8 C.F.R. Part 245 Guide

What is 8 C.F.R. Part 245?

See 8 U.S.C. §1255 Guide.

8 C.F.R. §245.1 — Eligibility

Section 245.1 contains several foundational adjustment rules.

It addresses:

• General eligibility;
• Restricted applicants;
• Statutory ineligibility categories;
• Definitions of lawful immigration status;
• Special immigrant juvenile deemed parole;
• Visa availability concepts; and
• Other threshold adjustment issues.

Restricted applicants under §245.1

Section 245.1 identifies categories that ordinarily cannot use adjustment under the general rule unless an exception such as INA §245(i) applies.

The regulation addresses applicants such as:

• Transit without visa entrants;
• Crewmen;
• Persons not admitted or paroled after inspection;
• Applicants with unauthorized employment;
• Applicants with specified status violations; and
• Other categories identified by statute and regulation.

The analysis must then ask whether the applicant qualifies for:

• Immediate-relative protection;
• VAWA protection;
• Special immigrant treatment;
• INA §245(i);
• INA §245(k); or
• A separate adjustment statute.

8 C.F.R. §245.2 — Application

Section 245.2 is one of the most operationally important adjustment regulations.

It addresses:

• USCIS jurisdiction;
• Proper filing;
• Visa availability;
• Concurrent filing;
• Biometrics and application processing;
• Effect of departure;
• Advance parole;
• H, L, K-3/K-4 and V travel exceptions;
• Approval;
• Denial; and
• Renewal in removal proceedings.

Jurisdiction under §245.2(a)(1)

The current regulation states that USCIS has jurisdiction over adjustment unless an immigration judge has jurisdiction under 8 C.F.R. §1245.2(a)(1).

Therefore, determine:

• Whether removal proceedings are pending;
• Whether the applicant is an arriving alien;
• Whether proceedings were terminated;
• Whether the immigration judge has exclusive jurisdiction; and
• Whether a special adjustment statute gives USCIS exclusive jurisdiction.

See USCIS vs. Immigration Judge Jurisdiction.

Proper filing and visa availability

Section 245.2 ties proper filing to immigrant visa availability and identifies categories in which concurrent petition and adjustment filing is permitted.

The rule interacts with:

• Immediate-relative petitions;
• Family-preference petitions;
• Employment-based petitions;
• Concurrent Form I-140 and Form I-485 filing;
• Visa Bulletin chart selection;
• EB-5 statutory concurrent filing; and
• Cases in immigration court.

See Visa Availability and Concurrent Filing of Form I-140 and Form I-485.

Departure and abandonment under §245.2(a)(4)

Section 245.2(a)(4) contains the principal I-485 abandonment rule for international travel.

For many USCIS applicants, departure abandons Form I-485 unless:

• Advance parole was granted before departure and the applicant returns as required; or
• A qualifying H, L, K-3, K-4 or V regulatory exception applies.

The regulation contains a separate rule for applicants in exclusion, deportation or removal proceedings.

See Travel Without Advance Parole and Abandonment.

Approval and denial under §245.2(a)(5)

The regulation addresses the final USCIS decision.

Important rules include:

• Ordinary permanent residence is recorded as of the approval date;
• A preference application cannot be approved until DOS allocates an immigrant visa number;
• No ordinary administrative appeal lies from the USCIS adjustment denial; and
• A non-arriving applicant can generally renew adjustment in removal proceedings if otherwise placed in qualifying proceedings.

See Form I-290B After I-485 Denial and Renewing Adjustment in Removal Proceedings.

8 C.F.R. §245.6 — Interview

Section 245.6 states the general regulatory interview requirement and authorizes USCIS to waive an interview in specified circumstances.

Modern USCIS adjudication therefore distinguishes between:

• Cases requiring interview;
• Cases in which USCIS determines an interview is unnecessary;
• Category-specific interview considerations;
• Fraud or credibility concerns; and
• Field-office jurisdiction.

See Adjustment of Status Interview and Interview Waiver.

Marriage entered during proceedings

Part 245 contains regulatory implementation of the statutory restriction on marriages entered while specified immigration proceedings are pending.

The governing framework addresses:

• Timing of marriage;
• Pending proceedings;
• Bona fide marriage exception;
• Clear and convincing evidence;
• Petition procedures; and
• Adjustment adjudication.

See Marriage During Removal Proceedings.

8 C.F.R. §245.10 — INA §245(i)

Section 245.10 is the principal regulation implementing INA §245(i).

It defines and explains concepts including:

• Grandfathered alien;
• Properly filed petition or labor certification;
• Approvable when filed;
• April 30, 2001 cutoff;
• December 21, 2000 physical-presence requirement;
• Derivative grandfathering;
• Changes in circumstances;
• Additional payment;
• Evidence of grandfathering; and
• Relationship between grandfathering and unlawful presence.

See INA §245(i).

Specialized adjustment sections in Part 245

Part 245 also contains dedicated sections for adjustment programs that do not operate exactly like an ordinary family or employment I-485.

These include regulations concerning:

• Diplomatic adjustment under section 13;
• Certain Indochinese parolee programs;
• S nonimmigrant adjustment;
• Physician national interest waiver adjustment;
• T nonimmigrant adjustment;
• U nonimmigrant adjustment; and
• Other historical or specialized statutory programs.

8 C.F.R. §245.18 — Physician NIW adjustment

Section 245.18 addresses adjustment for physicians with approved national interest waiver petitions based on service in medically underserved areas or qualifying Veterans Affairs facilities.

The regulation covers:

• Who qualifies for the special physician framework;
• Required service;
• Timing of adjustment approval;
• Evidence of completed service;
• Interim documentation; and
• Relationship to ordinary adjustment requirements.

See Physician NIW Adjustment of Status.

T adjustment regulations

The current Part 245 regulations contain an extensive T adjustment framework.

They address:

• Eligibility;
• Continuous physical presence;
• Good moral character;
• Law-enforcement assistance;
• Trafficking-related exceptions;
• Required evidence;
• Waivers;
• Derivative applicants;
• Exclusive USCIS adjudication rules where applicable; and
• Annual numerical limitations.

See T Visa Adjustment Under INA §245(l).

U adjustment regulations

Part 245 also contains the regulatory implementation of INA §245(m).

The U adjustment rules address:

• Three years of continuous physical presence;
• Law-enforcement assistance;
• Humanitarian, family-unity and public-interest factors;
• Admissibility and waivers;
• Family-member adjustment;
• Evidence;
• USCIS exclusive jurisdiction; and
• Interaction with the ordinary §§245.1 and 245.2 framework.

See U Visa Adjustment Under INA §245(m).

DHS Part 245 versus EOIR Part 1245

If removal proceedings exist, both regulatory parts may need to be read together.

See Adjustment of Status While in Removal Proceedings.

Regulation versus USCIS Policy Manual

The USCIS Policy Manual explains how the agency currently interprets and applies the statute and regulations.

But the hierarchy remains:

1. Statute;
2. Controlling judicial precedent;
3. Valid regulation;
4. Binding administrative precedent;
5. USCIS Policy Manual; and
6. Lower-level or informal guidance.

Current Part 245 research checklist

• Use the current eCFR version.
• Identify the exact regulatory section.
• Check source and amendment history if wording appears outdated.
• Compare regulation with current 8 U.S.C. §1255.
• Check category-specific Part 245 regulation.
• Check Part 1245 if EOIR jurisdiction exists.
• Check USCIS Policy Manual Volume 7.
• Check controlling BIA or Attorney General precedent.
• Check controlling federal circuit precedent.
• Distinguish regulation from form instructions.

Common regulatory mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions