Filing an Adjustment of Status application is typically the appropriate path for a foreign national living in the United States to take in order to obtain Lawful Permanent Resident (LPR) status. USCIS has released new policy guidance in its Policy Manual related to Adjustment of Status policies and procedure generally, as well as specifically under the Immigration and Nationality Act section 245(a). This guidance replaces several provisions in the USCIS Adjudicator’s Field Manual and related documentation, and is controlling as of Feb. 25, 2016.
A summary of Part A of Volume 7 of the Policy Manual is as follows:
- Chapter 1 provides an overview of the Adjustment of Status law’s history and purpose.
- Chapter 2 discusses the various requirements for foreign nationals eligible to adjust status (e.g.,immediate relatives of U.S. citizens, Violence Against Women Act self-petitioners, or foreign national workers under an employment-based category), as well as bars to adjustment and their exceptions, grounds of inadmissibility and possible waivers, other eligibility requirements (e.g., A, E, and G nonimmigrants must file a Form I-508 waiver application with their I-485 applications, but E-3 nonimmigrants are not required to do so), and certain exchange visitors’ two year foreign residence requirement implications.
- Chapter 3 lists the requirements of a “properly filed” adjustment application, including the correct location and filing fees, as well as the visa availability requirement based on the Department of State’s current Visa Bulletin.
- Chapter 4 describes the documentation required with the Adjustment of Status applications, including the specific photograph requirements, forms, and supporting documents including the evidence of the underlying basis to adjust status. This chapter also describes certain situations where an applicant may be able to provide secondary evidence in the place of the required primary evidence, and issues guidance to reviewing USCIS officers regarding when to issue a Request for Evidence in various scenarios and the appropriate actions that must be taken.
- Chapter 5 provides Adjustment interview guidelines, stating that the interview provides the officer an opportunity to verify that the applicant has understood the questions and revise any incorrect or outdated answers. The interview is often waived for various applicants depending on their category, as listed in this chapter.
- Chapter 6 offers detailed steps to be used as guidelines to determine whether the applicant is eligible for Adjustment of Status.
- Chapter 7 discusses the considerations involved in reviewing an application based on a particular immigrant category, but where the applicant prefers to have it reviewed under another category.
- Chapter 8 reviews INA section 204(l), enacted in 2009 by Congress, which gives foreign nationals the ability to seek an immigrant benefit through a deceased qualifying relative in certain circumstances.
- Chapter 9 explains the legal analysis involved in reviewing Adjustment of Status applications, stating that the applicant always has the burden of proving she is eligible to receive the immigration sought. While most adjustment applicants may be granted permanent resident status only based on the discretion of USCIS, this chapter provides a list of adjustment applications that do not involve discretion and should be approved where the applicant meets all eligibility requirements (such as a Refugee Adjustment application)
- Chapter 10 illustrates decision procedures, including approvals, notices of intent to deny, and denials, and contains guidance to officers regarding the specific procedures for each decision.
A summary of Part B of Volume 7 of the Policy Manual is as follows:
- Chapter 1 contains information on the background of Section 245(a) of the Immigration and Nationality Act, which summarizes the eligibility requirements for Adjustment of Status.
- Chapter 2 lists the eligibility requirements, defining the terms “inspection,” “admission,” and “parole.” It also discusses the categories of foreign nationals to whom this “inspected and admitted or paroled” requirement does not apply.
- Chapter 3 confirms that a foreign national is barred from Adjustment of Status if she is in unlawful immigration status on the date of filing the application, unless within one of the categories for whom this rule does not apply, including immediate relatives and special immigrant juveniles. The chapter defines “unlawful immigration status” (including how to calculate the time spent in such status) and “period of authorized stay.” It also addresses situations in which a foreign national files an adjustment application while a timely filed extension of status or change of status application is pending.
- Chapter 4 discusses the bars to adjustment under INA section 245(c)(2) and INA section 245(c)(8), and the categories of immigrants for whom these bars do not apply. The chapter provides detailed instructions regarding scenarios in which the foreign national has failed to continuously maintain lawful immigrant status or has violated the terms of her nonimmigrant visa and addresses the effect of departure, periods of time to consider, exceptions, and other factors to take into account when considering a bar.
- Chapter 5 affirms that an employment-based applicant for Adjustment of Status who is not in lawful nonimmigrant status at the time of filing is barred from adjusting, even if lawfully present in the United States.
- Chapter 6 reviews other bars to adjusting status, particularly in the context of unauthorized employment, but also notes the exceptions.
- Chapter 7 lists additional classes of foreign nationals barred from adjusting status and provides guidance to reviewing officers for particular scenarios. For example, the chapter confirms that a foreign national admitted as a nonimmigrant under the Visa Waiver Program may not adjust status, unless she is seeking to adjust as an immediate relative of a U.S. citizen or VAWA-based applicant.
- Chapter 8 provides further details on the inapplicability of bars to adjustment for certain Adjustment of Status applicants.
While the guidance contained in the latest version of the Policy Manual is very useful, experienced immigration counsel should be consulted when applying for Adjustment of Status due to the detailed nature of the application and the numerous factors that can impact LPR eligibility.