This chapter provides steps that should be used as a general guideline for file review when determining if an applicant is eligible for adjustment of status:

General Guidelines for Adjudication of

Adjustment of Status Application

Verify underlying basis

Determine ongoing eligibility

Verify visa availability (if applicable)

Determine admissibility

Determine if favorable discretion is warranted (if applicable)

A. Verify Underlying Basis to Adjust Status

To adjust status to a lawful permanent resident, an applicant must first be eligible for one of the immigrant visa categories established by the INA or another provision of law. The officer must verify the status of any underlying immigrant visa petition or other basis for immigrating prior to adjudicating the adjustment application.

In many cases, an underlying petition is used to form the basis for adjustment. Petitions are often already adjudicated and approved by the time the officer adjudicates the adjustment application. [1] The approval of a visa petition provides no rights to the beneficiary of the petition, as approval of a visa petition is a preliminary step in the adjustment of status process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa and adjustment of his or her status. See Matter of Ho, 19 I&N Dec. 582 (BIA 1988). If the underlying immigrant visa petition is still pending, the officer is responsible for determining if the beneficiary of the petition is eligible for the classification sought and adjudicating the petition prior to considering the adjustment application.

While an applicant may have only submitted a Notice of Action (Form I-797) with his or her adjustment application that referenced the underlying petition, the petition itself should be contained within the A-file and must be reviewed prior to adjudicating the adjustment application. As a matter of procedure, any underlying petition is typically ordered prior to any interview and before final adjudication of Form I-485.

There may be instances in which an adjustment applicant’s file is sent forward to the adjudicating officer prior to locating the petition. In this case, the officer should hold the final adjudication of the adjustment application in abeyance in order to locate the underlying petition and then verify that the petition is still valid and the applicant remains eligible for the classification.

There may be instances where a petition is lost. For example, there may be proof the petition was filed but USCIS cannot locate the petition, and the petition was not forwarded to the National Visa Center. If a petition is lost, the applicant must recreate the petition at no additional fee. The officer then verifies the underlying basis of adjustment or adjudicates the replacement petition if the original was still pending. A recreated petition retains the same priority date as the original lost petition.

Security Checks and National Security Concerns

USCIS conducts background checks on all applicants for adjustment of status to enhance national security and protect the integrity of the immigration process by ensuring that USCIS grants lawful permanent resident status only to those applicants eligible for the requested benefit. The officer must ensure that all security checks are completed, unexpired, and resolved as necessary prior to adjudicating an adjustment application.

In general, a national security concern exists when a person or organization has been determined to have a link to past, current, or planned involvement in an activity or organization involved in terrorism, espionage, sabotage, or the illegal transfer of goods, technology, or sensitive information. [2] See INA 212(a)(3)(A), INA 212(a)(3)(B), or INA 212(a)(3)(F). See INA 237(a)(4)(A) or INA 237(a)(4)(B).

B. Determine Ongoing Eligibility

After determining the classification requested, the officer should review all the eligibility requirements for that particular classification to ensure the applicant remains eligible. As with all applications, an applicant must remain eligible for adjustment of status from the time of filing through final adjudication. [3] See INA 245(a). See 8 CFR 245.1(a). See 8 CFR 103.2(b)(1), 8 CFR 103.2(b)(2), and 8 CFR 103.2(b)(12).

If an underlying immigrant visa petition provides the basis for adjustment and has already been approved, the officer should confirm that a valid qualifying relationship continues to exist in a family-based case or that a qualifying job offer still exists in an employment-based case. While specific family-based, employment-based, and special immigrant considerations are covered in detail in other parts of this volume, the officer should note that changes to marital status or age-out issues may impact family-based or derivative cases just as changes in employment, withdrawal of a job offer, or the failure of a petitioner’s business may affect employment-based cases.

The officer should also confirm that the applicant continues to meet all eligibility requirements through the date of final adjudication, including reviewing the following:

1. Violations of Status and Other Bars to Adjustment

If applying under INA 245(a), an applicant must have been either inspected and admitted, or inspected and paroled, and must not be subject to any of the bars to adjustment specified in INA 245(c). These bars preclude certain foreign nationals from adjusting status, including those who have violated their status, failed to maintain valid status, or worked without authorization. Most applicants must maintain their status up until the date of filing for adjustment of status, with the exception of those adjusting as immediate relatives and certain special immigrants. [4] See INA 245(c)(2).

Some employment-based adjustment applicants may overcome adjustment bars under the provisions of INA 245(k). In addition, some foreign nationals who entered without inspection or are otherwise subject to adjustment bars may still be eligible to adjust status under the provisions of INA 245(i).

2. Qualifying Family Relationship Continues to Exist

If the applicant claims a family relationship on the immigrant visa petition, that relationship must remain intact until a decision on the adjustment application, in most circumstances. [5] See INA 204(l) for exceptions due to death of the petitioner or principal beneficiary. The officer must confirm that the applicant remains eligible to adjust status based on the relationship claimed on the underlying immigrant visa petition. Failure to maintain the relationship disqualifies the applicant in most cases or, if not disqualifying, may be a negative discretionary factor in certain types of cases.

