Posted onAugust 15, 2024|Comments Off on USCIS Expected to Start Accepting Parole in Place Applications on August 19
On July 17, 2024, the Biden Administration announced the expected start date for the Parole in Place plan is August 19, 2024. USCIS also published an announcement, Reminders on the Process to Promote the Unity and Stability of Families. It will reject any application filed before August 19.
The Parole in Place plan will 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.
Who Will Benefit from the Parole in Place Program?
The Parole in Place program is intended to benefit certain green card applicants who:
are physically present in the U.S. without inspection and admission or parole;
are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
do not pose a threat to public safety or national security;
are otherwise eligible to apply for adjustment of status; and
merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]
Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.
How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?
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).
More details about the application process and eligibility requirements will be published in an upcoming Federal Register notice.
In the meantime, eligible applicants may begin to gather the following evidence to prepare to file for Parole in Place:
Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate;
Documentation of proof of identity, including expired documents may include:
Valid state or country driver’s license or identification;
Birth certificate with photo identification;
Valid passport; or
Any government issued document bearing the requestor’s name, date of birth, and photo.
Evidence of your spouse’s U.S. citizenship, such as a passport, birth certificate or Certificate of Naturalization;
Documentation to establish your continued presence in the United States for at least 10 years, as of June 17, 2024. While more information will be made available in the forthcoming Federal Register Notice and subsequent FAQs, examples of documentation could include copies of:
Rent receipts or utility bills;
School records (letters, report cards, etc.);
Hospital or medical records;
Attestations to your residence by religious entities, unions, or other organizations, identifying you by name;
Official records from a religious entity confirming participation in a religious ceremony;
Money order receipts for money sent into or out of the United States;
Birth certificates of children born in the United States
Dated bank transactions;
Automobile license receipts, title, or registration;
Deeds, mortgages, or rental agreement contracts;
Insurance policies; or
Tax returns or tax receipts.
Consult a Qualified U.S. Immigration Attorney
Not all undocumented immigrants qualify for Parole in Place. Furthermore, Parole in Place, by itself, does not lead to permanent resident or green card status. Because it is not law passed by U.S. Congress, it is especially vulnerable to lawsuits and is not guaranteed to continue in the future.
There may be risks to applying for any U.S. immigration benefits, especially if you have a prior removal (deportation) order or criminal record. Be sure to consult an experienced U.S. immigration attorney to discuss whether to file for Parole in Place.
# # # The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onJune 26, 2024|Comments Off on 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
On June 18, 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.
The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.
Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.
If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.
The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.
Who Will Benefit from the Parole in Place Program?
The Parole in Place program is intended to benefit certain green card applicants who:
are physically present in the U.S. without inspection and admission or parole;
are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
do not pose a threat to public safety or national security;
are otherwise eligible to apply for adjustment of status; and
merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]
Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.
How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?
Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.
If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.
An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.
Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.
What are the Advantages of the Parole in Place Plan?
1. Eligible parolees may apply for employment authorizationand receive temporary protection from removal
In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.
2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)
Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.
A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.
To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.
If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.
Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.
What are the Limitations of the Parole in Place Plan?
1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status
Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.
Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.
2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.
Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.
There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.
In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).
For more information on the I-485 adjustment of status application process, see:
The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.
Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.
A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.
To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.
Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.
Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.
Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.
# # # The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.
Comments Off on 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
Posted onJune 25, 2024|Comments Off on A Key Requirement for I-485 Adjustment to Permanent Resident Status: Inspection and Admission OR Inspection and Parole
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:
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.
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.
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.
# # #
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.
Posted onAugust 16, 2019|Comments Off on Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died
A U.S. citizen may file a Form I-130 immigrant petition for his or her spouse in the immediate relatives category. If the citizen dies, the widow(er) may still seek permanent residence in the United States under section 201(b)(2)(A)(i) of the Immigration & Nationality Act, when certain conditions are met.
Who Qualifies for Widow(er) Benefits Under INA 201(b)(2)(A)(i)?
U.S. immigration statute permits widow(er)s of U.S. citizens to be classified as immediate relatives and continue the Immigrant Visa or Adjustment to Permanent Resident Status application process if they:
Were legally married to a U.S. citizen and not divorced or legally separated from the U.S. citizen at the time of death
File a Form I-360 self-petition within two years of the U.S. citizen spouse’s death or have a pending or approved Form I-130 filed by the U.S. citizen spouse prior to death, which will be automatically converted to a Form I-360 petition
Show they entered into the marriage in good faith and not solely for immigration benefits
Are admissible to the United States
Are not remarried before they receive the green card or immigrant visa (NOTE: If there is a remarriage, the applicant may still be able able to pursue section 204(l) relief if he or she was residing in the United States when the petitioner died and continues to reside in the United States).
