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A.

Who Is Eligible to Adjust Status

The Immigration and Nationality Act (INA) and certain other federal laws provide over forty dif
ferent ways for foreign nationals to adjust status to lawful permanent residence.
Foreign nationals may only adjust under a particular basis if they meet the eligibility
requirements for that basis at the time of filing the Application to Register Permanent
Residence or Adjust Status (Form I-485).
Eligibility requirements vary, depending on the specific basis for adjustment. [1] For more
information, see Chapter 6, Adjudicative Review [7 USCIS-PM A.6]. See Part B, 245(a)
Adjustment [7 USCIS-PM B].

Immigrant Categories

Foreign nationals eligible for adjustment of status generally may apply based on one of the
following immigrant categories or basis for adjustment:

Immediate relative of a U.S. citizen; [2] Spouses, unmarried children under 21 years of age, and
parents (if the U.S. citizen is 21 years of age or older). See INA 201(b)(2).

Other relative of a U.S. citizen or relative of a lawful permanent resident under a family-based
preference category; [3] This category includes the following family-based preference immigrant
classifications: unmarried sons and daughters, 21 years of age and older, of U.S. citizens;
spouses and unmarried children, under 21 years of age, of lawful permanent residents; unmarried
sons and daughters, 21 years of age and older, of lawful permanent residents; married sons and
daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years
of age or older). See INA 203(a).

Person admitted to the United States as a fianc(e) of a U.S. citizen;

Widow(er) of a U.S. citizen;

Violence Against Women Act (VAWA) self-petitioner;

Foreign national worker under an employment-based preference category; [4] This includes
priority workers (including aliens with extraordinary ability, outstanding professors and
researchers, and certain multinational executives and managers); members of the professions
holding advanced degrees or aliens of exceptional ability; or skilled workers, professionals, and
other workers. See INA 203(b).

Foreign national entrepreneur;

Special immigrant; [5] This includes religious workers, special immigrant juveniles, certain
Afghans and Iraqis, certain international broadcasters, certain G-4 international organization
employee or family member or NATO-6 employee or family member, certain U.S. armed forces
members, Panama Canal Zone employees, certain employees or former employees of the U.S.
government abroad, and certain physicians. See INA 101(a)(27).

Human trafficking victim;

Crime victim;

Person granted asylum status;

Person granted refugee status;

Person qualifying under certain special programs based on certain public laws; [6] 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).
Diversity Visa program;

Private immigration bill signed into law;

Other eligibility under a special program not listed above (for example, Nicaraguan Adjustment
and Central American Relief Act (NACARA) [7] See Title II of Pub. L. 105-100, 111 Stat. 2160,
2193 (November 19, 1997). Section 202);

Adjustment of status under INA 245(i); or

Derivative applicant (filing based on a principal applicant).

Specific eligibility requirements for each immigrant category are discussed in the program-
specific parts of this volume.

B. Who is Not Eligible to Adjust Status

Foreign nationals are generally not eligible for adjustment of status if one or more of the
following bars to adjustment or grounds of inadmissibility apply. However, adjustment bars do
not apply to every type of adjustment pathway. Furthermore, different inadmissibility grounds
may apply to different adjustment pathways.

Therefore, applicants may still be able to adjust under certain immigrant categories due to special
exceptions or exemptions from the adjustment bars, inadmissibility grounds, or access to
program-specific waivers of inadmissibility or other forms of relief.

1. Bars to Adjustment

Depending on how a foreign national entered the United States or if a foreign national committed
a particular act or violation of immigration law, he or she may be barred from adjusting status.
With certain exceptions, some foreign nationals ineligible for adjustment of status under INA
245 include: [8] See INA 245(a)-(k) for a full list. Some of the adjustment bars listed may not
apply to all applicants. For example, certain adjustment bars do not apply to immediate relatives,
VAWA-based applicants, certain special immigrants, or employment-based immigrants.
A foreign national who last entered the United States without being admitted or paroled after
inspection by an immigration officer; [9] See 8 CFR 245.1(b)(3).

A foreign national who last entered the United States as a nonimmigrant crewman; [10] See INA
245(c)(1) and 8 CFR 245.1(b)(2).