The officer should review documentation to establish that the relationship continues. This review may include Child Status Protection Act (CSPA) [6] See Pub. L. 107-208 (August 6, 2002). See Chapter 7, Child Status Protection Act [7 USCIS-PM A.7]. age calculations to confirm that the applicant remains a child by definition. [7] See INA 101(b)(1).

In cases of derivatives following-to-join, the derivative’s qualifying relationship to the principal applicant must have existed when the principal beneficiary obtained lawful permanent resident status and continue to exist through final adjudication of the derivative’s adjustment application for the derivative applicant to remain eligible. [8] For more information, see Section C, Verify Visa Availability, Subsection 6, Derivatives [7 USCIS-PM A.6(C)(6)].

If the principal beneficiary becomes a permanent resident and loses his or her permanent resident status or naturalizes prior to the derivative’s adjustment, the derivative is no longer eligible for the classification as an accompanying or following-to-join family member. [9] See INA 203(d) and Matter of Naulu, 19 I&N Dec. 351 (BIA 1986). Furthermore, a derivative may not be granted permanent resident status prior to the principal beneficiary’s obtaining permanent resident status, because the derivative has no right or eligibility for the classification apart from the eligibility of the principal beneficiary’s status, with the exception of U nonimmigrants, asylees, and refugees. [10] See 22 CFR 40.1(a)(2). See INA 245(m) and 8 CFR 245.24. See Part L, Refugee Adjustment [7 USCIS-PM L] and Part M, Asylee Adjustment [7 USCIS-PM M] for more information on the exception for asylee and refugee derivatives adjusting status.

3. Continuing Validity of the Employment-based Petition

The officer should verify that the employment-based adjustment applicant’s Immigrant Petition for Alien Worker (Form I-140) remains valid. The officer should determine that the applicant is either employed by the petitioner or the job offer still exists, that the employer continues to have the financial means to employ the applicant. In addition, the officer should determine that the employer continues to be a viable business, including possessing a valid business license in the county, state or jurisdiction within which it is operating.

If the adjustment application has been pending for 180 days or more, the applicant may be eligible for adjustment portability. [11] See INA 204(j). Portability allows the applicant to accept an offer of employment with either the petitioner or a different employer in the same or similar occupational classification as the position for which the petition was approved.

C. Verify Visa Availability

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued to foreign nationals seeking to become U.S. permanent residents each year. U.S. Department of State (DOS) is the agency that allocates immigrant visa numbers. In most cases, an immigrant visa must be available at the time of filing the adjustment application and at the time of final adjudication, if approved.

1. Immediate Visa Availability

Congress gave immigration priority to immediate relative immigrants, defined as:

The spouses of U.S. citizens;

The children (unmarried and under 21 years of age) of U.S. citizens;

The parents of U.S. citizens at least 21 years old; and

Widows or widowers of U.S. citizens if the spouse files a petition within 2 years of the citizen’s death. [12] See INA 201(b)(2)(A)(i).

Immigrant visas for immediate relatives of U.S. citizens are unlimited, so the visas are always available. In other words, immediate relatives are exempt from the numerical restrictions of other immigrant categories; an immigrant visa is always immediately available at the time they file an adjustment application and at the time of final adjudication, if approved.

Below are additional categories of foreign nationals who are exempt from numerical restrictions and may file an adjustment of status application at any time or during the time period allowed by the applicable provision of law, provided they are otherwise eligible: [13] See INA 201(b) for a complete listing.

Persons adjusting status based on refugee or asylee status; [14] See INA 209.

Persons adjusting status based on T nonimmigrant (human trafficking victim) status; [15] Although a visa is immediately available to T nonimmigrant-based adjustment applicants at the time of filing, there is an annual cap on the number of adjustments allowed each year. Up to 5,000 T nonimmigrants are allowed to adjust status each year. This does not include immediate family members. See INA 245(l).

Persons adjusting status based on U nonimmigrant (crime victims) status;

Persons adjusting status based on Special Agricultural Worker or Legalization provisions; [16] See INA 210 and 245A.

Persons adjusting status based on public laws with special adjustment of status programs; [17] Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386, 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554, 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167, 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316, as amended, 8 CFR 245.3, INA 101(a)(15)(A)(i)-(ii) and INA 101(a)(15)(G)(i)-(ii). Although a visa is immediately available to Section 13-based adjustment applicants at the time of filing, there is an annual cap on the number of adjustments allowed each year. Only 50 visas per year, including both principal applicants and their immediate family members, are allotted each year. and

Persons who obtain relief through a private immigration bill signed into law.

Except for human trafficking victims and Section 13 adjustment based applicants, an officer does not need to review visa availability for applicants filing in the above categories at the time of final adjudication. This includes applicants who are immediate relatives.

2. Numerically Limited Visa Availability

Immigrant visa numbers for family-based and employment-based immigrant preference categories as well as the Diversity Visa program are limited, so they are not always immediately available.

