[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245.10]

[Page 569-573]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE--Table of Contents
 
Sec. 245.10  Adjustment of status upon payment of additional sum under section 245(i).

    (a) Definitions. As used in this section the term:
    (1)(i) Grandfathered alien means an alien who is the beneficiary 
(including a spouse or child of the alien beneficiary if eligible to 
receive a visa under section 203(d) of the Act) of:
    (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 means:
    (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 Sec. 103.2(a)(1) and (a)(2) of this 
chapter; 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 means that, as of the date of the filing 
of the qualifying immigrant visa petition under section 204 of the Act 
or qualifying application for labor certification, the qualifying 
petition or application was properly filed, meritorious in fact, and 
non-frivolous (``frivolous'' being defined herein as patently without 
substance). This determination will be made based on the circumstances 
that existed at the time the qualifying petition or application was 
filed. A visa petition that was properly filed on or before April 30, 
2001, and was approvable when filed, but was later withdrawn, denied, or 
revoked due to circumstances that have arisen after the time of filing, 
will preserve the alien beneficiary's grandfathered status if the alien 
is otherwise eligible to file an application for adjustment of status 
under section 245(i) of the Act.
    (4) Circumstances that have arisen after the time of filing means 
circumstances similar to those outlined in Sec. 205.1(a)(3)(i) or 
(a)(3)(ii) of this chapter.

[[Page 570]]

    (b) Eligibility.An alien who is included in the categories of 
restricted aliens under Sec. 245.1(b) and meets the definition of a 
``grandfathered alien'' may apply for adjustment of status under section 
245 of the Act if the alien meets the requirements of paragraphs (b)(1) 
through (b)(7) of this section:
    (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. An adjustment applicant filing under 
the provisions of section 245(i) of the Act must pay the standard 
adjustment application filing fee as specified in Sec. 103.7(b)(1) of 
this chapter. Each application submitted under the provisions of section 
245(i) of the Act must be submitted with an additional sum of $1,000. An 
applicant must submit the additional sum of $1,000 only once per 
application for adjustment of status submitted under the provisions of 
section 245(i) of the Act. However, an applicant filing under the 
provisions of section 245(i) of the Act is not required to pay the 
additional sum if, at the time the application for adjustment of status 
is filed, the alien is:
    (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. An alien who filed an adjustment of status 
application with the Service in accordance with Sec. 103.2 of this 
chapter will be allowed the opportunity to amend such an application to 
request consideration under the provisions of section 245(i) of the Act, 
if it appears that the alien is not otherwise ineligible for adjustment 
of status. The Service shall notify the applicant in writing of the 
Service's intent to deny the adjustment of status application, and any 
other requests for benefits that derive from the adjustment application, 
unless Supplement A to Form I-485 and any required additional sum is 
filed within 30 days of the date of the notice. If the application for 
adjustment of status is pending before the Executive Office for 
Immigration Review (EOIR), EOIR will allow the respondent an opportunity 
to amend an adjustment of status application filed in accordance with 
Sec. 103.2 of this chapter (to include Supplement A to Form I-485 and 
proof of remittance to the INS of the required additional sum) in order 
to request consideration under the provisions of section 245(i) of the 
Act.
    (e) Applications for Adjustment of Status filed before October 1, 
1994. The provisions of section 245(i) of the Act shall not apply to an 
application for adjustment of status that was filed before October 1, 
1994. The provisions of section 245(i) of the Act also shall not apply 
to a motion to reopen or reconsider an application for adjustment of 
status if the application for adjustment of status was filed before 
October 1, 1994. An