A foreign national who is now employed or has ever been employed in the United States
without authorization; [11] See INA 245(c)(2) and 8 CFR 245.1(b)(4). See INA 245(c)(8) and 8
CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certain special immigrants
are exempt from these bars.

Any foreign national who is not in lawful immigration status on the date of filing his or her
application; [12] See INA 245(c)(2) and 8 CFR 245.1(b)(5). Immediate relatives, as defined in INA
201(b), and certain special immigrants are exempt from this bar.

Any foreign national who has ever failed to continuously maintain a lawful status since entry
into the United States, unless his or her failure to maintain status was through no fault of his or
her own or for technical reasons; [13] See INA 245(c)(2) and 8 CFR 245.1(b)(6). Immediate
relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar. For
information on fault of the applicant or technical reasons, see 8 CFR 245.1(d)(2).

Any foreign national who was last admitted to the United States in transit without a visa; [14] See
8 CFR 245.1(b)(1).

A foreign national who was last admitted to Guam or the Commonwealth of the Northern
Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and who is
not a Canadian citizen; [15] See INA 245(c)(4) and 8 CFR 245.1(b)(7). Immediate relatives, as
defined in INA 201(b), are exempt from this bar.

Any foreign national who was last admitted to the United States as a nonimmigrant visitor
without a visa under the Visa Waiver Program; [16] See INA 245(c)(4) and 8 CFR 245.1(b)(8).
Immediate relatives, as defined in INA 201(b), are exempt from this bar.

A foreign national who is deportable due to involvement in a terrorist activity or group; [17] See
INA 245(c)(6).
Any foreign national who is seeking employment-based adjustment of status and who is not
maintaining a lawful nonimmigrant status on the date of filing this application; [18] See INA
245(c)(7) and 8 CFR 245.1(b)(9).

Any foreign national who has ever violated the terms of his or her nonimmigrant status; [19] See
INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and
certain special immigrants are exempt from this bar.

Any foreign national who is a conditional permanent resident; [20] See 8 CFR 245.1(c)(5). and

Any foreign national who was admitted as a nonimmigrant fianc(e), but did not marry the U.S.
citizen who filed the petition or any foreign national who was admitted as the nonimmigrant
child of a fianc(e) whose parent did not marry the U.S. citizen who filed the petition. [21] See
INA 245(d) and 8 CFR 245.1(c)(6).

2. Grounds of Inadmissibility

Generally, an adjustment applicant is inadmissible to the United States and ineligible for
adjustment of status if one or more of the grounds of inadmissibility apply to him or her. [22] See
INA 212. See Volume 8, Admissibility [8 USCIS-PM]. However, if the adjustment applicant is
eligible for and is granted a waiver of the ground of inadmissibility or another form of relief, the
applicant may remain eligible for adjustment. [23] See Volume 9, Waivers [9 USCIS-PM].

3. Other Eligibility Requirements

Government Officials and Specialty Workers

Foreign government officials, representatives to international organizations, treaty traders and


treaty investors (A, E, and G nonimmigrants) may have certain rights, privileges, immunities and
exemptions not granted to other nonimmigrants. If such a nonimmigrant seeks adjustment of
status, he or she must waive those rights, privileges, immunities and exemptions by filing a
waiver application (Form I-508, or a Form I-508F in the case of French nationals).

An Australian specialty occupation worker (E-3 nonimmigrant) has no special rights, privileges,
immunities or exemptions to waive and therefore is not required to submit the waiver. Although
these workers can be classified as a treaty trader, [24] See INA 101(a)(15)(E). the waiver
requirement was established prior to the creation of the Australian specialty occupation worker
classification.
In addition, any applicant admitted in an A, G, or NATO nonimmigrant status must file an
Interagency Record of Request A, G or NATO Dependent Employment Authorization or
Change/Adjustment to/from A, G or NATO Status (Form I-566) with the Department of State.

Forms I-508, I-508F, and I-566 may all be concurrently filed with the adjustment application.

Certain Exchange Visitors [25] See INA 212(e) and 8 CFR 245.1(c)(2).