Family-sponsored preference visas are limited to a minimum of 226,000 visas per year and employment-based preference visas are limited to a minimum of 140,000 visas per year. [18] See INA 201(c) and INA 201(d). By statute, these annual visa limits can be exceeded where certain immigrant visa numbers from the previous fiscal year’s allocation were not fully used. Both categories are further divided into several sub-categories, each of which receives a certain percentage of the overall visa numbers as prescribed by law. In addition, there are limits to the percentage of visas that can be allotted based on an immigrant’s country of birth. [19] See INA 202(a)(2).

A visa queue (waiting list or backlog) forms when the demand is higher than the supply of visas for a given year in any category or country. To distribute the visas among all preference categories, DOS allocates the visas by providing visa numbers according to the prospective immigrant’s:

Preference category;

Country to which the visa will be charged (usually the country of birth); [20] For exceptions to this general rule, see 22 CFR 42.12. and

Priority date.

Therefore, the length of time an applicant must wait in line before being eligible to file an adjustment application depends on:

The demand for and supply of immigrant visa numbers;

The per-country visa limitations; and

The number of visas allocated for the immigrant’s preference category. [21] For more information, see the USCIS website.

3. Priority Dates

The priority date is used to determine an immigrant’s place in the visa queue. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. A prospective immigrant’s priority date can be found on Notice of Action (Form I-797) for the petition filed on his or her behalf. [22] Form I-797 is contained in the A-file. The officer should verify the priority date by reviewing the actual immigrant petition or permanent labor certification application.

Priority Dates for Family-Sponsored Preference Cases

For family-sponsored immigrants, the priority date is the date that the Petition for Alien Relative (Form I-130), or in certain instances the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), is properly filed with USCIS. 

Priority Dates for Employment-Based Preference Cases

For employment-based immigrants, the priority date is established on the earliest of:

The date the petition was properly filed with USCIS; [23] Immigrant Petition for Alien Worker (Form I-140); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); or Immigrant Petition by Alien Entrepreneur (Form I-526). or

The date the permanent labor certification application [24] See the Department of Labor’s website to access this form. The previous version of this form was ETA Form 750. was accepted for processing by the Department of Labor (DOL), when a labor certification is required. [25] See 8 CFR 204.5(d).

Classification Conversion

If applicable, an officer must take special priority date and visa classification rules into consideration when determining visa availability. There are some instances in which a petition filed and approved under one classification automatically converts to a new category due to circumstances that occurred since filing. [26] See INA 204(k). See 8 CFR 204.2(a)(4) and 8 CFR 204.2(i). Although this does not affect the applicant’s priority date, it can affect visa availability. In addition, for certain family-based cases, the applicant can elect to opt-out of the classification conversion when it is advantageous to do so and when eligible.

Using Earlier Priority Dates

An applicant may intend to use an earlier priority date than the one indicated on his or her latest petition. This may occur when the same petitioner in a family-based category has filed more than one petition on behalf of a foreign national for the same classification. [27] See 8 CFR 204.2(h). This may also occur when a beneficiary of multiple employment-based petitions in the 1st, 2nd, or 3rd preference category seeks to use the priority date from an earlier approved petition.

In the event that an applicant is the beneficiary of multiple approved employment-based petitions filed under 1st, 2nd, or 3rd preference, the applicant is entitled to the earliest priority date. [28] See 8 CFR 204.5(e). The applicant typically alerts the officer of the intention to use the benefit of an earlier priority date by including an approval notice for the previous petition in the adjustment application packet.

When Earlier Priority Dates May Not Be Used

An adjustment of status applicant may not be able to use an earlier priority date from a previous petition if any of the following occurs:

The petition was denied, terminated, or revoked for fraud, willful misrepresentation, or clear error;

The beneficiary is no longer eligible for the classification for which the petition was filed and does not qualify for automatic conversion;

DOS terminated the registration of an applicant who failed to timely file for an immigrant visa, thereby automatically revoking the petition; [29] See INA 203(g). See 8 CFR 205.1(a)(1). or

The beneficiary has already used the petition to immigrate.

For employment-based 1st, 2nd, and 3rd preference cases in which a priority date is being retained from an earlier approved petition to support a subsequent petition, the priority date can be lost upon revocation of the original petition only if the revocation was because the petition was approved in error, DOL invalidated the labor certification associated with the petition, or the petition was revoked based on fraud or misrepresentation.

4. Department of State Visa Bulletin

DOS publishes a monthly report of visa availability referred to as the Visa Bulletin. The monthly Visa Bulletin serves as a guide for issuing visas at U.S. consulates and embassies. USCIS also uses this guide to determine whether an Application to Register Permanent Residence or Adjust Status (Form I-485) may be accepted for filing and receive final adjudication. A visa must be available both at the time an applicant files Form I-485 and at the time USCIS approves the application. [30] See INA 245(a)(3) and 8 CFR 245.2(a)(2)(i)(A). See 8 CFR 103.2(b)(1). For more information on determining whether a visa was available at time of filing, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM B.3(B)(4)].