How to Apply for Widow(er) Benefits
If there is a pending or approved Form I-130 petition, the widow(er) must notify USCIS of the U.S. citizen’s death. The agency will then automatically convert the I-130 to an I-360 self-petition. If there is no pending or approved I-130 at the time of death, the widow(er) must submit the Form I-360 self-petition to USCIS within two years of the U.S. citizen’s death.
Widow(er)s in the United States may file a Form I-485, application to adjustment to permanent resident status, either at the same time the I-360 is filed or after the I-360 is filed, whether it is pending or approved. If an I-485 application was already submitted based on a pending or approved I-130 filed by the deceased spouse, there is no need to file a new one.
A widow(er) who is living abroad may go through the I-360 approval or I-130/I-360 conversion process to apply for an immigrant visa at the U.S. Consulate overseas.
Admissibility Requirement
A Form I-864, Affidavit of Support, is not required for widow(er)s to establish they will not become a public charge under INA § 212(a)(4). The applicant instead claims an exemption from filing the Affidavit of Support with the Immigrant Visa request or Adjustment of Status application.
Widow(ers) are not exempt from the 3/10 year bars to re-entry under INA 212(a)(9)(B)(i) if they accrue more than 180 days of unlawful presence in the U.S. and depart for consular processing of the immigrant visa. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) do not have. When possible, widow(er)s should apply for Adjustment of Status within the U.S. and avoid triggering the 3/10 year bar by departing the U.S.
Unmarried children under the age of 21 may be included in the immigrant petition as derivative beneficiaries. As “immediate relatives,” derivative children qualify for benefits under the Child Status Protection Act (CSPA), which “freezes” their ages as of the filing date of the Form I-130 or Form I-360, whichever is applicable. CSPA protects them from aging out if they turn age 21 prior to their being granted a green card or immigrant visa. Still, they must meet any other eligibility criteria or filing requirements.
Consult a Qualified U.S. Immigration Attorney
A qualified U.S. immigration attorney can help with verifying your eligibility for widow(er) benefits and submitting a request for I-130 to I-360 conversion or filing a properly documented I-360 self-petition. It’s also important to seek counsel in the Adjustment of Status application within the United States or in the Immigrant Visa request at the U.S. Consulate abroad.
For information on other possible remedies for surviving relatives, read our related articles:
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 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.
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Posted onJune 2, 2017|Comments Off on Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions
Section 245 of the Immigration and Nationality Act (INA) allows certain foreign nationals who are physically present in the U.S. to adjust to permanent resident status and avoid filing for an immigrant visa at the U.S. Consulate abroad.
But unless an exception or exemption applies, you are barred from filing for INA 245(a) adjustment if you are in unlawful immigration status at the time of filing a Form I-485 [INA 245(c)(2) bar]; you have violated the conditions of your nonimmigrant status or visa [INA 245c)(2) and INA 245(c)(2)(8) bars]; and/or you failed to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration [INA 245(c)(7) bar].
Statutory Bars to Adjusting Status Under INA 245(a)
The bars to INA 245(a) Adjustment of Status (AOS) include the following:
1. You Are In Unlawful Immigration Status at the Time of Filing a Form I-485 Application: INA 245(c)(2) Bar
Under INA 245(c)(2), an INA 245(a) Adjustment of Status application will be denied if at the time of the Form I-485 filing, you are not in lawful immigration status. For purposes of the INA 245(c)(2) bar, lawful status includes nonimmigrants (e.g. B1/B2 visitor, F-1 student, H-1B professional worker); refugees; asylees; parolees; and foreign nationals in Temporary Protected Status (TPS).
You are in unlawful immigration status if you have never had lawful status (e.g. entered the U.S. without inspection and admission or parole) or your lawful status has ended (expired or was rescinded, revoked, or otherwise terminated due to violation of nonimmigrant status or other reason).
Having authorized stay is different from having lawful immigration status. The timely filing of a pending application to extend or change status (Form I-129 or Form I-539), or a pending application for adjustment (Form I-485), generally provides authorized stay, but does not provide lawful immigration status.
A person who has a timely-filed pending Extension of Status (EOS) or Change of Status (COS) application may file a Form I-485 application after his or her nonimmigrant status expires. But if USCIS denies the EOS or COS application, you are generally considered to be in unlawful immigration status as of the expiration of your nonimmigrant status and on the date the adjustment application is filed. The INA 245(c)(2) bar would then apply, unless an exemption is available.
2. You Failed to Continuously Maintain Status and/or Violated the Terms of Your Nonimmigrant Visa: INA 245(c)(2) and INA 245(c)(8) Bars
You are not eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status, under INA 245(a) if, other than through no fault of your own or for technical reasons,you have ever:
Failed to continuously maintain a lawful status since entry into the United States. [You are barred from adjustment of status under INA 245(c)(2) if you are in unlawful immigration status on the date of filing the Form I-485 application.]
