INS Issues Policy Memo on Adjustment of Status
HQ 245-P
Adjustment of Status benefits of Public Law 103-317
All Regional DirectorsAll District Directors (Including Overseas)
All Service Center Directors
All Officers in Charge
Office of Programs
The Department of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations Act, 1995, (Public Law 103-317) was signed by the President on August 26. Section 506(b) of this law adds a new section 245(i) to the Immigration and Nationality Act (the Act), effective October 1. This new section 245(i) of the Act temporarily lifts certain restrictions on eligibility for adjustment of status. It allows an otherwise eligible applicant to adjust status under section 245 of the Act without regard to manner of entry into the United States and without regard to most immigration status violations.
This is NOT an "amnesty" provision: no exclusion provisions have been waived and all adjustment applicants continue to be required to have an immigrant visa number immediately available. An applicant may be required to pay an additional sum when applying under this provision.
The attachment to this memorandum outlines procedures for accepting and processing applications for adjustment of status under the new law. A copy of the relevant portions of Public Law 103-317 is also attached.
James A. Puleo
Executive Associate Commissioner
Attachments
IMPLEMENTATION
Since section 506(b) of Public Law 103-317 is effective October 1, 1994, Service offices MUST accept applications for adjustment of status filed under this new provision on or after that date.
The rule implementing the new law and the supplement to Form I-485 will be published in the Federal Register by, or shortly after, October 1, 1994. Applications must be accepted based on the statutory requirements on and after October 1, 1994, even if the interim rule has not yet been published and even if the Supplement A to Form I-485 (Supplement A) has not yet been approved for public use.
ELIGIBILITY UNDER PUBLIC LAW 103-317
An eligible applicant must:
be physically present in the United States;
have an immediately available immigrant visa number;
be admissible to the United States for permanent residence under all applicable provisions of section 212(a) of the Act, or show that any basis for exclusion has been waived (as in the past, certain waiver applications may be filed concurrently);
properly file an application for adjustment of status on or after October 1, 1994, and must adjust status under section 245 of the Act before October 1, 1997;
pay the required additional sum, or show that section 245(i) of the Act does not require the payment of an additional sum; and
NOT be a person who:
_ is or was a J-1 or J-2 exchange visitor, is subject to the two-year foreign residence requirement, and has not complied with or been granted a waiver of the requirement;
_ has A, E or G nonimmigrant status, or has an occupation which would allow such status, UNLESS Form I-508 (Form I-508F for French nationals) is filed to waive diplomatic rights, privileges and immunities, and, if in A or G nonimmigrant status, a completed Form I-566 is submitted;
_ is already a lawful permanent resident;
_ is applying for adjustment of status as an immediate relative or preference alien and who is not the beneficiary of a valid unexpired immigrant visa petition;
_ was admitted as a K-1 fiance(e) but did not marry the U.S. citizen who filed the petition, or was admitted as the K-2 child of a fiance(e) and the alien fiance(e) parent did not marry the U.S. citizen who filed the petition; or
_ is seeking adjustment based on a marriage entered into while the applicant was in exclusion, deportation, or related judicial proceedings, unless the applicant provides clear and convincing evidence that the marriage is bona fide or the applicant has lived outside the United States for two or more years after the marriage.
FILING
Each applicant for the benefits of the new section 245(i) of the Act, including a child, must complete and file:
Form I-485, and the required supporting forms, documents, and fee shown in the Form I-485 instructions; and
Supplement A to Form I-485, and any required additional sum. (See "Payment of the Additional Sum" and "Supplement A" below.)
Both forms should be filed on or after October 1, 1994, and before October 1, 1997, with the office having jurisdiction over the adjustment of status application.
Applicants should generally submit the Supplement A and the additional sum when they file the Form I-485 application; however, the Supplement A and the additional sum may be accepted at a later time, if necessary to approve an adjustment application filed on or after October 1, 1994.
