INA §245(c)(3)
INA §245(c)(3) provides that ordinary adjustment under §245(a) does not apply to a person admitted in transit without a visa under INA §212(d)(4)(C), subject to the statute's overarching exception for approved VAWA self-petitioners.
The bar is tied to admission under the specific Transit Without Visa authority—not merely to any person whose trip involved passing through the United States.
What was the Transit Without Visa program?
The former TWOV program allowed certain qualifying international passengers to transit through the United States without first obtaining the otherwise required transit visa.
The program operated under the visa-waiver authority contained in INA §212(d)(4).
Passengers generally were expected to:
- Be in immediate and continuous transit;
- Travel to another foreign country;
- Use participating transportation arrangements;
- Comply with specified carrier and immigration procedures; and
- Depart the United States in accordance with the transit itinerary.
Suspension of TWOV in August 2003
DHS and the Department of State suspended the TWOV and International-to-International programs effective August 2, 2003.
The Federal Register explained that the immediate and continuous transit programs were being suspended because of national-security concerns involving possible exploitation of visa-free transit procedures.
TWOV is not the same as ordinary C-1 transit
INA §101(a)(15)(C) creates the C transit nonimmigrant classification.
A person with a C-1 visa may have obtained an actual nonimmigrant visa before travel.
By contrast, the historical TWOV program involved a waiver of the visa requirement under INA §212(d)(4)(C).
| Category | General Adjustment Issue |
|---|---|
| Historical TWOV under §212(d)(4)(C) | INA §245(c)(3) bar can apply. |
| Ordinary C-1 transit visa | Not automatically barred by §245(c)(3) merely because transit was the purpose. |
| C-1 entrant going to join crew | May be subject to INA §245(c)(1) as a crewman. |
| Visa Waiver Program entrant | Analyzed under INA §245(c)(4), not §245(c)(3). |
C-1 transit to join a vessel or aircraft crew
A separate issue arises when a person entered in C-1 status specifically for the purpose of joining a vessel or aircraft as a crewman.
Under Matter of Tzimas, the person can be treated as a crewman for adjustment purposes even though the admission record reflects C-1.
Ordinary C-1 transit, TWOV transit, and C-1 entry to join crew can produce three different adjustment analyses.
Evidence proving or disproving a TWOV admission
Older cases may require reconstruction from several sources.
Potential evidence includes:
- Form I-94 or I-94T;
- TWOV documentation or envelope;
- Passport used for the trip;
- Transit or destination tickets;
- Airline itinerary;
- Carrier records;
- Legacy INS records;
- CBP records;
- Sworn statements taken at entry;
- Prior asylum or immigration filings;
- Immigration-court records;
- Form I-213; and
- Contemporaneous evidence of the intended destination.
Immediate-relative status does not itself remove §245(c)(3)
INA §245(c)(3) does not contain the immediate-relative exemption Congress placed in several other adjustment-bar provisions.
A TWOV entrant who later marries a U.S. citizen therefore does not automatically become eligible for ordinary §245(a) adjustment merely because the marriage creates an immediate-relative immigrant classification.
INA §245(i) can overcome the TWOV bar
INA §245(i) expressly applies notwithstanding subsections (a) and (c).
A qualifying grandfathered applicant may therefore be able to adjust despite §245(c)(3).
The applicant must still establish:
- Qualifying grandfathering;
- Required physical presence where applicable;
- A current immigrant visa basis;
- Visa availability;
- Admissibility;
- Required filing procedure; and
- Payment of the statutory additional sum where applicable.
VAWA self-petitioners
INA §245(c) begins by excluding an approved VAWA self-petitioner from the ordinary subsection (c) bars.
A qualifying approved VAWA self-petitioner with a historical TWOV admission therefore requires analysis under the VAWA adjustment framework rather than automatic application of §245(c)(3).
Other specialized adjustment statutes
A TWOV history should also be analyzed under any specialized adjustment statute that may apply.
Examples can include:
- Cuban Adjustment Act;
- T nonimmigrant adjustment;
- U nonimmigrant adjustment;
- Special immigrant juvenile adjustment;
- Refugee adjustment;
- Asylee adjustment;
- NACARA or HRIFA where applicable; and
- Other specific congressional adjustment provisions.
