Chapter 7 - Other Barred Adjustment Applicants

There are additional classes of applicants barred from adjusting status. When determining whether the bars below apply, an officer should only consider the applicant’s current period of stay since the most recent admission into the United States prior to filing his or her adjustment application, unless the applicant is a noncitizen removable for engagement in terrorist activity. 

When reviewing whether the bar for noncitizens removable for engagement in terrorist activity applies, an officer should examine every entry, admission, and time spent in the United States by the applicant. It is irrelevant how much time has passed since each entry or whether the applicant subsequently left the United States and returned lawfully. 

A. Crewmen

A nonimmigrant crewman is barred from adjusting status. [1] This bar applies to an applicant serving as a crewman who is permitted to land as a D-1 or D-2 nonimmigrant, as shown on the applicant’s Arrival/Departure Record (Form I-94) or Crewman’s Landing Permit (Form I-95), and by the corresponding visa contained in the crewman’s passport. The bar also applies to an applicant who was admitted as a C-1 nonimmigrant to join a crew. [2] 

In addition, the applicant’s service as a crewman is controlling regardless of the applicant’s actual nonimmigrant status, if any. For example, an applicant admitted in B-2 nonimmigrant visitor status while serving as a crewman is barred from adjustment. [3] The bar applies even if the applicant was not employed as a crewman in the sense of serving as a crewman for pay. [4] The bar does not apply, however, to Violence Against Women Act (VAWA)-based applicants.

B. Noncitizen Admitted in Transit Without Visa

Any noncitizen admitted to the United States in transit without a visa (TWOV) is barred from adjusting status. [5] This bar does not apply to a noncitizen who was admitted as a transit noncitizen with a C-1 or C-2 or C-3 nonimmigrant visa. 

On August 2, 2003, DHS and the Department of State suspended the TWOV program. On August 7, 2003, DHS published an interim rule implementing the suspension. [6] Noncitizens who transit through the United States after that date are required to obtain a C nonimmigrant visa. [7] Thus, the bar does not apply to a noncitizen (other than crewmen) admitted as a C-1 or C-2 or C-3 nonimmigrant if the noncitizen had a C-1, C-2, or C-3 nonimmigrant visa in order to transit through the United States. Nevertheless, INA 245(c)(3) still bars an applicant who, in fact, was admitted as a TWOV when he or she last came to the United States. The bar does not apply, however, to VAWA-based applicants. 

C. Visa Waiver Programs

A noncitizen admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status. [8]Similarly, a noncitizen admitted as a nonimmigrant without a visa to Guam or to the CNMI is barred from adjustment of status. [9] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants.

D. Noncitizen Admitted as Witness or Informant

A noncitizen admitted to the United States as an informant of terrorist or criminal activity (S nonimmigrant) is barred from adjusting status. [10] The state or federal law enforcement agency (LEA) that originally requested the noncitizen’s S nonimmigrant status may request that the S nonimmigrant be allowed to adjust status to that of a lawful permanent resident. The LEA initiates this special process through a filing with the Department of Justice. [11] Noncitizens admitted as S nonimmigrants are prohibited from seeking adjustment of status apart from this process. The bar does not apply, however, to VAWA-based applicants.

E. Noncitizen Removable for Engagement in Terrorist Activity

A noncitizen is barred from adjusting status if:

  • He or she is deportable for having engaged in or incited terrorist activity;

  • ​He or she has been a member of or received military training from a terrorist organization; or

  • ​He or she has been associated with terrorist organizations, and he or she intends to engage in such activities while in the United States that could endanger the welfare, safety, or security of the United States. [12] 

The officer should consider all entries and time periods spent inside the United States when determining whether this bar applies. Furthermore, any restricted activity, whether it occurs before or after an applicant files the adjustment application, bars the applicant from adjusting status. Finally, in addition to the adjustment bar, the applicant may also be inadmissible for such activity. [13] While the bar does not apply to VAWA-based applicants, VAWA-based applicants may still be inadmissible for such activity.