The applicant must adjust status under section 245 of the Act before October 1, 1997.
NOTE: An applicant who is eligible for adjustment of status without the benefits of section 245(i) of the Act is NOT required to complete or file Supplement A.
PAYMENT OF THE ADDITIONAL SUM
A person seeking the adjustment of status benefits of the new section 245(i) of the Act must pay the standard adjustment of status filing fee and may be required to pay an additional sum of five times the standard fee. Thus, a person currently applying for adjustment of status under the new law may be required to pay:
$130.00 - Fee required with Form I-485* and
$650.00 - Additional sum under section 245(i) of the Act.
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$780.00 - Total amount the applicant must pay.*
* If the Form I-485 application fee was paid separately, the applicant will be required to pay only the additional sum of $650.00 or no additional fee, as appropriate.
The additional sum and the total amount will increase (or decrease) if the standard adjustment application fee changes.
Some adjustment applicants will continue to pay only the standard fee (currently $130.00 or $100.00 if less than 14 years old). The following applicants will NOT be required to pay an additional sum:
An applicant who is eligible for adjustment of status without the benefits of section 245(i) of the Act. (This category includes an applicant who could have adjusted status before the enactment of the new law, such as an immediate relative who entered as a nonimmigrant.)
An applicant who is unmarried and less than 17 years old when the Form I-485 is properly filed.
An applicant who is the spouse of a legalized alien, provided the spouse qualifies for and submits a copy of a receipt or approval notice showing the spouse has properly filed Form I-827, "Application for Voluntary Departure under the Family Unity Program," before filing the Form I-485.
An applicant who is the unmarried child of a legalized alien, if the child is less than 21 years old when the Form I-485 is properly filed, and if the child qualifies for and submits a copy of a receipt or approval notice showing the child has properly filed Form I-827, "Application for Voluntary Departure under the Family Unity Program," before filing the Form I-485.
NOTE: Public Law 103-317 requires all additional sum payments to be deposited in the Examinations User Fee Account.
SUPPLEMENT A
The draft Supplement A has been designed to allow the applicant to determine whether he or she must pay the additional sum, and to collect statistical information for reports to Congress concerning adjustments under the provisions of Public Law 103-317.
This form CANNOT be used by the public until it has been approved by the Office of Management and Budget (OMB) and published in the Federal Register. After publication in the Federal Register, Supplement A may be reproduced locally and may be distributed to the public. Like the G-325A or the FD-258, the Supplement A should be routinely included in the "Adjustment of Status Package."
Printed forms are expected to be available in October or early November 1994.
NOTE: An applicant who is eligible for adjustment of status without the benefits of section 245(i) of the Act is NOT required to complete or file Supplement A.
COMPLETION OF FORM I-181
Form I-181 will be used to collect statistical information for reports to Congress, unless the relating Supplement A has been receipted in CLAIMS. Copy 3 of Form I-181 must be marked, in the lower right (the open space below the approval block), with "Sup A #11;" "Sup A #12; or "Sup A #13. These numbers correspond to items on Supplement A:
"Sup A #11" - Applicant filed under section 245(i) of the Act but the payment of the additional sum was waived because the applicant was unmarried and less than 17 years old;
"Sup A #12" - Applicant filed under section 245(i) of the Act but the payment of the additional sum was waived because the applicant was the spouse or child of a legalized alien and provided evidence of proper filing or approval of Form I-827;
"Sup A #13" - Applicant filed under section 245(i) of the Act and paid the full additional sum of $650.00.
NOTE: NO CHANGE in the class of adjustment codes or the section of law under which the applicant adjusts status is required as a result of this new law. Forms I-181 should be completed as in the past, with the exception of the additional notation discussed above.
