Arriving Alien Adjustment of Status Jurisdiction
Arriving aliens are subject to a specialized adjustment-of-status jurisdiction rule. Even when an arriving alien has been placed in removal proceedings, USCIS ordinarily retains exclusive authority to adjudicate Form I-485. An immigration judge generally lacks adjustment jurisdiction unless the applicant satisfies every element of the narrow exception in 8 C.F.R. §1245.2(a)(1)(ii): the applicant filed Form I-485 with USCIS while in the United States, departed and returned under advance parole to pursue that application, USCIS denied it, and DHS placed the applicant in proceedings upon the advance-parole return or after the USCIS denial.
Who decides an arriving alien's Form I-485?
For most non-arriving respondents, active removal proceedings give the immigration judge exclusive I-485 jurisdiction. Arriving aliens generally remain with USCIS.
What is an arriving alien?
The regulatory definition of arriving alien generally includes a person who comes or attempts to come into the United States at a port of entry and certain other persons treated as arriving aliens under the regulations.
Importantly, parole does not necessarily eliminate arriving-alien classification.
An arriving alien who is paroled into the United States can continue to be treated as an arriving alien for procedural purposes.
The four-part immigration judge exception
Under 8 C.F.R. §1245.2(a)(1)(ii), the immigration judge can adjudicate an arriving alien's adjustment application only if all of the following are satisfied:
- The applicant properly filed Form I-485 with USCIS while physically in the United States;
- The applicant departed and returned under advance parole to pursue that previously filed Form I-485;
- USCIS denied the adjustment application; and
- DHS placed the applicant in removal proceedings upon the advance-parole return or after USCIS denied Form I-485.
The exception is conjunctive. The immigration judge does not acquire arriving-alien adjustment jurisdiction merely because removal proceedings exist.
Matter of Silitonga
In Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009), the Board held that immigration judges have no jurisdiction over an arriving alien's adjustment application except within the narrow regulatory advance-parole exception.
The decision reinforces that:
- Removal proceedings alone do not transfer jurisdiction to the immigration judge;
- The arriving-alien exception must be satisfied precisely; and
- USCIS remains the ordinary adjudicating agency.
Matter of Yauri
Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), further addresses arriving-alien adjustment jurisdiction.
The Board recognized that, outside the narrow regulatory exception:
- USCIS has exclusive jurisdiction over the arriving alien's adjustment application;
- USCIS retains that jurisdiction even when an unexecuted administratively final removal order remains outstanding; and
- The BIA generally will not reopen solely to permit pursuit of relief over which EOIR itself lacks jurisdiction.
For an arriving alien, USCIS jurisdiction can continue despite an outstanding final removal order, although the order itself creates substantial enforcement and procedural issues.
Arriving alien with a pending USCIS I-485
If USCIS has jurisdiction, the applicant should ordinarily continue adjustment through USCIS even while immigration court proceedings exist.
The applicant may need to coordinate:
- USCIS Form I-485 adjudication;
- Immigration court calendar;
- ICE counsel;
- Continuances;
- Removal-order issues;
- Biometrics;
- Form I-765;
- Form I-131;
- Waivers; and
- Final USCIS decision.
Advance parole is central to the narrow exception
The exception does not apply merely because the applicant has ever possessed advance parole.
The regulation requires the applicant to have:
- Filed Form I-485 with USCIS;
- Departed while that application was pending;
- Returned pursuant to advance parole to pursue that application;
- Received a USCIS denial; and
- Been placed in proceedings in the circumstances specified by the regulation.
Travel also raises Matter of DELCARMEN-LARA
Even when advance parole preserves adjustment procedure, travel must be analyzed separately for unlawful-presence inadmissibility.
Matter of DELCARMEN-LARA, 29 I&N Dec. 830 (BIA 2026), holds that advance-parole travel is a departure for INA §212(a)(9)(B)(i)(II).
An advance-parole trip may affect the forum for adjustment and may also trigger a three- or ten-year unlawful-presence bar if the applicant had sufficient prior unlawful presence.
Arriving alien with an outstanding removal order
An outstanding final order creates additional issues even where USCIS retains I-485 jurisdiction.
Questions include:
- Whether the order is executable;
- Whether ICE will enforce the order before USCIS acts;
- Whether a stay is necessary;
- Whether reopening is available;
- Whether adjustment approval would resolve the order;
- Whether INA §212(a)(9)(A) applies;
- Whether Form I-212 is required; and
- Whether departure would create additional inadmissibility.
A pending USCIS adjustment application does not by itself suspend execution of a final removal order.
