, may qualify for the INA 245(k) exemption. [7] 

Example: Effect of Departure Following Grant of Advance Parole on INA 245(c)(7) Bar

Date

Event

January 2, 2008

A noncitizen is admitted as an H-2B nonimmigrant.

March 2, 2008

A company files an employment-based petition for the H-2B nonimmigrant concurrently with the following applications: adjustment of status, advance parole, and employment authorization. 

April 1, 2008

The H-2B nonimmigrant has a family emergency and needs to travel back to her home country. 

May 1, 2008

USCIS grants the H-2B nonimmigrant’s advance parole application. 

June 1, 2008

The H-2B nonimmigrant returns to the United States using her advance parole document.

August 1, 2008

USCIS approves the H-2B nonimmigrant’s adjustment application.

January 1, 2009

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

In this instance, the adjustment application is properly filed before expiration of the applicant’s H-2B nonimmigrant status. Even though the adjustment applicant departs and returns to the United States using the advance parole document, the INA 245(c)(7) bar does not apply to the applicant. 

Footnotes


[^ 1] See 8 CFR 245.1(b)(9). 

[^ 2] This bar does not apply to applicants who were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States on advance parole, and subsequently were paroled into the United States upon return while the adjustment application remains pending. The parole simply allows the applicant to resume the processing of the adjustment application without having the application considered abandoned due to a brief departure. See 62 FR 39417, 39421 (PDF) (Jul. 23, 1997).

[^ 3] See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

[^ 4] See 8 CFR 245.1(b)(9).

[^ 5] See INA 101(a)(15).

[^ 6] See INA 244(f)(4). See 8 CFR 244.10(f)(2)(iv)-(v). 

[^ 7] See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

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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