DOS, in coordination with USCIS, revises the Visa Bulletin each month to estimate immigrant visa availability for prospective immigrants. [31] USCIS also provides information about the current Visa Bulletin on the USCIS website.

The officer should consult the Department of State’s Visa Bulletin to determine whether a visa was available at time of filing and at time of final adjudication and approval. The following table provides more information on how the officer should use the Visa Bulletin.

Using DOS Visa Bulletin to Determine Visa Availability

Numerically Limited Visa Preference Category

Relevant Visa Bulletin Chart at Time of Filing

Relevant Visa Bulletin Chart at Time of Final Adjudication

Family-Based Preference Categories

See Visa Bulletin in effect at the time the adjustment application was filed to determine which chart controls

(Dates for Filing Family-Sponsored Visa Applications OR Application Final Action Dates for Family-Sponsored Preference Cases chart)

Application Final Action Dates for Family-Sponsored Preference Cases chart that is current at the time the application is approved

Employment-Based Preference Categories (including Special Immigrant-Based Categories)

See Visa Bulletin in effect at the time the adjustment application was filed to determine which chart controls

(Dates for Filing Employment-Based Visa Applications OR Application Final Action Dates for Employment-Based Preference Cases chart)

Application Final Action Dates for Employment-Based Preference Cases chart that is current at the time the application is approved

Understanding the Visa Bulletin Charts

If the demand for immigrant visas is more than the supply for a particular immigrant visa preference category and country of chargeability, DOS considers the category and country oversubscribed and must impose a cut-off date to keep the allocation of visas within the statutory limits

Visas are available for a prospective immigrant when the immigrant’s priority date is earlier than the cut-off date shown in the relevant Visa Bulletin chart for his or her preference category and country of birth (and chargeability).

For example, if the Visa Bulletin shows a date of 15DEC07 for China in the family-based 1st preference category (F1), visas are currently available for those immigrants who have a priority date earlier than Dec. 15, 2007. Sometimes the demand for immigrant visas is less than the supply in a particular immigrant visa preference category and country of birth (or country of chargeability). In this situation, the Visa Bulletin shows that category as “C. This means that immigrant visa numbers are currently (or immediately) available to all qualified adjustment applicants and overseas immigrant visa applicants in that particular preference category and country of birth (and chargeability).

If the Visa Bulletin shows “U” in a category, this means that immigrant visa numbers are temporarily unavailable to all applicants in that particular preference category and country of birth (or country of chargeability).

5. Visa Retrogression

Sometimes a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression generally occurs when the annual limit for a category or country has been used up or is expected to be used up soon. When the new fiscal year begins on October 1, a new supply of visa numbers is available for allocation. Usually, but not always, the new supply returns the cut-off dates to where they were before retrogression.

In the past, DOS has notified USCIS that several visa preference categories have become fully subscribed within days of publication of the monthly Visa Bulletin. Despite this fact, applicable regulations [32] See 8 CFR 245.1(g)(1). prevent USCIS from rejecting applications within that particular month, regardless of the actual availability of visa numbers.

If an officer encounters a case in which a visa was available at time of filing but is not available at time of final adjudication, the case should be retained, pre-processed, and adjudicated up to the point of final approval. If a particular applicant is ineligible for adjustment due to an issue not related to visa availability, the case may be denied accordingly because visa availability is not relevant.

All employment-based and family-based cases located at a USCIS field office that do not have a visa available at the time of adjudication must be transferred to the appropriate USCIS office or Service Center once the case has been adjudicated up to the point of final adjudication. An officer in a field office may not request allocation of a visa number. The officer should ensure that the interview and all other processing requirements, including resolution of security checks, have been completed prior to shipping the otherwise approvable case.

Final adjudication cannot be completed until a visa has been requested and DOS approves the visa request. Once a visa number becomes available, a USCIS officer will complete a final review of the adjustment application to ensure the applicant continues to meet eligibility requirements at time of final adjudication. This includes updating any expired security checks and may also include issuing a Request for Evidence (RFE) if it is unclear whether the applicant is still eligible for the particular classification or may be subject to a bar to adjustment or an inadmissibility ground, particularly in those cases that have had a long-delayed final adjudication.

6. Derivatives

In order to prevent the separation of families, the spouse or children of a preference immigrant can accompany or follow to join the principal beneficiary of an immigrant visa petition. [33] See INA 203(d). Because the spouse and children do not independently have a basis to adjust status outside of their relationship to the principal immigrant, they derive their status from the principal and are therefore known as derivatives of the principal.

“Accompany” and “follow to join” are terms of art and not defined within the INA. DOS generally considers the derivative spouse or child to be accompanying the principal when issued an immigrant visa or adjusting status within six months of the date DOS issues a visa to the principal or the date the principal adjusts status in the United States. [34] See 22 CFR 40.1(a)(1). In contrast, there is no specific time period during which a derivative must follow to join the principal. [35] See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries. The distinction between “accompany” and “follow to join” is relevant for certain visa classifications that may allow for one but not the other. For instance, derivatives of certain special immigrants under INA 101(a)(27)(D)-(H) may accompany but not follow to join the principal applicant.

