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INA: ACT 245 - ADJUSTMENT OF STATUS OF NONIMMIGRANT TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE
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Sec.
245. [8 U.S.C. 1255]
(a) The status of an alien who was inspected and admitted or paroled into the United States 1/ or the status of any other alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) or may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
(b)
Upon the approval of an application for adjustment made under subsection (a),
the Attorney General shall record the alien's lawful admission for permanent
residence as of the date the order of the Attorney General approving the
application for the adjustment of status is made, and the Secretary of State
shall reduce by one the number of the preference visas authorized to be issued
under sections 202 and 203
within the class to which
the alien is chargeable for the fiscal year then current.
(c) 1/ Other than an alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv),(A)(v), (A)(vi), (B)(ii), (B)(iii), or (B)(iv) of section 204(a)(1), subsection (a) shall not be applicable to (1) an alien crewman; (2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H), (I), (J), or (K)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)(C); (4) an alien (other than an immediate relative as defined in section 201(b)) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S); (6) an alien who is deportable under section 237(a)(4)(B); 1a/ (7) 2/ any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.
(d)
The
Attorney General may not adjust, under subsection (a), the status of an alien
lawfully admitted to the United States for permanent residence on a
conditional basis under section 216.
The Attorney General may not adjust, under subsection (a), the status of a
nonimmigrant alien described in section 101(a)(15)(K)
2aa/
except
to that of an alien lawfully admitted to the United States on a conditional
basis under section 216 as a result of the marriage of the nonimmigrant (or,
in the case of a minor child, the parent) to the citizen who filed the
petition to accord that alien's nonimmigrant status under section 101(a)(15)(K).
(e)(1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien's status adjusted under subsection (a).
(2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the United States.
(3)
Paragraph
(1) and section 204(g)
shall
not apply with respect to a marriage if the alien establishes by clear and
convincing evidence to the satisfaction of the Attorney General that the
marriage was entered into in good faith and in accordance with the laws of the
place where the marriage took place and the marriage was not entered into for
the purpose of procuring the alien's admission as an immigrant and no fee or
other consideration was given (other than a fee or other consideration to an
attorney for assistance in preparation of a lawful petition) for the filing of
a petition under section 204(a)
or
2aa/
subsection
(d) or (p) of section 214
with
respect to the alien spouse or alien son or daughter. In accordance with
regulations, there shall be only one level of administrative appellate review
for each alien under the previous sentence.
(f)
The Attorney General may not adjust, under subsection (a), the status of an
alien lawfully admitted to the United States for permanent residence on a
conditional basis under section 216A.
(g)
In applying this section to a special immigrant described in section 101(a)(27)(K),
such an immigrant shall be deemed, for purposes of subsection (a), to have
been paroled into the United States.
(h) In applying this section to a special immigrant described in section 101(a)(27)(J)-
(1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States; and
(A) paragraphs (4), (5)(A), and (7)(A) of section 212(a) shall not apply, and
(B)
the Attorney General may waive other paragraphs of section 212(a)
(other than paragraphs
(2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a
single offense of simple possession of 30 grams or less of marijuana), (3)(A),
(3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian
purposes, family unity, or when it is otherwise in the public interest. The
relationship between an alien and the alien's natural parents or prior
adoptive parents shall not be considered a factor in making a waiver under
paragraph (2)(B). Nothing in this subsection or section 101(a)(27)(J)
shall be construed as
authorizing an alien to apply for admission or be admitted to the United
States in order to obtain special immigrant status described in such section.
(i)(1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--
(ii) is within one of the classes enumerated in subsection (c) of this section; 2a/
(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d)) of--
(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or
(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/
(C) 2a/ who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 3/ as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who-
(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986;
(ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and
(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section. and
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
(3) 4/ (A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 286.
(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the 4a/ Breached Bond/Detention established under section 286(r), 4a/ except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 286(m) .
(j)5/ (1) If, in the opinion of the Attorney General-
(A) a nonimmigrant admitted into the United States under section 101(a)(15)(S)(i) has supplied information described in subclause (I) of such section; and
(B)
the provision of such information has substantially contributed to the success
of an authorized criminal investigation or the prosecution of an individual
described in subclause (III) of that section, the Attorney General may adjust
the status of the alien (and the spouse, married and unmarried sons and
daughters, and parents of the alien if admitted under that section) to that of
an alien lawfully admitted for permanent residence if the alien is not
described in section 212(a)(3)(E).
