8 U.S.C. § 1255 : US Code - Section 1255: Adjustment of status of nonimmigrant to that of person admitted for permanent residence

Search 8 U.S.C. § 1255 : US Code - Section 1255: Adjustment of status of nonimmigrant to that of person admitted for permanent residence

(a) Status as person admitted for permanent residence on
application and eligibility for immigrant visa
The status of an alien who was inspected and admitted or paroled
into the United States or the status of any other alien having an
approved petition for classification as a VAWA self-petitioner may
be adjusted by the Attorney General, in his discretion and under
such regulations as he may prescribe, to that of an alien lawfully
admitted for permanent residence if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to
receive an immigrant visa and is admissible to the United States
for permanent residence, and (3) an immigrant visa is immediately
available to him at the time his application is filed.
(b) Record of lawful admission for permanent residence; reduction
of preference visas
Upon the approval of an application for adjustment made under
subsection (a) of this section, the Attorney General shall record
the alien's lawful admission for permanent residence as of the date
the order of the Attorney General approving the application for the
adjustment of status is made, and the Secretary of State shall
reduce by one the number of the preference visas authorized to be
issued under sections 1152 and 1153 of this title within the class
to which the alien is chargeable for the fiscal year then current.
(c) Alien crewmen, aliens continuing or accepting unauthorized
employment, and aliens admitted in transit without visa
Other than an alien having an approved petition for
classification as a VAWA self-petitioner, subsection (a) of this
section shall not be applicable to (1) an alien crewman; (2)
subject to subsection (k) of this section, an alien (other than an
immediate relative as defined in section 1151(b) of this title or a
special immigrant described in section 1101(a)(27)(H), (I), (J), or
(K) of this title) who hereafter continues in or accepts
unauthorized employment prior to filing an application for
adjustment of status or who is in unlawful immigration status on
the date of filing the application for adjustment of status or who
has failed (other than through no fault of his own or for technical
reasons) to maintain continuously a lawful status since entry into
the United States; (3) any alien admitted in transit without visa
under section 1182(d)(4)(C) of this title; (4) an alien (other than
an immediate relative as defined in section 1151(b) of this title)
who was admitted as a nonimmigrant visitor without a visa under
section 1182(l) of this title or section 1187 of this title; (5) an
alien who was admitted as a nonimmigrant described in section
1101(a)(15)(S) of this title,(!1) (6) an alien who is deportable
under section 1227(a)(4)(B) of this title; (7) any alien who seeks
adjustment of status to that of an immigrant under section 1153(b)
of this title and is not in a lawful nonimmigrant status; or (8)
any alien who was employed while the alien was an unauthorized
alien, as defined in section 1324a(h)(3) of this title, or who has
otherwise violated the terms of a nonimmigrant visa.
(d) Alien admitted for permanent residence on conditional basis;
fiancee or fiance of citizen
The Attorney General may not adjust, under subsection (a) of this
section, the status of an alien lawfully admitted to the United
States for permanent residence on a conditional basis under section
1186a of this title. The Attorney General may not adjust, under
subsection (a) of this section, the status of a nonimmigrant alien
described in section 1101(a)(15)(K) of this title except to that of
an alien lawfully admitted to the United States on a conditional
basis under section 1186a of this title as a result of the marriage
of the nonimmigrant (or, in the case of a minor child, the parent)
to the citizen who filed the petition to accord that alien's
nonimmigrant status under section 1101(a)(15)(K) of this title.
(e) Restriction on adjustment of status based on marriages entered
while in admissibility or deportation proceedings; bona fide
marriage exception
(1) Except as provided in paragraph (3), an alien who is seeking
to receive an immigrant visa on the basis of a marriage which was
entered into during the period described in paragraph (2) may not
have the alien's status adjusted under subsection (a) of this
section.
(2) The period described in this paragraph is the period during
which administrative or judicial proceedings are pending regarding
the alien's right to be admitted or remain in the United States.
(3) Paragraph (1) and section 1154(g) of this title shall not
apply with respect to a marriage if the alien establishes by clear
and convincing evidence to the satisfaction of the Attorney General
that the marriage was entered into in good faith and in accordance
with the laws of the place where the marriage took place and the
marriage was not entered into for the purpose of procuring the
alien's admission as an immigrant and no fee or other consideration
was given (other than a fee or other consideration to an attorney
for assistance in preparation of a lawful petition) for the filing
of a petition under section 1154(a) of this title or subsection (d)
or (p) (!2) of section 1184 of this title with respect to the alien
spouse or alien son or daughter. In accordance with regulations,
there shall be only one level of administrative appellate review
for each alien under the previous sentence.
(f) Limitation on adjustment of status
The Attorney General may not adjust, under subsection (a) of this
section, the status of an alien lawfully admitted to the United
States for permanent residence on a conditional basis under section
1186b of this title.
(g) Special immigrants
In applying this section to a special immigrant described in
section 1101(a)(27)(K) of this title, such an immigrant shall be
deemed, for purposes of subsection (a) of this section, to have
been paroled into the United States.
(h) Application with respect to special immigrants
In applying this section to a special immigrant described in
section 1101(a)(27)(J) of this title - 
(1) such an immigrant shall be deemed, for purposes of
subsection (a) of this section, to have been paroled into the
United States; and
(2) in determining the alien's admissibility as an immigrant - 
(A) paragraphs (4), (5)(A), and (7)(A) of section 1182(a) of
this title shall not apply, and
(B) the Attorney General may waive other paragraphs of
section 1182(a) of this title (other than paragraphs (2)(A),
(2)(B), (2)(C) (except for so much of such paragraph as related
to a single offense of simple possession of 30 grams or less of
marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of
individual aliens for humanitarian purposes, family unity, or
when it is otherwise in the public interest.
The relationship between an alien and the alien's natural parents
or prior adoptive parents shall not be considered a factor in
making a waiver under paragraph (2)(B). Nothing in this subsection
or section 1101(a)(27)(J) of this title shall be construed as
authorizing an alien to apply for admission or be admitted to the
United States in order to obtain special immigrant status described
in such section.
(i) Adjustment in status of certain aliens physically present in
United States
(1) Notwithstanding the provisions of subsections (a) and (c) of
this section, an alien physically present in the United States - 
(A) who - 
(i) entered the United States without inspection; or
(ii) is within one of the classes enumerated in subsection
(c) of this section;
(B) who is the beneficiary (including a spouse or child of the
principal alien, if eligible to receive a visa under section
1153(d) of this title) of - 
(i) a petition for classification under section 1154 of this
title that was filed with the Attorney General on or before
April 30, 2001; or
(ii) an application for a labor certification under section
1182(a)(5)(A) of this title that was filed pursuant to the
regulations of the Secretary of Labor on or before such date;
and
(C) who, in the case of a beneficiary of a petition for
classification, or an application for labor certification,
described in subparagraph (B) that was filed after January 14,
1998, is physically present in the United States on December 21,
2000;
may apply to the Attorney General for the adjustment of his or her
status to that of an alien lawfully admitted for permanent
residence. The Attorney General may accept such application only if
the alien remits with such application a sum equalling $1,000 as of
the date of receipt of the application, but such sum shall not be
required from a child under the age of seventeen, or an alien who
is the spouse or unmarried child of an individual who obtained
temporary or permanent resident status under section 1160 or 1255a
of this title or section 202 of the Immigration Reform and Control
Act of 1986 at any date, who - 
(i) as of May 5, 1988, was the unmarried child or spouse of the
individual who obtained temporary or permanent resident status
under section 1160 or 1255a of this title or section 202 of the
Immigration Reform and Control Act of 1986;
(ii) entered the United States before May 5, 1988, resided in
the United States on May 5, 1988, and is not a lawful permanent
resident; and
(iii) applied for benefits under section 301(a) of the
Immigration Act of 1990. The sum specified herein shall be in
addition to the fee normally required for the processing of an
application under this section.
