INA §245(c)(2) special-immigrant exception
Section 245(c)(2) ordinarily bars specified applicants based on:
- Unauthorized employment before filing;
- Unlawful immigration status on the date of filing; or
- Failure to maintain continuously lawful status since entry, absent the no-fault or technical-reasons exception.
The statute expressly excludes a special immigrant described in:
- INA §101(a)(27)(H);
- INA §101(a)(27)(I);
- INA §101(a)(27)(J); or
- INA §101(a)(27)(K).
The words “special immigrant” are not enough. The adjustment applicant must establish that the underlying classification is one of the specific statutory subparagraphs protected by the relevant adjustment provision.
Not every EB-4 special immigrant receives the same exception
INA §101(a)(27) contains numerous categories of special immigrants.
The §245(c)(2) statutory exception does not simply say “all special immigrants.”
For example, special immigrants can include:
- Religious workers under §101(a)(27)(C);
- Specified U.S. government employees;
- Specified international-organization cases;
- Special immigrant juveniles;
- Specified Armed Forces members;
- Broadcasters; and
- Other congressionally defined categories.
INA §101(a)(27)(H): certain historical physician cases
Subparagraph (H) is a narrow historical special-immigrant classification for specified physicians.
The statutory requirements include circumstances involving a physician who:
- Graduated from medical school or qualified to practice medicine abroad;
- Was fully and permanently licensed to practice medicine in a state on January 9, 1978;
- Was practicing medicine in a state on that date;
- Entered in qualifying H or J nonimmigrant status before January 10, 1978; and
- Meets the continuous-presence and medical-practice or study requirements specified by statute.
INA §101(a)(27)(I): international organization special immigrants
Subparagraph (I) covers specified persons connected with qualifying international organizations.
Depending on the particular clause, the classification can include:
- Specified unmarried sons or daughters of qualifying officers or employees;
- Specified surviving spouses;
- Specified retired officers or employees; and
- Qualifying spouses of certain retired officers or employees.
The statute contains detailed residence, physical-presence, age, and filing requirements.
Where the applicant actually qualifies under §101(a)(27)(I), §245(c)(2) does not impose its ordinary status bar.
INA §101(a)(27)(J): special immigrant juveniles
Special immigrant juveniles receive substantially broader adjustment protection than the basic §245(c)(2) exception.
INA §245(h) provides special rules addressing:
- The §245(a) admission/parole requirement;
- Specified inadmissibility grounds that do not apply;
- Special waiver authority; and
- The relationship between SIJ classification and adjustment.
Current 8 C.F.R. §245.1(e)(3) implements these protections.
INA §101(a)(27)(K): certain Armed Forces special immigrants
Subparagraph (K) concerns specified persons who served honorably on active duty in the U.S. Armed Forces after October 15, 1978 following original lawful enlistment outside the United States under the treaty or agreement conditions specified by Congress.
The statute provides qualifying service-period requirements and can also cover qualifying spouses and children accompanying or following to join.
K-1, K-2, K-3, and K-4 nonimmigrants are described in INA §101(a)(15)(K), not §101(a)(27)(K).
Deemed parole for SIJs and §101(a)(27)(K) special immigrants
Congress created two important deemed-parole provisions within INA §245.
INA §245(g)
A special immigrant described in §101(a)(27)(K) is deemed paroled into the United States for purposes of §245(a).
INA §245(h)
A special immigrant juvenile described in §101(a)(27)(J) is also deemed paroled for purposes of §245(a).
An SIJ can satisfy the §245(a) inspected-and-admitted-or-paroled requirement regardless of the child's actual method of entry because Congress supplies the deemed-parole rule.
SIJs are subject only to the terrorism-related §245(c)(6) bar
Current 8 C.F.R. §245.1(e)(3)(ii) states that an applicant classified as a special immigrant juvenile is subject only to the adjustment bar described in INA §245(c)(6).
Section 245(c)(6) concerns a person deportable under INA §237(a)(4)(B), the terrorism-related deportability provision.
This means ordinary problems such as:
- EWI;
- Unlawful status;
- Failure to maintain status;
- Unauthorized employment; and
- Many other ordinary §245(c) restrictions
do not operate against SIJ adjustment in the same manner as they do in a conventional §245(a) case.
Special SIJ inadmissibility rules
INA §245(h)(2) provides that several INA §212(a) inadmissibility provisions do not apply to SIJ adjustment.
These include specified grounds relating to:
- Public charge;
- Labor certification;
- Presence without admission or parole;
- Fraud or misrepresentation;
- Stowaways;
- Immigrant documentation; and
- Unlawful presence.
Congress also gives USCIS special humanitarian waiver authority over additional grounds, subject to statutory exclusions.
Unauthorized employment
The special-immigrant exemptions can be important where the applicant worked without authorization.