Certain exchange visitors (J-1 and J-2 nonimmigrants) [26] See INA 101(a)(15)(J). admitted to the
United States are subject to a two-year foreign residence requirement. [27] See INA 212(e). Even
when the J-1 nonimmigrant visa is obtained through fraud, the foreign national may still be
subject to the foreign residency requirement. See Matter of Park, 15 I&N 472 (BIA 1975). The
foreign residence requirement does not apply to a J-2 spouse or child of a J-1 nonimmigrant who
naturalized under the Military Accessions Vital to the National Interest (MAVNI) program.

These exchange visitors generally must return to the country of their last residence or the country
of their nationality for a continuous two-year period after the end of their exchange program
before they can apply for permanent residence. If such exchange visitors do not return to the
country of their last residence or to their home country for at least two years after the end of their
exchange program, they may be ineligible for adjustment of status.
However, certain exchange visitors may be eligible for a waiver of the requirement through an
Application for Waiver of the Foreign Residence Requirement (Form I-612). [28] Some waivers do
not involve the filing of a form or fee, such as waivers based on requests by a U.S. government
agency or state department of public health, or based on an official statement by the foreign
nationals country that it does not object to waiving the two-year foreign residence requirement.

Officers should first adjudicate the waiver request, as denial of the waiver necessarily renders the
applicant ineligible for adjustment of status. Officers should not hold adjustment cases while
waiting for either the applicant to submit a waiver application or the Department of State to make
a recommendation on a waiver application and instead should deny the adjustment application
for ineligibility based on the evidence of record.

Footnotes
1. [^]
For more information, see Chapter 6, Adjudicative Review [7 USCIS-PM A.6]. See Part B,
245(a) Adjustment [7 USCIS-PM B].
2. [^]
Spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of
age or older). See INA 201(b)(2).
3. [^]
This category includes the following family-based preference immigrant classifications:
unmarried sons and daughters, 21 years of age and older, of U.S. citizens; spouses and unmarried
children, under 21 years of age, of lawful permanent residents; unmarried sons and daughters, 21
years of age and older, of lawful permanent residents; married sons and daughters of U.S.
citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older).
See INA 203(a).
4. [^]
This includes priority workers (including aliens with extraordinary ability, outstanding
professors and researchers, and certain multinational executives and managers); members of the
professions holding advanced degrees or aliens of exceptional ability; or skilled workers,
professionals, and other workers. See INA 203(b).
5. [^]
This includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain
international broadcasters, certain G-4 international organization employee or family member or
NATO-6 employee or family member, certain U.S. armed forces members, Panama Canal Zone
employees, certain employees or former employees of the U.S. government abroad, and certain
physicians. See INA 101(a)(27).
6. [^]
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).
7. [^]
See Title II of Pub. L. 105-100, 111 Stat. 2160, 2193 (November 19, 1997).
8. [^]
See INA 245(a)-(k) for a full list. Some of the adjustment bars listed may not apply to all
applicants. For example, certain adjustment bars do not apply to immediate relatives, VAWA-
based applicants, certain special immigrants, or employment-based immigrants.
9. [^]
See 8 CFR 245.1(b)(3).
10. [^]
See INA 245(c)(1) and 8 CFR 245.1(b)(2).
11. [^]
See INA 245(c)(2) and 8 CFR 245.1(b)(4). See INA 245(c)(8) and 8 CFR 245.1(b)(10).
Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from
these bars.
12. [^]
See INA 245(c)(2) and 8 CFR 245.1(b)(5). Immediate relatives, as defined in INA 201(b), and
certain special immigrants are exempt from this bar.
13. [^]
See INA 245(c)(2) and 8 CFR 245.1(b)(6). Immediate relatives, as defined in INA 201(b), and
certain special immigrants are exempt from this bar. For information on fault of the applicant or
technical reasons, see 8 CFR 245.1(d)(2).
14. [^]
See 8 CFR 245.1(b)(1).
15. [^]
See INA 245(c)(4) and 8 CFR 245.1(b)(7). Immediate relatives, as defined in INA 201(b), are
exempt from this bar.
16. [^]
See INA 245(c)(4) and 8 CFR 245.1(b)(8). Immediate relatives, as defined in INA 201(b), are
exempt from this bar.
17. [^]
See INA 245(c)(6).
18. [^]
See INA 245(c)(7) and 8 CFR 245.1(b)(9).
19. [^]
See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and
certain special immigrants are exempt from this bar.
20. [^]
See 8 CFR 245.1(c)(5).
21. [^]
See INA 245(d) and 8 CFR 245.1(c)(6).
22. [^]
See INA 212. See Volume 8, Admissibility [8 USCIS-PM].
23. [^]
See Volume 9, Waivers [9 USCIS-PM].
24. [^]
See INA 101(a)(15)(E).
25. [^]
See INA 212(e) and 8 CFR 245.1(c)(2).
26. [^]
See INA 101(a)(15)(J).
27. [^]
See INA 212(e). Even when the J-1 nonimmigrant visa is obtained through fraud, the foreign
national may still be subject to the foreign residency requirement. See Matter of Park, 15 I&N
472 (BIA 1975). The foreign residence requirement does not apply to a J-2 spouse or child of a J-
1 nonimmigrant who naturalized under the Military Accessions Vital to the National Interest
(MAVNI) program.
28. [^]
Some waivers do not involve the filing of a form or fee, such as waivers based on requests by a
U.S. government agency or state department of public health, or based on an official statement
by the foreign nationals country that it does not object to waiving the two-year foreign residence
requirement.