(A) a nonimmigrant admitted into the United States under section 101(a)(15)(S)(ii) has supplied information described in subclause (I) of such section, and
(i) the prevention or frustration of an act of terrorism against a United States person or United States property, or
(ii) the success of an authorized criminal investigation of, or the prosecution of, an individual involved in such an act of terrorism, and
(C) the nonimmigrant has received a reward under section 36(a) of the State Department Basic Authorities Act of 1956, the Attorney General may adjust the status of the alien (and the spouse, married and unmarried sons and daughters, and parents of the alien if admitted under such section) to that of an alien lawfully admitted for permanent residence if the alien is not described in section 212(a)(3)(E).
(3) Upon the approval of adjustment of status under paragraph (1) or (2)6/, the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval and the Secretary of State shall reduce by one the number of visas authorized to be issued under sections 201(d) and 203(b)(4) for the fiscal year then current.
(k)
7/
An
alien who is eligible to receive an immigrant visa under paragraph (1), (2),
or (3) of section 203(b)
(or, in
the case of an alien who is an immigrant described in section 101(a)(27)(C),
under section 203(b)(4))
may adjust status pursuant to subsection (a) and notwithstanding subsection
(c)(2), (c)(7), and (c)(8), if--
(1)
the alien, on the date of filing an application for adjustment of status, is
present in the United States pursuant to a lawful admission;
(2)
the alien, subsequent to such lawful admission has not, for an aggregate
period exceeding 180 days--
(A)
failed to maintain, continuously, a lawful status;
(B)
engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission.
(l) 8/ (1) If, in the opinion of the Attorney General, a nonimmigrant admitted into the United States under section 101(a)(15)(T)(i)--
(A) has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a nonimmigrant under section 101(a)(15)(T)(i),
(B) has, throughout such period, been a person of good moral character, and
(C)(i) has, during such period, complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, or
(ii) the alien would suffer extreme hardship involving unusual and severe harm upon removal from the United States, the Attorney General may adjust the status of the alien (and any person admitted under section 101(a)(15)(T)(ii) 8a/as the spouse, parent, sibling, 8a/ or child of the alien) to that of an alien lawfully admitted for permanent residence.
(2) Paragraph (1) shall not apply to an alien admitted under section 101(a)(15)(T) who is inadmissible to the United States by reason of a ground that has not been waived under section 212, except that, if the Attorney General considers it to be in the national interest to do so, the Attorney General, in the Attorney General’s discretion, may waive the application of--
(A) paragraphs (1) and (4) of section 212(a); and
(B) any other provision of such section (excluding paragraphs (3), (10)(C), and (10(E)), if the activities rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in section 101(a)(15)(T)(i)(I).
(3) 10/ An alien shall be considered to have failed to maintain continuous physical presence in the United States under paragraph (1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
(4) 10/ (A) The total number of aliens whose status may be adjusted under paragraph (1) during any fiscal year may not exceed 5,000.
(B) The numerical limitation of subparagraph (A) shall only apply to principal aliens and not to the spouses, sons, daughters, siblings, 8a/ or parents of such aliens.
(5) 10/ Upon the approval of adjustment of status under paragraph (1), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval.
(m) 9/ 10/(1) The Attorney General may adjust the status of an alien admitted into the United States (or otherwise provided nonimmigrant status) under section 101(a)(15)(U) to that of an alien lawfully admitted for permanent residence if the alien is not described in section 212(a)(3)(E), unless the Attorney General determines based on affirmative evidence that the alien unreasonably refused to provide assistance in a criminal investigation or prosecution, if--
(A) the alien has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a nonimmigrant under clause (i) or (ii) of section 101(a)(15)(U); and
(B) in the opinion of the Attorney General, the alien's continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.
(2) An alien shall be considered to have failed to maintain continuous physical presence in the United States under paragraph (1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days unless the absence is in order to assist in the investigation or prosecution or unless an official involved in the investigation or prosecution certifies that the absence was otherwise justified.