INA §245(c)(2) expressly protects the identified §101(a)(27)(H), (I), (J), and (K) classifications from its pre-filing unauthorized-employment bar.
Current 8 C.F.R. §245.1 also contains special-immigrant exceptions within its unauthorized-employment restrictions.
Violations of nonimmigrant status
Current 8 C.F.R. §245.1(b)(10) generally restricts adjustment for a person who was employed without authorization or otherwise violated the terms of a nonimmigrant admission.
The regulation expressly excepts special immigrants described in §101(a)(27)(H), (I), (J), or (K).
For these identified special immigrants, ordinary nonimmigrant-status violations do not operate through 8 C.F.R. §245.1(b)(10) as they would for an applicant outside the exception.
Religious workers are different
A special immigrant religious worker is described in INA §101(a)(27)(C).
That classification is not one of the four subparagraphs expressly listed in the §245(c)(2) special-immigrant exception.
INA §245(k) expressly includes a qualifying immigrant described in §101(a)(27)(C) who is seeking classification under INA §203(b)(4).
INA §245(k) and religious workers
Section 245(k) permits qualifying religious workers to adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8) where:
- The applicant is present pursuant to a lawful admission on the filing date; and
- After the relevant lawful admission, the aggregate period of covered status, employment, and admission violations does not exceed 180 days.
See INA §245(k).
INA §245(i) may provide another route
A special immigrant who does not fit the relevant §245(c) exception may nevertheless be grandfathered under INA §245(i).
Section 245(i) can overcome specified:
- Entry problems;
- Unlawful-status issues;
- Unauthorized employment;
- Other §245(c) bars; and
- The ordinary §245(a) inspection/admission requirement.
See INA §245(i).
Special-immigrant status does not automatically remove every adjustment bar
Unless a broader category-specific provision applies, determine separately whether the applicant is affected by:
- INA §245(c)(1) crewman restriction;
- INA §245(c)(3) Transit Without Visa restriction;
- INA §245(c)(4) visa-waiver restriction;
- INA §245(c)(5) S nonimmigrant restriction;
- INA §245(c)(6) terrorism-related restriction;
- INA §245(d);
- INA §245(e);
- INA §245(f); or
- Another category-specific rule.
SIJs are different because current 8 C.F.R. §245.1(e)(3)(ii) expressly states that the SIJ applicant is subject only to §245(c)(6).
Evidence for a special-immigrant adjustment-bar analysis
| Evidence | Purpose |
|---|---|
| Form I-360 / approval notice | Identifies and establishes the underlying special-immigrant classification. |
| Classification-specific evidence | Shows whether the applicant is H, I, J, K, C, or another §101(a)(27) special immigrant. |
| Form I-94 | Establishes admission, status, and entry history where relevant. |
| Passport and travel records | Reconstruct entries and departures. |
| Employment history | Identifies possible unauthorized employment and §245(k) periods. |
| Nonimmigrant records | Identifies status violations and maintenance issues. |
| Juvenile court order | Relevant to SIJ classification and underlying state-court findings. |
| SIJ approval | Establishes eligibility for the specialized §245(h) adjustment framework. |
| §245(k) calculation | Important for qualifying religious workers and other covered employment-based applicants. |
| Inadmissibility records | Required to determine whether ordinary or category-specific waiver rules apply. |
Frequently asked questions
Are all EB-4 applicants exempt from the unlawful-status bar?
No. INA §245(c)(2) expressly identifies special immigrants under §101(a)(27)(H), (I), (J), and (K). Other EB-4 classifications require analysis under their own rules.
Is a special immigrant juvenile exempt from the adjustment bars?
Current 8 C.F.R. §245.1(e)(3)(ii) states that an SIJ applicant is subject only to the §245(c)(6) terrorism-related adjustment bar.
Can an SIJ adjust after entry without inspection?
Yes, assuming the remaining requirements are met. INA §245(h) deems an SIJ paroled for purposes of the §245(a) entry requirement regardless of the actual method of entry.
Does an SIJ need INA §245(i) because of EWI?
No, not merely to solve the §245(a) admission or parole requirement. Congress supplies deemed-parole treatment through INA §245(h).
Are religious workers exempt from §245(c)(2) because they are special immigrants?
Not under the H/I/J/K exception. Religious workers are described in §101(a)(27)(C). A qualifying religious worker may instead obtain protection through INA §245(k).
Is §101(a)(27)(K) the K-1 fiancé category?
No. §101(a)(27)(K) is a special-immigrant Armed Forces classification. K-1 fiancé(e) nonimmigrants are described in §101(a)(15)(K).
Does special-immigrant status waive inadmissibility?
Not generally. SIJs receive special inadmissibility exclusions and waiver authority under §245(h), while other categories require analysis under the rules governing their classification.