8 CFR Part 1245 — Adjustment of Status to That of Person Admitted for Permanent Residence

PART 1245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277, 112 Stat. 2681; Title VII of Public Law 110-229. Source: Duplicated from part 245 at 68 FR 9842, Feb. 28, 2003. Editorial Note: Nomenclature changes to part 1245 appear at 68 FR 9846, Feb. 28, 2003, and 68 FR 10357, Mar. 5, 2003. § 1245.1 Eligibility. (a) General. (b) Restricted aliens. (1) Any alien who entered the United States in transit without a visa; (2) Any alien who, on arrival in the United States, was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon; (3) Any alien who was not admitted or paroled following inspection by an immigration officer; (4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status. This restriction shall not apply to an alien who is: (i) An immediate relative as defined in section 201(b) of the Act; (ii) A special immigrant as defined in section 101(a)(27)(H) or (J) of the Act; (iii) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991; or (iv) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989), and has not entered into or continued in unauthorized employment on or after November 29, 1990. (5) Any alien who on or after November 6, 1986 is not in lawful immigration status on the date of filing his or her application for adjustment of status, except an applicant who is an immediate relative as defined in section 201(b) or a special immigrant as defined in section 101(a)(27) (H), (I), or (J). (6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27) (H), (I), or (J) of the Act; (7) Any alien admitted as a visitor under the visa waiver provisions of 8 CFR 212.1(e) or (q), other than an immediate relative as defined in section 201(b) of the Act; (8) Any alien admitted as a Visa Waiver Pilot Program visitor under the provisions of section 217 of the Act and part 217 of 8 CFR chapter I other than an immediate relative as defined in section 201(b) of the Act; (9) Any alien who seeks adjustment of status pursuant to an employment-based immigrant visa petition under section 203(b) of the Act and who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status; and (10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this paragraph, an alien who meets the requirements of § 1274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application. (c) Ineligible aliens. (1) Any nonpreference alien who is seeking or engaging in gainful employment in the United States who is not the beneficiary of a valid individual or blanket labor certification issued by the Secretary of Labor or who is not exempt from certification requirements under § 1212.8(b) of this chapter; (2) Except for an alien who is applying for residence under the provisions of section 133 of the Immigration Act of 1990, any alien who has or had the status of an exchange visitor under section 101(a)(15)(J) of the Act and who is subject to the foreign residence requirement of section 212(e) of the Act, unless the alien has complied with the foreign residence requirement or has been granted a waiver of that requirement, under that section. An alien who has been granted a waiver under section 212(e)(iii) of the Act based on a request by a State Department of Health (or its equivalent) under Pub. L. 103-416 shall be ineligible to apply for adjustment of status under section 245 of the Act if the terms and conditions specified in section 214(k) of the Act and § 1212.7(c)(9) of this chapter have not been met; (3) Any alien who has nonimmigrant status under paragraph (15)(A), (15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational status which would, if the alien were seeking admission to the United States, entitle the alien to nonimmigrant status under those paragraphs, unless the alien first executes and submits the written waiver required by section 247(b) of the Act and part 247 of 8 CFR chapter 1; (4) Any alien who claims immediate relative status under section 201(b) or preference status under sections 203(a) or 203(b) of the Act, unless the applicant is the beneficiary of a valid unexpired visa petition filed in accordance with part 204 of 8 CFR chapter 1; (5) Any alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 or 216A of the Act, regardless of any other quota or non-quota immigrant visa classification for which the alien may otherwise be eligible; (6) Any alien admitted to the United States as a nonimmigrant defined in section 101(a)(15)(K) of the Act, unless: (i) In the case of a K-1 fianceé(e) under section 101(a)(15)(K)(i) of the Act or the K-2 child of a fianceé(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-1 fianceé(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fianceé(e) pursuant to § 214.2(k) of 8 CFR chapter 1; (ii) In the case of a K-3 spouse under section 101(a)(15)(K)(ii) of the Act or the K-4 child of a spouse under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-3 spouse to the United States citizen who filed a petition on behalf of the K-3 spouse pursuant to § 214.2(k) of 8 CFR chapter I; (7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of the Act, unless the nonimmigrant is applying for adjustment of status pursuant to the request of a law enforcement authority, the provisions of section 101(a)(15)(S) of the Act, and 8 CFR 1245.11; (8) Any alien who seeks to adjust status based upon a marriage which occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. (i) Commencement of proceedings. (A) With the issuance of the Form I-221, Order to Show Cause and Notice of Hearing prior to June 20, 1991; (B) With the filing of a Form I-221, Order to Show Cause and Notice of Hearing, issued on or after June 20, 1991, with the Immigration Court; (C) With the issuance of Form I-122, Notice to Applicant for Admission Detained for Hearing Before Immigration Judge, prior to April 1, 1997, (D) With the filing of a Form I-862, Notice to Appear, with the Immigration Court, or (E) With the issuance and service of Form I-860, Notice and Order of Expedited Removal. (ii) Termination of proceedings. (A) When the alien departs from the United States while an order of exclusion, deportation, or removal is outstanding or before the expiration of the voluntary departure time granted in connection with an alternate order of deportation or removal; (B) When the alien is found not to be inadmissible or deportable from the United States; (C) When the Form I-122, I-221, I-860, or I-862 is canceled; (D) When proceedings are terminated by the immigration judge or the Board of Immigration Appeals; or (E) When a petition for review or an action for habeas corpus is granted by a Federal court on judicial review. (iii) Exemptions. (A) The alien is found not to be inadmissible or deportable from the United States; (B) Form I-122, I-221, I-860, or I-862, is canceled; (C) Proceedings are terminated by the immigration judge or the Board of Immigration Appeals; (D) A petition for review or an action for habeas corpus is granted by a Federal court on judicial review; (E) The alien has resided outside the United States for 2 or more years following the marriage; or (F) The alien establishes the marriage is bona fide by providing clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, was not entered into for the purpose of procuring the alien's entry as an immigrant, and no fee or other consideration was given (other than to an attorney for assistance in preparation of a lawful petition) for the filing of a petition. (iv) Request for exemption. (v) Evidence to establish eligibility for the bona fide marriage exemption. (A) Documentation showing joint ownership of property; (B) Lease showing joint tenancy of a common residence; (C) Documentation showing commingling of financial resources; (D) Birth certificates of children born to the applicant and his or her spouse; (E) Affidavits of third parties having knowledge of the bona fides of the marital relationship, or (F) Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States. (vi) Decision. (vii) Denials. (viii) Appeals. (d) Definitions Lawful immigration status. (i) In lawful permanent resident status; (ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter I; (iii) In refugee status under section 207 of the Act, such status not having been revoked; (iv) In asylee status under section 208 of the Act, such status not having been revoked; (v) In parole status which has not expired, been revoked or terminated; or (vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991. (2) No fault of the applicant or for technical reasons. other than through no fault of his or her own or for technical reasons (i) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization (as, for example, where a designated school official certified under § 214.2(f) of 8 CFR chapter I or an exchange program sponsor under § 214.2(j) of 8 CFR chapter I did not provide required notification to the Service of continuation of status, or did not forward a request for continuation of status to the Service); or (ii) A technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). An individual whose refugee or asylum status has expired through passage of time, but whose status has not been revoked, will be considered to have gone out of status for a technical reason. (iii) A technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from the Service either in person or by mail (as, for example, an individual who is hospitalized with an illness at the time nonimmigrant stay expires). The explanation of such a technical violation shall be accompanied by a letter explaining the circumstances from the hospital or attending physician. (iv) A technical violation resulting from the Service's application of the maximum five/six year period of stay for certain H-1 nurses only if the applicant was subsequently reinstated to H-1 status in accordance with the terms of Public Law 101-656 (Immigration Amendments of 1988). (3) Effect of departure. (e) Special categories Alien medical graduates. (2) Adjustment of certain nurses who were in H-1 nonimmigrant status on September 1, 1989 (Pub. L. 101-238) Eligibility. (A) The applicant was admitted to the United States in, or had been granted a change of status to, nonimmigrant status under section 101(a)(15)(H)(i) of the Act on or before September 1, 1989, to perform services as a registered nurse (regardless of the date upon which the applicant's authorization to remain in the United States expired or will expire), and the applicant had not thereafter been granted a change to status to any other nonimmigrant classification prior to September 1, 1989, (B) The applicant has been employed in the United States as a registered nurse for an aggregate of three years prior to the date of application for adjustment of status, (C) The applicant's continued employment as a registered nurse meets the standards established for certification described in section 212(a)(5)(A)(i) of the Act, (D) The applicant is the beneficiary of: ( 1 ( 2 (E) The