Chapter 3 - Eligibility and Filing Requirements

A. Adjustment Eligibility under INA 245(i)

Grandfathered noncitizens and their current spouse and children are eligible to adjust under INA 245(i) if they meet certain eligibility requirements.

B. Filing the Adjustment Application

1. Form I-485 Application and Supplement A

Applicants seeking adjustment of status under INA 245(i) must file both:

• Application to Register Permanent Residence or Adjust Status (Form I-485) with appropriate filing fee, and

• Adjustment of Status Under Section 245(i) (Form I-485 Supplement A) with payment of the $1,000 sum (unless exempt).^[5]

Each applicant must file a separate Form I-485 and Supplement A (if applying under 245(i)) regardless of whether the applicant is a grandfathered beneficiary or spouse or child accompanying (or following-to-join) a grandfathered beneficiary. Applicants must complete the form and Supplement A according to the form instructions.^[6] If the applicant is required to pay the $1,000 statutory sum, the applicant must do so before USCIS adjudicates the Form I-485.^[7] The statutory sum is an absolute statutory eligibility requirement, is not a fee, and may not be waived.

INA 245(i) only applies to adjustment applications filed on or after the original date of enactment on October 1, 1994.^[8] INA 245(i) does not apply to:

• Any adjustment application filed before October 1, 1994; or

• Any motions to reopen or reconsider an adjustment application filed before October 1, 1994.^[9]

If USCIS denies an adjustment application filed prior to October 1, 1994, the applicant may file a new adjustment application to seek 245(i) benefits.^[10]

The burden always remains on an applicant applying to adjust under INA 245(i) to satisfy all filing requirements, including the filing of the Supplement A and paying the additional sum. While 8 CFR 245.10(d) requires the agency to issue a notice of intent to deny where an applicant, who appears eligible under 245(i), has filed an application for adjustment without either the Supplement A or the additional sum, this regulation only applies to those applications that were pending on the effective date of the regulation, March 26, 2001.^[11] Therefore, notice under 8 CFR 245.10(d) was only required for those applicants who appeared to be eligible for INA 245(i) at that time. That regulation (8 CFR 245.10(d)) does not require USCIS to issue a notice of intent to deny an applicant who has applied for adjustment of status under INA 245(a) after March 26, 2001.

2. Filing by Grandfathered Beneficiaries

Grandfathered beneficiaries (whether principal or derivative) eligible to adjust under INA 245(i) may file Supplement A and pay the $1,000 sum, if required, either:

• At the same time as Form I-485; or

• Any time after filing Form I-485 while it remains pending.^[12]

Applicants who file Supplement A after their Form I-485 should attach a copy of the Notice of Action (Form I-797) (fee receipt) for the pending Form I-485.

3. Filing by Family Members of Grandfathered Beneficiaries

The current spouse or child (unmarried and under 21 years of age) of a grandfathered beneficiary (whether principal or derivative) eligible to accompany or follow-to-join^[13] that beneficiary may file Form I-485:

• Together with the principal applicant’s Form I-485;

• At any time while the principal applicant’s previously-filed Form I-485 remains pending; or

• At any time after the principal applicant became a lawful permanent resident (LPR), provided the applicant’s relationship as the principal applicant’s spouse or child existed at the time the principal applicant became an LPR (and provided the principal applicant remains in LPR status).^[14]

The accompanying (or following-to-join) spouse or child applicant may file Supplement A and pay the $1,000 sum, if required, either:

• At the same time as Form I-485; or

• Any time after filing Form I-485 while it remains pending.

Applicants who file Supplement A after their Form I-485 should attach the Notice of Action (Form I-797) (fee receipt) for the pending Form I-485.

If the accompanying (or following-to-join) spouse and children were properly inspected and admitted or paroled and are not subject to the INA 245(c) bars, the spouse and children need not file a Supplement A and may simply seek adjustment under INA 245(a) by filing only Form I-485.

Footnotes

[^ 1] See 8 CFR 245.10(b) and 8 CFR 245.1(b). See Instructions to Form I-485 Supplement A.

[^ 2] Form I-485 Supplement A is sometimes referred to simply as Supplement A.

[^ 3] See Chapter 4, Documentation and Evidence, Section B, Paying the Statutory $1,000 Sum [7 USCIS-PM C.4(B)].

[^ 4] See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Use of Discretion [7 USCIS-PM A.9].

[^ 5] See Chapter 4, Documentation and Evidence, Section B, Paying the Statutory $1,000 Sum [7 USCIS-PM C.4(B)].

[^ 6] See 8 CFR 103.2.

[^ 7] See instructions to Supplement A. For detailed fee information, see the USCIS website.

[^ 8] See 8 CFR 245.10(b)(4) (Form I-485) and 8 CFR 245.10(b)(5) (Supplement A).

[^ 9] See 8 CFR 245.10(e).

[^ 10] See 8 CFR 245.10(e) and (f)(2).

[^ 11] See 8 CFR 245.10(d), 66 FR 16383, 16389 (Mar. 26, 2001). This approach to pending applications parallels previous regulations relating to changing eligibility requirements for adjustment of status under INA 245(i). See 62 FR 55152, 55154 (Oct. 23, 1997), former 8 CFR 245.10(d).

[^ 12] An applicant may not file Supplement A after USCIS adjudicates the Form I-485. If the applicant is required to pay the $1,000 statutory sum, the applicant must do so before USCIS adjudicates the Form I-485. See instructions to Supplement A.

[^ 13] See INA 203(d). See 22 CFR 40.1(a)(1).

[^ 14] See 9 FAM 502.1-1(C)(2)(b)(2)(a), Basis for Following-to-Join.