INA §245 Statutory Text and Section-by-Section Guide

Current statutory source

INA §245(a): the general adjustment rule

Section 245(a) provides the basic adjustment mechanism for a person who was inspected and admitted or paroled into the United States, and for certain VAWA self-petitioners.

The statute provides that qualifying status “may be adjusted” in the government's discretion if the applicant makes an adjustment application, is eligible to receive an immigrant visa and admissible for permanent residence, and an immigrant visa is immediately available as required by the statute.

The major elements are:

• Application for adjustment;
• Qualifying inspection and admission or parole, unless another statutory rule applies;
• Immigrant visa eligibility;
• Admissibility;
• Visa availability; and
• Favorable discretion.

See Inspected and Admitted, Parole and Adjustment of Status, and Visa Availability.

INA §245(b): recording lawful permanent residence

Section 245(b) governs the formal recording of lawful permanent residence after approval.

For ordinary §245(a) adjustment, the statute generally records LPR status as of the date the adjustment order is approved and requires reduction of an immigrant visa number in the applicable preference category where a numerically limited visa is used.

INA §245(c): statutory adjustment bars

Section 245(c) contains several classes of applicants to whom ordinary §245(a) adjustment does not apply unless an exception elsewhere in the statute protects them.

The bars include provisions concerning:

• Crewmen;
• Unauthorized employment;
• Unlawful immigration status at filing;
• Failure to continuously maintain lawful status;
• Certain transit without visa admissions;
• Certain Visa Waiver Program and visa-free admissions;
• S nonimmigrants;
• Persons deportable under the terrorism-related ground referenced in §245(c)(6);
• Employment-based applicants not in lawful nonimmigrant status; and
• Employment or other violations of nonimmigrant terms.

See Failure to Maintain Lawful Status, Unauthorized Employment and Adjustment, and Immediate Relative Adjustment Bar Exemptions.

INA §245(d): conditional residents and K nonimmigrants

Section 245(d) contains two important restrictions.

First, a person already admitted for permanent residence on a conditional basis under INA §216 cannot use ordinary §245(a) simply to adjust again while in that conditional status.

Second, K nonimmigrants are subject to a statutory restriction tying adjustment to the U.S. citizen petitioner who obtained the K classification.

See K-1 Adjustment Restriction and K-1 Fiancé(e) Adjustment of Status.

INA §245(e): marriage during immigration proceedings

Section 245(e) restricts adjustment based on a marriage entered while administrative or judicial immigration proceedings concerning the applicant's right to remain in the United States are pending.

The statutory bona fide marriage exception requires clear and convincing evidence that:

• The marriage was entered in good faith;
• It complied with the law of the place where celebrated;
• It was not entered to procure immigration benefits; and
• No prohibited consideration was given for filing the petition.

See Marriage During Removal Proceedings.

INA §245(f): conditional permanent resident investors

Section 245(f) prevents ordinary §245(a) adjustment of a person already admitted as a conditional permanent resident under the investor conditional-residence statute.

The provision parallels §245(d)'s treatment of other conditional permanent residents and prevents ordinary adjustment from being used to bypass the statutory process for removing conditions.

INA §245(g): designated special immigrants deemed paroled

Section 245(g) provides a deemed-parole rule for the specific special immigrant classification identified in INA §101(a)(27)(K).

The effect is to satisfy the parole component of §245(a) for that designated class.

INA §245(h): Special Immigrant Juveniles

Section 245(h) creates special adjustment treatment for Special Immigrant Juveniles.

The statute:

• Deems the SIJ applicant paroled for §245(a);
• Makes several grounds of inadmissibility inapplicable;
• Authorizes humanitarian, family-unity or public-interest waivers for additional grounds; and
• Specifies inadmissibility provisions that cannot be waived under the SIJ waiver authority.

See SIJ Adjustment Under INA §245(h), SIJ Deemed Parole, and SIJ Inadmissibility and Waivers.

INA §245(i): grandfathered adjustment

Section 245(i) is a major statutory exception for certain applicants who cannot use ordinary §245(a) or are within §245(c) bars.

Potentially qualifying applicants are tied to a qualifying immigrant petition or labor certification filed on or before April 30, 2001, with additional requirements for filings after January 14, 1998.

Section 245(i) can permit adjustment despite:

• Entry without inspection;
• Unauthorized employment;
• Failure to maintain status; and
• Other §245(c) barriers covered by the statute.

See INA §245(i).

INA §245(j): S nonimmigrant adjustment

Section 245(j) creates a specialized adjustment mechanism for qualifying S nonimmigrants who supplied significant information concerning criminal or terrorist activity.

The statute conditions adjustment on government determinations concerning:

• Information provided;
• Contribution to investigation or prosecution;
• National-security or terrorism-related assistance in S-6 cases;
• Applicable reward requirements; and
• Specified inadmissibility limitations.