RETURN OF VISA PETITIONS
Visa petitions filed on behalf of many of these applicants had been forwarded to the Department of State (DOS), since the beneficiaries had anticipated applying for immigrant visa issuance abroad. The DOS's National Visa Center (NVC) has indicated that most of these petitions are on file at NVC. All requests for returns of visa petitions from DOS should be made through NVC following standard procedures. Offices may contact NVC at (603) 334-0700.
DECISION
There has been no change in the requirement that an applicant be notified in writing of the decision on the application for adjustment of status. Since the Supplement A is a part of the adjustment of status application, no additional decision notice will be required.
DENIALS OR REJECTIONS OF SECTION 245 ADJUSTMENT APPLICATIONS
No application for adjustment of status should be denied or rejected for filing because of an apparent failure to meet the requirements of section 245(a) of the Act and/or 245(c) of the Act on or after October 1, 1994, and before the interim rule is published. Decisions on pending applications that appear not to be approvable under sections 245(a) and/or 245(c) of the Act must be held in abeyance until the interim rule is published, regardless of the date the application was originally filed and regardless of whether the applicant has paid the additional sum.
After the interim rule has been published, cases may be processed to completion in accordance with the provisions of the interim rule as published in the Federal Register.
NOTE: Effective October 1, 1994, any denial of an adjustment of status applications under section 245 of the Act that is based solely on the use of discretion must be certified to the Administrative Appeals Unit (AAU) following the procedures outlined in 8 CFR 103.4.
STATISTICS
The standard statistical reports will NOT need to be revised as a result of the new law. Since the new Supplement A to Form I-485 is a part of the I-485 application, it should NOT be reported on Form G22.2.
Congress has required the Service to collect certain statistical information about applications filed under the new law. The mandatory reports include:
The total number of applicants processed pursuant to this provision, broken down separately according to country, immigrant visa category and terms (kind) of entry into the U.S.; and
The number of applicants exempted from supplemental fees under the provision, by category of exemption, and by country.
Headquarters intends to use the I-181 to record this information and is consulting with the Immigration Card Facility (ICF) concerning possible collection procedures.
OTHER INFORMATION ABOUT PUBLIC LAW 103-317
Public Law 103-317 also adds a new section 212(o) to the Act. This new provision applies to immigrant visa issuance abroad. It forbids the issuance of an immigrant visa abroad to an applicant who has been in the United States, who was NOT maintaining a lawful nonimmigrant status at the time of the last departure from the United States, and who has NOT been outside the United States for 90 or more days. The new section 212(o) has no effect on persons who were maintaining lawful nonimmigrant status when they last departed the United States, and they may still choose to apply for an immigrant visa at a United States consulate or embassy abroad.
Section 506(d) of Public Law 103-317 requires the Service to conduct full fingerprint checks through the Federal Bureau of Investigation for all individuals over sixteen years of age adjusting status under the new section 245(i) of the Act. Since the Service currently conducts fingerprint checks on all applicants who are 14 years old and older, current procedures do not need to be changed.
The Violent Crime Control and Law Enforcement Act of 1994 (Crime Bill), enacted shortly after Public Law 103-317, also added a new section 245(i) to the Act. The Crime Bill's new section 245(i) restricts adjustments of nonimmigrants admitted under section 101(a)(15)(S) of the Act, which is a new nonimmigrant category added by the Crime Bill. The Service will request a technical amendment to correct the Crime Bill's numbering error, and expects it to have no impact on the adjustment of status benefits of Public Law 103-317.
WORKLOAD IMPLICATIONS
Headquarters is aware of the additional burden this provision places on field offices, primarily on adjudications, records, and information personnel. HQADN will be monitoring workload levels in field offices and will be seeking methods of reducing this burden, especially for the most heavily affected offices. A separate memorandum will address workload issues and reports. HQADN will be relying on these reports to assess the impact of the new provision on each office. The reports may be used to allocate resources as they become available and/or to schedule implementation of Direct Mail of Forms I-485.
CONTACT PERSON
The HQADN policy contact person is Rita Arthur. Questions may be referred through appropriate channels.
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