A. Form Instructions
A foreign national typically applies for adjustment of status using the Application to Register
Permanent Residence or Adjust Status (Form I-485). An applicant must file the adjustment
application according to the instructions and regulations in existence at the time of filing. The
form instructions have the same force as a regulation and provide detailed information an
applicant must follow. [1] See 8 CFR 103.2(a)(1). Therefore, an applicant should access the most
recent version of the form on USCIS.gov prior to filing.

B. Definition of Properly Filed [2] See 8 CFR 103.2(a)(1) (for location), 8 CFR 103.2(a)(7)(i) (for
filing fee and signature), and 8 CFR 245.2(a)(2)(i) (for available visa).

An applicant must properly file the adjustment application. Properly filed refers to an adjustment
application filed:

At the correct filing location;

With the correct filing fees unless granted a waiver;

With the proper signature of the applicant; and

When an immigrant visa is immediately available. [3] See INA 245(a)(3) and 8 CFR 245.2(a)(2).

If the application is filed without meeting these requirements, USCIS rejects and returns the
application. The application is not considered properly filed until it has been given a receipt date
(stamped to show the actual date of receipt) by the proper location with jurisdiction over the
application, including a USCIS Lockbox. Applications that are rejected and returned to the
applicant do not retain a filing date. [4] See 8 CFR 103.2(a)(7).

1. Filing Location

The filing location for an adjustment application is based on the filing category of the applicant.
An applicant must verify the filing location by accessing current instructions on the USCIS
public website prior to filing. USCIS may relocate an application filed at the wrong location in
its discretion or reject the application for improper filing.

2. Fees
An adjustment of status applicant must submit the proper fees for both the application and
collection of biometrics as specified in the form instructions, unless a fee waiver has been
granted. [5] See 8 CFR 103.7. Biometrics fees are not required for applicants under 14 years of age
or 79 years of age or older at time of filing. If an applicant turns 14 after the adjustment
application is submitted but prior to final adjudication, USCIS notifies the applicant of the
requirement to submit the biometric fee.

In order to lessen the financial burden on families with multiple family members applying for
adjustment at the same time, children under 14 years of age filing together with at least one
parent pay a lower fee. Adjustment applicants filing based on their refugee status are not required
to pay any fees. [6] See 8 CFR 103.7(b)(1)(i)(U)(3).

Fee Waivers

While adjustment application fees are not generally waived, adjustment applicants in certain
categories may apply for a fee waiver due to their inability to pay. [7] See 8 CFR 103.7(c).
Biometrics fees may also be waived. An applicant seeking a fee waiver should submit, with the
adjustment application, a Requestt for Fee Waiver (Form I-912) or a written request, along with
any required evidence of the applicants inabilityy to pay the fillingg fee. [8] For more
information, see the USCIS website.