applicant properly files an application for adjustment of status under the provisions of section 245 of the Act. (ii) Application period. (iii) Application. (A) Evidence that the applicant is the beneficiary of: ( 1 ( 2 (B) A request, made on Form ETA 750 submitted in duplicate, for a determination by the district director that the alien is qualified for and will engage in the occupation of registered nurse, as currently listed on Schedule A (20 CFR part 656), (C) Evidence showing that the applicant has been employed in the United States as a registered nurse for an aggregate of three years prior to the date the application for adjustment of status is filed, in the form of: ( 1 ( 2 (D) Evidence that the applicant was licensed, either temporarily or permanently, as a registered nurse during all periods of qualifying employment, and (E) Evidence which establishes that the applicant was in the United States in H-1 nonimmigrant status for the purpose of performing services as a registered nurse on September 1, 1989. (iv) Effect of section 245(c)(2). (A) Application for adjustment of status filed on or before October 17, 1991. (B) Application for adjustment of status filed after October 17, 1991. (C) Motions to reopen. (v) Description of qualifying employment. (vi) Effect of enactment on spouse or child Spouse or child accompanying principal alien. (B) Spouse or child residing outside the United States or ineligible for adjustment of status. ( 1 Existing relationship. ( 2 Relationship entered into after adjustment of status is approved. (3) Special immigrant juveniles. (f) Concurrent applications to overcome grounds of inadmissibility. (g) Availability of immigrant visas under section 245 and priority dates Availability of immigrant visas under section 245. (2) Priority dates. (h) Conditional basis of status. (i) Adjustment of status from K-3/K-4 status. (Title I of Pub. L. 95-145 enacted Oct. 28, 1977 (91 Stat. 1223), sec. 103 of the Immigration and Nationality Act (8 U.S.C. 1103). Interpret or apply secs. 101, 212, 242 and 245 (8 U.S.C. 1101, 1182, 1252 and 1255)) [30 FR 14778, Nov. 30, 1965] Editorial Note: For Federal Register www.govinfo.gov. § 1245.2 Application. (a) General Jurisdiction In General. (ii) Arriving Aliens. (A) The alien properly filed the application for adjustment of status with USCIS while the arriving alien was in the United States; (B) The alien departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue the previously filed application for adjustment of status; (C) The application for adjustment of status was denied by USCIS; and (D) DHS placed the arriving alien in removal proceedings either upon the arriving alien's return to the United States pursuant to the grant of advance parole or after USCIS denied the application. (2) Proper filing of application Under section 245. (B) If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 of 8 CFR chapter I and 1245 of this chapter. For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition. (C) A visa petition and an adjustment application are concurrently filed only if: ( 1 ( 2 ( 3 (ii) Under the Act of November 2, 1966. (3) Submission of documents General. (ii) Under section 245. (iii) Under section 245(i). (iv) Under the Act of November 2, 1966. (4) Effect of departure General. (ii) Under section 245 of the Act. (B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act. (C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required) and the original I-797 receipt notice for the application for adjustment of status. The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required) and the original copy of the I-797 receipt notice for the application for adjustment of status. The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status. (D) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful V status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is admissible as a V nonimmigrant. (iii) Under the Act of November 2, 1966. (5) Decision General. (ii) Under section 245 of the Act. (iii) Under the Act of November 2, 1966. (b) Application under section 2 of the Act of November 2, 1966. (c) Application under section 214(d) of the Act. [30 FR 14778, Nov. 30, 1965] Editorial Note: For Federal Register www.govinfo.gov. § 1245.3 Adjustment of status under section 13 of the Act of September 11, 1957, as amended. Any application for benefits under section 13 of the Act of September 11, 1957, as amended, must be filed on Form I-485 with the director having jurisdiction over the applicant's place of residence. The benefits under section 13 are limited to aliens who were admitted into the United States under section 101, paragraphs (a)(15)(A)(i), (a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Immigration and Nationality Act who performed diplomatic or semi-diplomatic duties and to their immediate families, and who establish that there are compelling reasons why the applicant or the member of the applicant's immediate family is unable to return to the country represented by the government which accredited the applicant and that adjustment of the applicant's status to that of an alien lawfully admitted for permanent residence would be in the national interest. Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13. In view of the annual limitation of 50 on the number of aliens whose status may be adjusted under section 13, any alien who is prima facie eligible for adjustment of status to that of a lawful permanent resident under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. An applicant for the benefits of section 13 shall not be subject to the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act. The applicant shall be notified of the decision and, if the application is denied, of the reasons for the denial and of the right to appeal under the provisions of part 103 of this chapter. Any applications pending with the Service before December 29, 1981 must be resubmitted to comply with the requirements of this section. (Secs. 103, 245, of the Immigration and Nationality Act, as amended; 71 Stat. 642, as amended, sec. 17, Pub. L. 97-116, 95 Stat. 1619 (8 U.S.C. 1103, 1255, 1255b)) [47 FR 44238, Oct. 7, 1982, as amended at 59 FR 33905, July 1, 1994] § 1245.4 Documentary requirements. The provisions of part 1211 of this chapter relating to the documentary requirements for immigrants shall not apply to an applicant under this part. (Secs. 103, 214, 245 Immigration and Nationality Act, as amended; (8 U.S.C. 1103, 1184, 8 U.S.C. 1255, Sec. 2, 96 Stat. 1157, 8 U.S.C. 1255 note)) [30 FR 14779, Nov. 30, 1965. Redesignated at 48 FR 4770, Feb. 3, 1983, and further redesignated at 52 FR 6322, Mar. 3, 1982, and further redesignated at 56 FR 49481, Oct. 2, 1991] § 1245.5 Medical examination. Pursuant to section 232(b) of the Act, an applicant for adjustment of status shall be required to have a medical examination by a designated civil surgeon, whose report setting forth the findings of the mental and physical condition of the applicant, including compliance with section 212(a)(1)(A)(ii) of the Act, shall be incorporated into the record. A medical examination shall not be required of an applicant for adjustment of status who entered the United States as a nonimmigrant spouse, fianceé, or fianceeé of a United States citizen or the child of such an alien as defined in section 101(a)(15)(K) of the Act and § 214.2(k) of 8 CFR chapter I if the applicant was medically examined prior to, and as a condition of, the issuance of the nonimmigrant visa; provided that the medical examination must have occurred not more than 1 year prior the date of application for adjustment of status. Any applicant certified under paragraphs (1)(A)(ii) or (1)(A)(iii) of section 212(a) of the Act may appeal to a Board of Medical Officers of the U.S. Public Health Service as provided in section 234 of the Act and part 1235 of this chapter. [56 FR 49841, Oct. 2, 1991, as amended at 62 FR 10384, Mar. 6, 1997; 66 FR 42595, Aug. 14, 2001] § 1245.6 Interview. Each applicant for adjustment of status under this part shall be interviewed by an immigration officer. This interview may be waived in the case of a child under the age of 14; when the applicant is clearly ineligible under section 245(c) of the Act or § 1245.1 of this chapter; or when it is determined by the Service that an interview is unnecessary. [57 FR 49375, Nov. 2, 1992] § 1245.7 Adjustment of status of certain Soviet and Indochinese parolees under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 101-167). (a) Application. (b) Aliens eligible to apply for adjustment. (1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia, and (2) Was inspected and granted parole into the United States during the period beginning on August 15, 1988, and ending on September 30, 1990, after being denied refugee status. (c) Eligibility. (1) Applies for such adjustment, (2) Has been physically present in the United States for at least one year and is physically present in the United States on the date the application for such adjustment is filed, (3) Is admissible to the United States as an immigrant, except as provided in paragraph (d) of this section, and (4) Pays a fee for the processing of such application. (d) Waiver of certain grounds for inadmissibility. (e) Date of approval. (f) No offset in number of visas available. [55 FR 24860, July 19, 1990. Redesignated at 56 FR 49841, Oct. 2, 1991, as amended at 59 FR 33905, July 1, 1994; 63 FR 12987, Mar. 17, 1998; 85 FR 82794, Dec. 18, 2020] § 1245.8 Adjustment of status as a special immigrant under section 101(a)(27)(K) of the Act. (a) Application. (b) Eligibility. (c) Interview of the applicant. prima facie (d) Spouse or child outside the United States. (e) Removal provisions of section 237 of the Act. (f) Rescission proceedings under section 246 of the Act. [57 FR 33862, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993; 62 FR 10384, Mar. 6, 1997] § 1245.9 Adjustment of status of certain nationals of the People's Republic of China under Public Law 102-404. (a) Principal applicant status. (b) Aliens eligible to apply for adjustment. (1) Is a national of the People's Republic of China or a qualified family member of an eligible national of the People's Republic of China; (2) Was in the United States at some time between June 5, 1989, and April 11, 1990, inclusive, or would have been in the United States during this time period except for a brief, casual, and innocent departure from this country; (3) Has resided continuously in the United States since April 11, 1990, except for brief, casual, and innocent absences; (4) Was not physically present in the People's Republic of China for more than a cumulative total of 90 days between April 11, 1990, and October 9, 1992; (5) Is admissible to the United States as an immigrant, unless the basis for excludability has been waived; (6) Establishes eligibility for adjustment of status under all provisions of section 245 of the Act, unless the basis for