Ordinary adjustment under INA §245(a)
Section 245(a) is the principal statutory provision for adjustment of status. It generally applies where an applicant was inspected and admitted or paroled into the United States, or qualifies under the statute's VAWA self-petitioner language.
The applicant must also apply for adjustment, be eligible to receive an immigrant visa, be admissible for permanent residence, and have an immigrant visa immediately available when the application is filed.
Satisfying §245(a) is the beginning of the eligibility analysis, not necessarily the end.
A separate subsection may bar adjustment even where §245(a) is otherwise satisfied. Conversely, another subsection may create an exception that permits adjustment despite an apparent problem.
See the complete INA §245(a) Guide.
Statutory bars and restrictions
INA §245 contains several limitations on adjustment eligibility. Section 245(c) contains eight principal bars to ordinary §245(a) adjustment. Other subsections impose additional category-specific restrictions.
| Provision | General Subject |
|---|---|
| §245(c) | Crewmen, status violations, unauthorized employment, Visa Waiver entrants, employment-based status issues, and other specified classes |
| §245(d) | Conditional residents and K nonimmigrant adjustment restrictions |
| §245(e) | Marriages entered during specified immigration proceedings |
| §245(f) | Conditional permanent residents under the EB-5 framework |
The applicability of a bar depends on the applicant's immigrant category and immigration history. Congress expressly exempted certain applicants from particular bars.
See the Adjustment Bars Guide.
INA §245(i) and INA §245(k)
INA §245(i)
Section 245(i) is a grandfathering provision. Certain applicants connected to qualifying immigrant petitions or labor certification applications filed on or before April 30, 2001 may be able to adjust notwithstanding entry without inspection or specified §245(c) bars.
Additional requirements can apply, including the December 21, 2000 physical-presence requirement for certain filings made after January 14, 1998.
See INA §245(i).
INA §245(k)
Section 245(k) provides a narrower employment-based exemption. Qualifying employment-based immigrants may adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8) where the covered violations after the relevant lawful admission do not exceed 180 days in the aggregate.
See INA §245(k).
Special adjustment categories within §245
INA §245 is not limited to ordinary family- and employment-based adjustment cases. Congress incorporated several specialized pathways into the statute.
- Special immigrants under §245(g);
- Special immigrant juveniles under §245(h);
- S nonimmigrants under §245(j);
- T nonimmigrants under §245(l);
- U nonimmigrants under §245(m); and
- EB-5 concurrent filing under §245(n).
INA §245 and inadmissibility are separate bodies of law
Adjustment eligibility under §245 should not be confused with admissibility under INA §212. A person can satisfy the §245 adjustment requirements but remain unable to obtain permanent residence because an inadmissibility ground applies.
Likewise, a person may have no inadmissibility problem but still be barred from adjustment by §245(c) or another adjustment-specific limitation.
First identify the adjustment pathway and any §245 bar. Then analyze admissibility and any available exception or waiver.
Visa availability remains essential
For ordinary §245(a) adjustment, an immigrant visa must be immediately available when the application is filed. Visa-number rules can also affect when USCIS is able to approve the application.
Numerically limited family- and employment-based categories therefore require careful analysis of the applicant's priority date, preference category, chargeability, the Department of State Visa Bulletin, and USCIS's monthly filing-chart determination.
See Visa Availability.
Form I-485 and the regulatory framework
The statute establishes substantive eligibility, while federal regulations and USCIS policy supply many of the procedural rules governing adjustment applications.
These rules address subjects such as:
- How and where an application is filed;
- Visa availability;
- Initial and supplemental evidence;
- Medical examination requirements;
- Interviews;
- Employment-based portability;
- Jurisdiction;
- Derivative applicants; and
- Adjudication and discretionary review.
See the Form I-485 Process Guide.
USCIS and immigration-court jurisdiction
USCIS adjudicates most affirmative adjustment applications, but jurisdiction can change where removal proceedings are pending or where a particular regulatory rule assigns authority to an immigration judge.
Arriving-alien cases, reopened proceedings, terminated proceedings, and cases involving prior removal orders can require a separate jurisdictional analysis before determining where Form I-485 should be adjudicated.