F. Nonimmigrant Admitted as Fiancé(e) of U.S. Citizen

A nonimmigrant fiancé(e) of a U.S. citizen cannot adjust status except on the basis of the marriage to the U.S. citizen who filed a Petition for Alien Fiancé(e) (Form I-129F) on behalf of the fiancé(e). [14] Likewise, a child of the fiancé(e) may only adjust on the basis of his or her parent’s marriage to the U.S. citizen petitioner. [15] 

​The terms of the nonimmigrant fiancé(e) status require that the nonimmigrant fiancé(e) marry the petitioner within 90 days after becoming a nonimmigrant. [16] Furthermore, if the nonimmigrant has not been married for two years or more at the time of adjustment, the nonimmigrant fiancé(e) and any children of the fiancé(e) may only obtain permanent residence on a conditional basis. [17] 

Marriage Legally Terminated

A nonimmigrant fiancé(e) who contracts a valid and bona fide marriage to the U.S. citizen petitioner within the requisite 90-day time period remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether the nonimmigrant fiancé(e) remarries thereafter.[18] The applicant remains subject to all conditional permanent residency requirements, if applicable. [19] 

G. Conditional Permanent Residents

In general, a noncitizen granted lawful permanent resident status on a conditional basis[20] is ineligible to adjust status on a new basis under the provisions of INA 245(a).[21] Instead, conditional permanent residents (CPRs) must generally comply with the requirements of INA 216 or 216A to remove the conditions on their lawful permanent resident status.[22]

This bar to adjustment, however, only applies to a noncitizen in the United States in lawful CPR status. In Matter of Stockwell (PDF),[23] the Board of Immigration Appeals adopted a narrow interpretation of the regulation implementing this adjustment bar,[24] stating that the bar no longer applies if USCIS terminates the noncitizen’s CPR status.[25]

USCIS can terminate CPR status for reasons specified in INA 216 or INA 216A. [26] Although the immigration judge may review the termination in removal proceedings, the bar no longer applies upon USCIS terminating the CPR status; it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the noncitizen’s CPR status before the noncitizen may file a new adjustment application.

Therefore, under INA 245(a), USCIS may adjust the status of a noncitizen whose CPR status was previously terminated, if:[27]

  • The noncitizen has a new basis for adjustment;

  • The noncitizen is otherwise eligible to adjust;[28] and

  • USCIS has jurisdiction over the adjustment application.[29]

When seeking adjustment of status again, the applicant may not reuse the immigrant petition associated with the previous CPR adjustment or admission. Therefore, the applicant must have a new basis to adjust.

An applicant seeking to adjust status again who was admitted as a fiancé(e) (K nonimmigrant) may only re-adjust based on an approved Petition for Alien Relative (Form I-130) filed by the same U.S. citizen who filed the Petition for Alien Fiancé(e) (Form I-129F) on his or her behalf.[30]

The applicant must also be otherwise eligible to adjust status including not being inadmissible or barred by INA 245(c).

Adjudication and Decision

If the applicant successfully adjusts status on a new basis, USCIS generally considers the date of admission to be the date USCIS approved the subsequent adjustment application.[31] Time spent in the prior CPR status does not count toward the residency requirement for naturalization purposes.[32]

If USCIS determines the applicant is not eligible to adjust, USCIS denies the application.[33] USCIS officers should follow current agency guidance on issuing a Notice to Appear after denying the application.[34]

Footnotes


[^ 1] See INA 245(c)(1)

[^ 2] See Matter of Tzimas (PDF), 10 I&N Dec. 101 (BIA 1962).

[^ 3] See Matter of Campton (PDF), 13 I&N Dec. 535, 538 (BIA 1970). See Matter of G-D-M- (PDF), 25 I&N Dec. 82 (BIA 2009) (service as crewman, not nonimmigrant status, is controlling for determining eligibility for non-lawful permanent resident cancellation).

[^ 4] See Matter of Campton (PDF), 13 I&N Dec. 535, 538 (BIA 1970).

[^ 5] See INA 245(c)(3).

[^ 6] See 68 FR 46926 (PDF) (Aug. 7, 2003).

[^ 7] See INA 101(a)(15)(C). See 68 FR 46926, 46926-28 (PDF) (Aug. 7, 2003). See 68 FR 46948, 46948-49 (PDF) (Aug. 7, 2003).

[^ 8] See INA 217. See INA 245(c)(4).

[^ 9] See INA 212(l). See INA 245(c)(4).

[^ 10] See INA 245(c)(5).

[^ 11] See INA 245(j). See 8 CFR 245.11.