Derivative Spouse

In general, the derivative spouse of a principal beneficiary may be accorded the same priority date and classification as the principal provided that:

The marriage between the principal and the derivative spouse existed at the time the principal either adjusted status or was admitted to the United States as a lawful permanent resident (LPR); [36] See 22 CFR 42.53(c). See 9 FAM 503.3-2(D), Priority Date for Derivative Spouse/Child.

The marriage continues to exist at the time of the derivative’s adjustment of status; and

The principal remains in LPR status at the time the derivative adjusts status. [37] See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

Derivative Child

The derivative child of a principal beneficiary may be accorded the same priority date and classification as the principal provided that:

The derivative child was acquired prior to the time the principal either adjusted status or was admitted to the United States as an LPR;

The child continues to qualify as a child under the statutory definition (unmarried and under 21 years old) [38] See INA 201(b). or otherwise under the provisions of the CSPA, if applicable; [39] See 9 FAM 503.3-2(D), Priority Date for Derivative Spouse/Child. See Chapter 7, Child Status Protection Act [7 USCIS-PM A.7]. and

The principal remains in LPR status at the time the derivative adjusts status. [40] For instance, the principal beneficiary did not lose LPR status or did not naturalize, thereby removing the principal’s ability to confer LPR status to the derivative. See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

A principal’s natural child born after the principal’s LPR admission or adjustment may accompany or follow to join the principal as a derivative if born of a marriage that existed at the time of the principal’s admission or adjustment to LPR status. [41] See 22 CFR 42.53(c). For purposes of this rule, such a child is considered to have been acquired prior to the principal’s obtaining LPR status and is entitled to the principal’s priority date. [42] See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

An adopted child who was not able to accompany the principal because the two-year legal custody and joint residence requirements had not yet been met when the principal immigrated may become eligible to follow to join the principal. This may apply in cases where the child still qualifies as a “child” once the legal custody and joint residence requirements are met. Residing with either adoptive parent will meet the joint residence requirement with respect to each adoptive parent. [43] See Matter of Y- K- W-, 9 I&N Dec. 176 (A.G. 1961).

Derivative Spouse and Child

Other than exceptions for U nonimmigrants, asylee derivatives, and refugee derivatives adjusting status, USCIS cannot approve the Form I-485 for a derivative applicant until the principal applicant has been granted lawful permanent resident status. [44] See 22 CFR 40.1(a)(2). See INA 245(m) and 8 CFR 245.24. See Part L, Refugee Adjustment [7 USCIS-PM L] and Part M, Asylee Adjustment [7 USCIS-PM M] for more information on the exception for asylee and refugee derivatives adjusting status.

In addition, there are a few special categories where certain additional family members qualify as derivative applicants and may adjust status. These include:

Adjustment applicants in T or U nonimmigrant status;

Applicants under Section 13 or the Act of September 11, 1957 (Public Law 85-316); and

Those applying as dependents under HRIFA.

More information is provided in the program-specific parts of this volume.

7. Cross-Chargeability

In certain situations, an applicant may benefit from the charging of their visa to their spouse’s or parent’s country of birth rather than their own. This is known as cross-chargeability.

In practice, cross-chargeability is used where the preference quota category is backlogged for one spouse’s country of chargeability but is current for the other spouse’s country of chargeability. The principal applicant may cross-charge to the derivative spouse’s country, and the derivative spouse may cross-charge to the principal’s country. [45] See INA 202(b)(2).

Derivative children may cross-charge to either parent’s country as necessary. [46] See INA 202(b)(1). Parents may not cross-charge to a child’s country. In other words, the principal applicant or derivative spouse may never use their child’s country of birth for cross-chargeability.

Whenever possible, cross-chargeability should be applied to preserve family unity and allow family members to immigrate together. [47] See 9 FAM 503.2-4(A), Derivative Chargeability.

Eligibility

In order to benefit from cross-chargeability, both applicants must be eligible to adjust status. A derivative using the principal’s country of chargeability may adjust status with the principal or at any time thereafter. When a principal uses the derivative spouse’s country of chargeability, both applicants are considered principal applicants: one for the purpose of conferring immigrant status and the other for the purpose of conferring a more favorable chargeability. [48] See 9 FAM 503.2-4(A), Derivative Chargeability. As such, the officer should approve both adjustment applications at the same time.