Refugees adjusting status are automatically exempt from paying the adjustment of status filing
fee and biometric services fee and are not required to demonstrate inability to pay. [9] See 8 CFR
103.7(b)(1)(i)(U)(3).

If USCIS denies a fee waiver request, USCIS rejects the application as improperly filed.

3. Signature Requirements

All applications must be properly signed by the applicant.

Signature Requirements
Acceptable Signatures Unacceptable Signatures
Original signature in ink Any signature in pencil
Handwritten X in ink

Typed name on signature line


Parent or legal guardian of a child
under 14 years of age
Attorney or representative signing for the
applicant or the applicants child
Legal guardian of a mentally
incompetent person

4. Visa Availability Requirement

Generally, foreign nationals seeking adjustment under INA 245(a) may only file an adjustment
application when an immigrant visa number is available in the classification under which they
qualify. [10] For more information, see Chapter 6, Adjudicative Review, Section C, Verify Visa
Availability [7 USCIS-PM A.6(C)].

Immediate relatives of U.S. citizens are not subject to numerical limitations. Therefore, an
immigrant visa is always immediately available to immediate relatives at the time they file an
adjustment application.

In contrast, applicants seeking adjustment under an employment-based or family-based


preference category must generally wait until a visa is immediately available before they may
file their adjustment application. [11] USCIS rejects adjustment applications filed before a visa
number is available. See 8 CFR 245.2(a)(2). These applicants can determine if a visa is available
and when to file their adjustment application by referring to the U.S. Department of State (DOS)
Visa Bulletin.

A new Visa Bulletin is published on a monthly basis. DOS posts two charts per visa preference
category in each months DOS Visa Bulletin:

Application Final Action Dates chart, which provides dates when visas may finally be issued;
and

Dates for Filing Applications chart, which provides the earliest dates when applicants may be
able to apply.
In general, adjustment applicants must use the Application Final Action Dates chart to determine
whether a visa is available. However, if USCIS determines there are immigrant visas available
for the filing of additional adjustment applications, the Dates for Filing Applications chart may
be used to determine when to file an adjustment of status application with USCIS. [12] USCIS
considers several factors to determine if there is a greater supply of visas than the demand for
those visas. To determine visa availability, USCIS compares the number of visas available for the
remainder of the fiscal year with documentarily qualified visa applications reported by DOS;
pending adjustment of status applications reported by USCIS; and historical drop-off rate of
applicants for adjustment of status (for example, denials, withdrawals, and abandonments.
USCIS and DOS provide information on which chart should be used in a particular month on the
USCIS website and DOS Visa Bulletin.

C. Concurrent Filings [13] See 8 CFR 245.2(a)(2)(i)(B) and 8 CFR 245.2(a)(2)(i)(C).

In general, the beneficiary of an immigrant visa petition may file for adjustment of status only
after USCIS has approved the petition and a visa is available. In certain instances, the beneficiary
may file an adjustment application together or concurrently with the underlying immigrant
petition.

Concurrent filing of the adjustment application is possible only where approval of the underlying
immigrant petition would make a visa number immediately available. Concurrent filing of the
adjustment application is permitted in the following immigrant categories:

Family-based immigrants, including immediate relatives, and widow(er)s of a U.S. citizen;

Violence Against Women Act (VAWA) self-petitioner;

Employment-based immigrants in the 1st, 2nd, or 3rd preference categories;

Special immigrant Amerasians;

Special immigrant juveniles;

G-4 international organization employees, NATO-6 employees, and certain family members;
and
Certain members of the U.S. armed forces.

D. Jurisdiction

USCIS has the legal authority to adjudicate most adjustment of status cases. An Immigration
Judge (IJ) of the Executive Office for Immigration Review (EOIR) has jurisdiction in certain
situations. [14] See 8 CFR 245.2(a)(1) and 8 CFR 1245.2(a)(1). Generally, the IJ has jurisdiction if
an applicant is in removal proceedings, even if the proceedings have been administratively
closed or if there is a final order of deportation or removal which has not yet been executed.

