Chapter 4 - Documentation and Evidence

INA 245(i) applicants must submit the forms and documentation generally required of all adjustment applicants.[1] In addition, applicants should carefully review and follow the instructions for Supplement A, submit the appropriate application forms and fees, and provide documentation to prove eligibility for 245(i) adjustment.[2]

The applicant has the burden of proving that he or she meets the eligibility requirements for INA 245(i) adjustment.[3]

A. Documentation and Evidence

An applicant should submit the following documentation to adjust status under INA 245(i):[4]

  • Application to Register Permanent Residence or Adjust Status (Form I-485) with the correct fee;

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

  • Proof that the principal applicant is eligible to adjust status under 245(i) as a grandfathered beneficiary of a qualifying immigrant visa petition or permanent labor certification application (as discussed below);

  • Copy of the Approval Notice (Form I-797) for the principal applicant’s immigrant petition or other basis for adjustment;

  • Two passport-style photographs;

  • Copy of government-issued identity document with photograph;

  • Copy of the applicant’s birth certificate;

  • Copy of passport page with nonimmigrant visa (if applicable);

  • Copy of passport page with admission or parole stamp (if applicable);

  • Copy of Arrival/Departure Record (Form I-94) or copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);[6]

  • Report of Medical Examination and Vaccination Record (Form I-693);

  • Affidavit of Support (if applicable);

  • Declaration of Self-Sufficiency (Form I-944) (if applicable);

  • Certified police and court records of criminal charges, arrests, or convictions (if applicable);

  • Application for Waiver of Grounds of Inadmissibility (Form I-601) (if applicable);

  • Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212) (if applicable);

  • Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities (Form I-508) (for applicants holding A, G, or E nonimmigrant status); and

  • Documentation of past or present J-1 or J-2 nonimmigrant status, including proof of compliance with or waiver of the 2-year foreign residence requirement under INA 212(e) (if applicable).

In addition, a spouse or child who as a derivative of a grandfathered noncitizen should submit the following:

  • A copy of documentation showing relationship to the principal applicant (such as a marriage certificate, birth certificate, or adoption decree); and

  • A copy of the approval notice or receipt (Form I-797) for the principal applicant’s Form I-485 or a copy of the principal applicant’s permanent resident card (Form I-551) (if applicable and not filing together with the principal applicant).

B. Paying $1,000 Sum

Applicants seeking adjustment under INA 245(i) must submit the $1,000 sum required by law unless they are exempt. This sum is in addition to the required fees associated with Form I-485.[7]

All 245(i) applicants must pay the additional $1,000 except for applicants who are:

  • Unmarried and under 17 years of age;

  • The spouse of a legalized noncitizen who qualifies for Family Unity Benefits and has filed an Application for Family Unity Benefits (Form I-817). (The applicant should attach a copy of the USCIS Approval Notice or Receipt (Form I-797) for the properly filed Application for Family Unity Benefits (Form I-817) as evidence); or

  • The unmarried child under 21 years of age of a legalized noncitizen who qualifies for Family Unity Benefits and who has filed an Application for Family Unity Benefits (Form I-817) (the applicant should attach a copy of the USCIS Approval Notice or Receipt (Form I-797) for the properly filed Application for Family Unity Benefits (Form I-817) as evidence).[8]

A noncitizen applying for adjustment of status under INA 245(i) must file Supplement A and pay the $1,000 sum with each adjustment application that the noncitizen files, unless they are exempt.[9]

C. Establishing Grandfathering Eligibility

1. Proof of Qualifying Immigrant Visa Petition

An applicant generally can prove the existence of a qualifying immigrant visa petition[10] by submitting a copy of the Form I-797 approval notice for the immigrant petition showing the principal beneficiary’s name and qualifying date of filing.

The following table outlines documentary evidence an applicant may submit to satisfy the three requirements to prove he or she has a qualifying petition.