(3) Upon approval of adjustment of status under paragraph (1) of an alien described in section 101(a)(15)(U)(i) the Attorney General may adjust the status of or issue an immigrant visa to a spouse, a child, or, in the case of an alien child, a parent who did not receive a nonimmigrant visa under section 101(a)(15)(U)(ii) if the Attorney General considers the grant of such status or visa necessary to avoid extreme hardship.
(4) Upon the approval of adjustment of status under paragraph (1) or (3), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval.
FOOTNOTES
FOR SECTION 245
FN 1 Section 111(c) of Public Law 105-119, dated November 26, 1997, added the phrase "subject to subsection (k),". Section 1506(a)(1)(A) of Public Law 106-386, dated October 28, 2000, amended subsection (a); Section 1506(a)(1)(B) amended subsection (c).
EFFECTIVE DATE- The amendments made by section 1506(a)(1) shall apply to applications for adjustment of status pending on or made on or after January 14, 1998.
FN
1a Amended
by § 308(g)(10)(C)
of
IIRIRA.
FN
2 Added
by § 375
of
IIRIRA.
FN 2a Section 245(i)(1) amended by section 111(a) of Public Law 105-119, dated November 26, 1997. Section 111(b) of Public Law 105-119 further provides:
(b) REPEAL OF SUNSET FOR SECTION 245(i).--Section 506(c) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995 (Public Law 103-317; 108 Stat. 1766) is amended to read as follows:
"(c) The amendment made by subsection (a) shall take effect on October 1, 1994, and shall cease to have effect on October 1, 1997. The amendment made by subsection (b) shall take effect on October 1, 1994.".
Section 1502(a)(1)(B) of Public Law 106-554, dated December 21, 2000, amended section 245(i)(1)(B)(i) by striking "January 14, 1998" and inserting in its place "April 30, 2001". Section 1502(a)(1)(D) added subparagraph (C).
FN2aa Section 1103(c)(3)(A) of Public Law 106-553, dated December 21, 2000, amended subsection (d) by striking "(relating to an alien fiancee or fiance or the minor child of such alien)". Section 1103(c)(3)(B) of Public Law 106-553, dated December 21, 2000, amended subsection (e)(3) by striking "214(d)" and inserting in its place "subsection (d) or (p) of section 214"
FN
3 Amended
by § 376(a)
of
IIRIRA, effective for all applications "made on or after the end of the
90-day period beginning on the date of the enactment of this Act.
FN
4 Amended
by § 376(b)
of
IIRIRA, effective for all applications "made on or after the end of the
90-day period beginning on the date of the enactment of this Act.
FN 4a Section 110 of Public Law 105-119, dated November 26, 1997, replaced "Immigration Detention Account established under section 286(s)" with "Breached Bond/Detention established under section 286(r)".
Language was added to section 245(i)(3)(B) by section 1502(a)(2) of Public Law 106-554, dated December 21, 2000.
FN
5 Originally
added by § 130003(c)(1) of VCCLEA as subsection "(i)". Redesignated
by § 671
of
IIRIRA as subsection "(j)".
FN 6 Amended by § 671(a)(5) of IIRIRA. Effective as if included in VCCLEA.
FN 7 Subsection (k) was added by section 111(c)(2) of Public Law 105-119, dated November 26, 1997.
FN 8 Section 107(f) of Public Law 106-386, dated October 28, 2000, added paragraph (l). Note: in paragraph (l) there are two subparagraph (2)s.
FN 8a Section 4(b)(3)(A)(1)(i) and (ii) of the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108-193, dated December 19, 2003, amended section 245(l)(1)(C)(ii) by striking “admitted under that section” and inserting “admitted under section 101(a)(15)(T)(ii)”, and by inserting “sibling,” after “parent,”.
FN 9 Section 1513(f) of Public Law 106-386, dated October 28, 2000, added paragraph (l). Note: there are now two paragraph (l)s.
FN 10 Section 8(a)(4)(A) of the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108-193, dated December 19, 2003, amended subsection (l) (as added by section 107(f) of Public Law 106-386), by redesignating the second paragraph(2), and paragraphs (3) and (4), as paragraph (3), (4), and (5), respectively.
Section 8(a)(4)(B) of the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108-193, dated December 19, 2003, redesignated subsection (l) added by section 1513 of Public Law 106-386 as subsection (m).
Mr. Capp can assist in obtaining the following visa categories.