The following situations are examples of when applicants are eligible for cross-chargeability:

Examples of Eligibility for Cross-Chargeability

If a Visa is …

And a Visa is …

Then Charge the …

Available for principal applicant

Not available for derivative spouse

Derivative spouse’s visa to the principal applicant’s country of chargeability

Not available for principal applicant

Available for derivative spouse

Principal applicant’s visa to the derivative spouse’s country of chargeability

Available for principal applicant and derivative spouse

Not available for derivative child

Derivative child’s visa to either parent’s more favorable country of chargeability

Processing Requests for Cross-Chargeability

If a principal applicant is filing along with a derivative spouse or child and a visa appears unavailable at first glance, the officer should check the A-files for possible cross-chargeability eligibility. Often, an applicant will affirmatively request use of cross-chargeability when filing the application. In all cases where cross-chargeability provisions apply, the files should be forwarded to the adjudicating officer with a notation that indicates possible cross-chargeability. The files should be kept together in a family pack.

D. Determine Admissibility

Immigration laws specify acts, conditions, and conduct that can make foreign nationals ineligible for adjustment of status. These acts, conditions, and conduct are outlined in INA 212 and are called “grounds of inadmissibility.”

Admissibility requirements may vary based on the adjustment of status category sought. If the officer determines that the applicant is not inadmissible under any applicable grounds, then the officer may move on to other aspects of the adjudication. If the officer determines the applicant is inadmissible, the applicant may need a waiver or other form of relief to address the inadmissibility. The officer must confirm that the applicant is admissible to the United States or that any inadmissibilities are waived before making a final determination on an adjustment application. [49] For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM].

1. Report of Medical Examination and Vaccination Record (Form I-693)

Adjustment applicants who must show they are not inadmissible on health-related grounds are typically required to undergo an immigration medical examination performed by a USCIS-designated civil surgeon in the United States. [50] For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3]. The civil surgeon records the results of the medical exam on the Report of Medical Examination and Vaccination Record (Form I-693), which is then reviewed by the officer upon adjudication of the adjustment application. Some adjustment applicants may have already undergone a medical exam overseas. In this case, the adjustment applicant may not need to repeat the medical exam in the United States or may only need to undergo the vaccination assessment.

If Form I-693 is required, the officer should carefully review the form to ensure it is properly completed and that the results of the immigration medical examination documented on the form are still valid for adjustment purposes. [51] For detailed information on reviewing Form I-693, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Documentation, Section C, Documentation Completed by Civil Surgeon [8 USCIS-PM B.4(C)].

If Form I-693 is properly completed and the medical results still valid, the officer should review the form to assess whether the applicant is inadmissible based on any health-related ground. [52] For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

2. Affidavit of Support Under Section 213A of the Act (Form I-864) [53] See 8 CFR 213a.

Most immediate relative and family-based immigrants, and some employment-based immigrants, are inadmissible as likely to become a public charge unless they submit an Affidavit of Support (Form I-864) with their adjustment application. The instructions for Form I-864 provide detailed information about who is required to submit an Affidavit of Support.

The officer must review the Affidavit of Support documentation to ensure the applicant and his or her sponsor meets the Affidavit of Support requirements, including that:

The sponsor(s) signed the Affidavit of Support;

The sponsor’s income meets or exceeds 125% of the Federal Poverty Guidelines; [54] If the sponsor is on active duty with the U.S. armed forces and is petitioning for a spouse or child, only 100% of the Federal Poverty Guidelines must be met. See Poverty Guidelines (Form I-864P).

The sponsor submitted his or her most recent year’s tax returns (Note: Older years are not acceptable in lieu of the most recent year’s tax return. If a copy of a tax return is submitted, then copies of W-2s or 1099s must also be submitted. If an IRS transcript is submitted, then W-2s or 1099s are not needed.);

There is an affidavit of support from both sponsors, if there is a joint sponsor;

Sponsor and joint sponsor provided proof of citizenship or permanent resident status; and

Sponsor and joint sponsor must be domiciled in the United States or a U.S. territory or possession.

In addition, if a sponsor is using assets to meet the requirements, the assets must total:

For a spouse: Three times the difference in the sponsor’s income and the 125% needed according to the poverty guidelines.

For any other relative: Five times the difference in the sponsor’s income and the 125% needed according to the poverty guidelines.

An applicant is exempt from the Affidavit of Support requirement and need not submit Form I-864 if:

The applicant has earned or can be credited with 40 qualifying quarters (credits) of work in the United States under the Social Security Act (Note: For this purpose: A spouse can be credited with quarters of coverage earned by the other spouse during the marriage. A child can be credited with any quarters of coverage earned by each parent before the child’s 18th birthday.);

The applicant is an intending immigrant child who will become a U.S. citizen immediately upon entry under the Child Citizenship Act of 2000 (CCA); [55] See INA 320.

The applicant is the widow(er) of a U.S. citizen; or

The applicant is a Violence Against Women Act (VAWA) self-petitioner or derivative child.

If any of these situations apply, the applicant should submit an Intending Immigrant’s Affidavit of Support Exemption (Form I-864W) instead of the Form I-864 with his or her adjustment application.

