There are additional classes of foreign nationals barred from adjusting status. When determining whether the bars below apply, an officer should only consider the applicant’s current period of stay since the most recent admission into the United States prior to filing his or her adjustment application, unless the applicant is a foreign national removable for engagement in terrorist activity.

When reviewing whether the bar for foreign nationals removable for engagement in terrorist activity applies, an officer should examine every entry, admission, and time spent in the United States by the applicant. It is irrelevant how much time has passed since each entry or whether the applicant subsequently left the United States and returned lawfully.

A. Crewmen

A nonimmigrant crewman is barred from adjusting status. [1] See INA 245(c)(1). This bar applies to a foreign national serving as a crewman who is permitted to land as a D-1 or D-2 nonimmigrant, as shown on the foreign national’s Arrival/Departure Record (Form I-94) or Crewman’s Landing Permit (Form I-95), and by the corresponding visa contained in the crewman’s passport. The bar also applies to a foreign national who was admitted as a C-1 nonimmigrant to join a crew. [2] See Matter of Tzimas, 10 I&N Dec. 101 (BIA 1962).

In addition, the foreign national’s service as a crewman is controlling regardless of the foreign national’s actual nonimmigrant status, if any. For example, a foreign national admitted in B-2 nonimmigrant visitor status while serving as a crewman is barred from adjustment. [3] See Matter of Campton, 13 I&N Dec. 535, 538 (BIA 1970). See Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009) (service as crewman, not nonimmigrant status, is controlling for determining eligibility for non-lawful permanent resident cancellation). The bar applies even if the foreign national was not employed as a crewman in the sense of serving as a crewman for pay. [4] See Matter of Campton, 13 I&N Dec. 535, 538 (BIA 1970). The bar does not apply, however, to Violence Against Women Act (VAWA)-based applicants.

B. Foreign National Admitted in Transit Without Visa

Any foreign national admitted to the United States in transit without a visa (TWOV) is barred from adjusting status. [5] See INA 245(c)(3). This bar does not apply to a foreign national who was admitted as a transit alien with a C-1 or C-2 or C-3 nonimmigrant visa.

On August 2, 2003, DHS and the Department of State suspended the TWOV program. On August 7, 2003, DHS published an interim rule implementing the suspension. [6] See 68 FR 46926 (Aug. 7, 2003). Foreign nationals who transit through the United States after that date are required to obtain a C nonimmigrant visa. [7] See INA 101(a)(15)(C). See 68 FR 46926, 46926-28 (Aug. 7, 2003). See 68 FR 46948, 46948-49 (Aug. 7, 2003). Thus, the bar does not apply to a foreign national (other than crewmen) admitted as a C-1 or C-2 or C-3 nonimmigrant if the foreign national had a C-1, C-2, or C-3 nonimmigrant visa in order to transit through the United States. Nevertheless, INA 245(c)(3) still bars a foreign national who, in fact, was admitted as a TWOV when he or she last came to the United States. The bar does not apply, however, to VAWA-based applicants.

C. Visa Waiver Programs

A foreign national admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status. [8] See INA 217. See INA 245(c)(4). Similarly, a foreign national admitted as a nonimmigrant without a visa to Guam or to the CNMI is barred from adjustment of status. [9] See INA 212(l). See INA 245(c)(4). These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants.

D. Foreign National Admitted as Witness or Informant

A foreign national admitted to the United States as an informant of terrorist or criminal activity (S nonimmigrant) is barred from adjusting status. [10] See INA 245(c)(5). The state or federal law enforcement agency (LEA) that originally requested the foreign national’s S nonimmigrant status may request that the S nonimmigrant be allowed to adjust status to that of a lawful permanent resident. The LEA initiates this special process through a filing with the Department of Justice. [11] See INA 245(j). See 8 CFR 245.11. Foreign nationals admitted as S nonimmigrants are prohibited from seeking adjustment of status apart from this process. The bar does not apply, however, to VAWA-based applicants.

E. Foreign National Removable for Engagement in Terrorist Activity

A foreign national is barred from adjusting status if:

He or she is deportable for having engaged in or incited terrorist activity;

He or she has been a member of or received military training from a terrorist organization; or

He or she has been associated with terrorist organizations, and he or she intends to engage in such activities while in the United States that could endanger the welfare, safety, or security of the United States. [12] See INA 245(c)(6). See INA 237(a)(4)(B). See INA 212(a)(3)(B) and INA 212(a)(3)(F). See INA 212(a)(3)(B) in general for definitions related to terrorist activities and exceptions.

The officer should consider all entries and time periods spent inside the United States when determining whether this bar applies. Furthermore, any restricted activity, whether it occurs before or after a foreign national files the adjustment application, bars the foreign national from adjusting status. Finally, in addition to the adjustment bar, the foreign national may also be inadmissible for such activity. [13] See INA 212(a)(3). While the bar does not apply to VAWA-based applicants, VAWA-based applicants may still be inadmissible for such activity.

