What INA §245(i) Does Not Waive

What INA §245(i) actually does

INA §245(i)(1) applies notwithstanding subsections (a) and (c) of INA §245.

For a qualifying grandfathered applicant, this can overcome:

• Entry without inspection;
• Unauthorized employment;
• Unlawful immigration status at filing;
• Failure to maintain continuously a lawful status;
• Employment-based lawful nonimmigrant status problems under §245(c)(7);
• Specified nonimmigrant visa violations under §245(c)(8);
• The crewman bar under §245(c)(1);
• The transit-without-visa bar under §245(c)(3);
• The Visa Waiver Program adjustment bar under §245(c)(4); and
• Other classes contained within subsection (c), subject to independent eligibility and inadmissibility requirements.

INA §245(i) does not generally waive inadmissibility

INA §245(i)(2)(A) expressly requires the applicant to be admissible for permanent residence.

Potential INA §212 grounds still requiring separate review include:

• Health-related inadmissibility;
• Criminal grounds;
• Controlled-substance grounds;
• Controlled-substance trafficking grounds;
• Prostitution and commercialized vice grounds;
• Security and terrorism grounds;
• Public charge where applicable;
• Fraud or willful misrepresentation;
• False claim to U.S. citizenship;
• Alien smuggling;
• Prior removal;
• Unlawful presence;
• Unlawful reentry after specified immigration violations; and
• Other applicable INA §212 grounds.

Where a waiver exists, eligibility depends on the particular ground and waiver statute. Some waivers use Form I-601, some require Form I-212, some use category-specific procedures, and some grounds have no generally available waiver.

Important exception: simple presence after entry without inspection

INA §212(a)(6)(A)(i) concerns a person present in the United States without being admitted or paroled.

Section 245(i) expressly permits a qualifying grandfathered person who entered without inspection to apply for adjustment. It would defeat the statute if the same simple EWI condition automatically made every §245(i) applicant ineligible.

See INA §245(i) After Entry Without Inspection.

Fraud or willful misrepresentation under INA §212(a)(6)(C)(i)

Section 245(i) does not itself waive fraud or willful misrepresentation used to obtain a visa, admission, or other immigration benefit.

Examples can include:

• False information on a visa application;
• Material false statements at a port of entry;
• Fraudulent immigration documents;
• Material misrepresentation in a prior immigration filing;
• Concealment of a disqualifying fact when an immigration benefit was sought; or
• Other qualifying willful material misrepresentations.

False claim to U.S. citizenship

A false claim to U.S. citizenship under INA §212(a)(6)(C)(ii) can create a particularly severe inadmissibility problem.

Section 245(i) does not waive that ground.

The statute contains narrow exceptions for specified persons who reasonably believed they were U.S. citizens based on qualifying parentage and residence circumstances, but there is no broad discretionary waiver comparable to the ordinary §212(i) fraud waiver.

Alien smuggling under INA §212(a)(6)(E)

A finding that the applicant knowingly encouraged, induced, assisted, abetted, or aided another person to enter the United States unlawfully can create inadmissibility under §212(a)(6)(E).

Section 245(i) does not eliminate that ground.

A narrow waiver exists in certain statutorily defined family circumstances, but the applicant must independently qualify for it.

Criminal inadmissibility is not waived by §245(i)

Potential INA §212(a)(2) grounds include:

• Crimes involving moral turpitude;
• Controlled-substance violations;
• Multiple criminal convictions;
• Controlled-substance trafficking where the government has reason to believe the person was involved;
• Prostitution and commercialized vice;
• Certain serious criminal conduct coupled with an assertion of immunity; and
• Other statutory criminal grounds.

Security, terrorism, and related inadmissibility

INA §212(a)(3) contains national-security, terrorism, foreign-policy, Communist or totalitarian party, Nazi persecution, genocide, torture, and related provisions.

Section 245(i) is not a general waiver for these grounds.

Health-related inadmissibility

Section 245(i) does not waive the health grounds in INA §212(a)(1).

Adjustment applicants remain subject to applicable medical requirements involving issues such as:

• Communicable diseases of public-health significance;
• Vaccination requirements;
• Physical or mental disorders associated with specified harmful behavior; and
• Drug abuse or addiction classifications under the immigration medical rules.

Form I-693 and any applicable waiver procedures remain separately relevant.

Public charge remains applicable where the ground applies to the category

Section 245(i) does not itself exempt an applicant from INA §212(a)(4).

Whether the public-charge ground applies depends on the adjustment category and statutory exemptions.

Where Form I-864 is required, §245(i) does not eliminate the affidavit-of-support requirement.