ineligibility has been waived; and (7) Properly files an application for adjustment of status under section 245 of the Act. (c) Qualified family member who is not a national of the People's Republic of China. (1) He or she qualified as the spouse or child (as defined in section 101(b)(1) of the Act) of an eligible national of the People's Republic of China as of April 11, 1990; and (2) The qualifying relationship continues to exist, or the family member is a son or daughter of an eligible national of the People's Republic of China and the family member was unmarried and under the age of 21 on April 11, 1990. (d) Waivers of inadmissibility under section 212(a) of the Act. (e) Waiver of the two-year foreign residence requirement of section 212(e). (f) Waiver of section 245(c) of the Act. (g) Application. (1) A photocopy of all pages of the applicant's most recent passport or an explanation of why the applicant does not have a passport; (2) An attachment on a plain piece of paper showing: (i) The date of the applicant's last arrival in the United States before or on April 11, 1990; (ii) The date of each departure the applicant made from the United States since that arrival (if the applicant did not depart the United States after the initial date of arrival, the applicant should write “I was in the United States on April 11, 1990, and I have not departed the United States since April 11, 1990”); (iii) The reason for each departure; and (iv) The date of each return to the United States. (3) An attachment on a plain piece of paper showing: (i) The date the applicant arrived in the People's Republic of China; and (ii) The date the applicant left the People's Republic of China for each trip the applicant made to the People's Republic of China between April 11, 1990, and October 9, 1992 (if the applicant did not travel to the People's Republic of China, the applicant should write “I was not in the People's Republic of China between April 11, 1990, and October 9, 1992”); (4) A copy of evidence showing that the applicant was found eligible for benefits under E.O. 12711, such as deferred enforced departure (DED), employment authorization, and/or waiver of the two-year foreign residence requirement, if the applicant previously applied for benefits under E.O. 12711; and (5) Primary or secondary evidence of a qualifying family relationship to an eligible national of the People's Republic of China, such as a birth or marriage certificate, if the applicant is a qualified family member who is not a national of the People's Republic of China. (h) Secondary evidence. (i) Filing. (j) Immigrant classification and assignment of priority date. (k) Effect of immigrant visa number limitations. (l) Decision. (m) Effect of enactment on family members other than qualified family members. [58 FR 35838, July 1, 1993, as amended at 62 FR 10384, Mar. 6, 1997; 62 FR 63254, Nov. 28, 1997] § 1245.10 Adjustment of status upon payment of additional sum under section 245(i). (a) Definitions. (1)(i) Grandfathered alien (A) A petition for classification under section 204 of the Act which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or (B) An application for labor certification under section 212(a)(5)(A) of the Act that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed. (ii) If the qualifying visa petition or application for labor certification was filed after January 14, 1998, the alien must have been physically present in the United States on December 21, 2000. This requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien as described in this section. (2) Properly filed (i) With respect to a qualifying immigrant visa petition, that the application was physically received by the Service on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing as provided in § 103.2(a)(1) and (a)(2) of 8 CFR chapter I; and (ii) With respect to a qualifying application for labor certification, that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21. (3) Approvable when filed (4) Circumstances that have arisen after the time of filing (b) Eligibility. (1) Is physically present in the United States; (2) Is eligible for immigrant classification and has an immigrant visa number immediately available at the time of filing for adjustment of status; (3) Is not inadmissible from the United States under any provision of section 212 of the Act, or all grounds for inadmissibility have been waived; (4) Properly files Form I-485, Application to Register Permanent Residence or Adjust Status on or after October 1, 1994, with the required fee for that application; (5) Properly files Supplement A to Form I-485 on or after October 1, 1994; (6) Pays an additional sum of $1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and (7) Will adjust status under section 245 of the Act to that of lawful permanent resident of the United States on or after October 1, 1994. (c) Payment of additional sum. (1) Unmarried and less than 17 years of age; (2) The spouse of a legalized alien, qualifies for and has properly filed Form I-817, Application for Voluntary Departure under the Family Unity Program, and submits a copy of his or her receipt or approval notice for filing Form I-817; or (3) The child of a legalized alien, is unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt or approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in this chapter. (d) Pending adjustment application with the Service or Executive Office for Immigration Review filed without Supplement A to Form I-485 and additional sum. (e) Applications for Adjustment of Status filed before October 1, 1994. (f) Effect of section 245(i) on completed adjustment applications before the Service. (2) An alien whose adjustment application was adjudicated and denied by the Service because of ineligibility under section 245(a) or (c) of the Act and now alleges eligibility due to the availability of section 245(i) of the Act may file a new application for adjustment of status pursuant to section 245(i) of the Act, provided that such new application is accompanied by the required fee for the application, Supplement A to Form I-485, additional sum required by section 245(i) of the Act and all other required and additional evidence. (g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status. (h) Asylum or diversity immigrant visa applications. (i) Denial, withdrawal, or revocation of the approval of a visa petition or application for labor certification. (j) Substitution of a beneficiary on an application for a labor certification. (k) Changes in employment. (l) Effects of grandfathering on an alien's nonimmigrant status (m) Effect of grandfathering on unlawful presence under section 212(a)(9)(B) and (c) of the Act. (n) Evidentiary requirement to demonstrate physical presence on December 21, 2000. (2) To demonstrate physical presence on December 21, 2000, the alien may submit Service documentation. Examples of acceptable Service documentation include, but are not limited to: (i) A photocopy of the Form I-94, Arrival-Departure Record, issued upon the alien's arrival in the United States; (ii) A photocopy of the Form I-862, Notice to Appear; (iii) A photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to December 21, 2000, placing the applicant in exclusion proceedings under section 236 of the Act (as in effect prior to April 1, 1997); (iv) A photocopy of the Form I-221, Order to Show Cause, issued by the Service on or prior to December 21, 2000, placing the applicant in deportation proceedings under section 242 or 242A of the Act (as in effect prior to April 1, 1997); (v) A photocopy of any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to December 21, 2000, which establishes his or her presence in the United States, or a fee receipt issued by the Service for such application or petition. (3) To demonstrate physical presence on December 21, 2000, the alien may submit other government documentation. Other government documentation issued by a Federal, state, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than December 21, 2000. For this purpose, the term Federal, state, or local authority includes any governmental, educational, or administrative function operated by Federal, state, county, or municipal officials. Examples of such other documentation include, but are not limited to: (i) A state driver's license; (ii) A state identification card; (iii) A county or municipal hospital record; (iv) A public college or public school transcript; (v) Income tax records; (vi) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, state, or local governmental agency keeping such record; (vii) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, state, or local governmental agency keeping such record; (viii) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards. (4) To demonstrate physical presence on December 21, 2000, the alien may submit non-government documentation. Examples of documentation establishing physical presence on December 21, 2000, may include, but are not limited to: (i) School records; (ii) Rental receipts; (iii) Utility bill receipts; (iv) Any other dated receipts; (v) Personal checks written by the applicant bearing a bank cancellation stamp; (vi) Employment records, including pay stubs; (vii) Credit card statements showing the dates of purchase, payment, or other transaction; (viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks; (ix) If the applicant established that a family unit was in existence and cohabiting in the United States, documents evidencing the presence of another member of the same family unit; and (x) For applicants who have ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records. (5)(i) The adjudicator will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit. (ii) In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority ( i.e. [59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20, 1994, as amended at 62 FR 10384, Mar. 6, 1997; 62 FR 39424, July 23, 1997; 62 FR 55153, Oct. 23, 1997; 66 FR 16388, Mar. 26, 2001; 85 FR 82794, Dec. 18, 2020] § 1245.11 Adjustment of aliens in S nonimmigrant classification. (a) Eligibility. (1) Request to allow S nonimmigrant to apply for adjustment of status to that of lawful permanent resident. (2) Certification. (3) Submission of requests for adjustment of status to the Commissioner. (4) Decision on request to allow adjustment of S nonimmigrant. (i) In the event the Commissioner decides to deny an application on Form I-854 to allow an S nonimmigrant to apply for adjustment of status, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to deny. (ii) Upon approval of the request on Form I-854, the Commissioner shall forward a copy of the approved form to the Assistant Attorney General and the S nonimmigrant, notifying them that the S nonimmigrant may proceed to file Form I-485 and request adjustment of status to that of lawful permanent resident, and that, to be eligible for adjustment of status, the nonimmigrant must otherwise: (A) Meet the