F. Nonimmigrant Admitted as Fiancé(e) of U.S. Citizen

A foreign national fiancé(e) of a U.S. citizen cannot adjust status except on the basis of the marriage to the U.S. citizen who filed a Petition for Alien Fiancé(e) (Form I-129F) on behalf of the fiancé(e). [14] See INA 101(a)(15)(K). See INA 245(d). Likewise, a child of the fiancé(e) may only adjust on the basis of his or her parent’s marriage to the U.S. citizen petitioner. [15] See INA 245(d).

The terms of the nonimmigrant fiancé(e) status require that the nonimmigrant fiancé(e) marry the petitioner within 90 days after becoming a nonimmigrant. [16] See INA 214(d). See INA 101(a)(15)(K). Furthermore, if the nonimmigrant has not been married for two years or more at the time of adjustment, the nonimmigrant fiancé(e) and any children of the fiancé(e) may only obtain permanent residence on a conditional basis. [17] See INA 245(d) and INA 216. See Matter of Sesay, 25 I&N Dec. 431 (2011).

Marriage Legally Terminated

A nonimmigrant fiancé(e) who contracts a valid and bona fide marriage to the U.S. citizen petitioner within the requisite 90-day time period remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether the nonimmigrant fiancé(e) remarries thereafter. [18] See Matter of Sesay, 25 I&N Dec. 431 (2011). See Matter of Dixon, 16 I&N Dec. 355 (BIA 1977). See Matter of Blair, 14 I&N Dec. 153 (Reg. Comm. 1972). The marriage upon which the foreign national obtained K nonimmigrant status must have been bona fide, even if it was terminated, in order to adjust status. See Lutwak v. United States, 344 U.S. 604 (1953). See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). If the evidence would permit a reasonable fact finder to conclude that the marriage was not bona fide, adjustment would properly be denied. It is necessary to follow the standard procedure in 8 CFR 103.2(b)(16) before denying adjustment based on evidence of which the applicant may not be aware. The applicant remains subject to all conditional permanent residency requirements, if applicable. [19] See INA 245(d) and INA 216.

G. Conditional Permanent Residents

In general, a foreign national granted permanent residence on a conditional basis [20] Under INA 216 or INA 216A. is ineligible to adjust status under the provisions of INA 245(a). [21] See INA 245(d) and INA 245(f). See 8 CFR 245.1(c)(5). Instead, conditional permanent residents must comply with the requirements for removal of the conditions on their status to obtain permanent residence unconditionally. [22] See Petition to Remove the Conditions on Residence (Form I-751) and Petition by Entrepreneur to Remove Conditions (Form I-829).

Footnotes


1. [^]

See INA 245(c)(1).

2. [^]

See Matter of Tzimas, 10 I&N Dec. 101 (BIA 1962).

3. [^]

See Matter of Campton, 13 I&N Dec. 535, 538 (BIA 1970). See Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009) (service as crewman, not nonimmigrant status, is controlling for determining eligibility for non-lawful permanent resident cancellation).

4. [^]

See Matter of Campton, 13 I&N Dec. 535, 538 (BIA 1970).

6. [^]

See 68 FR 46926 (Aug. 7, 2003).

7. [^]

See INA 101(a)(15)(C). See 68 FR 46926, 46926-28 (Aug. 7, 2003). See 68 FR 46948, 46948-49 (Aug. 7, 2003).

8. [^]

See INA 217. See INA 245(c)(4).

10. [^]

See INA 245(c)(5).

11. [^]

See INA 245(j). See 8 CFR 245.11.

12. [^]

See INA 245(c)(6). See INA 237(a)(4)(B). See INA 212(a)(3)(B) and INA 212(a)(3)(F). See INA 212(a)(3)(B) in general for definitions related to terrorist activities and exceptions.

13. [^]

See INA 212(a)(3).

15. [^]

See INA 245(d).

17. [^]

See INA 245(d) and INA 216. See Matter of Sesay, 25 I&N Dec. 431 (2011).

18. [^]

See Matter of Sesay, 25 I&N Dec. 431 (2011). See Matter of Dixon, 16 I&N Dec. 355 (BIA 1977). See Matter of Blair, 14 I&N Dec. 153 (Reg. Comm. 1972). The marriage upon which the foreign national obtained K nonimmigrant status must have been bona fide, even if it was terminated, in order to adjust status. See Lutwak v. United States, 344 U.S. 604 (1953). See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). If the evidence would permit a reasonable fact finder to conclude that the marriage was not bona fide, adjustment would properly be denied. It is necessary to follow the standard procedure in 8 CFR 103.2(b)(16) before denying adjustment based on evidence of which the applicant may not be aware.

19. [^]

See INA 245(d) and INA 216.

20. [^]

Under INA 216 or INA 216A.

22. [^]

See Petition to Remove the Conditions on Residence (Form I-751) and Petition by Entrepreneur to Remove Conditions (Form I-829).