See S Nonimmigrant Adjustment Under INA §245(j).

INA §245(k): employment-based 180-day exception

Section 245(k) allows certain employment-based applicants to adjust notwithstanding §245(c)(2), §245(c)(7) and §245(c)(8) if the statutory requirements are met.

The applicant must be present pursuant to a lawful admission on the filing date and, after the relevant lawful admission, must not have exceeded 180 aggregate days of specified status, employment or admission violations.

The three statutory categories counted toward the aggregate limit are:

• Failure to continuously maintain lawful status;
• Unauthorized employment; and
• Other violations of the terms and conditions of admission.

See INA §245(k).

INA §245(l): T nonimmigrant adjustment

Section 245(l) provides permanent-residence eligibility for qualifying T nonimmigrants.

The statute addresses:

• Required physical presence;
• Good moral character;
• Compliance with reasonable law-enforcement assistance requests or statutory alternatives;
• Extreme hardship involving unusual and severe harm;
• Special provisions for persons victimized before age 18;
• Continuous physical presence and permitted absences;
• Waiver authority; and
• Annual numerical limits for principal applicants.

See T Visa Adjustment Under INA §245(l) and T Visa Physical Presence, Good Moral Character and Cooperation.

INA §245(m): U nonimmigrant adjustment

Section 245(m) authorizes adjustment for qualifying U nonimmigrants.

The principal applicant generally must establish:

• At least three years of qualifying continuous physical presence;
• No disqualifying INA §212(a)(3)(E) issue unless applicable law provides otherwise;
• No affirmative evidence of unreasonable refusal to assist law enforcement as described by statute; and
• That continued presence is justified on humanitarian grounds, to ensure family unity, or otherwise in the public interest.

The subsection also contains family-member adjustment provisions.

See U Visa Adjustment Under INA §245(m) and U Visa Continuous Physical Presence.

INA §245(n): EB-5 concurrent filing

Section 245(n) provides that when approval of an EB-5 petition would make an immigrant visa immediately available, the beneficiary's adjustment application is considered properly filed whether submitted concurrently with or after the EB-5 petition.

This statutory authority is the basis for modern EB-5 concurrent filing where visa availability and the other filing requirements are satisfied.

See EB-5 Concurrent Filing and EB-5 Adjustment of Status.

Section-by-section map

INA §245 and INA §212 work together

Adjustment eligibility requires more than satisfying §245.

An applicant must generally also establish admissibility under INA §212.

Potential grounds include:

• Health;
• Crime;
• Controlled substances;
• Drug trafficking;
• Security and terrorism;
• Public charge;
• Fraud or misrepresentation;
• False citizenship;
• Alien smuggling;
• Prior removal;
• Unlawful presence; and
• Other statutory grounds.

INA §245 and visa availability

For numerically limited categories, adjustment is tied to the immigrant visa allocation system.

The analysis may require:

• Priority date;
• Preference category;
• Country of chargeability;
• Final Action Date;
• Dates for Filing;
• USCIS chart designation;
• Cross-chargeability;
• CSPA; and
• Visa retrogression.

See Visa Availability and Filing.

INA §245 and federal jurisdiction

Section 245's discretionary language also interacts with federal judicial-review limitations in INA §242.

Modern litigation must account for:

• 8 U.S.C. §1252(a)(2)(B);
• Patel v. Garland;
• Current circuit precedent on USCIS decisions;
• Petition-for-review jurisdiction;
• Constitutional and legal claims under §1252(a)(2)(D); and
• Jurisdiction over delayed I-485 litigation.

See Federal Court Review of Adjustment of Status Decisions and Mandamus for Delayed Adjustment of Status.

INA §245 and rescission

Approval of Form I-485 does not prevent the government from later examining whether the applicant was actually eligible at the time permanent residence was granted.

INA §246 provides the formal rescission procedure for an adjustment that was erroneously granted.

See Rescission of Adjustment Under INA §246.

How to analyze an adjustment case from the statute

1. Identify the statutory adjustment subsection.
2. Determine whether §245(a) admission or parole is required.
3. Identify any §245(c) bar.
4. Check immediate-relative, VAWA or special-immigrant exemptions.
5. Check §245(i) grandfathering.
6. Check §245(k) if employment-based.
7. Check K-visa restrictions under §245(d).
8. Check marriage-during-proceedings restriction under §245(e).
9. Identify special humanitarian rules under §§245(h), (j), (l) or (m).
10. Confirm immigrant petition or classification.
11. Confirm visa availability.
12. Analyze INA §212 admissibility.
13. Identify waivers.
14. Determine USCIS or immigration judge jurisdiction.
15. Address favorable discretion.

Common statutory-reading mistakes

Primary statutory and regulatory authorities

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