requirements of paragraph (b) of this section, if requesting adjustment as a qualified family member of the certified principal S nonimmigrant witness or informant; (B) Be admissible to the United States as an immigrant, unless the ground of inadmissibility has been waived; (C) Establish eligibility for adjustment of status under all provisions of section 245 of the Act, unless the basis for ineligibility has been waived; and (D) Properly file with his or her Form I-485, Application to Register Permanent Residence or Adjust Status, the approved Form I-854. (b) Family members Qualified family members. (i) The family member qualified as the spouse, married or unmarried son or daughter, or parent (as defined in section 101(b) of the Act) of the principal S nonimmigrant when the family member was admitted as or granted a change of status to that of a nonimmigrant under section 101(a)(15)(S) of the Act; (ii) The family member was admitted in S nonimmigrant classification to accompany, or follow to join, the principal S-5 or S-6 alien pursuant to the LEA's request; (iii) The family member is not inadmissible from the United States as a participant in Nazi persecution or genocide as described in section 212(a)(3)(E) of the Act; (iv) The qualifying relationship continues to exist; and (v) The principal alien has adjusted status, has a pending application for adjustment of status or is concurrently filing an application for adjustment of status under section 101(a)(15)(S) of the Act. (vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if the alien witness or informant has died and, in the opinion of the Attorney General, was in compliance with the terms of his or her S classification under section 245(i) (1) and (2) of the Act. (2) Other family member. (i) May use the principal S nonimmigrant or qualified member's priority date and category when it becomes current, in accordance with the limitations set forth in sections 201 and 202 of the Act; (ii) May seek immigrant visa issuance abroad or adjustment of status to that of a lawful permanent resident of the United States when the priority date becomes current for the spouse's or child's country of chargeability under the fourth employment-based preference classification; (iii) Must meet all the requirements for immigrant visa issuance or adjustment of status, unless those requirements have been waived; (iv) Is not applying for adjustment of status under 101(a)(15)(S) of the Act, is not required to file Form I-854, and is not required to obtain LEA certification; and (v) Will lose eligibility for benefits if the child marries or has his or her twenty-first birthday before being admitted with an immigrant visa or granted adjustment of status. (c) Waivers of inadmissibility. (1) Was disclosed to the Attorney General prior to admission; and (2) Was specifically waived pursuant to the waiver provisions set forth at section 212(d)(1) and 212(d)(3) of the Act. (d) Application. (1) File Form I-485, with the prescribed fee, accompanied by the approved Form I-854, and the supporting documents specified in the instructions to Form I-485 and described in 8 CFR 1245.2. Secondary evidence may be submitted if the nonimmigrant is unable to obtain the required primary evidence as provided in 8 CFR 103.2(b)(2). The S nonimmigrant applying to adjust must complete Part 2 of Form I-485 by checking box “h-other” and writing “S” or “S-Qualified Family Member.” Qualified family members must submit documentary evidence of the relationship to the principal S nonimmigrant witness or informant. (2) Submit detailed and inclusive evidence of eligibility for the adjustment of status benefits of S classification, which shall include: (i) A photocopy of all pages of the alien's most recent passport or an explanation of why the alien does not have a passport; or (ii) An attachment on a plain piece of paper showing the dates of all arrivals and departures from the United States in S nonimmigrant classification and the reason for each departure; and (iii) Primary evidence of a qualifying relationship to the principal S nonimmigrant, such as birth or marriage certificate. If any required primary evidence is unavailable, church or school records, or other secondary evidence may be submitted. If such documents are unavailable, affidavits may be submitted as provided in 8 CFR 103.2(b)(2). (e) Priority date. (f) Visa number limitation. (g) Filing and decision. (h) Removal under section 237 of the Act. (i) Denial of application. [60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995, as amended at 62 FR 10384, Mar. 6, 1997] § 1245.12 What are the procedures for certain Polish and Hungarian parolees who are adjusting status to that of permanent resident under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996? (a) How do I apply for adjustment of status under this section? (2) The application must include Form G-325A, Biographic Information and the results of the medical examination made according to § 232.1 of 8 CFR chapter I and § 1245.5. (3) The application must include evidence to show the applicant was a national of Poland or Hungary who, after being denied refugee status, was inspected and granted parole into the United States between November 1, 1989, and December 31, 1991. (4) The applicant must have been physically present in the United States for at least 1 year before filing a Form I-485. (5) After receiving the Form I-485, the adjudicating Service office will notify each applicant who is 14 years old or older of the time and location for the required fingerprinting. (b) How is my application for adjustment of status affected if I leave the United States while my application is still pending? (c) Which grounds for inadmissibility do not apply or can be waived? (d) If my application for adjustment of status is approved under § 1245.12, what date will be recorded as my admission to permanent residence? [65 FR 20070, Apr. 14, 2000] § 1245.13 Adjustment of status of certain nationals of Nicaragua and Cuba under Public Law 105-100. (a) Aliens eligible to apply for adjustment. (1) Is a national of Nicaragua or Cuba; (2) Except as provided in paragraph (o) of this section, has been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier that the date the application for adjustment is granted, excluding: (i) Any periods of absence from the United States not exceeding 180 days in the aggregate; and (ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form I-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole; (3) Is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, with the exception of paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If available, an applicant may apply for an individual waiver as provided in paragraph (c) of this section; (4) Is physically present in the United States at the time the application is filed; and (5) Properly files an application for adjustment of status in accordance with this section. (b) Qualified family members Existence of relationship at time of adjustment. (2) Spouse and minor children. (3) Unmarried adult sons and daughters. (c) Applicability of inadmissibility grounds contained in section 212(a) General. (2) Special rule for waiver of inadmissibility grounds for NACARA applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. (d) General Proceedings pending before an Immigration Court. (2) Proceedings pending before the Board of Immigration Appeals. (3) Administrative closure of pending exclusion, deportation, or removal proceedings. (ii) In any case not administratively closed in accordance with paragraph (d)(3)(i) of this section, the immigration judge having jurisdiction over the exclusion, deportation, or removal proceedings shall have jurisdiction to accept and adjudicate any application for adjustment of status under section 202 of Pub. L. 105-100 during the course of such proceedings. (4)(i) Aliens with final orders of exclusion, deportation, or removal. (ii) An alien may file a motion to reopen with the Immigration Court or the Board of Immigration Appeals, whichever had jurisdiction last, if the alien is present in the United States and subject to a final order of exclusion, deportation, or removal and has been denied adjustment of status under section 202 of NACARA by an Immigration Court or the Board or who never applied for adjustment of status on or before March 31, 2000, with either the Service, the Immigration Court or the Board, and who is now eligible for adjustment as a result of section 1505(a)(1) of the Legal Immigration Family Equity Act of 2000 (LIFE) and the LIFE amendments, Public Law 106-553 and Public Law 106-554, respectively. As provided by § 1505(a)(2) of the LIFE Act and its amendments, such a motion to reopen must be filed on or before June 19, 2001. (5) Stay of final order of exclusion, deportation, or removal With the Service. (ii) With EOIR. (6) Effect on applications for adjustment under other provisions of the law. (e) Application and supporting documents. (1) The fee prescribed in 8 CFR 103.7 and 8 CFR part 106; (2) If the applicant is 14 years of age or older, the fee for fingerprinting prescribed in 8 CFR 103.7; (3) Evidence of commencement of physical presence in the United States at any time on or before December 1, 1995. Such evidence may relate to any time at or after entry and may consist of either: (i) Documentation evidencing one or more of the activities specified in section 202(b)(2)(A) of Public Law 105-100; (ii) A copy of the Form I-94, Record of Arrival and Departure, issued to the applicant at the time of his or her inspection and admission or parole; (iii) Other documentation issued by a Federal, State, or local authority provided such other documentation bears the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), was dated at the time of issuance, and bears a date of issuance not later than December 1, 1995. Examples of such other documentation include, but are not limited to: (A) A State driver's license; (B) A State identification card issued in lieu of a driver's license to a nondriver; (C) A county or municipal hospital record; (D) A public college or public school transcript; and (E) Income tax records; (iv) A copy of a petition on behalf of the applicant that was submitted to the Service on or before December 1, 1995, and that lists the applicant as being physically present in the United States; (v) A certified copy of a Federal, State, or local governmental record that was created on or prior to December 1, 1995, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, State, or local governmental agency keeping such record; (vi) A certified copy of a Federal, State, or local governmental record that was created on or prior to December 1, 1995, shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, State, or local governmental agency keeping such record; or (vii) In the case of an applicant who, while under the age of 21, attended a private or religious school in the United States on or prior to December 