Proof of Qualifying Immigrant Visa Petition

Requirement

Documentary Evidence[11]

Filing Deadline

Beneficiary of an immigrant visa petition

  • Receipt or Approval Notice (Form I-797) for a Form I-130, I-140, I-360, or I-526

On or before April 30, 2001

Petition was “properly filed”

  • Receipt or Approval Notice (Form I-797) showing date petition filing was accepted

  • Petition stamped with “Filed Prior to 245(i) Sunset” stamp

  • Postmarked envelope in the applicant’s A-file

  • Petitions submitted with illegible or missing postmarks or submitted by private mail service were considered timely filed if physically received by May 3, 2001

On or before April 30, 2001

Petition was “approvable when filed”

  • Approval Notice (Form I-797) showing petition is approved

  • If petition is still pending or was withdrawn, denied, or revoked, applicant may submit other relevant evidence establishing eligibility for petition approval (see below)[12]

On or before April 30, 2001

Absent an approved petition, an applicant may submit any relevant evidence to show the petition was approvable when filed, meaning the petition was meritorious in fact and non-frivolous (not patently without substance).

The following tables provide examples of evidence the applicant may submit to prove certain types of petitions were “approvable when filed.”

Examples of Evidence that Family-Based Petition[13] was Approvable When Filed

Evidence

To Establish

  • Birth certificates

  • Marriage certificates

  • Divorce decrees

Requisite relationship at time petition was filed.

  • Bank statements

  • Life, health, or auto insurance policies

  • Rental or mortgage receipts

Bona fide marital intent at the time the petition was filed (if a marriage-based case).[14]

Examples of Evidence that Employment-Based Petition[15] was Approvable When Filed

Evidence

To Establish

  • Copy of educational degrees or training

  • Proof of qualifying experience

  • Trade certifications

  • Professional licenses

Beneficiary had the requisite experience, skills, or education for the job.

  • Copies of employer’s business license

  • W-2 forms or pay stubs

  • Employment records or tax records

  • Employer affidavits

Petitioning business existed, had bona fide intention to employ the beneficiary, and had the ability to pay the beneficiary (as of the time of filing).

It may be more difficult for an applicant to obtain documents from the original petitioning employer or family member with the passage of time. In many cases, however, applicants are able to obtain employment or legal documents through a state or county business licensing board, secretary of state’s office or state labor board, and other public records. An officer should consider the totality of the circumstances when determining whether a petition was “approvable when filed.”

USCIS makes this determination based on the circumstances that existed at the time the petition was filed. A petition that was approvable when filed but was later withdrawn, denied, or revoked due to circumstances that arose after the time of filing may still qualify the applicant for 245(i) adjustment if he or she is otherwise eligible.[16]

2. Proof of Qualifying Labor Certification Application

An applicant can generally prove the existence of a qualifying permanent labor certification application[17] by submitting a copy of the Application for Alien Labor Certification (ETA Form 750) showing the principal beneficiary’s name and bearing a state workforce agency’s date stamp, an agency letter, or other official DOL document specifying the date of receipt or filing.

The following table outlines documentary evidence an applicant may submit to satisfy the three requirements to prove he or she has a qualifying permanent labor certification application.

Proof of Qualifying Labor Certification Application

Requirement

Documentary Evidence[18]

Filing Deadline

Beneficiary of a permanent labor certification application

  • Form ETA 750

  • Receipt from DOL or a State Wage Authority (SWA) for a Form ETA 750

On or before April 30, 2001

Application was “properly filed”

Receipt from DOL or SWA dated no later than April 30, 2001

On or before April 30, 2001

Application was “approvable when filed”

Evidence that application was accepted for filing (including receipt notice from DOL or SWA) and no evidence of fraud or ineligibility

On or before April 30, 2001

3. Proof of Physical Presence

Applicants whose INA 245(i) adjustment applications are based on a qualifying immigrant visa petition or permanent labor certification application filed after January 14, 1998, must prove that the principal beneficiary of that petition or application was physically present in the United States on December 21, 2000.[19]

In some cases, a single document may suffice to prove physical presence, but often applicants must submit several documents. USCIS ordinarily places the greatest weight on federal, state, or municipal government-issued documents. Examples of documents that applicants may submit copies of as evidence of physical presence include but are not limited to:

  • Arrival-Departure Record (Form I-94);

  • Nonimmigrant visa page from passport;

  • Authorization for Parole of an Alien into the United States (Form I-512L) or other U.S. government-issued document showing parole into the United States after inspection by an immigration officer;

  • Notice to Appear in Immigration Court;

  • Official correspondence or other notices from a U.S. government agency;

  • A state driver’s license;

  • Income tax or property tax records, returns, or payments;

  • School or college transcripts and records;

  • Medical records;