Determine first whether the applicant is actually seeking adjustment under INA §245(a). A separate statutory adjustment authority may have its own eligibility and bar rules.
TWOV cases can also involve fraud or misrepresentation
The historical TWOV benefit was based on the representation that the traveler intended immediate and continuous transit through the United States to a foreign destination.
If the evidence shows that the person used TWOV status while actually intending to remain in the United States, a separate INA §212(a)(6)(C)(i) issue can arise.
Historical cases have involved allegations that applicants:
- Used false passports;
- Assumed another identity;
- Misrepresented the intended destination;
- Obtained TWOV processing despite intending to remain; or
- Abandoned the onward itinerary immediately after entry.
Removal and enforcement history
Many historical TWOV cases also involve airport inspection, asylum claims, exclusion proceedings, expedited removal, or later immigration-court proceedings.
Review:
- Any exclusion, deportation, or removal order;
- Sworn airport statements;
- Asylum applications;
- Prior departures;
- Later entries;
- INA §212(a)(9)(A);
- INA §212(a)(9)(C);
- Reinstatement issues; and
- Current USCIS or EOIR jurisdiction.
Inadmissibility remains separate
INA §245(c)(3) is an adjustment bar, not a waiver of inadmissibility.
Possible separate issues include:
- Fraud or willful misrepresentation;
- False claim to U.S. citizenship;
- Criminal inadmissibility;
- Prior removal;
- Unlawful presence;
- Unlawful reentry;
- Alien smuggling; and
- Other INA §212 grounds.
First determine whether §245(c)(3) prevents ordinary adjustment. Then determine whether any inadmissibility ground independently prevents permanent residence.
Responding to an RFE or NOID alleging TWOV admission
The response should require USCIS to identify the actual admission authority reflected in the historical record.
A structured analysis can address:
- The visa, if any, held at entry;
- The I-94 or I-94T;
- Whether INA §212(d)(4)(C) was actually used;
- Whether the applicant instead held a C-1 visa;
- Whether the applicant was entering to join a crew;
- Carrier and ticket records;
- Prior government descriptions of the entry;
- Any §245(i) grandfathering;
- VAWA or special adjustment eligibility; and
- Any separate inadmissibility finding.
TWOV history and current adjustment discretion
If the applicant qualifies for §245(i), VAWA, or another adjustment statute that permits adjustment notwithstanding the ordinary TWOV bar, the adjudicator may still have discretionary authority under the governing adjustment provision.
Relevant factors can include:
- Original purpose of transit;
- Whether the onward itinerary was honored;
- Any misrepresentation;
- Family ties;
- Length of residence;
- Humanitarian circumstances;
- Immigration history;
- Criminal history; and
- Other favorable or adverse evidence.
Discretion comes after statutory eligibility. A favorable equities showing cannot itself waive INA §245(c)(3) when no statutory exception applies.
Frequently asked questions
I entered with a C-1 visa. Am I automatically barred by §245(c)(3)?
No. Section 245(c)(3) specifically addresses admission under the historical Transit Without Visa authority. An ordinary C-1 visa admission must be distinguished from TWOV.
I entered without a visa only to change planes. Can I adjust now?
If the entry was actually under the former TWOV authority, INA §245(c)(3) can bar ordinary adjustment unless another statutory exception or adjustment provision applies.
Does marriage to a U.S. citizen overcome the TWOV bar?
Not by itself. Unlike several other §245(c) provisions, §245(c)(3) does not contain the ordinary immediate-relative exception.
Can INA §245(i) overcome §245(c)(3)?
Potentially yes. INA §245(i) expressly operates notwithstanding subsection (c) for qualifying grandfathered applicants.
Is TWOV still available today?
The TWOV and International-to-International transit programs were suspended effective August 2, 2003. Modern cases usually involve historical admissions.
Could a historical TWOV entry also create a fraud issue?
Potentially, if the traveler materially misrepresented identity, intended destination, or the intent to remain in immediate and continuous transit. That issue is separate from §245(c)(3).