[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR245.10]



[Page 508-512]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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:



[[Page 509]]



    (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.

    (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.



[[Page 510]]



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 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



[[Page 511]]



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 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



[[Page 512]]



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., 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]