Other applicants are also exempt from filing an Affidavit of Support if they filed a Form I-485 prior to December 19, 1997 [56] See 8 CFR 213a.2(a)(2)(i) and 8 CFR 213a.2(a)(2)(ii)(B). See Illegal Immigration Reform and Immigrant Responsibility Act, Division C of Pub. L. 104-208 (September 30, 1996). or if they qualify:

Diversity Visa immigrants; [57] A winner of the Diversity Visa Program lottery has no petition or petitioner. Consequently, a Diversity Visa Program adjustment applicant does not need to file an Affidavit of Support. However, the applicant is still subject to the public charge ground of inadmissibility.

Special immigrant juveniles; [58] See INA 245(h).

Refugees and asylees at time of adjustment of status; [59] See INA 209(c).

Employment-based immigrants (other than those for whom a relative either filed an Immigrant Petition for Alien Worker (Form I-140) or owns 5% or more of the firm that filed the Form I-140); [60] See INA 212(a)(4).

Foreign nationals granted T nonimmigrant status (human trafficking victims);

Foreign nationals granted U nonimmigrant status (crime victim); [61] See INA 101(a)(15)(U) and INA 212(a)(4)(E)(ii). See Section 804 of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4, 127 Stat. 54, 111 (March 7, 2013). and

Certain qualified aliens as described under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). [62] See INA 212(a)(4)(E)(iii). See Section 804 of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4, 127 Stat. 54, 111 (March 7, 2013). See Section 431(b) of PRWORA, Pub. L. 104-193, 110 Stat. 2105, 2274 (August 22, 1996) as amended by Title V, Subtitle A, Section 501 of the Omnibus Consolidated Appropriates Act of 1997, Pub. L. 104-208, 110 Stat. 3009, 3009-670 (September 30, 1996) and codified at 8 U.S.C. 1641.

Applicants in these categories need not file either Form I-864 or Form I-864W.

If the officer determines that required documentation is missing or that the petitioner fails to meet sponsorship requirements, the officer should issue an RFE requesting the missing evidence, including the need for the applicant to obtain a joint sponsor or to submit Form I-864W as appropriate.

E. Security Checks and National Security Concerns

USCIS conducts background checks on all applicants for adjustment of status to enhance national security and protect the integrity of the immigration process by ensuring that USCIS grants lawful permanent resident status only to those applicants eligible for the requested benefit. The officer must ensure that all security checks are completed, unexpired, and resolved as necessary prior to adjudicating an adjustment application.

A national security concern exists when a person or organization has been determined to have a link to past, current, or planned involvement in an activity or organization involved in terrorism, espionage, sabotage, or the illegal transfer of goods, technology, or sensitive information, among others. [63] See INA 212(a)(3)(A), INA 212(a)(3)(B), and INA 212(a)(3)(F). See INA 237(a)(4)(A) or INA 237(a)(4)(B).

An officer must consider activities, foreign nationals, and organizations described in statute, to determine if a national security concern exists. [64] See INA 212(a)(3)(A), INA 212(a)(3)(B), and INA 212(a)(3)(F). See INA 237(a)(4)(A) and (INA 237(A)(4)(B). These include but are not limited to:

Espionage activity; [65] See INA 212(a)(3)(A)(i)(I) and INA 237(a)(4)(A).

Illegal transfer of goods, technology, or sensitive information; [66] See INA 212(a)(3)(A)(i)(II) and INA 237(a)(4)(A).

Activity intended to oppose, control, or overthrow the U.S. Government by force, violence, or other unlawful means; [67] See INA 212(a)(3)(A)(iii) and INA 237(a)(4)(A).

Terrorist activity; [68] See INA 212(a)(3)(B) and INA 237(a)(4)(B). and

Association with terrorist organizations. [69] See INA 212(a)(3)(F) and INA 237(a)(4)(B).

The officer should consider the totality of the circumstances to determine whether an articulable link exists between the foreign national (or organization) and prior, current, or planned involvement in, or association with an activity, any foreign national (or organization) described in any of these sections.

Applications with national security concerns require specific handling in accordance with USCIS policy and procedures.

Footnotes


1. [^]

The approval of a visa petition provides no rights to the beneficiary of the petition, as approval of a visa petition is a preliminary step in the adjustment of status process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa and adjustment of his or her status. See Matter of Ho, 19 I&N Dec. 582 (BIA 1988).

5. [^]

See INA 204(l) for exceptions due to death of the petitioner or principal beneficiary.

6. [^]

See Pub. L. 107-208 (August 6, 2002). See Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].

7. [^]

See INA 101(b)(1).

8. [^]

For more information, see Section C, Verify Visa Availability, Subsection 6, Derivatives [7 USCIS-PM A.6(C)(6)].

9. [^]

See INA 203(d) and Matter of Naulu, 19 I&N Dec. 351 (BIA 1986).

10. [^]

See 22 CFR 40.1(a)(2). See INA 245(m) and 8 CFR 245.24. See Part L, Refugee Adjustment [7 USCIS-PM L] and Part M, Asylee Adjustment [7 USCIS-PM M] for more information on the exception for asylee and refugee derivatives adjusting status.

11. [^]

See INA 204(j).

13. [^]

See INA 201(b) for a complete listing.

14. [^]

See INA 209.