1, 1995, a transcript from such private or religious school, provided that the school: (A) Is registered with, approved by, or licensed by, appropriate State or local authorities; (B) Is accredited by the State or regional accrediting body, or by the appropriate private school association; or (C) Maintains enrollment records in accordance with State or local requirements or standards; (4) Evidence of continuity of physical presence in the United States since the last date on or prior to December 1, 1995, on which the applicant established commencement of physical presence in the United States. Such documentation may have been issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticating instrument of the issuing authority or its authorized representative, if the document would normally contain such authenticating instrument. Such documentation may include, but is not limited to: (i) School records; (ii) Rental receipts; (iii) Utility bill receipts; (iv) Any other dated receipts; (v) Personal checks written by the applicant bearing a dated bank cancellation stamp; (vi) Employment records, including pay stubs; (vii) Credit card statements showing the dates of purchase, payment, or other transaction; (viii) Certified copies of records maintained by organizations chartered by the government, such as public utilities, accredited private and parochial schools, and banks; (ix) If the applicant establishes that a family unit was in existence and cohabiting in the United States, documents evidencing the physical presence in the United States of another member of that same family unit; and (x) If the applicant has had correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records; (5) A copy of the applicant's birth certificate; (6) If the applicant is between 14 and 79 years of age, a completed Biographic Information Sheet (Form G-325A); (7) A report of medical examination, as specified in § 1245.5; (8) Two photographs, as described in the instructions to Form I-485; (9) If the applicant is 14 years of age or older, a police clearance from each municipality where the alien has resided for 6 months or longer since arriving in the United States. If there are multiple local law enforcement agencies (e.g., city police and county sheriff) with jurisdiction over the alien's residence, the applicant may obtain a clearance from either agency. If the applicant resides or resided in a State where the State Police maintain a compilation of all local arrests and convictions, a statewide clearance is sufficient. If the applicant presents a letter from the local police agencies involved, or other evidence, to the effect that the applicant attempted to obtain such clearance but was unable to do so because of local or State policy, the director or immigration judge having jurisdiction over the application may waive the local police clearance. Furthermore, if such local police agency has provided the Service or the Immigration Court with a blanket statement that issuance of such police clearance is against local or state policy, the director or immigration judge having jurisdiction over the case may waive the local police clearance requirement regardless of whether the applicant individually submits a letter from that local police agency; (10) If the applicant is applying as the spouse of another Public Law 105-100 beneficiary, a copy of their certificate of marriage and copies of documents showing the legal termination of all other marriages by the applicant or the other beneficiary; (11) If the applicant is applying as the child, unmarried son, or unmarried daughter of another (principal) beneficiary under section 202 of Public Law 105-100 who is not the applicant's biological mother, copies of evidence (such as the applicant's parent's marriage certificate and documents showing the legal termination of all other marriages, an adoption decree, or other relevant evidence) to demonstrate the relationship between the applicant and the other beneficiary; (12) A copy of the Form I-94, Arrival-Departure Record, issued at the time of the applicant's arrival in the United States, if the alien was inspected and admitted or paroled; and (13) If the applicant has departed from and returned to the United States since December 1, 1995, an attachment on a plain piece of paper showing: (i) The date of the applicant's last arrival in the United States before or on December 1, 1995; (ii) The date of each departure from the United States since that arrival; (iii) The reason for each departure; and (iv) The date, manner, and place of each return to the United States. (f) Secondary evidence. (g) Filing. (h) Jurisdiction. (i) Interview. (2) In the case of an applicant who has submitted evidence of commencement of physical presence in the United States consisting of one or more of the documents specified in section 202(b)(2)(A)(i) through (v) or section 202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination of the application, including all other evidence submitted in support of the application, all relevant Service records and all other relevant law enforcement indices, if the director of the Texas Service Center determines that the alien is clearly eligible for adjustment of status under Pub. L. 105-100 and that an interview of the applicant is not necessary, the director may approve the application. (3) Upon examination of the application, all supporting documentation, all relevant Service records, and all other relevant law enforcement indices, if the director of the Texas Service Center determines that the alien is clearly ineligible for adjustment of status under Pub. L. 105-100 and that an interview of the applicant is not necessary, the director may deny the application. (j) Authorization to be employed in the United States while the application is pending Application. (2) Adjudication and issuance. (k) Parole authorization for purposes of travel Travel from and return to the United States while the application for adjustment of status is pending. (2) Parole authorization for the purpose of filing an application for adjustment of status under section 202 of Pub. L. 105-100. (3) Effect of departure on an outstanding warrant of exclusion, deportation, or removal. (l) Approval. (m) Denial and review of decision. (i) In the case of an alien who is not maintaining valid nonimmigrant status and who had not previously been placed in exclusion, deportation or removal proceedings, initiate removal proceedings in accordance with § 1239.1 of this chapter during which the alien may renew his or her application for adjustment of status under section 202 of Public Law 105-100; or (ii) In the case of an alien whose previously initiated exclusion, deportation, or removal proceedings had been administratively closed or continued indefinitely under paragraph (d)(3) of this section, advise the Immigration Court that had administratively closed the proceedings, or the Board, as appropriate, of the denial of the application. Upon a motion to recalendar filed by the Service, the Immigration Court or the Board will then recalendar or reinstate the prior exclusion, deportation or removal proceedings, during which the alien may renew his or her application for adjustment under section 202 of Public Law 105-100; or (iii) In the case of an alien who is the subject of an outstanding final order of exclusion, deportation, or removal, refer the decision to deny the application by filing a Form I-290C, Notice of Certification, with the Immigration Court that issued the final order for consideration in accordance with paragraph (n) of this section. (2) Aliens who were denied adjustment of status by the director, but who are now eligible for such adjustment of status pursuant to section 1505(a)(1) of the LIFE Act and amendments, and have not been referred to immigration proceedings as specified in paragraph (m)(1) of this section may file a motion to reopen with the Service. If an alien has been referred to the Immigration Court or has filed an appeal with the Board after an Immigration Court has denied the application for adjustment under NACARA section 202, and proceedings are pending, then the application for adjustment of status will be adjudicated in accordance with section 1505(a) of the LIFE Act and its amendments. An alien present in the United States subject to a final order of removal after his or her application was denied by an Immigration Court or the Board, but who was made eligible for adjustment pursuant to section 1505(a) of the LIFE Act and its amendments may file a motion to reopen with the Immigration Court or the Board, whichever had jurisdiction last. Pursuant to section 1505(a)(2) of the LIFE Act and its amendments, motions to reopen proceedings before the Immigration Court or the Board must be filed on or before June 19, 2001. (n) Action of immigration judge upon referral of decision by a Notice of Certification (Form I-290C) General. (2) Appeal of immigration judge decision. (3) Rescission of the decision of an immigration judge. (i) Upon a motion to reopen filed within 180 days after the date of the denial if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act; (ii) Upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice of the hearing in person (or, if personal service was not practicable, through service by mail to the alien or to the alien's counsel of record, if any) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien; or (iii) Upon a motion to reopen filed not later than June 19, 2001, by an alien present in the United States who became eligible for adjustment of status under section 202 of Public Law 105-100, as amended by section 1505, Public Law 106-554. (o) Transition period provisions for tolling the physical presence in the United States provision for certain individuals Departure without advance authorization for parole. (2) Departure with advance authorization for parole. (3) Request for parole authorization from outside the United States. (Approved by the Office of Management and Budget under Control Number 1115-0221) [63 FR 27829, May 21, 1998, as amended at 65 FR 15854, Mar. 24, 2000; 66 FR 29451, May 31, 2001; 85 FR 82794, Dec. 18, 2020] § 1245.14 Adjustment of status of certain health care workers. An alien applying for adjustment of status to perform labor in a health care occupation as described in 8 CFR 1212.15(c) must present evidence at the time he or she applies for adjustment of status, and, if applicable, at the time of the interview on the application, that he or she has a valid certificate issued by the Commission on Graduates of Foreign Nursing Schools or the National Board of Certification in Occupational Therapy. [63 FR 55012, Oct. 14, 1998] § 1245.15 Adjustment of status of certain Haitian nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA). (a) Definitions. Abandoned abandonment Guardian Orphan orphaned (1) The death or disappearance of, desertion by, or separation or loss from both parents, as those terms are