INA §245(a)(2): eligible to receive an immigrant visa
INA §245(a) permits adjustment only if the statutory requirements are satisfied.
Subsection (a)(2) requires that the applicant:
- Be eligible to receive an immigrant visa; and
- Be admissible to the United States for permanent residence.
Subsection (a)(3) separately requires that an immigrant visa be immediately available at the time required by the governing rules.
A person can qualify for an immigrant classification but have no visa number currently available. Conversely, a priority date can be current while the applicant no longer possesses a valid immigrant classification.
Immigrant-visa eligibility is different from visa availability
| Question | Example |
|---|---|
| Is the applicant eligible to receive the immigrant visa? | Does an EB-2 applicant still have a valid approved I-140 and qualifying job or NIW basis? |
| Is a visa immediately available? | Is the applicant's priority date current under the applicable Visa Bulletin rules? |
| Is the applicant admissible? | Does INA §212 create a criminal, fraud, unlawful-presence, health, or other ground? |
| Is the applicant otherwise eligible to adjust? | Does INA §245(c), §245(d), §245(e), jurisdiction, or another restriction apply? |
See Visa Availability.
Family-based immigrant eligibility
A family-based principal applicant generally needs a qualifying petition under INA §204.
Common classifications include:
- Spouse of a U.S. citizen;
- Parent of a U.S. citizen age 21 or older;
- Unmarried child under 21 of a U.S. citizen;
- Adult son or daughter of a U.S. citizen;
- Sibling of a U.S. citizen;
- Spouse or child of a lawful permanent resident; and
- Other family-preference classifications.
The family relationship must satisfy the statutory definition and ordinarily remain legally valid through adjudication unless Congress has created a survival or conversion provision.
Employment-based immigrant eligibility
An employment-based adjustment applicant generally relies on classification under INA §203(b).
Common categories include:
- EB-1A extraordinary ability;
- EB-1B outstanding professor or researcher;
- EB-1C multinational manager or executive;
- EB-2 advanced degree or exceptional ability;
- EB-2 national interest waiver;
- Physician national interest waiver;
- EB-3 professional, skilled worker, or other worker;
- EB-4 special immigrant; and
- EB-5 investor.
Where an immigrant petition is required, the applicant generally cannot receive final permanent residence unless the qualifying petition has been approved and remains a valid basis for adjustment.
A petition can sometimes still be pending when Form I-485 is filed
The requirement to be eligible to receive an immigrant visa does not mean every adjustment applicant must already possess an approved petition on the I-485 filing date.
Congress and the regulations permit concurrent filing in specified categories.
Examples include qualifying:
- Immediate-relative I-130 and I-485 filings;
- Family-preference filings when the applicable requirements and visa availability permit;
- Employment-based I-140 and I-485 filings when a visa is available; and
- Certain I-360 categories where concurrent filing is authorized.
Derivative spouses and children
INA §203(d) can provide immigrant classification to a qualifying spouse or child accompanying or following to join a principal preference immigrant.
A derivative must establish:
- The principal's immigrant eligibility;
- The qualifying derivative relationship;
- Continuation of that relationship where required;
- Age eligibility, including any Child Status Protection Act protection;
- Visa availability; and
- The derivative's own admissibility and adjustment eligibility.
Diversity Visa eligibility
A Diversity Visa applicant does not rely on Form I-130 or Form I-140.
The applicant must instead establish eligibility under the Diversity Visa program, including:
- Valid selection for the applicable fiscal year;
- Chargeability;
- Required education or qualifying work experience;
- Visa-number availability;
- Admissibility; and
- Completion before the statutory end of the Diversity Visa fiscal year.
VAWA and special immigrant classifications
A person with an approved VAWA Form I-360 can possess an immigrant classification that supports adjustment.
Other Form I-360 classifications can include:
- Special immigrant juveniles;
- Religious workers;
- Specified international organization employees or family members;
- Specified U.S. government-related special immigrants; and
- Other classifications Congress has placed within the special immigrant provisions.
The applicant must satisfy the specific requirements of the classification supporting Form I-485.
The underlying basis must remain valid through adjustment adjudication
USCIS evaluates continuing eligibility before approving Form I-485.
Events that can affect the underlying immigrant basis include:
- Divorce;
- Marriage;
- Petitioner's loss of immigration status;
- Death;
- Employer withdrawal;
- Business termination;
- Revocation of an approved petition;
- Loss of the qualifying job offer;
- Loss of derivative relationship;
- Fraud findings; and
- Failure to satisfy continuing category-specific requirements.
Filing Form I-485 freezes neither the facts nor the legal requirements. The adjustment must remain supported by a legally valid immigrant basis unless a statute preserves eligibility after a later change.
What happens if the immigrant petition is revoked?
An approved petition can sometimes be:
- Automatically revoked under 8 C.F.R. §205.1;
- Revoked on notice under 8 C.F.R. §205.2;
- Withdrawn by the petitioner; or
- Preserved despite withdrawal under a statutory provision such as INA §204(j), when its requirements are satisfied.
The adjustment applicant should determine whether:
- The petition actually was revoked;
- Revocation was automatic or discretionary;
- INA §204(j) preserves petition validity;
- INA §204(l) provides survivor relief;
- Humanitarian reinstatement is available; or
- The pending I-485 can transfer to another underlying basis.