  • Lease agreements and rental receipts;

  • Utility bill receipts; or

  • Employment records, such as payroll records or pay stubs.[20]

Applicants who submit a personal affidavit attesting to physical presence must also submit documentation in support of the affidavit.[21] USCIS evaluates all documentation on a case-by-case basis.[22]

D. Demonstrating Underlying Basis for Adjustment

Applicants for INA 245(i) adjustment must be eligible for an immigrant visa under a family-based, employment-based, special immigrant, or diversity visa immigrant category. The applicant may adjust based on:

  • The qualifying immigrant visa petition used to establish grandfathering, if the petition is still valid;

  • The immigrant visa petition associated with the permanent labor certification application used to establish grandfathering, if the petition is still valid;

  • A separate immigrant visa petition; or

  • Selection in the diversity visa program.

For instance, an applicant may be a grandfathered noncitizen based on a permanent labor certification application but ultimately adjust status through a petition filed on his or her behalf by his or her lawful permanent resident (LPR) spouse.[23]

Eligibility requirements vary depending on the immigrant visa category under which an applicant seeks to adjust. An officer should review the record for proof that the applicant is eligible for an immigrant visa in the category that forms the basis for the applicant’s adjustment. The Form I-485 instructions and the other category-specific parts of this volume provide detailed information on documentation and evidence applicants must submit with Form I-485, depending on their specific basis for adjustment.

E. Proof of Family Relationship

Applicants seeking INA 245(i) adjustment as a grandfathered derivative beneficiary[24] must show that the required relationship to the grandfathered principal beneficiary existed at the time the qualifying petition or application was properly filed. Grandfathered derivative beneficiaries do not, however, need to show that the relationship continues to exist at the time they file the adjustment application.

Applicants seeking adjustment as an accompanying (or following-to-join) spouse or child of a grandfathered beneficiary (who is the principal adjustment applicant) must show the spouse or child relationship currently exists.[25] Such applicants must also demonstrate that the grandfathered beneficiary is currently applying for, has already applied for, or was granted adjustment of status under INA 245(i) and remains an LPR.

An applicant can generally prove the required relationship by submitting a marriage certificate (for spouse) or birth certificate or adoption decree (for child).

An applicant can generally prove the grandfathered beneficiary is applying for or was granted adjustment of status by submitting a copy of the Approval Notice or Receipt (Form I-797) for that Form I-485, or a copy of the permanent resident card (Form I-551), if applicable.

F. Admissibility

Like other applicants for adjustment of status, INA 245(i) applicants must establish that they are admissible to the United States.

Because a fundamental aspect of INA 245(i) is to permit certain noncitizens to adjust status despite entry without inspection, the ground of inadmissibility related to noncitizens present in the United States without inspection and admission or inspection and parole does not apply to these applicants.[26]

INA 245(i), however, does not protect applicants from other inadmissibility grounds. If an officer determines that an applicant is inadmissible, then the applicant is ineligible for 245(i) adjustment unless the applicant has obtained a waiver or some other form of relief from all applicable grounds of inadmissibility.

G. Relief from Adjustment Bars

In general, applicants are ineligible for adjustment of status under INA 245(a) if any of the statutory adjustment bars apply to them.[27] INA 245(i) exempts eligible applicants from most of the INA 245(c) bars[28] to adjustment of status.[29] However, applicants described in the INA 245(c)(6) bar (deportable under INA 237(a)(4)(B) for having engaged in terrorist activities, as defined in INA 212(a)(3)(B)(iii)), are ineligible to adjust under INA 245(i) because such activities make the applicant inadmissible.[30]

Footnotes


[^ 1] See INA 245(a). See 8 CFR 103.2 and 8 CFR 245.2. See Part A, Adjustment of Status Policies and Procedures, Chapter 4, Documentation [7 USCIS-PM A.4].

[^ 2] See Chapter 3, Eligibility and Filing Requirements, Section A, Adjustment Eligibility under INA 245(i) [7 USCIS-PM C.3(A)]. See 8 CFR 103.2(b).

[^ 3] See 8 CFR 103.2(b)(1). See Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion, Section A, Burden of Proof and Standard of Proof [7 USCIS-PM A.10(A)]. See Chapter 3, Eligibility and Filing Requirements, Section A, Adjustment Eligibility under INA 245(i) [7 USCIS-PM C.3(A)].