(2) Upon receipt of such an application and the sum hereby
required, the Attorney General may adjust the status of the alien
to that of an alien lawfully admitted for permanent residence if - 
(A) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at
the time the application is filed.
(3)(A) The portion of each application fee (not to exceed $200)
that the Attorney General determines is required to process an
application under this section and is remitted to the Attorney
General pursuant to paragraphs (1) and (2) of this subsection shall
be disposed of by the Attorney General as provided in subsections
(m), (n), and (o) of section 1356 of this title.
(B) Any remaining portion of such fees remitted under such
paragraphs shall be deposited by the Attorney General into the
Breached Bond/Detention Fund established under section 1356(r) of
this title, except that in the case of fees attributable to
applications for a beneficiary with respect to whom a petition for
classification, or an application for labor certification,
described in paragraph (1)(B) was filed after January 14, 1998, one-
half of such remaining portion shall be deposited by the Attorney
General into the Immigration Examinations Fee Account established
under section 1356(m) of this title.
(j) Adjustment to permanent resident status
(1) If, in the opinion of the Attorney General - 
(A) a nonimmigrant admitted into the United States under
section 1101(a)(15)(S)(i) of this title has supplied information
described in subclause (I) of such section; and
(B) the provision of such information has substantially
contributed to the success of an authorized criminal
investigation or the prosecution of an individual described in
subclause (III) of that section,
the Attorney General may adjust the status of the alien (and the
spouse, married and unmarried sons and daughters, and parents of
the alien if admitted under that section) to that of an alien
lawfully admitted for permanent residence if the alien is not
described in section 1182(a)(3)(E) of this title.
(2) If, in the sole discretion of the Attorney General - 
(A) a nonimmigrant admitted into the United States under
section 1101(a)(15)(S)(ii) of this title has supplied information
described in subclause (I) of such section, and
(B) the provision of such information has substantially
contributed to - 
(i) the prevention or frustration of an act of terrorism
against a United States person or United States property, or
(ii) the success of an authorized criminal investigation of,
or the prosecution of, an individual involved in such an act of
terrorism, and
(C) the nonimmigrant has received a reward under section
2708(a) of title 22,
the Attorney General may adjust the status of the alien (and the
spouse, married and unmarried sons and daughters, and parents of
the alien if admitted under such section) to that of an alien
lawfully admitted for permanent residence if the alien is not
described in section 1182(a)(3)(E) of this title.
(3) Upon the approval of adjustment of status under paragraph (1)
or (2), the Attorney General shall record the alien's lawful
admission for permanent residence as of the date of such approval
and the Secretary of State shall reduce by one the number of visas
authorized to be issued under sections 1151(d) and 1153(b)(4) of
this title for the fiscal year then current.
(k) Inapplicability of certain provisions for certain employment-
based immigrants
An alien who is eligible to receive an immigrant visa under
paragraph (1), (2), or (3) of section 1153(b) of this title (or, in
the case of an alien who is an immigrant described in section
1101(a)(27)(C) of this title, under section 1153(b)(4) of this
title) may adjust status pursuant to subsection (a) of this section
and notwithstanding subsection (c)(2), (c)(7), and (c)(8) of this
section, if - 
(1) the alien, on the date of filing an application for
adjustment of status, is present in the United States pursuant to
a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for
an aggregate period exceeding 180 days - 
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the
alien's admission.
