AOS Statute

INA 245(a) Adjustment of Status Eligibility Requirements

The applicant must have been:

Inspected and admitted into the United States; or Inspected and paroled into the United States.

The applicant must properly file an adjustment of status application.

The applicant must be physically present in the United States.

The applicant must be eligible to receive an immigrant visa.

An immigrant visa must be immediately available when the applicant files the adjustment of status application.

and at the time of final adjudication.

The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.

The applicant must merit the favorable exercise of discretion.

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Exceptions to Being Admitted or Parole

VAWA & INA 245i

SIJS See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a).

Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States.

See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).

Bars to Adjustment of Status

|See bars to adjustment of status page.

EXEMPTIONS FROM BARS TO ADJUSTMENT

Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants.

Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference categories from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission.

ADMITTED OR PAROLED

ADMISSION

A noncitizen is admitted if the following conditions are met:

• The noncitizen applied for admission as an “alien” at a port of entry; and
• An immigration officer inspected the applicant for admission as an “alien” and authorized him or her to enter the United States in accordance with the procedures for admission.

A noncitizen who meets these two requirements is admitted, even if the person obtained the admission by fraud. Likewise, the noncitizen is admitted, even if the CBP officer performed a cursory inspection.

As long as the noncitizen meets the procedural requirements for admission, the noncitizen meets the inspected and admitted requirement for adjustment of status. Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee.

See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”

Evidence of Admission

An Arrival/Departure Record (Form I-94), including a replacement when appropriate, is the most common document evidencing a noncitizen’s admission. The following are other types of documentation that may be accepted as proof of admission into the United States:

• Admission stamp in passport, which may be verified using DHS systems;
• Employment Authorization Card (Form I-688A), for special agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application;
• Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the last claimed date of entry on the adjustment application; and
• Border Crossing Card (Form I-586 or Form DSP-150), provided it was valid on the date of last claimed entry.

When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record:

• A Canadian citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly transit through the United States;
• A nonimmigrant residing in the British Virgin Islands who was admitted only to the United States Virgin Islands as a visitor for business or pleasure;
• A Mexican national admitted with a B-1/B-2 Visa and Border Crossing Card (Form DSP-150) at a land or sea port of entry as a visitor for business or pleasure for a period of 30 days to travel within 25 miles of the border; and
• A Mexican national in possession of a Mexican diplomatic or official passport.

In these situations, an applicant should submit alternate evidence to prove his or her inspection and admission to the United States. This may include a Border Crossing Card, plane tickets evidencing travel to the United States, or other corroborating evidence.

False Claim to Citizenship Cannot be an Admission/Inspection

A noncitizen who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013).

Deferred Admission

Deferred inspection is a form of parole. A noncitizen who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].

PAROLE

Conditional Parole

Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility.

Evidence of Parole

Evidence of parole includes:

• A parole stamp on an advance parole document;
• A parole stamp in a passport; or
• An Arrival/Departure Record (Form I-94) endorsed with a parole stamp.

When is Parole NOT Parole for Purposes of Adjustment of Status?

Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023) explained on page about INA §236(a)(2)(B) parole and adjustment of status.

See also

Form I-485

INA 236 PAROLE NOT ELIGIBLE FOR AOS

Immigrant Visa Immediately Available at Time of Filing and at Time of Approval

In general, an immigrant visa must be available before a noncitizen can apply for adjustment of status. An immigrant visa is always available to applicants seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application. Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application.

Dependents

The spouse and children of certain family-based, employment-based, and Diversity Immigrant Visa adjustment applicants may also obtain LPR status through their relationship with the principal applicant. Because the spouse and children do not have an independent basis to adjust status apart from their relationship to the principal immigrant, they are “dependents” of the principal for purpose of eligibility for adjustment of status.

Dependents do not have their own underlying immigrant petition and may only adjust based on the principal’s adjustment of status. In general, dependent applicants must have the requisite relationship to the principal both at the time of filing the adjustment application and at the time of final adjudication.

ASYLUM ADJUSTMENT OF STATUS

An asylee whose adjustment application is based on his or her asylee status adjusts under INA 209(b). An asylee, however, may seek to adjust under INA 245(a) if the asylee prefers to adjust on a basis other than the asylee’s status. This may arise in cases where, for example, an asylee marries a U.S. citizen and subsequently seeks to adjust status as an immediate relative of a U.S. citizen rather than under the asylee provision. In order to adjust under INA 245(a), however, the asylee must meet the eligibility requirements that apply under that provision.

There may be circumstances where asylees are not able to meet certain requirements for adjustment under INA 245(a). For instance, a noncitizen who enters without inspection and is subsequently granted asylum does not satisfy the inspected and admitted or inspected and paroled requirement. On the other hand, an asylee who departs the United States and is admitted or granted parole upon return to a port of entry meets the inspected and admitted or inspected and paroled requirement.

TRAVEL ON TPS

Date of Departure	Did Parole or Admission Upon Return Satisfy INA 245(a)?
From December 12, 1991, until February 25, 2016	While there was no stated agency policy, noncitizens were generally considered paroled for the purpose of INA 245(a) (regardless of whether the beneficiary had been admitted or paroled before departing).
From February 25, 2016, until August 20, 2020	Yes, regardless of whether the beneficiary had been admitted or paroled before departing.[66]
After August 20, 2020, until July 1, 2022	No, the beneficiary’s status as admitted or paroled for INA 245(a) was unchanged by travel.[67]
On or after July 1, 2022	Yes, regardless of whether the beneficiary had been admitted or paroled before departing.[68]

Retroactive Application of Current Policy

In some cases, explained below, USCIS applies the current policy retroactively and considers past travel to have resulted in an inspection and admission for purposes of INA 245(a), even if the policy or practice in place at the time the travel occurred instructed otherwise.

Past travel must meet each of the following requirements to be considered for retroactive application of current guidance:

• The noncitizen obtained prior authorization to travel abroad temporarily on the basis of being a TPS beneficiary;
• The noncitizen’s TPS was not withdrawn, or the designation for their foreign state (or part of a foreign state) was not terminated or did not expire during their travel;
• The noncitizen returned to the United States in accordance with the authorization to travel; and
• Upon return, the noncitizen was inspected by INS or DHS at a designated port of entry and paroled or otherwise permitted to pass into the territorial boundaries of the United States in accordance with the TPS-based travel authorization.

If the past travel does not meet each of these requirements, USCIS applies the policy that was in effect at the time of departure. If the past travel does meet each of these requirements, USCIS will consider retroactive application of the current guidance.