§ 245A (8 USC 1255a) Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence |
§ 245A (8 USC 1255a) Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence |
Temporary resident status
The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the alien meets the following requirements:
Timely application
During application period
Except as provided in subparagraph (B), the alien must apply for such adjustment during the 12-month period beginning on a date (not later than 180 days after November 6, 1986) designated by the Attorney General.
Application within 30 days of show-cause order
An alien who, at any time during the first 11 months of the 12-month period described in subparagraph (A), is the subject of an order to show cause issued under section 242 of this Act [8 U.S.C 1252] (as in effect before October 1, 1996), must make application under this section not later than the end of the 30-day period beginning either on the first day of such 12-month period or on the date of the issuance of such order, whichever day is later.
Information included in application
Each application under this subsection shall contain such information as the Attorney General may require, including information on living relatives of the applicant with respect to whom a petition for preference or other status may be filed by the applicant at any later date under section 204(a) of this Act [8 U.S.C 1154(a)] .
Continuous unlawful residence since 1982
In general
The alien must establish that he entered the United States before January 1, 1982, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection.
Nonimmigrants
In the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.
Exchange visitors
If the alien was at any time a nonimmigrant exchange alien (as defined in section 101(a)(15)(J) of this Act [8 U.S.C 1101(a)(15)(J)] ), the alien must establish that the alien was not subject to the two-year foreign residence requirement of section 212(e) of this Act [8 U.S.C 1182(e)] or has fulfilled that requirement or received a waiver thereof.
Continuous physical presence since November 6, 1986
In general
The alien must establish that the alien has been continuously physically present in the United States since November 6, 1986.
Treatment of brief, casual, and innocent absences
An alien shall not be considered to have failed to maintain continuous physical presence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and innocent absences from the United States.
Admissions
Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this subsection.
Admissible as immigrant
The alien must establish that he—
is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2) of this section ,
has not been convicted of any felony or of three or more misdemeanors committed in the United States,
has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion, and
is registered or registering under the Military Selective Service Act [50 U.S.C. App. 451 et seq.], if the alien is required to be so registered under that Act.
For purposes of this subsection, an alien in the status of a Cuban and Haitian entrant described in paragraph (1) or (2)(A) of section 501(e) of Public Law 96–422 [8 U.S.C. 1522 note] shall be considered to have entered the United States and to be in an unlawful status in the United States.
Subsequent adjustment to permanent residence and nature of temporary resident status
Adjustment to permanent residence
The Attorney General shall adjust the status of any alien provided lawful temporary resident status under subsection (a) of this section to that of an alien lawfully admitted for permanent residence if the alien meets the following requirements:
Timely application after one year's residence
The alien must apply for such adjustment during the 2-year period beginning with the nineteenth month that begins after the date the alien was granted such temporary resident status.
Continuous residence
In general
The alien must establish that he has continuously resided in the United States since the date the alien was granted such temporary resident status.
Treatment of certain absences
An alien shall not be considered to have lost the continuous residence referred to in clause (i) by reason of an absence from the United States permitted under paragraph (3)(A).
Admissible as immigrant
The alien must establish that he—
Basic citizenship skills
In general
The alien must demonstrate that he either—
meets the requirements of section 312(a) of this Act [8 U.S.C 1423(a)] (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States), or
is satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States.
Exception for elderly or developmentally disabled individuals
The Attorney General may, in his discretion, waive all or part of the requirements of clause (i) in the case of an alien who is 65 years of age or older or who is developmentally disabled.
Relation to naturalization examination
In accordance with regulations of the Attorney General, an alien who has demonstrated under clause (i)(I) that the alien meets the requirements of section 312(a) of this Act [8 U.S.C 1423(a)] may be considered to have satisfied the requirements of
for purposes of becoming naturalized as a citizen of the United States under subchapter III of this chapter.Termination of temporary residence
The Attorney General shall provide for termination of temporary resident status granted an alien under subsection (a) of this section —
if it appears to the Attorney General that the alien was in fact not eligible for such status;
if the alien commits an act that
at the end of the 43rd month beginning after the date the alien is granted such status, unless the alien has filed an application for adjustment of such status pursuant to paragraph (1) and such application has not been denied.
Authorized travel and employment during temporary residence
During the period an alien is in lawful temporary resident status granted under subsection (a) of this section —
Authorization of travel abroad
The Attorney General shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the alien to adjust to lawful permanent resident status under paragraph (1) and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family need.
Authorization of employment
The Attorney General shall grant the alien authorization to engage in employment in the United States and provide to that alien an “employment authorized” endorsement or other appropriate work permit.