Death of a petitioner or qualifying relative
Death does not always terminate immigrant eligibility.
Potential provisions include:
- INA §204(l) survivor benefits;
- Widow or widower provisions;
- Humanitarian reinstatement of certain approved family petitions;
- Derivative survival rules; and
- Other category-specific provisions.
AC21 portability can preserve employment-based eligibility
INA §204(j) can preserve the validity of an approved qualifying employment-based petition when:
- The Form I-485 has been pending for 180 days or more; and
- The applicant changes to a new job in the same or a similar occupational classification.
The provision principally applies to qualifying EB-1, EB-2, and EB-3 petition-based adjustment cases.
The qualifying employment basis must exist at the required time
For employment classifications requiring a permanent job offer, USCIS may examine whether:
- The original petitioner intended to employ the beneficiary;
- The beneficiary intended to accept the employment;
- The offered position remained bona fide;
- The employer remained able to offer the position;
- Supplement J is required;
- AC21 portability applies; or
- The category is one that does not require an employer-specific job offer.
Self-petitioning categories
EB-1A extraordinary ability and national interest waiver cases do not depend on a conventional permanent employer job offer, but the applicant must continue to satisfy the requirements governing the approved classification.
Changes in family relationships can change immigrant eligibility
Examples include:
- Divorce before adjustment approval;
- Marriage of an F2B beneficiary;
- Marriage or divorce affecting derivative status;
- Petitioner's naturalization;
- Petitioner's loss of LPR status;
- Death of petitioner;
- Child aging issues; and
- Conversion between family-preference classifications.
Transfer of the underlying basis of a pending Form I-485
USCIS may permit a pending adjustment application to transfer from one immigrant basis to another when the governing requirements are satisfied.
Examples include transfer from:
- Employment-based to immediate-relative adjustment;
- Family-based to employment-based adjustment;
- One employment-based petition to another;
- Special immigrant to family-based adjustment; or
- A petition-based category to Diversity Visa eligibility.
USCIS requires the applicant to establish eligibility for the substituted category and generally requires continuity of adjustment eligibility.
Immigrant eligibility does not equal admissibility
An approved petition establishes classification. It does not determine whether the beneficiary is admissible for permanent residence.
A person can have:
- An approved I-130;
- A current priority date;
- A valid admission; and
- No adjustment bar
and still be unable to adjust because of:
- Fraud or misrepresentation;
- Criminal inadmissibility;
- Controlled substances;
- Prior removal;
- Unlawful presence;
- Alien smuggling;
- Health grounds;
- Security grounds; or
- Another INA §212 provision.
Valid immigrant classification + visa availability + admissibility are distinct requirements. Approval of one component does not establish the others.
Evidence that the applicant is eligible to receive an immigrant visa
| Category | Common Evidence |
|---|---|
| Family principal | Approved or concurrently filed Form I-130 and evidence of continuing qualifying relationship. |
| Employment principal | Approved or concurrently filed Form I-140, labor certification where applicable, Supplement J where required, and continuing job or classification evidence. |
| VAWA | Approved qualifying Form I-360. |
| Special immigrant | Approved I-360 or other category-specific classification evidence. |
| Derivative applicant | Principal's immigrant classification plus marriage or parent-child evidence and CSPA documentation where applicable. |
| Diversity Visa | DV selection and evidence satisfying statutory program eligibility. |
| AC21 portability | Approved qualifying I-140, pending I-485 for required period, Supplement J where applicable, and same-or-similar employment evidence. |
| Survivor case | Evidence supporting INA §204(l), widow(er) treatment, humanitarian reinstatement, or other survival provision. |
Frequently asked questions
Does an approved I-130 mean I am eligible to receive an immigrant visa?
It ordinarily establishes the family immigrant classification, but the relationship and petition must remain valid. Visa availability, admissibility, and adjustment eligibility are separate requirements.
Does my I-140 have to be approved before I file I-485?
Not always. Concurrent filing is permitted in qualifying employment-based cases when the applicable visa-availability and filing requirements are met. USCIS cannot finally approve the I-485 unless the required immigrant classification is established.
Is being eligible for an immigrant visa the same as having a current priority date?
No. Immigrant classification and visa availability are separate requirements under §245(a)(2) and §245(a)(3).
Can I adjust if my I-130 is revoked after I file I-485?
Ordinarily the I-485 loses its immigrant basis unless a statutory preservation provision, reinstatement, survivor rule, or valid transfer to another underlying basis applies.
Can I use a different approved petition after filing I-485?
Potentially. USCIS permits transfer of underlying basis in qualifying cases, subject to continuing eligibility, visa availability, procedural requirements, and discretion.
Does an approved immigrant petition prove admissibility?
No. USCIS separately determines inadmissibility under INA §212 during adjustment adjudication.
What if my petitioner dies while I-485 is pending?
The case does not necessarily end. INA §204(l), widow or widower provisions, humanitarian reinstatement, or another survivor rule may preserve eligibility depending on the facts.
Can an employment-based applicant change employers?
Potentially. INA §204(j) can preserve qualifying petition validity after the I-485 has been pending at least 180 days if the new job is in the same or a similar occupational classification.