defined in § 204.3(b) of 8 CFR chapter I; (2) The irrevocable and written release of all parental rights by the sole parent, as that term is defined in § 204.3(b) of 8 CFR chapter I, based upon the inability of that parent to provide proper care (within the meaning of that phrase in § 204.3(b) of 8 CFR chapter I) for the child, provided that at the time of such irrevocable release such parent is legally obligated to provide such care; or (3) The death or disappearance, as that term is defined in § 204.3(b) of 8 CFR chapter I, of one parent and the irrevocable and written release of all parental rights by the sole remaining parent based upon the inability of that parent to provide proper care (within the meaning of that phrase in § 204.3(b) of 8 CFR chapter I) for the child, provided that at the time of such irrevocable release such parent is legally obligated to provide such care. Parent, father, mother Sole remaining parent (1) The child's other parent has died; or (2) The child's other parent has been certified by competent Haitian authorities to be presumed dead as a result of his or her disappearance, within the meaning of that term as set forth in § 204.3(b) of 8 CFR chapter I. (b) Applicability of provisions of section 902 of HRIFA in general. (1) Principal applicants. (i) An alien who filed for asylum before December 31, 1995; (ii) An alien who was paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest; or (iii) An alien who at the time of arrival in the United States and on December 31, 1995, was unmarried and under 21 years of age and who: (A) Arrived in the United States without parents in the United States and has remained, without parents, in the United States since his or her arrival; (B) Became orphaned subsequent to arrival in the United States; or (C) Was abandoned by parents or guardians prior to April 1, 1998, and has remained abandoned since such abandonment. (2) Dependents. (c) Eligibility of principal HRIFA applicants. (1) Physical presence. (2) Proper application. (i) Is received not later than March 31, 2000, at the Nebraska Service Center, the Board, or the Immigration Court having jurisdiction; (ii) Has been properly completed and signed by the applicant; (iii) Identifies the provision of HRIFA under which the applicant is seeking adjustment of status; and (iv) Is accompanied by either: (A) The correct fee as specified in 8 CFR 103.7 and 8 CFR part 106; or (B) A request for a fee waiver in accordance with 8 CFR 103.7 and 8 CFR part 106, provided such fee waiver request is subsequently granted; however, if such a fee waiver request is subsequently denied and the applicant submits the require fee within 30 days of the date of any notice that the fee waiver request had been denied, the application shall be regarded as having been filed before the statutory deadline. In addition, in a case over which the Board has jurisdiction, an application received by the Board before April 1, 2000, that has been properly signed and executed shall be considered filed before the statutory deadline without payment of the fee or submission of a fee waiver request. Upon remand by the Board, the payment of the fee or a request for a fee waiver shall be made upon submission of the application to the Immigration Court in accordance with 8 CFR 1240.11(f). If a request for a fee waiver is denied, the application shall be considered as having been properly filed with the Immigration Court before the statutory deadline provided that the applicant submits the required fee within 30 days of the date of any notice that the fee waiver request has been denied. (3) Admissibility. (4) Continuous physical presence. (i) Any period or periods of absence from the United States not exceeding 180 days in the aggregate; and (ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form I-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole. (iii) Any periods of absence from the United States occurring after October 21, 1998, and before July 12, 1999, provided the applicant departed the United States prior to December 31, 1998. (d) Eligibility of dependents of a principal HRIFA beneficiary. (1) Physical presence. (2) Proper application. (3) Admissibility. (4) Relationship. (5) Continuous physical presence. (e) Applicability of grounds of inadmissibility contained in section 212(a) Certain grounds of inadmissibility inapplicable to HRIFA applicants. (2) Availability of individual waivers. (3) Special rule for waiver of inadmissibility grounds for HRIFA applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. (f) Time for filing of applications Applications for HRIFA benefits by a principal HRIFA applicant. (2) Applications by dependent aliens. (g) Jurisdiction for filing of applications Filing of applications with the Service. (2) Filing of applications by aliens in pending exclusion, deportation, or removal proceedings. (3)(i) Filing of applications with the Service by aliens who are subject to a final order of exclusion, deportation, or removal. (ii) An alien present in the United States who is subject to a final order of exclusion, deportation, or removal and has been denied adjustment of status under section 902 of HRIFA by the Immigration Court or the Board, or who never applied for adjustment of status with the Service, an Immigration Court, or the Board on or before March 31, 2000, and who was made eligible for HRIFA benefits under the Legal Immigration Family Equity Act of 2000 (LIFE Act) and LIFE amendments, Public Law 106-553 and Public Law 106-554, respectively, may file a motion to reopen with either the Immigration Court or the Board, whichever had jurisdiction last. As provided by the LIFE Act, motions to reopen must be filed on or before June 19, 2001. (iii) Stay of final order of exclusion, deportation, or removal. (iv) Grant of stay. (h) Application and supporting documents. (1) Application fee. (2) Fingerprinting fee. (3) Identifying information. (ii) A completed Biographic Information Sheet (Form G-325A), if the applicant is between 14 and 79 years of age; (iii) A report of medical examination, as specified in § 1245.5 of this chapter; and (iv) Two photographs, as described in the instructions to Form I-485; (4) Arrival-Departure Record. (5) Police clearances. (6) Proof of Haitian nationality. (7) Additional supporting evidence. (i) Evidence of presence in the United States on December 31, 1995. (j) Evidence of continuity of presence in the United States since December 31, 1995. (1) Evidence establishing presence. (2) Examples. (i) School records; (ii) Rental receipts; (iii) Utility bill receipts; (iv) Any other dated receipts; (v) Personal checks written by the applicant bearing a dated bank cancellation stamp; (vi) Employment records, including pay stubs; (vii) Credit card statements showing the dates of purchase, payment, or other transaction; (viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks; (ix) If the applicant establishes that a family unit was in existence and cohabiting in the United States, documents evidencing presence of another member of that same family unit; and (x) For applicants who have had ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records. (3) Evidence relating to absences from the United States since December 31, 1995. (i) The date of the applicant's last arrival in the United States before December 31, 1995; (ii) The date of each departure (if any) from the United States since that arrival; (iii) The reason for each departure; and (iv) The date, manner, and place of each return to the United States. (k) Evidence establishing the alien's eligibility under section 902(b) of HRIFA. (1) Applicant for asylum. (i) A photocopy of the first page of the Application for Asylum and Withholding of Removal (Form I-589); or (ii) If the alien is not in possession of a photocopy of the first page of the Form I-589, a statement to that effect giving the date of filing and the location of the Service office or Immigration Court at which it was filed; (2) Parolee. (i) A photocopy of the Arrival-Departure Record (Form I-94) issued when he or she was granted parole; or (ii) If the alien is not in possession of the original Form I-94, a statement to that effect giving the date of parole and the location of the Service port-of-entry at which parole was authorized. (3) Child without parents. (i) Evidence, showing the date, location, and manner of his or her arrival in the United States, such as: (A) A photocopy of the Form I-94 issued at the time of the alien's arrival in the United States; (B) A copy of the airline or vessel records showing transportation to the United States; (C) Other similar documentation; or (D) If none of the documents in paragraphs (k)(3)(i)(A)-(C) of this section are available, a statement from the applicant, accompanied by whatever evidence the applicant is able to submit in support of that statement; and (ii) Evidence establishing the absence of the child's parents, which may include either: (A) Evidence showing the deaths of, or disappearance or desertion by, the applicant's parents; or (B) Evidence showing that the applicant's parents did not live in the United States with the applicant. Such evidence may include, but is not limited to, documentation or affidavits showing that the applicant's parents have been continuously employed outside the United States, are deceased, disappeared, or abandoned the applicant prior to the applicant's arrival, or were otherwise engaged in activities showing that they were not in the United States, or (if they have been in the United States) that the applicant and his or her parents did not reside together. (4) Orphaned child. (i) Evidence, showing the date, location, and manner of his or her arrival in the United States, such as: (A) A photocopy of the Form I-94 issued at the time of the alien's arrival in the United States; (B) A copy of the airline or vessel records showing transportation to the United States; (C) Other similar documentation; or (D) If none of the documents in paragraphs (k)(4)(i)(A)-(C) of this section are available, a statement from the applicant, accompanied by whatever evidence the applicant is able to submit in support of that statement; and (ii) Either: (A) The death certificates of both parents (or in the case of a child having only one parent, the death certificate of the sole parent) showing that the death or deaths occurred after the date of the applicant's arrival in the United States; (B) Evidence from a State, local, or other court or governmental authority having jurisdiction and authority to make decisions in matters of child welfare establishing the disappearance of, the separation or loss from, or desertion by, both parents (or, in the case of a child born out of wedlock who has not been legitimated, the sole parent); or (C) Evidence of: ( 1 ( i ( ii ( iii ( 2 (5) Abandoned child. (i) Evidence, showing the date, location, and manner of his or her arrival in the United States, such as: (A) A photocopy of the Form