Chapter 1 - Purpose and Background
A. Purpose
Certain noncitizens physically present in the United States may be ineligible to adjust status under INA 245(a) because they entered the United States without inspection, violated their nonimmigrant status, were employed in the United States without authorization, or are otherwise barred from adjustment by INA 245(c).[1] Congress enacted INA 245(i) to allow certain otherwise ineligible noncitizens a pathway to become lawful permanent residents provided they meet specific requirements.[2]
B. Background
Congress initially enacted INA 245(i) in 1994 as a temporary measure providing certain noncitizens who were otherwise ineligible for adjustment with a pathway to adjust to permanent resident status.[3] The law required that 245(i) applicants file an application and pay an additional statutory sum (sometimes also referred to as a “fee”) by the sunset date.
The law originally was scheduled to expire on October 1, 1997. After several short term extensions, Congress made INA 245(i) permanent by repealing the sunset date and replacing it with a requirement that an applicant be the beneficiary (including a spouse or child of the principal beneficiary, if otherwise eligible under INA 203(d)) of an immigrant visa petition or permanent labor certification application filed on or before January 14, 1998.[4]
In 2000, Congress extended the deadline for filing the qualifying petition or application until April 30, 2001 and added a new requirement that an applicant basing his or her eligibility on being a beneficiary of a qualifying petition or application filed after January 14, 1998, establish that the principal beneficiary of the qualifying petition or application was physically present in the United States on December 21, 2000 in order to adjust status under INA 245(i).[5]
C. Overcoming INA 245(a) Adjustment Ineligibility
Noncitizens may seek to adjust status under INA 245(i) if they are disqualified from adjusting status under INA 245(a).[6] INA 245(i) may overcome any or all of the following reasons for 245(a) adjustment ineligibility, to include circumstances where the noncitizen:[7]
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Last entered the United States without being admitted or paroled after inspection by an immigration officer;[8]
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Last entered the United States as a nonimmigrant crewman;[9]
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Is now employed or has ever been employed in the United States without authorization;[10]
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Is not in lawful immigration status on the date of filing the application for adjustment of status;[11]
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Has ever failed to continuously maintain a lawful status since entry into the United States;[12]
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Was last admitted to the United States in transit without a visa;[13]
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Was last admitted to the United States as a nonimmigrant visitor without a visa under the Guam and Commonwealth of the Northern Mariana Islands Visa Waiver Program;[14]
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Was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program;[15]
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Is seeking employment-based adjustment of status, and is not in a lawful nonimmigrant status on the date of filing the application for adjustment of status;[16] and
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Has ever violated the terms of his or her nonimmigrant status.[17]
D. Two-Step Adjudication
An INA 245(i) adjustment application differs from all other adjustment applications because it involves a two-step adjudication process.
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Overview of Adjudication of 245(i) Adjustment Applications |
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Step 1 |
Determine whether the 245(i) applicant qualifies as:
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Step 2 |
Determine whether the applicant is otherwise eligible to adjust under 245(i). |
In processing 245(i) adjustment of status applications, officers should follow the general adjustment guidelines for adjudication and final decision procedures.[18]
E. Legal Authorities
- INA 245(i); 8 CFR 245.10 - Adjustment in status of certain aliens physically present in the United States
Footnotes
[^ 1] See INA 245(c) and 8 CFR 245.1(a)-(b). See Instructions to Form I-485 Supplement A. For further explanation of INA 245(a) eligibility requirements as well as the adjustment bars, see Part B, 245(a) Adjustment [7 USCIS-PM B].
[^ 2] Throughout this part, INA 245(i) is sometimes referred to as simply 245(i).
[^ 3] See Section 506(b)-(c) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1995, Pub. L. 103-317 (PDF), 108 Stat. 1724, 1765-66 (August 26, 1994).
[^ 4] See Section 111 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. 105-119 (PDF), 111 Stat. 2440, 2458 (November 26, 1997).
[^ 5] See Section 1502 of the Legal Immigration and Family Equity (LIFE) Act, Pub. L. 106-554 (PDF), 114 Stat. 2763, 2763A-324 (December 21, 2000).
[^ 6] Certain noncitizens are exempt from some of the bases of ineligibility under INA 245(a). See INA 245(c) and 8 CFR 245.1(a)-(b). For further explanation of INA 245(a) eligibility requirements as well as the adjustment bars, see Part B, 245(a) Adjustment [7 USCIS-PM B].
[^ 7] See 8 CFR 245.1(b). See Instructions to Form I-485 Supplement A.
[^ 8] See INA 245(a). See 8 CFR 245.1(b)(3).
[^ 9] See INA 245(c)(1). See 8 CFR 245.1(b)(2).
[^ 10] See INA 245(c)(2) and INA 245(c)(8). See 8 CFR 245.1(b)(4) and 8 CFR 245.1(b)(10).
[^ 11] See INA 245(c)(2). See 8 CFR 245.1(b)(5).
[^ 12] This bar does not apply if the failure to maintain status was through no fault of the noncitizen or for technical reasons. See INA 245(c)(2). See 8 CFR 245.1(b)(6).
[^ 13] See INA 245(c)(3). See 8 CFR 245.1(b)(1).
[^ 14] See INA 245(c)(4). See 8 CFR 245.1(b)(7).
[^ 15] See INA 245(c)(4). See 8 CFR 245.1(b)(8). For more information on the Visa Waiver Program, see the U.S. Department of State website.
[^ 16] See INA 245(c)(7). See 8 CFR 245.1(b)(9).
[^ 17] See INA 245(c)(8). See 8 CFR 245.1(b)(10).
[^ 18] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6] and Chapter 11, Decision Procedures [7 USCIS-PM A.11].