When you are the beneficiary of an immigrant petition (Form I-130 or Form I-140) and you are already in the United States, you might be eligible to file for a green card without departing for consular processing of the Immigrant Visa.
Statutory law under INA 245(a) (8 U.S.C. §1255) allows a nonimmigrant (e.g. F-1 student or H-1B temporary worker) to adjust to permanent residence based on an approved immigrant petition. This involves filing the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, either concurrently with or after the Form I-130 or Form I-140 filing.
An approved or approvable Form I-130 (family-based) or Form I-140 (employment-based) petition does not necessarily mean you qualify for adjustment of status. There are several eligibility requirements to meet for INA 245(a) adjustment.
Except for INA 245(i) and VAWA-based applicants, one key requirement is that you must have been “inspected and admitted or paroled” into the United States. This applies to even “Immediate Relatives” of a U.S. citizen; namely, spouses, unmarried children under 21 years old, and parents (if the U.S. citizen is 21 years of age or older).
What is the Difference Between “Admission” and “Parole”?
In 1960, Congress amended INA 245(a) to permit otherwise eligible applicants who have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. Courts, legacy Immigration and Naturalization Service (INS), and USCIS have read the statutory language, “inspected and admitted or paroled,” to mean:
- Inspected and admitted into the United States; OR
- Inspected and paroled into the United States.
An “admission” means you appeared before a U.S. immigration officer at a U.S. port of entry for inspection, and you were formally admitted to the United States.
Meanwhile, “parole” is a temporary and discretionary relief provided on a case-by-case basis. Parole is when the U.S. immigration officer allows you enter the U.S. without completing the formal admission process, but only after inspection and some vetting are performed.
Main Types of “Admission” for INA 245(a) Adjustment of Status
Admission Stamp in Passport from an Inspection Officer
The most straightforward way to obtain lawful entry to the U.S. is to present your valid passport and U.S. visa at a U.S port of entry to complete the inspection and admission process. An example is when you arrive from overseas at an international airport in the U.S., show your valid F-1 visa in your passport to the U.S. customs officer, answer questions about your intended studies, successfully complete the inspection process, and are allowed into the U.S. with an F-1/duration of status (D/S) admission stamp in your passport.
“Waved-Through” by an Inspection Officer
Applicants may be admitted to the United States if they are “waved through” at a land port of entry. In Matter of Areguillin, the Board of Immigration Appeals found that a person is “admitted” to the U.S. if he physically presents himself for inspection, makes no false claim to U.S. citizenship, and is allowed to enter the U.S., even if the officer does not ask any questions and does not check his travel documents. Verbal communication or physical gestures from the officer allowing the applicant to enter the U.S. is enough.
To satisfy the inspection and admission requirement for INA 245(a) adjustment, however, applicant must prove that they were indeed waved through at a U.S. port of entry. Third-party affidavits from persons with direct knowledge of the facts and corroborating, objective documents are normally required. The USCIS officer adjudicating the Form I-485 must also determine the claim is credible. In addition, if the applicant was traveling with U.S. citizens in a car with U.S. license plates, he will be expected to prove that he was admitted as a noncitizen and was not presumed to be a U.S. citizen.
Fraud or Willful Misrepresentation of Material Facts to Obtain Admission to the U.S.
Admission to the U.S. may be gained by fraud or willful misrepresentation of material facts. An example is the use of a fake passport or a passport belonging to someone else, but advances in technology has made it easier for U.S. customs officer to detect this type of fraud. Another example is when a person obtains a valid visa by lying on the visa application at the U.S. Consulate.
In any event, the Board of Immigration Appeals and most courts have found that a person who is inspected and allowed to enter the U.S. is “admitted,” even if the admission was obtained by fraud or misrepresentation.
INA 212(a)(6)(C)(i) states a person is permanently inadmissible to the U.S. if he used fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits, such as admission at the port of entry. Thus, even if the applicant meets the “inspection and admission” requirement for INA 245(a) adjustment, he would still be denied a green card unless he qualified for, filed for, and obtained the Form I-601 “fraud waiver” under INA 212(i).
Main Types of “Parole” for INA 245(a) Adjustment of Status
Paroled for Deferred Inspection
U.S. Customs & Border Protection (CBP) may grant deferred inspection to “arriving aliens” who are found inadmissible on primary inspection, but who would likely overcome the inadmissibility finding with additional evidence or a waiver.
In such cases, CBP may allow you to enter the U.S. after verifying your identity and concluding you pose no national security risk. With deferred inspection, you are paroled into the United States and must return to CBP to provide additional documents to complete the inspection at a later, specified time.
Urgent Humanitarian Reasons or Significant Public Benefit
Through the filing of a Form I-131, Application for Travel Document, with USCIS, an eligible applicant may be granted parole based on urgent humanitarian reasons or significant public benefit. Special parole programs have included:
- The Haitian Family Reunification Parole Program
- The Cuban Family Reunification Parole Program
- The Central American Minor Refugee/Parole Program
- The Filipino World War II Veterans Parole Program
- The Immigrant Military Members and Veterans Initiative (IMMVI)
Military Parole in Place
In rare cases, USCIS may grant parole to applicants who are already in the United States, but who have yet to be inspected and admitted or inspected and paroled into the country.
In 2010, USCIS announced the creation of the Military Parole in Place policy. It issued a November 2013 Policy Memorandum and a November 2016 Policy Memorandum to clarify or expand the eligibility requirements.
Parole in place is made available on a case-by-case basis, under INA 212(d)(5), to a qualifying spouse, child, or parent of an active duty member or past member of the U.S. armed forces or Selected Reserve. If they do not have a criminal conviction or other serious adverse factors, they are usually granted parole in place to show support for the sacrifices made by U.S. service members, veterans, enlistees, and their families.
Proposed Plan: Parole in Place for Undocumented Spouses and Children of U.S. Citizens
On June 18, 2024, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.
Find more details at: Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing.
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For more information on the Form I-485, Adjustment to Permanent Resident process, read:
Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?
Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions
If you are not eligible for I-485 adjustment, you might still be able to obtain the green card through Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But U.S. immigration violations or criminal records can make you inadmissible and disqualify you from obtaining permanent residence on INA 212 grounds.
When you are inadmissible under section 212, you will not get the green card through I-485 adjustment or Immigrant Visa processing, unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public charge, fraud and misrepresentation of material facts to gain immigration benefits, unlawful presence, and prior removals.
Before you apply for permanent residence, be sure to consult a qualified U.S. immigration attorney for legal advice in your specific case.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