[[Page 571]]

applicant whose pre-October 1, 1994, application for adjustment of 
status has been denied may file a new application for adjustment of 
status pursuant to section 245(i) of the Act on or after October 1, 
1994, provided that such new application is accompanied by: the required 
fee; Supplement A to Form I-485; the additional sum required by section 
245(i) of the Act; and all other required initial and additional 
evidence.
    (f) Effect of section 245(i) on completed adjustment applications 
before the Service. (1) Any motion to reopen or reconsider before the 
Service alleging availability of section 245(i) of the Act must be filed 
in accordance with Sec. 103.5 of this chapter. If said motion to reopen 
with the Service is granted, the alien must remit to the Service 
Supplement A to Form I-485 and the additional sum required by section 
245(i) of the Act. If the alien had previously remitted Supplement A to 
Form I-485 and the additional sum with the application which is the 
subject of the motion to reopen, then no additional sum need be remitted 
upon such reopening.
    (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. Section 237(a)(4)(B) of the Act renders any 
alien who has engaged, is engaged, or at any time after admission 
engages in any terrorist activity, as defined in section 
212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the 
Act, persons who are deportable under section 237(a)(4)(B) of the Act 
are ineligible to adjust status under section 245(a) of the Act. Any 
person who is deportable under section 237(a)(4)(B) of the Act is also 
ineligible to adjust status under section 245(i) of the Act.
    (h) Asylum or diversity immigrant visa applications. An asylum 
application, diversity visa lottery application, or diversity visa 
lottery-winning letter does not serve to grandfather the alien for 
purposes of section 245(i) of the Act. However, an otherwise 
grandfathered alien may use winning a diversity visa as a basis for 
adjustment.
    (i) Denial, withdrawal, or revocation of the approval of a visa 
petition or application for labor certification. The denial, withdrawal, 
or revocation of the approval of a qualifying immigrant visa petition, 
or application for labor certification, that was properly filed on or 
before April 30, 2001, and that was approvable when filed, will not 
preclude its grandfathered alien (including the grandfathered alien's 
family members) from seeking adjustment of status under section 245(i) 
of the Act on the basis of another approved visa petition, a diversity 
visa, or any other ground for adjustment of status under the Act, as 
appropriate.
    (j) Substitution of a beneficiary on an application for a labor 
certification. Only the alien who was the beneficiary of the application 
for the labor certification on or before April 30, 2001, will be 
considered to have been grandfathered for purposes of filing an 
application for adjustment of status under section 245(i) of the Act. An 
alien who was previously the beneficiary of the application for the 
labor certification but was subsequently replaced by another alien on or 
before April 30, 2001, will not be considered to be a grandfathered 
alien. An alien who was substituted for the previous beneficiary of the 
application for the labor certification after April 30, 2001, will not 
be considered to be a grandfathered alien.
    (k) Changes in employment. An applicant for adjustment under section 
245(i) of the Act who is adjusting status through an employment-based 
category is not required to work for the petitioner who filed the 
petition that grandfathered the alien, unless he or she is seeking 
adjustment based on employment for that same petitioner.
    (l) Effects of grandfathering on an alien's nonimmigrant status . An 
alien's nonimmigrant status is not affected by the fact that he or she 
is a grandfathered alien. Lawful immigration

[[Page 572]]

status for a nonimmigrant is defined in Sec. 245.1(d)(1)(ii).
    (m) Effect of grandfathering on unlawful presence under section 
212(a)(9)(B) and (c) of the Act. If the alien is not in a period of stay 
authorized by the Attorney General, the fact that he or she is a 
grandfathered alien does not prevent the alien from accruing unlawful 
presence under section 212(a)(9)(B) and (C) of the Act.
    (n) Evidentiary requirement to demonstrate physical presence on 
December 21, 2000. (1) Unless the qualifying immigrant visa petition or 
application for labor certification was filed on or before January 14, 
1998, a principal grandfathered alien must establish that he or she was 
physically present in the United States on December 21, 2000, to be 
eligible to apply to adjust status under section 245(i) of the Act. If 
no one document establishes the alien's physical presence on December 
21, 2000, he or she may submit several documents establishing his or her 
physical presence in the United States prior to, and after 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

[[Page 573]]

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., the 
Service or EOIR). It shall be the responsibility of the applicant to 
obtain and submit copies of the records of any other government agency 
that the applicant desires to be considered in support of his or her 
application.

[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]