I-94 issued at the time of the alien's arrival in the United States; (B) A copy of the airline or vessel records showing transportation to the United States; (C) Other similar documentation; or (D) If none of the documents in paragraphs (k)(5)(i)(A)-(C) of this section are available, a statement from the applicant, accompanied by whatever evidence the applicant is able to submit in support of that statement; and (ii) Either: (A) Evidence from a State, local, or other court or governmental authority having jurisdiction and authority to make decisions in matters of child welfare establishing such abandonment; or (B) Evidence to establish that the applicant would have been considered to be abandoned according to the laws of the State where he or she resides, or where he or she resided at the time of the abandonment, had the issue been presented to the proper authorities. (l) Evidence relating to applications by dependents under section 902(d) of HRIFA Evidence of spousal relationship. (2) Evidence of parent-child relationship. (m) Secondary evidence. (n) Authorization to be employed in the United States while the application is pending Application for employment authorization. (2) Adjudication and issuance. (o) Adjudication of HRIFA applications filed with the Service Referral for interview. (2) Approval without interview. (i) The alien's claim to eligibility for adjustment of status under section 902 of HRIFA is verified through existing Service records; and (ii) The alien is clearly eligible for adjustment of status. (3) Denial without interview. (p) Adjudication of HRIFA applications filed in pending exclusion, deportation, or removal proceedings Proceedings pending before an Immigration Court. (2) Motion to reopen or motion to reconsider. (3) Proceedings pending before the Board. (4) Administrative closure of exclusion, deportation, or removal proceedings. (ii) In the case of an otherwise-eligible alien whose exclusion, deportation, or removal proceedings have been administratively closed for reasons not specified in this section, the alien may only apply before the Service for adjustment of status under this section. (q) Approval of HRIFA applications Applications approved by the Service. (2) Applications approved by an immigration judge or the Board. (r) Review of decisions by the Service denying HRIFA applications Denial notification. (ii) An alien made eligible for adjustment of status under HRIFA by the LIFE Act amendments and whose case has not been referred to EOIR under paragraphs (r)(2) or (r)(3) of this section, may file a motion to reopen with the Service. (2) Renewal of application for HRIFA benefits in removal, deportation, or exclusion proceedings. (i) Initiation of removal proceedings. (ii) Recalendaring or reinstatement of prior proceedings. (iii) Filing of renewed application. (3) Aliens with final orders. (4)(i) An alien whose case has been referred to the Immigration Court under paragraphs (r)(2) or (r)(3) of this section, or who filed an appeal with the Board after his or her application for adjustment of status under section 902 of HRIFA was denied, and whose proceedings are pending, and who is now eligible for adjustment of status under HRIFA as amended by section 1505(b) of the LIFE Act and its amendments, may renew the application for adjustment of status with either the Immigration Court or the Board, whichever has jurisdiction. The application will be adjudicated in accordance with section 1505(b) of the LIFE Act and its amendments. (ii) An alien present in the United States who is subject to a final order of exclusion, deportation or removal after his or her HRIFA adjustment application was denied by an Immigration Court or the Board, but who was made eligible for HRIFA adjustment as a result of section 1505(b) of the LIFE Act and its amendments, may file a motion to reopen with either the Immigration Court or the Board, whichever had jurisdiction last. Such motion to reopen must be filed on or before June 19, 2001. (s) Action on decisions referred to the Immigration Court by a Notice of Certification (Form I-290C) General. (2) Stay pending review. (3) Appeal of Immigration Court decision. (4) Rescission or reopening of the decision of an Immigration Court. (i) Upon a motion to reopen filed within 180 days after the date of the denial if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act; (ii) Upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice of the hearing in person (or, if personal service was not practicable, through service by mail to the alien or to the alien's counsel of record, if any) or the alien demonstrates that he or she was in Federal or State custody and the failure to appear was through no fault of the alien; or (iii) Upon a motion to reopen filed not later than June 19, 2001, by an alien present in the United States who became eligible for adjustment of status under HRIFA, as amended by section 1505, of Public Law 106-554. (t) Parole authorization for purposes of travel Travel from and return to the United States while the application for adjustment of status is pending. (2) Parole authorization for the purpose of filing an application for adjustment of status under section 902 of HRIFA. (ii) If the Director of the Nebraska Service Center is satisfied that the alien will be eligible for adjustment of status once the alien has been paroled into the United States and files the application, he or she may issue an Authorization for Parole of an Alien into the United States (Form I-512) to allow the alien to travel to, and be paroled into, the United States for a period of 60 days. (iii) The applicant shall have 60 days from the date of parole to file the application for adjustment of status. If the alien files the application for adjustment of status within that 60-day period, the Service may re-parole the alien for such time as is necessary for adjudication of the application. Failure to file such application for adjustment of status within 60 days shall result in the alien being returned to the custody of the Service and being examined as an arriving alien applying for admission. Such examination will be conducted in accordance with the provisions of section 235(b)(1) of the Act if the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, or section 240 of the Act if the alien is inadmissible under any other grounds. (iv) Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act. The authority of the Director of the Nebraska Service Center to authorize parole from outside the United States under this provision shall expire on March 31, 2000. (3) Effect of departure on an outstanding warrant of exclusion, deportation, or removal. (u) Tolling the physical presence in the United States provision for certain individuals Departure with advance authorization for parole. (2) Request for parole authorization from outside the United States. (3) Departure without advance authorization for parole. (v) Judicial review of HRIFA adjustment of status determinations. [64 FR 25767, May 12, 1999, as amended at 65 FR 15844, Mar. 24, 2000; 66 FR 29452, May 1, 2001; 67 FR 78673, Dec. 26, 2002; 85 FR 82794, Dec. 18, 2020] § 1245.18 How can physicians (with approved Forms I-140) that are serving in medically underserved areas or at a Veterans Affairs facility adjust status? (a) Which physicians are eligible for this benefit? (b) Do alien physicians have special time-related requirements for adjustment? (2) The Service shall not approve an adjustment application filed by an alien physician who obtained a waiver under section 203(b)(2)(B)(ii) of the Act until the alien physician has completed the period of required service established in § 204.12 of 8 CFR chapter I. (c) Are the filing procedures and documentary requirements different for these particular alien physicians? (1) Delayed fingerprinting. Fingerprinting, as noted in the Form I-485 instructions, will not be scheduled at the time of filing. Fingerprinting will be scheduled upon the physician's completion of the required years of service. (2) Delayed medical examination. The required medical examination, as specified in § 1245.5, shall not be submitted with Form I-485. The medical examination report shall be submitted with the documentary evidence noting the physician's completion of the required years of service. (d) Are alien physicians eligible for Form I-766, Employment Authorization Document? (2) Since section 203(b)(2)(B)(ii) of the Act requires the alien physician to complete the required employment before the Service can approve the alien physician's adjustment application, an alien physician who was in lawful nonimmigrant status when he or she filed the adjustment application is not required to maintain a nonimmigrant status while the adjustment application remains pending. Even if the alien physician's nonimmigrant status expires, the alien physician shall not be considered to be unlawfully present, so long as the alien physician is practicing medicine in accordance with § 204.5(k)(4)(iii) of 8 CFR chapter I. (e) When does the Service begin counting the physician's 5-year or 3-year medical practice requirement? (1) If the physician does not already have employment authorization and so must obtain employment authorization before the physician can begin working, then the period begins on the date the Service issues the employment authorization document. (2) If the physician formerly held status as a J-1 nonimmigrant, but obtained a waiver of the foreign residence requirement and a change of status to that of an H-1B nonimmigrant, pursuant to section 214(1) of the Act, as amended by section 220 of Public Law 103-416, and § 212.7(c)(9) of 8 CFR chapter I, the period begins on the date of the alien's change from J-1 to H-1B status. The Service will include the alien's compliance with the 3-year period of service required under section 214(l) in calculating the alien's compliance with the period of service required under section 203(b)(2)(B)(ii)(II) of the Act and this section. (3) An alien may not include any time employed as a J-1 nonimmigrant physician in calculating the alien's compliance with the 5 or 3-year medical practice requirement. If an alien is still in J-1 nonimmigrant status when the Service approves a Form I-140 petition with a national interest job offer waiver, the aggregate period during which the medical practice requirement period must be completed will begin on the date the Service issues an employment authorization document. (f) Will the Service provide information to the physician about evidence and supplemental filings? (1) The Service shall note the date that the medical service begins (provided the physician already had work authorization at the time the Form I-140 was filed) or the date that an employment authorization document was issued. (2) A list of the evidence necessary to satisfy the requirements of paragraphs (g) and (h) of this section. (3) A projected timeline noting the dates that the physician will need