[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: 8CFR245.11]

[Page 573-576]
 
                     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. 245.11  Adjustment of aliens in S nonimmigrant classification.

    (a) Eligibility. An application on Form I-854, requesting that an 
alien witness or informant in S nonimmigrant classification be allowed 
to adjust status to that of lawful permanent resident, may only be filed 
by the federal or state law enforcement authority (``LEA'') (which shall 
include a federal or state court or a United States Attorney's Office) 
that originally requested S classification for the alien. The completed 
application shall be filed with the Assistant Attorney General, Criminal 
Division, Department of Justice, who will forward only properly 
certified applications to the Commissioner, Immigration and 
Naturalization Service, for approval. Upon receipt of an approved Form 
I-854 allowing the S nonimmigrant to adjust status to that of lawful 
permanent resident, the alien may proceed to file with that Form, Form 
I-485, Application to Register Permanent Residence or Adjust Status, 
pursuant to the following process.
    (1) Request to allow S nonimmigrant to apply for adjustment of 
status to that of lawful permanent resident. The LEA that requested S 
nonimmigrant classification for an S nonimmigrant witness or informant 
pursuant to section 101(a)(15)(S) of the Act may request that the 
principal S nonimmigrant be allowed to apply for adjustment of status by 
filing Form I-854 with the Assistant Attorney General, Criminal 
Division, in accordance with the instructions on, or attached to, that 
form and certifying that the alien has fulfilled the terms of his or her 
admission and classification. The same Form I-854 may be used by the LEA 
to request that the principals nonimmigrant's spouse, married and 
unmarried sons and daughters, regardless of age, and

[[Page 574]]

parents who are in derivative S nonimmigrant classification and who are 
qualified family members as described in paragraph (b) of this section 
similarly be allowed to apply for adjustment of status pursuant to 
section 101(a)(15)(S) of the Act.
    (2) Certification. Upon receipt of an LEA's request for the 
adjustment of an alien in S nonimmigrant classification on Form I-854, 
the Assistant Attorney General, Criminal Division, shall review the 
information and determine whether to certify the request to the 
Commissioner in accordance with the instructions on the form.
    (3) Submission of requests for adjustment of status to the 
Commissioner. No application by an LEA on Form I-854 requesting the 
adjustment to lawful permanent resident status of an S nonimmigrant 
shall be forwarded to the Commissioner unless first certified by the 
Assistant Attorney General, Criminal Division.
    (4) Decision on request to allow adjustment of S nonimmigrant. The 
Commissioner shall make the final decision on a request to allow an S 
nonimmigrant to apply for adjustment of status to lawful permanent 
resident.
    (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--(1) Qualified family members. A qualified family 
member of an S nonimmigrant includes the spouse, married or unmarried 
son or daughter, or parent of a principal S nonimmigrant who meets the 
requirements of paragraph (a) of this section, provided that:
    (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

[[Page 575]]

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. The adjustment provisions in this section 
do not apply to a family member who has not been classified as an S 
nonimmigrant pursuant to a request on Form I-854 or who does not 
otherwise meet the requirements of paragraph (b) of this section. 
However, a spouse or an unmarried child who is less than 21 years old, 
and whose relationship to the principal S nonimmigrant or qualified 
family member was established prior to the approval of the principal S 
nonimmigrant's adjustment of status application, may be accorded the 
priority date and preference category of the principal S nonimmigrant or 
qualified family member, in accordance with the provisions of section 
203(d) of the Act. Such a spouse or child:
    (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. An alien seeking to adjust status 
pursuant to the provisions of section 101(a)(15)(S) of the Act may not 
be denied adjustment of status for conduct or a condition that:
    (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. Each S nonimmigrant requesting adjustment of status 
under section 101(a)(15)(S) of the Act must:
    (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 245.2. 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. The S nonimmigrant's priority date shall be the 
date his or her application for adjustment of status as an S 
nonimmigrant is properly filed with the Service.
    (f) Visa number limitation. An adjustment of status application 
under section 101(a)(15)(S) of the Act may be filed regardless of the 
availability of

[[Page 576]]

immigrant visa numbers. The adjustment of status application may not, 
however, be approved and the alien's adjustment of status to that of 
lawful permanent resident of the United States may not be granted until 
a visa number becomes available for the alien under the worldwide 
allocation for employment-based immigrants under section 201(d) and 
section 203(b)(4) of the Act. The alien may request initial or continued 
employment authorization while the adjustment application is pending by 
filing Form I-765, Application for Employment Authorization. If the 
alien needs to travel outside the United States during this period, he 
or she may file a request for advance parole on Form I-131, Application 
for Travel Document.
    (g) Filing and decision. An application for adjustment of status 
filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall 
be filed with the district director having jurisdiction over the alien's 
place of residence. Upon approval of adjustment of status under this 
section, the district director shall record the alien's lawful admission 
for permanent residence as of the date of such approval. The district 
director shall notify the Commissioner and the Assistant Attorney 
General, Criminal Division, of the adjustment.
    (h) Removal under section 237 of the Act. Nothing in this section 
shall prevent an alien adjusted pursuant to the terms of these 
provisions from being removed for conviction of a crime of moral 
turpitude committed within 10 years after being provided lawful 
permanent residence under this section or for any other ground under 
section 237 of the Act.
    (i) Denial of application. In the event the district director 
decides to deny an application on Form I-485 and an approved Form I-854 
to allow an S nonimmigrant to adjust 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. A denial 
of an adjustment application under this paragraph may not be renewed in 
subsequent removal proceedings.

[60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995, as amended at 62 
FR 10384, Mar. 6, 1997]