OR
Violated the terms of your nonimmigrant status, such as worked without authorization. [You are barred from adjustment of status under INA 245(c)(8) not only if you violated the terms of your most recent nonimmigrant status, but also if you ever violated the terms of your nonimmigrant status at any time during any prior periods of stay in the U.S. as a nonimmigrant.]
To be eligible for AOS, you only need to maintain your nonimmigrant status until you properly file a Form I-485 adjustment application with USCIS, so long as you do not engage in unauthorized employment after filing the adjustment application. But to protect yourself from being placed in removal proceedings if your Form I-485 is denied, you should continue to maintain your nonimmigrant status (e.g. H-1B) when possible.
When the INA 245(c)(2) and INA 245(c)(8) Bars May Be Excused
For purposes of INA 245(c)(2) and INA 245(c)(8), a failure to maintain lawful immigration status or violation of nonimmigrant status may be excused only for the specific period under consideration if:
a. The applicant was reinstated to F, M, or J status
If USCIS reinstates F or M student nonimmigrant status or if the U.S. Department of State reinstates J exchange visitor nonimmigrant status, the reinstatement only excuses the particular period of time the nonimmigrant failed to maintain status. The reinstatement does not excuse prior or future failure to maintain status.
b. The applicant’s failure to maintain status was through no fault of his or her own or for technical reasons
The term “other than through no fault of his or her own or for technical reasons” is limited to the following circumstances:
Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization.
Technical violation resulting from inaction of USCIS (e.g. USCIS failed to adjudicate a properly and timely filed request to extend or change nonimmigrant status).
Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail.
Technical violation resulting from Legacy Immigration and Naturalization Service (INS)’s application of the 5-year or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988.
c. The applicant was granted an extension of nonimmigrant stay or a change of nonimmigrant status.
The immigration officer will consider all your current and previous entries into and stays in the United States, including current and previous applications for extension of stay (EOS) or change of status (COS).
If USCIS approves a timely filed EOS or COS application, or excuses and approves an untimely filed EOS or COS application, the approval is effective as of the date of the expiration of the prior nonimmigrant status. In that event, you will be considered to have maintained lawful status despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the EOS or COS approval.
3. You Are an Employment-Based Applicant Who Is Not in Lawful Nonimmigrant Status: INA 245(c)(7) Bar
If you are an employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing your Form I-485 application, you are barred from adjusting status under INA 245(c)(7). This bar does not apply if you were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending.
For purposes of this bar to adjustment, the term “lawful nonimmigrant status” includes a foreign national in a lawful status classified under the nonimmigrant statutory provisions(e.g. B1/B2 visitor, F-1 student, H-1B professional worker) and a foreign national in Temporary Protected Status (TPS).
Lawful nonimmigrant status does not include parolees, asylees, or certain other foreign nationals who are otherwise authorized to stay in the United States.
Exceptions and Exemptions to the Bars to Adjusting Status Under INA 245(a)
The INA 245(c)(2), INA 245(c)(8), and INA 245(c)(7) bars to adjustment do NOT apply to:
Immediate relatives of U.S. citizens [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]
Violence Against Women Act (VAWA) self-petitioners/VAWA-based applicants
Certain foreign doctors/physicians and their accompanying spouse and children
Certain G-4 international organization employees, NATO-6 employees, and their family members
Special immigrant juveniles
Certain members of the U.S. armed forces and their spouses and children
Employment-based applicants and eligible dependents in the 1st, 2nd, 3rd and certain 4th preference categories who meet the INA 245(k) exemption.
To qualify for the INA 245(k) exemption, the applicant must not have committed any of the following immigration violations for more than an aggregate of 180 days since the most recent lawful admission: failed to continuously maintain lawful nonimmigrant status; engaged in unauthorized employment; or violated the terms of the nonimmigrant status.
With respect to the INA 245(k) exemption, the law counts only status violations and unauthorized employment since the applicant’s most recent lawful admission. Regardless of how long the immigration violations under INA 245(c)(2), INA 245(c)(7) and INA 245(c)(8) lasted, the applicant who leaves the U.S. and is lawfully readmitted (and is an eligible employment-based adjustment applicant), may qualify for the INA 245(k) exemption as long as there were no violations totaling more than 180 days in the aggregate since the most recent lawful admission.
Bars to Adjustment are Different from Grounds of Inadmissibility
Bars to adjustment should not be confused with the grounds of inadmissibility listed in INA 212.
Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.
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.
Section 245 of the Immigration and Nationality Act (INA) allows 