to submit preliminary evidence two years and 120 days into his or her medical service in an underserved area or VA facility, and a projected date six years and 120 days in the future on which the physician's final evidence of completed medical service will be due. (g) Will physicians be required to file evidence prior to the end of the 5 or 3-year period? (i) Evidence noted in paragraph (h) of this section that is available at the second anniversary of the I-140 approval. (ii) Documentation from the employer attesting to the fill-time medical practice and the date on which the physician began his or her medical service. (2) Physicians with a 3-year service requirement are not required to make a supplemental filing, and must only comply with the requirements of paragraph (h) of this section. (h) What evidence is needed to prove final compliance with the service requirement? (1) Individual Federal income tax returns, including copies of the alien'sW-2 forms, for the entire 3-year period or the balance years of the 5-year period that follow the submission of the evidence required in paragraph (e) of this section; (2) Documentation from the employer attesting to the full-time medical service rendered during the required aggregate period. The documentation shall address instances of breaks in employment, other than routine breaks such as paid vacations; (3) If the physician established his or her own practice, documents noting the actual establishment of the practice, including incorporation of the medical practice (if incorporated), the business license, and the business tax returns and tax withholding documents submitted for the entire 3 year period, or the balance years of the 5-year period that follow the submission of the evidence required in paragraph (e) of this section. (i) What if the physician does not comply with the requirements of paragraphs (f) and (g) of this section? (j) Will a Service officer interview the physician? (2) The local Service office shall schedule the alien for an adjustment interview with a Service officer, unless the Service waives the interview as provided in § 1245.6. The local Service office shall also notify the alien if supplemental documentation should either be mailed to the office, or brought to the adjustment interview. (k) Are alien physicians allowed to travel outside the United States during the mandatory 3 or 5-year service period? (l) What if the Service denies the adjustment application? [65 FR 53895, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000; 65 FR 57944, Sept. 27, 2000; 67 FR 49563, July 31, 2002] § 1245.20 Adjustment of status of Syrian asylees under Public Law 106-378. (a) Eligibility. (1) A Jewish national of Syria; (2) Arrived in the United States after December 31, 1991, after being permitted by the Syrian Government to depart from Syria; (3) Is physically present in the United States at the time of filing the application to adjust status; (4) Applies for adjustment of status no later than October 26, 2001, or has a pending application for adjustment of status under the Act that was filed with the Service before October 27, 2000; (5) Has been physically present in the United States for at least 1 year after being granted asylum; (6) Has not firmly resettled in any foreign country; and (7) Is admissible as an immigrant under the Act at the time of examination for adjustment. (b) Qualified family members. (c) Grounds not to be applied and waivers. (d) Application New applications. “SYRIAN ASYLEE—P.L. 106-378” (2) Filing of requests to change the basis of a pending Form I-485 Request. “SYRIAN ASYLEE P.L. 106-378” (ii) Time limit. (e) Evidence. (1) A copy of the alien's passport; (2) A copy of the applicant's Arrival-Departure Record (Form I-94) or other evidence of inspection and admission or parole into the United States after December 31, 1991; (3) Documentation including, but not limited to, those listed at § 1245.15(j)(2) to establish physical presence in the United States for at least 1 year after being granted asylum; (4) If the applicant is the spouse of a principal alien applying for adjustment, he or she must submit a marriage certificate, if available, or other evidence to demonstrate the marriage; and (5) If the applicant is the child of a principal alien applying for adjustment of status, he or she must submit a birth certificate, if available, or other evidence to demonstrate the relationship. (f) Employment authorization. (g) Travel while an application to adjust status is pending. (h) Approval and date of admission as a lawful permanent resident. (i) Number of adjustments under Public Law 106-378. (j) Notice of Denial General. (2) Cases involving requests to change the basis of a pending Form I-485. (k) Administrative review. [66 FR 27448, May 17, 2001, as amended at 85 FR 82795, Dec. 18, 2020] § 1245.21 Adjustment of status of certain nationals of Vietnam, Cambodia, and Laos (section 586 of Public Law 106-429). (a) Eligibility. (1) Was inspected and paroled into the United States before October 1, 1997; (2) Was paroled into the United States from Vietnam under the auspices of the Orderly Departure Program (ODP), a refugee camp in East Asia, or a displaced person camp administered by the United Nations High Commissioner for Refugees (UNHCR) in Thailand; (3) Was physically present in the United States prior to and on October 1, 1997; (4) Files an application for adjustment of status in accordance with paragraph (b) of this section during the 3-year application period; and (5) Is otherwise eligible to receive an immigrant visa and is otherwise admissible as an immigrant to the United States except as provided in paragraphs (e) and (f) of this section. (b) Applying for benefits under section 586 of Public Law 106-429 Application period. (i) If the postmark is illegible or missing, DHS will consider the application to be timely filed if it is received on or before 3 business days after the end of the application period. (ii) In all instances, the burden of proof is on the applicant to establish timely filing of an application. (2) Application. (c) Applications from aliens in immigration proceedings. (d) Applications from aliens with final orders of removal, deportation, or exclusion. (1) An application under this section does not automatically stay the order of removal, deportation, or exclusion. An alien who is eligible for adjustment of status under section 586 of Public Law 106-429 may request that the district director with jurisdiction over the alien grant a stay of removal during the pendency of the application. The regulations governing such a request are found at 8 CFR 241.6. (2) DHS in general will exercise its discretion not to grant a stay of removal, deportation, or exclusion with respect to an alien who is inadmissible on any of the grounds specified in paragraph (m)(3) of this section, unless there is substantial reason to believe that DHS will grant the necessary waivers of inadmissibility. (3) An immigration judge or the Board may not grant a motion to re-open or stay in connection with an application under this section. (4) If DHS approves the application, the approval will constitute the automatic re-opening of the alien's immigration proceedings, vacating of the final order of removal, deportation, or exclusion, and termination of the reopened proceedings. (e) Grounds of inadmissibility that do not apply. (f) Waiver of grounds of inadmissibility. (g) Evidence. (1) A birth certificate or other record of birth; (2) Documentation to establish that the applicant was physically present in the United States on October 1, 1997, under the standards set forth in § 1245.22 of this chapter. (3) A copy of the applicant's Arrival-Departure Record (Form I-94) or other evidence that the alien was inspected or paroled into the United States prior to October 1, 1997, from one of the three programs listed in paragraph (a)(2) of this section. Subject to verification, documentation pertaining to paragraph (a)(2) of this section is already contained in DHS files and the applicant may submit an affidavit to that effect in lieu of actual documentation. (h) Employment authorization. (i) Travel while an application to adjust status is pending. (j) Approval and date of admission as a lawful permanent resident. (k) Notice of denial. (l) Administrative review. (m) Number of adjustments permitted under this section Limit. (2) Counting procedures. (3) Applications submitted with a request for the waiver of a ground of inadmissibility. (4) Procedures when the 5,000 limit is reached. [67 FR 78673, Dec. 26, 2002, as amended at 85 FR 82795, Dec. 18, 2020; 86 FR 70725, Dec. 13, 2021] § 1245.22 Evidence to demonstrate an alien's physical presence in the United States on a specific date. (a) Evidence. (b) The number of documents. (c) Service-issued documentation. (1) Form I-94, Arrival-Departure Record, issued upon the alien's arrival in the United States; (2) Form I-862, Notice to Appear, issued by the Service on or before the required date; (3) Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to the required date, placing the applicant in exclusion proceedings under section 236 of the Act (as in effect prior to April 1, 1997); (4) Form I-221, Order to Show Cause, issued by the Service on or prior to the required date, placing the applicant in deportation proceedings under section 242 or 242A (redesignated as section 238) of the Act (as in effect prior to April 1, 1997); or (5) Any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to the required date that establishes his or her presence in the United States, or a fee receipt issued by the Service for such application or petition. (d) Government-issued documentation. (1) A state driver's license; (2) A state identification card; (3) A county or municipal hospital record; (4) A public college or public school transcript; (5) Income tax records; (6) A certified copy of a Federal, State, or local governmental record that was created on or prior to the required date, shows that the applicant was present in the United States at the time, and establishes that the applicant sought in his or her own behalf, or some other party sought in the applicant's behalf, a benefit from the Federal, State, or local governmental agency keeping such record; (7) A certified copy of a Federal, State, or local governmental record that was created on or prior to the required date, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, State, or local governmental agency keeping such record; or (8) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards. Such evidence will only be accepted to document the physical presence of an alien who was in attendance and under the age of 21 on the specific date that physical presence in the United States is required. (e) Copies of records. (f) Other relevant document(s) and evaluation of evidence. (g) Accuracy of documentation. [67 FR 78674, Dec. 26, 2002]

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