Arriving alien and adjustment bars
Having USCIS jurisdiction does not establish substantive adjustment eligibility.
The applicant must still analyze:
- Applicable adjustment statute;
- Inspection or parole requirements;
- INA §245(c) bars where applicable;
- Visa availability;
- Underlying immigrant petition;
- Admissibility;
- Waivers;
- Prior removal;
- Unlawful presence; and
- Discretion.
Parole can satisfy INA §245(a)
For an applicant otherwise eligible under INA §245(a), parole can satisfy the threshold requirement that the applicant have been inspected and admitted or paroled.
But parole does not automatically:
- Erase prior inadmissibility;
- Erase a removal order;
- Provide lawful nonimmigrant status;
- Waive INA §245(c);
- Guarantee visa availability; or
- Guarantee favorable discretion.
Do not file a duplicate I-485 in immigration court automatically
An arriving alien already pursuing adjustment before USCIS should not assume that removal proceedings require a second Form I-485 filing with EOIR.
If the four-part exception is not satisfied, the immigration judge generally cannot adjudicate the arriving alien's adjustment application.
Example: paroled arriving alien placed in proceedings before USCIS denial
An arriving alien files Form I-485 with USCIS and is later placed in removal proceedings, but the applicant did not depart and return under advance parole as described in 8 C.F.R. §1245.2(a)(1)(ii). The immigration judge generally lacks adjustment jurisdiction and USCIS remains the proper I-485 adjudicator.
Example: all four exception elements are satisfied
An arriving alien properly files Form I-485 with USCIS, travels and returns on advance parole to pursue the case, USCIS denies the I-485, and DHS places the applicant in removal proceedings after the return or denial as specified by the regulation. In that narrow circumstance, the immigration judge can have jurisdiction to renew adjustment.
Arriving-alien jurisdiction checklist
- Determine whether applicant is legally an arriving alien.
- Identify parole history.
- Identify prior admissions.
- Review existing Form I-485 filing date.
- Determine whether applicant departed on advance parole.
- Determine why and when DHS initiated proceedings.
- Determine whether USCIS denied the I-485.
- Apply all four elements of 8 C.F.R. §1245.2(a)(1)(ii).
- Review Matter of Silitonga.
- Review Matter of Yauri.
- Review any final removal order.
- Review INA §212(a)(9)(A), (B) and (C).
- Apply Matter of DELCARMEN-LARA to advance-parole travel.
- Identify any required waiver or Form I-212.
Common arriving-alien mistakes
Assuming the Judge Always Has Jurisdiction
The applicant sees an active immigration court case and ignores the specialized arriving-alien rule.
Assuming Parole Ends Arriving-Alien Status
Parole is treated as though it were ordinary nonimmigrant admission.
Applying the Exception Partially
One or two of the four regulatory requirements are satisfied, but the applicant assumes that is enough.
Ignoring a Final Order
The applicant correctly identifies USCIS jurisdiction but overlooks enforcement and inadmissibility consequences of the outstanding order.
Ignoring DELCARMEN-LARA
Advance-parole travel is treated as incapable of triggering INA §212(a)(9)(B).
Confusing Jurisdiction With Eligibility
The applicant assumes USCIS jurisdiction means the substantive adjustment application must be approved.
Primary authorities
Related INA245.com guides
Frequently asked questions
Does an immigration judge normally decide an arriving alien's I-485?
No. USCIS generally retains jurisdiction even when removal proceedings are pending.
When can the immigration judge decide it?
Only when all requirements of the narrow exception in 8 C.F.R. §1245.2(a)(1)(ii) are satisfied.
Does parole stop me from being an arriving alien?
Not necessarily. The regulatory framework can continue to treat a paroled person as an arriving alien.
Can USCIS have jurisdiction if I have a final removal order?
For an arriving alien, Matter of Yauri recognizes USCIS jurisdiction even with an unexecuted administratively final removal order, outside the narrow regulatory exception.
Does a pending USCIS I-485 stop removal?
No. Adjustment jurisdiction does not itself stay execution of an outstanding removal order.
Can advance-parole travel trigger an unlawful-presence bar?
Yes. Matter of DELCARMEN-LARA holds that advance-parole travel is a departure for INA §212(a)(9)(B)(i)(II).
For arriving aliens, the question is often not whether removal proceedings exist, but whether the narrow regulation actually transfers adjustment jurisdiction away from USCIS.
The Messersmith Law Firm, P.A. represents adjustment applicants in arriving-alien cases involving parole, removal proceedings, final removal orders, advance parole, INA §212(a)(9), waivers, USCIS jurisdiction and immigration court strategy.
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