INA §212(a)(9)(B): three- and ten-year unlawful-presence bars

Matter of Lemus confirms that §245(i) does not itself overcome inadmissibility under INA §212(a)(9)(B).

A grandfathered person can therefore be eligible to adjust while remaining in the United States but create a separate inadmissibility problem by departing after accruing unlawful presence.

If §212(a)(9)(B) applies, determine whether a statutory exception exists or whether the applicant qualifies for a waiver under §212(a)(9)(B)(v) or another applicable provision.

Advance parole travel after Matter of Delcarmen-Lara

This issue changed materially in August 2026.

Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), holds that a departure pursuant to advance parole is a “departure” for INA §212(a)(9)(B)(i)(II).

The Board expressly overruled Matter of Arrabally and Yerrabelly.

A §245(i) applicant with prior unlawful presence should therefore complete a new travel analysis before leaving the United States even with an approved advance parole document.

INA §212(a)(9)(A): prior removal orders

A prior exclusion, deportation, removal, or expedited-removal history can trigger INA §212(a)(9)(A).

Section 245(i) does not itself waive this ground.

Depending on the facts, the applicant may require:

• Expiration of the applicable statutory period;
• Consent to reapply for admission;
• Form I-212;
• Reopening or termination of removal proceedings;
• Resolution of a reinstatement issue; or
• Another procedural remedy.

INA §212(a)(9)(C): unlawful reentry after specified immigration history

Matter of Briones holds that a person inadmissible under INA §212(a)(9)(C)(i)(I) cannot overcome that ground through §245(i).

Matter of Diaz and Lopez reaffirmed that §245(i) does not overcome §212(a)(9)(C)(i).

Typical concerns include:

• More than one year of aggregate unlawful presence;
• A subsequent departure;
• A later entry or attempted entry without admission; or
• An unlawful return after removal.

The leading BIA decision addressing the interaction between INA §245(i) and INA §212(a)(9)(C) is discussed separately in Matter of Briones and INA §245(i).

J-1 two-year foreign residence requirement under INA §212(e)

INA §212(e) is not simply another ordinary §212(a) inadmissibility ground. It is an independent statutory restriction on certain J-1 exchange visitors.

A person subject to §212(e) generally cannot obtain an immigrant visa or adjust to lawful permanent residence until the person:

• Fulfills the required two-year foreign residence period; or
• Obtains a valid waiver under an authorized waiver procedure.

Whether a particular J-1 remains subject requires a separate analysis of the basis for the requirement, including government funding, graduate medical education, and any applicable Skills List rules.

Section 245(i) does not create immigrant visa eligibility or visa availability

INA §245(i)(2) independently requires:

• Eligibility to receive an immigrant visa; and
• An immigrant visa immediately available when required by the statute.

Therefore, §245(i) does not cure:

• A denied current immigrant petition;
• A revoked petition;
• A marriage relationship that no longer qualifies;
• An unapprovable I-140;
• A priority date that is not current;
• A derivative relationship that no longer exists; or
• Failure to satisfy the current immigrant classification.

INA §245(i) does not override every other restriction within INA §245

The text of §245(i) expressly overrides subsections (a) and (c), not every subsection of INA §245.

Separate restrictions can therefore remain relevant, including:

• INA §245(d) restrictions involving K nonimmigrants and conditional residents;
• INA §245(e) restrictions involving marriages entered during removal or related proceedings;
• The clear-and-convincing evidence requirements applicable to qualifying proceedings marriages; and
• INA §245(f) restrictions involving specified EB-5 conditional residents.

Grandfathering does not create lawful status or employment authorization

Being grandfathered under §245(i) does not itself:

• Grant lawful nonimmigrant status;
• Grant parole;
• Grant deferred action;
• Authorize employment;
• Issue an EAD;
• Stop unlawful-presence accrual in every circumstance; or
• Grant permanent residence.

Section 245(i) does not protect a person from removal merely because the person is grandfathered

A grandfathered person with no pending or approved form of relief can still be:

• Placed in removal proceedings;
• Ordered removed;
• Subject to an existing removal order;
• Subject to detention where authorized by law; or
• Required to litigate adjustment before an immigration judge if EOIR has jurisdiction.

Section 245(i) does not eliminate adjustment discretion

Even after the applicant proves grandfathering, current immigrant eligibility, visa availability, and admissibility, adjustment remains discretionary.

USCIS can consider relevant positive and negative factors under the totality of the circumstances.

Negative factors can include:

• Immigration violations;
• Prior false statements;
• Failure to comply with removal orders;
• Criminal or adverse conduct;
• Prior abuse of immigration benefits; and
• Other materially adverse circumstances.

See Discretion Under INA §245(a).

Issues to screen before relying on §245(i)

Frequently asked questions