The IJ does not have jurisdiction of applications filed by foreign nationals in deportation or
removal proceedings if they are determined to be arriving aliens. [15] See 8 CFR 1.2 for
definition of an arriving alien. However, there is one exception to this general rule as well. The
IJ has jurisdiction over an adjustment application filed by an arriving alien in deportation or
removal proceedings if all of the following apply:

The adjustment application was properly filed with USCIS while the arriving alien was in the
United States;

The applicant departed from and returned to the United States based on a grant of an advance
parole document to pursue the previously filed adjustment application;

USCIS denied the adjustment application;

DHS placed the arriving alien in removal proceedings either upon return to the United States
on the advance parole document or after USCIS denied the adjustment application; and

The applicant is seeking to renew his or her previously denied application for adjustment of
status in proceedings.

The IJ has jurisdiction only with respect to the application filed before the applicant left with the
advance parole document. If the applicant is pursuing a new application for adjustment of status
based on a new ground such as a new petition, the IJ does not have jurisdiction over the new
claim. USCIS has jurisdiction over the application, even if the applicant was placed in
proceedings after having been paroled into the United States to pursue a previously filed
application for adjustment of status that was ultimately denied by USCIS.
USCIS has jurisdiction to adjudicate an adjustment application when the IJ does not have
jurisdiction, including when arriving aliens do not meet all of the above criteria. USCIS
continues to retain jurisdiction over such an arriving aliens adjustment application even if the
applicant has an unexecuted final order of removal. [16] See Matter of Yauri, 25 I&N Dec. 103
(BIA 2009). A removal order is considered executed once immigration authorities remove the
foreign national from the United States or the foreign national departs from the United States. [17]
See INA 101(g).

Effect of Departure

In general, an adjustment applicant who departs the United States abandons his or her application
unless USCIS previously granted them advance parole for such absences. [18] See 8 CFR 245.2(a)
(4)(ii). In certain circumstances, a departure does not cause abandonment of the adjustment
application. See 8 CFR 245.2(a)(4)(ii)(B)-(D).

Footnotes

1. [^]
See 8 CFR 103.2(a)(1).
2. [^]
See 8 CFR 103.2(a)(1) (for location), 8 CFR 103.2(a)(7)(i) (for filing fee and signature), and 8
CFR 245.2(a)(2)(i) (for available visa).
3. [^]
See INA 245(a)(3) and 8 CFR 245.2(a)(2).
4. [^]
See 8 CFR 103.2(a)(7).
5. [^]
See 8 CFR 103.7.
6. [^]
See 8 CFR 103.7(b)(1)(i)(U)(3).
7. [^]
See 8 CFR 103.7(c). Biometrics fees may also be waived.
8. [^]
For more information, see the USCIS website.
9. [^]
See 8 CFR 103.7(b)(1)(i)(U)(3).
10. [^]
For more information, see Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [
7 USCIS-PM A.6(C)].
11. [^]
USCIS rejects adjustment applications filed before a visa number is available. See 8 CFR
245.2(a)(2).
12. [^]
USCIS considers several factors to determine if there is a greater supply of visas than the
demand for those visas. To determine visa availability, USCIS compares the number of visas
available for the remainder of the fiscal year with documentarily qualified visa applications
reported by DOS; pending adjustment of status applications reported by USCIS; and historical
drop-off rate of applicants for adjustment of status (for example, denials, withdrawals, and
abandonments.
13. [^]
See 8 CFR 245.2(a)(2)(i)(B) and 8 CFR 245.2(a)(2)(i)(C).
14. [^]
See 8 CFR 245.2(a)(1) and 8 CFR 1245.2(a)(1).
15. [^]
See 8 CFR 1.2 for definition of an arriving alien.
16. [^]
See Matter of Yauri, 25 I&N Dec. 103 (BIA 2009).
17. [^]
See INA 101(g).
18. [^]
See 8 CFR 245.2(a)(4)(ii). In certain circumstances, a departure does not cause abandonment of
the adjustment application. See 8 CFR 245.2(a)(4)(ii)(B)-(D).