[^ 12] See INA 245(c)(6). See INA 237(a)(4)(B). See INA 212(a)(3)(B) and INA 212(a)(3)(F). See INA 212(a)(3)(B) in general for definitions related to terrorist activities and exceptions.

[^ 13] See INA 212(a)(3).

[^ 14] See INA 101(a)(15)(K). See INA 245(d).

[^ 15] See INA 245(d)

[^ 16] See INA 214(d). See INA 101(a)(15)(K).

[^ 17] See INA 245(d) and INA 216. See Matter of Sesay (PDF), 25 I&N Dec. 431 (2011).

[^ 18] See Matter of Sesay (PDF), 25 I&N Dec. 431 (2011). See Matter of Dixon (PDF), 16 I&N Dec. 355 (BIA 1977). See Matter of Blair (PDF), 14 I&N Dec. 153 (Reg. Comm.1972). The marriage upon which the noncitizen obtained K nonimmigrant status must have been bona fide, even if it was terminated, in order to adjust status. See Lutwak v. United States, 344 U.S. 604 (1953). See Matter of Laureano (PDF), 19 I&N Dec. 1 (BIA 1983). If the evidence would permit a reasonable fact finder to conclude that the marriage was not bona fide, adjustment would properly be denied. It is necessary to follow the standard procedure in 8 CFR 103.2(b)(16) before denying adjustment based on evidence of which the applicant may not be aware. 

[^ 19] See INA 245(d) and INA 216

[^ 20] See INA 216 and INA 216A.

[^ 21] See INA 245(d) and INA 245(f). See 8 CFR 245.1(c)(5).

[^ 22] See Petition to Remove the Conditions on Residence (Form I-751) and Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829).

[^ 23] See Matter of Stockwell (PDF), 20 I&N Dec. 309 (BIA 1991).

[^ 24] See 8 CFR 245.1(c)(5) (previously 8 CFR 245.1(b)(12), which Matter of Stockwell cites to).

[^ 25] The same is also true if the noncitizen loses his or her CPR status, for example, through abandonment, rescission, or the entry of an administratively final order of removal. See INA 246 and 8 CFR 1.2.

[^ 26] USCIS issues a Notice to Appear upon termination. See 8 CFR 216.3(a), 216.4(b)(3), 216.4(d)(2), 216.5(f), 216.6(a)(5), 216.6(b)(3), and 216.6(d)(2). A noncitizen whose CPR status is terminated by USCIS may request an immigration judge review that termination decision during removal proceedings.

[^ 27] If a noncitizen’s adjustment application was denied before the effective date of this guidance, November 21, 2019, the noncitizen may file a new adjustment application (unless he or she is still able to timely file a motion to reopen or reconsider) for USCIS to adjudicate his or her application based on this guidance. See Notice of Appeal or Motion (Form I-290B) for more information.

[^ 28] For general information on eligibility for adjustment, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A].

[^ 29] Once removal proceedings have commenced, jurisdiction over an application for adjustment of status generally rests with the Executive Office for Immigration Review (EOIR). Therefore, USCIS generally does not have jurisdiction to adjudicate adjustment applications for applicants in removal proceedings, unless EOIR subsequently terminates those proceedings. Additionally, it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate CPR status before the new adjustment application may be filed. For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section D, Jurisdiction [7 USCIS-PM A.3(D)]. 

[^ 30] See INA 245(d) and 8 CFR 245.1(c)(6). See Caraballo-Tavera v. Holder, 683 F.3d 49 (2nd Cir. 2012). However, a K-1 nonimmigrant who is subsequently granted U nonimmigrant status (for victims of qualifying criminal activity) or T nonimmigrant status (for victims of a severe form of trafficking in persons) while in the United States may apply to adjust status based on any eligibility category that applies to him or her. See INA 248(b).

[^ 31] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 11, Decision Procedures, Section A, Approvals, Subsection 1, Effective Date of Permanent Residence [7 USCIS-PM A.11(A)(1)].

[^ 32] For more information, see Volume 12, Citizenship and Naturalization, Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3].

[^ 33] For more information on denials, see Part A, Adjustment of Status Policies and Procedures, Chapter 11, Section C, Denials [7 USCIS-PM A.11(C)].

[^ 34] See USCIS Policy Memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF) (June 28, 2018).

Current as of September 16, 2021