Chapter 5 - Adjudication and Decision

A. General

When adjudicating INA 245(i) adjustment applications, officers should follow the general guidance for adjustment applications.[1]

As appropriate, officers may issue a Request for Evidence or Notice of Intent to Deny to provide the applicant an opportunity to submit additional documentation regarding adjustment eligibility or inadmissibility grounds.

B. Waiver of Interview

All adjustment of status applicants must be interviewed by an officer unless the interview is waived by USCIS.[2] The decision to waive the interview should be made on a case-by-case basis.[3] The interview enables USCIS to verify important information about the applicant to determine eligibility for adjustment. For family-based applications, USCIS generally requires the Form I-130 petitioner to appear for the interview with the principal adjustment of status applicant. In addition, derivatives are also required to appear regardless of the immigrant visa category.

C. Adjudication

The following table provides a step-by-step overview of an INA 245(i) adjudication.

Step-by-Step Overview of Adjudication of INA 245(i) Adjustment Application

Step 1

Determine that the applicant is either:

  • A grandfathered noncitizen (whether a principal or derivative beneficiary), including verifying that the qualifying immigrant visa petition or permanent labor certification application was properly filed on or before April 30, 2001 and was approvable when filed; or

  • The current spouse or child accompanying (or following to join) a grandfathered noncitizen.

Step 2

If the qualifying petition or application was filed after January 14, 1998, verify that the grandfathered principal beneficiary was physically present in the United States on December 21, 2000.

Step 3

Verify the applicant has paid the $1,000 sum (unless exempt).

Step 4

Determine that the applicant is otherwise eligible to adjust under 245(i).

Step 5

Determine that the applicant is eligible for an immigrant visa in the family-based, employment-based, special immigrant, or diversity visa immigrant category (whether or not based on the qualifying petition or application).

Step 6

Determine that an immigrant visa is immediately available for the applicant’s underlying immigrant category.[4]

Step 7

Determine that the applicant is admissible to the United States or is eligible for a waiver of inadmissibility or other form of relief.

Step 8

Determine that the applicant merits the favorable exercise of discretion.

D. Decision

1. Approval

The officer must verify that the applicant meets all the relevant eligibility requirements, including that the applicant merits the favorable exercise of discretion, before approving the application to adjust status under INA 245(i).

The applicant becomes a lawful permanent resident as of the date USCIS approves the adjustment application.[5]

2. Denial

If the officer determines that the applicant is ineligible for adjustment, the officer must deny the adjustment application. The officer must provide the applicant a written reason for the denial.[6] Although there are no appeal rights for the denial of an INA 245(i) adjustment application, the applicant may file a motion to reopen or reconsider. The denial notice should include instructions for filing a Notice of Appeal or Motion (Form I-290B). An applicant may also renew the adjustment application in any subsequent removal proceedings.[7]

Footnotes


[^ 1] 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].

[^ 2] See 8 CFR 245.6.

[^ 3] See Part A, Adjustment of Status Policies and Procedures, Chapter 5, Interview Guidelines [7 USCIS-PM A.5].

[^ 4] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

[^ 5] The date of approval is shown on the Notice of Action (Form I-797) and on the permanent resident card (Form I-551).

[^ 6] See 8 CFR 103.2(b)(19) and 8 CFR 103.3(a).

[^ 7] See 8 CFR 245.2(a)(5)(ii).

Current as of July 30, 2021