[^ 4] Documents that are not in English must be accompanied by a full, certified English translation. See 8 CFR 103.2(b)(3). Applicants should submit only photocopies of original documents unless USCIS specifically requests an original document.

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

[^ 6] Noncitizens admitted to the United States by CBP at an airport or seaport after April 30, 2013 may be issued an electronic Form I-94 by CBP instead of a paper Form I-94. Such noncitizens may visit the CBP website to obtain a paper version of an electronic Form I-94. CBP does not charge a fee for this service.

[^ 7] If the applicant is required to pay the $1,000 sum, the applicant must do so before USCIS adjudicates the Form I-485. See instructions to Supplement A. For detailed fee information, see the USCIS website.

[^ 8] See 8 CFR 245.10(c).

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

[^ 10] For a detailed discussion of what is considered a “qualifying” petition or labor certification application, see Chapter 2, Grandfathering Requirements, Section B, Qualifying Immigrant Visa Petition or Permanent Labor Certification Application [7 USCIS-PM C.2(B)].

[^ 11] These documents may only be contained in the grandfathered principal beneficiary’s A-file.

[^ 12] Petitions that are withdrawn, denied, or revoked by USCIS, or whose visa registration has been terminated by the U.S. Department of State under INA 203(g), may still serve to grandfather the person as long as the qualifying petition was properly filed and approvable when filed. In such cases, the burden is on the applicant to submit evidence that the petition was properly filed and approvable when filed.

[^ 13] See Petition for Alien Relative (Form I-130) and Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). 

[^ 14] See Matter of Laureano (PDF), 19 I&N Dec. 1 (BIA 1983).

[^ 15] See Immigrant Petition for Alien Worker (Form I-140), Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), and Immigrant Petition by Alien Entrepreneur (Form I-526).

[^ 16] See Chapter 2, Grandfathering Requirements, Section B, Qualifying Immigrant Visa Petition or Permanent Labor Certification Application, Subsection 2, Approvable When Filed [7 USCIS-PM C.2(B)(2)].

[^ 17] For a detailed discussion of what is considered a “qualifying” petition or labor certification application, see Chapter 2, Grandfathering Requirements, Section B, Qualifying Immigrant Visa Petition or Permanent Labor Certification Application [7 USCIS-PM C.2(B)].

[^ 18] These documents may only be contained in the principal grandfathered beneficiary’s A-file.

[^ 19] See INA 245(i)(1)(C) and 8 CFR 245.10(n). See Chapter 2, Grandfathering Requirements, Section E, Physical Presence Requirement [7 USCIS-PM C.2(E)].

[^ 20] See 8 CFR 245.10(n)(1)-(4).

[^ 21] See 8 CFR 245.10(n)(5)(i).

[^ 22] For more information on evidence that demonstrates an applicant’s physical presence in the United States on a specific date, see 8 CFR 245.22.

[^ 23] See 8 CFR 245.10(k) (addressing employment-based applications).

[^ 24] See Chapter 2, Grandfathering Requirements, Section C, Beneficiary of Qualifying Immigrant Visa Petition or Permanent Labor Certification Application, Subsection 2, Special Considerations for Derivative Beneficiaries [7 USCIS-PM C.2(C)(2)].

[^ 25] See Chapter 2, Grandfathering Requirements, Section D, Current Family Members of Grandfathered Noncitizens [7 USCIS-PM C.2(D)].

[^ 26] See INA 212(a)(6)(A)(i).

[^ 27] See INA 245(c)-(e). For more information on the adjustment bars, see Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 28] See Chapter 1, Purpose and Background, Section C, Overcoming INA 245(a) Adjustment Ineligibility [7 USCIS-PM C.1(C)].

[^ 29] Applicants described in the INA 245(c)(5) bar (admitted as a nonimmigrant witness or informant under INA 101(a)(15)(S)) are barred from adjustment unless they obtain an approved Inter-Agency Alien Witness and Informant Record (Form I-854). See 8 CFR 245.11.

[^ 30] See 8 CFR 245.10(g).

Appendices

No appendices available at this time.

Updates

Technical Update - Replacing the Term “Alien”

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”].

Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapter 23.5(c) of the AFM, related appendices, and policy memoranda.

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

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

Technical Update - Replacing the Term “Foreign National”

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”].