(l) Adjustment of status for victims of trafficking
(1) If, in the opinion of the Secretary of Homeland Security, or
in the case of subparagraph (C)(i), the Attorney General,,(!3) a
nonimmigrant admitted into the United States under section
1101(a)(15)(T)(i) of this title - 
(A) has been physically present in the United States for a
continuous period of at least 3 years since the date of admission
as a nonimmigrant under section 1101(a)(15)(T)(i) of this title,
or has been physically present in the United States for a
continuous period during the investigation or prosecution of acts
of trafficking and that, in the opinion of the Attorney General,
the investigation or prosecution is complete, whichever period of
time is less; (!4)
(B) has, throughout such period, been a person of good moral
character, and
(C)(i) has, during such period, complied with any reasonable
request for assistance in the investigation or prosecution of
acts of trafficking, or
(ii) the alien would suffer extreme hardship involving unusual
and severe harm upon removal from the United States,
the Secretary of Homeland Security, or in the case of subparagraph
(C)(i), the Attorney General, may adjust the status of the alien
(and any person admitted under section 1101(a)(15)(T)(ii) of this
title as the spouse, parent, sibling, or child of the alien) to
that of an alien lawfully admitted for permanent residence.
(2) Paragraph (1) shall not apply to an alien admitted under
section 1101(a)(15)(T) of this title who is inadmissible to the
United States by reason of a ground that has not been waived under
section 1182 of this title, except that, if the Secretary of
Homeland Security considers it to be in the national interest to do
so, the Secretary of Homeland Security, in the Attorney General's
(!5) discretion, may waive the application of - 
(A) paragraphs (1) and (4) of section 1182(a) of this title;
and
(B) any other provision of such section (excluding paragraphs
(3), (10)(C), and (10(E)),(!6) if the activities rendering the
alien inadmissible under the provision were caused by, or were
incident to, the victimization described in section
1101(a)(15)(T)(i)(I) of this title.
(3) An alien shall be considered to have failed to maintain
continuous physical presence in the United States under paragraph
(1)(A) if the alien has departed from the United States for any
period in excess of 90 days or for any periods in the aggregate
exceeding 180 days.
(4)(A) The total number of aliens whose status may be adjusted
under paragraph (1) during any fiscal year may not exceed 5,000.
(B) The numerical limitation of subparagraph (A) shall only apply
to principal aliens and not to the spouses, sons, daughters,
siblings, or parents of such aliens.
(5) Upon the approval of adjustment of status under paragraph
(1), the Secretary of Homeland Security shall record the alien's
lawful admission for permanent residence as of the date of such
approval.
(m) Adjustment of status for victims of crimes against women
(1) The Secretary of Homeland Security may adjust the status of
an alien admitted into the United States (or otherwise provided
nonimmigrant status) under section 1101(a)(15)(U) of this title to
that of an alien lawfully admitted for permanent residence if the
alien is not described in section 1182(a)(3)(E) of this title,
unless the Attorney General determines based on affirmative
evidence that the alien unreasonably refused to provide assistance
in a criminal investigation or prosecution, if - 
(A) the alien has been physically present in the United States
for a continuous period of at least 3 years since the date of
admission as a nonimmigrant under clause (i) or (ii) of section
1101(a)(15)(U) of this title; and
(B) in the opinion of the Secretary of Homeland Security, the
alien's continued presence in the United States is justified on
humanitarian grounds, to ensure family unity, or is otherwise in
the public interest.
(2) An alien shall be considered to have failed to maintain
continuous physical presence in the United States under paragraph
(1)(A) if the alien has departed from the United States for any
period in excess of 90 days or for any periods in the aggregate
exceeding 180 days unless the absence is in order to assist in the
investigation or prosecution or unless an official involved in the
investigation or prosecution certifies that the absence was
otherwise justified.
(3) Upon approval of adjustment of status under paragraph (1) of
an alien described in section 1101(a)(15)(U)(i) of this title the
Secretary of Homeland Security may adjust the status of or issue an
immigrant visa to a spouse, a child, or, in the case of an alien
child, a parent who did not receive a nonimmigrant visa under
section 1101(a)(15)(U)(ii) of this title if the Secretary considers
the grant of such status or visa necessary to avoid extreme
hardship.
(4) Upon the approval of adjustment of status under paragraph (1)
or (3), the Secretary of Homeland Security shall record the alien's
lawful admission for permanent residence as of the date of such
approval.