Who Has Jurisdiction Over Form I-485: USCIS or Immigration Judge?
Whether USCIS or an immigration judge has authority to decide Form I-485 depends primarily on whether removal proceedings are pending and whether the applicant is classified as an arriving alien. For most applicants who are not in removal proceedings, USCIS adjudicates adjustment of status. Once a non-arriving alien is placed in removal proceedings, the immigration judge generally has exclusive jurisdiction over adjustment. Arriving aliens are governed by the opposite general rule: USCIS ordinarily retains adjustment jurisdiction even when removal proceedings are pending, subject to a narrow regulatory exception.
Who has jurisdiction over Form I-485?
An applicant can be substantively eligible for a green card and still have Form I-485 rejected, administratively closed or denied if it is filed with the agency that lacks authority to adjudicate it.
Basic jurisdiction chart
| Procedural Position | General Adjustment Jurisdiction |
|---|---|
| Not in removal proceedings | USCIS |
| Non-arriving alien in removal proceedings | Immigration judge |
| Arriving alien in removal proceedings | USCIS, unless narrow regulatory exception applies |
| Proceedings terminated or dismissed | USCIS generally resumes affirmative adjustment jurisdiction |
| Special statutory adjustment category | Check category-specific statute and regulation |
USCIS jurisdiction outside removal proceedings
8 C.F.R. §245.2(a)(1) gives USCIS jurisdiction over adjustment applications unless the immigration judge has jurisdiction under 8 C.F.R. §1245.2(a)(1).
Typical USCIS adjustment cases include:
- Immediate-relative adjustment;
- Family-preference adjustment;
- Employment-based adjustment;
- INA §245(i) adjustment;
- INA §245(k) employment adjustment;
- VAWA adjustment;
- SIJ adjustment;
- T and U adjustment;
- Cuban Adjustment Act cases; and
- Other categories assigned to USCIS where no contrary jurisdiction rule applies.
Non-arriving alien in removal proceedings
8 C.F.R. §1245.2(a)(1)(i) states that when a non-arriving alien has been placed in deportation or removal proceedings, the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate adjustment.
While qualifying removal proceedings remain pending, the respondent ordinarily presents Form I-485 as relief before the immigration judge rather than asking USCIS to adjudicate it.
The underlying immigrant petition may still belong to USCIS
Adjustment jurisdiction and immigrant-petition jurisdiction are not necessarily the same.
Even when the immigration judge controls Form I-485, USCIS may still adjudicate:
- Form I-130;
- Form I-140;
- Form I-360;
- VAWA self-petition;
- Other immigrant petitions;
- Petition revocation; and
- Other benefits assigned to DHS.
The immigration judge may need an approved USCIS immigrant petition before the court can grant adjustment.
Arriving aliens follow a different rule
An arriving alien placed in removal proceedings is generally not permitted to have the immigration judge adjudicate Form I-485.
Under 8 C.F.R. §1245.2(a)(1)(ii), the immigration judge has no jurisdiction unless all requirements of the narrow regulatory exception are satisfied.
Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009), confirms this jurisdictional structure.
Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), confirms USCIS's broad jurisdiction over arriving-alien adjustment applications, including in the presence of an outstanding final removal order outside the narrow exception.
A final removal order does not create USCIS jurisdiction for every applicant
Jurisdiction after a final order requires careful analysis.
Questions include:
- Was the applicant an arriving alien?
- Were proceedings ever terminated?
- Was the final order reopened?
- Does the immigration judge currently have an active case?
- Does USCIS have category-specific jurisdiction?
- Is the applicant seeking to reopen proceedings first?
- Would adjustment require termination of the order or proceedings?
An outstanding removal order can continue to affect adjustment jurisdiction, removability, travel and enforcement even though ordinary merits hearings have concluded.
Termination or dismissal can return jurisdiction to USCIS
When EOIR ends removal proceedings so USCIS can adjudicate Form I-485, USCIS can resume affirmative jurisdiction.
USCIS currently instructs applicants in this situation that it can:
- Reopen a Form I-485 previously filed with USCIS and administratively closed for lack of jurisdiction; or
- Transfer to USCIS a Form I-485 initially filed with EOIR.
USCIS specifically cautions applicants not to automatically refile a duplicate Form I-485 when the existing court-filed or administratively closed application can be transferred or reopened.
When proceedings are actually terminated or dismissed, USCIS adjustment jurisdiction can change and an existing Form I-485 may need to be returned or transferred to USCIS. See Terminated or Dismissed Removal Proceedings and Form I-485.
Administrative closure is not termination
Administrative closure pauses or removes a case from the active immigration court calendar without necessarily ending the proceedings.
A non-arriving applicant should not assume USCIS has adjustment jurisdiction merely because immigration court hearings are not currently being scheduled.
The procedural order should be reviewed to determine whether proceedings were:
- Administratively closed;
- Dismissed;
- Terminated;
- Completed by a final removal order; or
- Reopened and currently pending.