Applications for adjustment of status
To whom may be made
The Attorney General shall provide that applications for adjustment of status under subsection (a) of this section may be filed—
Designation of qualified entities to receive applications
For purposes of assisting in the program of legalization provided under this section , the Attorney General—
shall designate qualified voluntary organizations and other qualified State, local, and community organizations, and
may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under section 209 [8 U.S.C 1159] or section 245 of this Act [8 U.S.C 1255] , Public Law 89–732 [8 U.S.C. 1255 note], or Public Law 95–145 [8 U.S.C. 1255 note].
Treatment of applications by designated entities
Each qualified designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(B) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General.
Limitation on access to information
Files and records of qualified designated entities relating to an alien's seeking assistance or information with respect to filing an application under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien.
Confidentiality of information
In general
Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—
use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application, for enforcement of paragraph (6), or for the preparation of reports to Congress under section 404 of the Immigration Reform and Control Act of 1986;
make any publication whereby the information furnished by any particular applicant can be identified; or
permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.
Required disclosures
The Attorney General shall provide the information furnished under this section , and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
Authorized disclosures
The Attorney General may provide, in the Attorney General's discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under section 8 of title 13.
Construction
In general
Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section , other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
Criminal convictions
Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
Crime
Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.
Penalties for false statements in applications
Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with title 18 or imprisoned not more than five years, or both.
Application fees
Fee schedule
The Attorney General shall provide for a schedule of fees to be charged for the filing of applications for adjustment under subsection (a) or (b)(1) of this section . The Attorney General shall provide for an additional fee for filing an application for adjustment under subsection (b)(1) of this section after the end of the first year of the 2-year period described in subsection (b)(1)(A) of this section .
Use of fees
The Attorney General shall deposit payments received under this paragraph in a separate account and amounts in such account shall be available, without fiscal year limitation, to cover administrative and other expenses incurred in connection with the review of applications filed under this section .
Immigration-related unfair employment practices
Not to exceed $3,000,000 of the unobligated balances remaining in the account established in subparagraph (B) shall be available in fiscal year 1992 and each fiscal year thereafter for grants, contracts, and cooperative agreements to community-based organizations for outreach programs, to be administered by the Office of Special Counsel for Immigration-Related Unfair Employment Practices: Provided, That such amounts shall be in addition to any funds appropriated to the Office of Special Counsel for such purposes: Provided further, That none of the funds made available by this section shall be used by the Office of Special Counsel to establish regional offices.
Waiver of numerical limitations and certain grounds for exclusion
Numerical limitations do not apply
The numerical limitations of section 201 [8 U.S.C 1151] and section 202 of this Act [8 U.S.C 1152] shall not apply to the adjustment of aliens to lawful permanent resident status under this section .
Waiver of grounds for exclusion
In the determination of an alien's admissibility under subsections (a)(4)(A), (b)(1)(C)(i), and (b)(2)(B) of this section —
Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of section 212(a) of this Act [8 U.S.C 1182(a)] shall not apply.
Waiver of other grounds
In general
Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) of this Act [8 U.S.C 1182(a)] in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
Grounds that may not be waived
The following provisions of section 212(a) of this Act [8 U.S.C 1182(a)] may not be waived by the Attorney General under clause (i):
Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.
Paragraph (3) (relating to security and related grounds).
Paragraph (4) (relating to aliens likely to become public charges) insofar as it relates to an application for adjustment to permanent residence.
Subclause (IV) (prohibiting the waiver of section 212(a)(4) of this Act [8 U.S.C 1182(a)(4)] ) shall not apply to an alien who is or was an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act [42 U.S.C. 1382c(a)(1)]).
Special rule for determination of public charge
An alien is not ineligible for adjustment of status under this section due to being inadmissible under section 212(a)(4) of this Act [8 U.S.C 1182(a)(4)] if the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance.
Medical examination
The alien shall be required, at the alien's expense, to undergo such a medical examination (including a determination of immunization status) as is appropriate and conforms to generally accepted professional standards of medical practice.
Temporary stay of deportation and work authorization for certain applicants
Before application period
The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(A) of this section and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) of this section (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien—
During application period
The Attorney General shall provide that in the case of an alien who presents a prima facie application for adjustment of status under subsection (a) of this section during the application period, and until a final determination on the application has been made in accordance with this section , the alien—
Administrative and judicial review
Administrative and judicial review
There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
No review for late filings
No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.
Administrative review
Single level of administrative appellate review
The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of a determination described in paragraph (1).
Standard for review
Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
Judicial review
Limitation to review of deportation
There shall be judicial review of such a denial only in the judicial review of an order of deportation under section 105 of this Act [8 U.S.C 1105a] (as in effect before October 1, 1996).
Standard for judicial review
Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
Jurisdiction of courts
Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section , or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.
Implementation of section
Regulations
The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe—
regulations establishing a definition of the term “resided continuously”, as used in this section , and the evidence needed to establish that an alien has resided continuously in the United States for purposes of this section , and
such other regulations as may be necessary to carry out this section .
