[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: 8CFR245.11]



[Page 512-515]

 

                     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. 245.11  Adjustment of aliens in S nonimmigrant classification.



    (a) Eligibility. An application on Form I-854, requesting that an 

alien witness



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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 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



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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 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



[[Page 515]]



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 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]



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