Removal proceedings begin when jurisdiction vests with EOIR
Whether a respondent is actually in proceedings is not determined merely by the existence of an NTA document.
Practitioners should verify:
- NTA issuance;
- NTA filing with immigration court;
- EOIR case record;
- Current hearing status;
- Any dismissal or termination order;
- Any final order; and
- Any motion to reopen or BIA proceedings.
The procedural history determines whether the immigration judge currently possesses adjustment jurisdiction.
USCIS may administratively close an I-485 for lack of jurisdiction
If a non-arriving alien files Form I-485 with USCIS while the immigration judge has exclusive jurisdiction, USCIS may determine that it cannot adjudicate the application.
The applicant should then evaluate:
- Filing Form I-485 with immigration court;
- Whether an existing USCIS filing can be used in court;
- Fee and biometrics compliance;
- Any pending I-765 or I-131 consequences;
- Whether termination would return the case to USCIS; and
- Whether the immigration judge can adjudicate the underlying adjustment category.
Jurisdiction over waivers
An adjustment applicant may also require a waiver.
The tribunal deciding Form I-485 may have authority over certain related waivers, but waiver jurisdiction must be analyzed separately.
Potential issues include:
- INA §212(h);
- INA §212(i);
- Form I-601;
- Form I-212;
- INA §237(a)(1)(H);
- Special T or U waiver provisions;
- Refugee or asylee adjustment waivers; and
- Other category-specific relief.
Different forms and waivers can be assigned to different agencies by statute or regulation.
Why jurisdiction matters before filing
Filing in the wrong forum can cause:
- Rejection;
- Administrative closure;
- Denial for lack of jurisdiction;
- Lost processing time;
- Duplicate filing fees;
- Biometrics problems;
- Confusion over EAD eligibility;
- Missed court deadlines; and
- Failure to present adjustment as relief from removal.
Example: non-arriving applicant already in court
A non-arriving applicant has active INA §240 removal proceedings and an approved Form I-130. Filing a new Form I-485 with a USCIS Lockbox does not move adjustment jurisdiction away from the immigration judge. The respondent generally seeks adjustment before the court.
Example: proceedings terminated for USCIS adjustment
A non-arriving respondent has a pending adjustment application but EOIR terminates removal proceedings so USCIS can adjudicate the case. Once the proceedings are ended and USCIS verifies the procedural posture, the applicant can ask USCIS to reopen or transfer the existing I-485 rather than automatically filing a duplicate application.
Jurisdiction checklist
- Obtain complete EOIR procedural history.
- Determine whether proceedings actually commenced.
- Determine whether proceedings remain pending.
- Determine whether applicant is an arriving alien.
- Review 8 C.F.R. §245.2.
- Review 8 C.F.R. §1245.2.
- Identify underlying immigrant petition jurisdiction.
- Identify waiver jurisdiction.
- Review any final removal order.
- Review any termination or dismissal order.
- Do not confuse administrative closure with termination.
- Do not duplicate-file I-485 without determining whether an existing filing can be transferred.
Common jurisdiction mistakes
Filing With USCIS During Active Proceedings
A non-arriving respondent ignores the immigration judge's exclusive adjustment jurisdiction.
Treating Every Arriving Alien Like Every Other Respondent
The specialized arriving-alien adjustment rule is overlooked.
Confusing Administrative Closure With Termination
The applicant assumes an inactive court calendar automatically returns jurisdiction to USCIS.
Ignoring the Underlying Petition
The applicant correctly identifies I-485 jurisdiction but overlooks that USCIS still controls the immigrant petition.
Duplicate Filing
A new I-485 is filed after termination even though USCIS can reopen or transfer the existing application.
Ignoring the Removal Order
The applicant focuses solely on adjustment eligibility without addressing the continuing procedural effect of an existing order.
Primary authorities
Related INA245.com guides
Frequently asked questions
Who decides Form I-485 if I am not in removal proceedings?
USCIS generally has jurisdiction unless a special statute or regulation provides otherwise.
Who decides Form I-485 if I am in removal proceedings?
For a non-arriving alien, the immigration judge generally has exclusive adjustment jurisdiction.
Who decides an arriving alien's I-485?
USCIS generally retains jurisdiction even while removal proceedings are pending, subject to the narrow exception in 8 C.F.R. §1245.2(a)(1)(ii).
Does administrative closure return jurisdiction to USCIS?
Not necessarily. Administrative closure and termination are different procedural dispositions.
What happens after removal proceedings are terminated?
USCIS generally resumes affirmative adjustment jurisdiction and has procedures for reopening or transferring an existing I-485.
Does the immigration judge decide my I-130 or I-140 too?
Ordinarily USCIS retains jurisdiction over those immigrant petitions even when the immigration judge controls Form I-485.
Before proving adjustment eligibility, determine which tribunal has authority to decide it.
The Messersmith Law Firm, P.A. represents adjustment applicants in matters involving USCIS and immigration court jurisdiction, removal proceedings, arriving aliens, termination, dismissal, Form I-290B, waivers and complex Form I-485 litigation.
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