15. [^]

Although a visa is immediately available to T nonimmigrant-based adjustment applicants at the time of filing, there is an annual cap on the number of adjustments allowed each year. Up to 5,000 T nonimmigrants are allowed to adjust status each year. This does not include immediate family members. See INA 245(l).

16. [^]

See INA 210 and 245A.

17. [^]

Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386, 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554, 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167, 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316, as amended, 8 CFR 245.3, INA 101(a)(15)(A)(i)-(ii) and INA 101(a)(15)(G)(i)-(ii). Although a visa is immediately available to Section 13-based adjustment applicants at the time of filing, there is an annual cap on the number of adjustments allowed each year. Only 50 visas per year, including both principal applicants and their immediate family members, are allotted each year.

19. [^]

See INA 202(a)(2).

20. [^]

For exceptions to this general rule, see 22 CFR 42.12.

21. [^]

For more information, see the USCIS website.

22. [^]

Form I-797 is contained in the A-file.

23. [^]

Immigrant Petition for Alien Worker (Form I-140); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); or Immigrant Petition by Alien Entrepreneur (Form I-526).

24. [^]

See the Department of Labor’s website to access this form. The previous version of this form was ETA Form 750.

30. [^]

See INA 245(a)(3) and 8 CFR 245.2(a)(2)(i)(A). See 8 CFR 103.2(b)(1). For more information on determining whether a visa was available at time of filing, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM B.3(B)(4)].

31. [^]

USCIS also provides information about the current Visa Bulletin on the USCIS website.

33. [^]

See INA 203(d).

35. [^]

See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries. The distinction between “accompany” and “follow to join” is relevant for certain visa classifications that may allow for one but not the other. For instance, derivatives of certain special immigrants under INA 101(a)(27)(D)-(H) may accompany but not follow to join the principal applicant.

36. [^]

See 22 CFR 42.53(c). See 9 FAM 503.3-2(D), Priority Date for Derivative Spouse/Child.

37. [^]

See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

38. [^]

See INA 201(b).

39. [^]

See 9 FAM 503.3-2(D), Priority Date for Derivative Spouse/Child. See Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].

40. [^]

For instance, the principal beneficiary did not lose LPR status or did not naturalize, thereby removing the principal’s ability to confer LPR status to the derivative. See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

42. [^]

See 9 FAM 502.1-1(C)(2), Derivative Applicants/Beneficiaries.

43. [^]

See Matter of Y- K- W-, 9 I&N Dec. 176 (A.G. 1961).

44. [^]

See 22 CFR 40.1(a)(2). See INA 245(m) and 8 CFR 245.24. See Part L, Refugee Adjustment [7 USCIS-PM L] and Part M, Asylee Adjustment [7 USCIS-PM M] for more information on the exception for asylee and refugee derivatives adjusting status.

45. [^]

See INA 202(b)(2).

46. [^]

See INA 202(b)(1).

47. [^]

See 9 FAM 503.2-4(A), Derivative Chargeability.

48. [^]

See 9 FAM 503.2-4(A), Derivative Chargeability.

49. [^]

For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM].

50. [^]

For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 3, Applicability of Medical Examination and Vaccination Requirement [8 USCIS-PM B.3].

51. [^]

For detailed information on reviewing Form I-693, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Documentation, Section C, Documentation Completed by Civil Surgeon [8 USCIS-PM B.4(C)].

52. [^]

For more information, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

53. [^]

See 8 CFR 213a.

54. [^]

If the sponsor is on active duty with the U.S. armed forces and is petitioning for a spouse or child, only 100% of the Federal Poverty Guidelines must be met. See Poverty Guidelines (Form I-864P).

55. [^]

See INA 320.

56. [^]

See 8 CFR 213a.2(a)(2)(i) and 8 CFR 213a.2(a)(2)(ii)(B). See Illegal Immigration Reform and Immigrant Responsibility Act, Division C of Pub. L. 104-208 (September 30, 1996).

57. [^]

A winner of the Diversity Visa Program lottery has no petition or petitioner. Consequently, a Diversity Visa Program adjustment applicant does not need to file an Affidavit of Support. However, the applicant is still subject to the public charge ground of inadmissibility.

58. [^]

See INA 245(h).

59. [^]

See INA 209(c).

60. [^]

See INA 212(a)(4).

61. [^]

See INA 101(a)(15)(U) and INA 212(a)(4)(E)(ii). See Section 804 of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4, 127 Stat. 54, 111 (March 7, 2013).

62. [^]

See INA 212(a)(4)(E)(iii). See Section 804 of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4, 127 Stat. 54, 111 (March 7, 2013). See Section 431(b) of PRWORA, Pub. L. 104-193, 110 Stat. 2105, 2274 (August 22, 1996) as amended by Title V, Subtitle A, Section 501 of the Omnibus Consolidated Appropriates Act of 1997, Pub. L. 104-208, 110 Stat. 3009, 3009-670 (September 30, 1996) and codified at 8 U.S.C. 1641.