Considerations
In prescribing regulations described in paragraph (1)(A)—
Periods of continuous residence
The Attorney General shall specify individual periods, and aggregate periods, of absence from the United States which will be considered to break a period of continuous residence in the United States and shall take into account absences due merely to brief and casual trips abroad.
Absences caused by deportation or advanced parole
The Attorney General shall provide that—
an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation, and
any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Service shall not be considered as part of the period of time during which an alien is outside the United States for purposes of this section .
Waivers of certain absences
The Attorney General may provide for a waiver, in the discretion of the Attorney General, of the periods specified under subparagraph (A) in the case of an absence from the United States due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.
Use of certain documentation
The Attorney General shall require that—
continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents, and
the documents provided under clause (i) be employment-related if employment-related documents with respect to the alien are available to the applicant.
Interim final regulations
Regulations prescribed under this section may be prescribed to take effect on an interim final basis if the Attorney General determines that this is necessary in order to implement this section in a timely manner.
Temporary disqualification of newly legalized aliens from receiving certain public welfare assistance
In general
During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a) of this section , and notwithstanding any other provision of law—
except as provided in paragraphs (2) and (3) , the alien is not eligible for—
any program of financial assistance furnished under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need, as such programs are identified by the Attorney General in consultation with other appropriate heads of the various departments and agencies of Government (but in any event including the State program of assistance under part A of title IV of the Social Security Act [42 U.S.C. 601 et seq.]),
medical assistance under a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], and
assistance under the Food and Nutrition Act of 2008 [7 U.S.C. 2011 et seq.]; and
a State or political subdivision therein may, to the extent consistent with subparagraph (A) and paragraphs (2) and (3), provide that the alien is not eligible for the programs of financial assistance or for medical assistance described in subparagraph (A)(ii) furnished under the law of that State or political subdivision.
Unless otherwise specifically provided by this section or other law, an alien in temporary lawful residence status granted under subsection (a) of this section shall not be considered (for purposes of any law of a State or political subdivision providing for a program of financial assistance) to be permanently residing in the United States under color of law.
Exceptions
Paragraph (1) shall not apply—
to a Cuban and Haitian entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of Public Law 96–422 [8 U.S.C. 1255 note], as in effect on April 1, 1983), or
in the case of assistance (other than assistance under a State program funded under part A of title IV of the Social Security Act [42 U.S.C. 601 et seq.]) which is furnished to an alien who is an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act [42 U.S.C. 1382c(a)(1)]).
Restricted medicaid benefits
Clarification of entitlement
Subject to the restrictions under subparagraph (B), for the purpose of providing aliens with eligibility to receive medical assistance—
paragraph (1) shall not apply,
aliens who would be eligible for medical assistance but for the provisions of paragraph (1) shall be deemed, for purposes of title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], to be so eligible, and
aliens lawfully admitted for temporary residence under this section , such status not having changed, shall be considered to be permanently residing in the United States under color of law.
Restriction of benefits
Limitation to emergency services and services for pregnant women
Notwithstanding any provision of title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] (including subparagraphs (B) and (C) of section 1902(a)(10) of such Act [42 U.S.C. 1396a(a)(10)(B), (C)]), aliens who, but for subparagraph (A), would be ineligible for medical assistance under paragraph (1), are only eligible for such assistance with respect to—
No restriction for exempt aliens and children
The restrictions of clause (i) shall not apply to aliens who are described in paragraph (2) or who are under 18 years of age.
Definition of medical assistance
In this paragraph, the term “medical assistance” refers to medical assistance under a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.].
Treatment of certain programs
Assistance furnished under any of the following provisions of law shall not be construed to be financial assistance described in paragraph (1)(A)(i):
The Richard B. Russell National School Lunch Act [42 U.S.C. 1751 et seq.].
The Child Nutrition Act of 1966 [42 U.S.C. 1771 et seq.].
The The Carl D. Perkins Career and Technical Education Act of 2006 [20 U.S.C. 2301 et seq.].
Title I of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.].
The Headstart-Follow Through Act [42 U.S.C. 2921 et seq.].
Title I of the Workforce Investment Act of 1998 [29 U.S.C. 2801 et seq.].
Title IV of the Higher Education Act of 1965 [20 U.S.C. 1070 et seq., 42 U.S.C. 2751 et seq.].
The Public Health Service Act [42 U.S.C. 201 et seq.].
Titles V, XVI, and XX [42 U.S.C. 701 et seq., 1381 et seq., 1397 et seq.], and parts B, D, and E of title IV [42 U.S.C. 620 et seq., 651 et seq., 670 et seq.], of the Social Security Act (and titles I, X, XIV, and XVI of such Act [42 U.S.C. 301 et seq., 1201 et seq., 1351 et seq., 1381 et seq.] as in effect without regard to the amendment made by section 301 of the Social Security Amendments of 1972).
Adjustment not affecting Fascell-Stone benefits
For the purpose of section 501 of the Refugee Education Assistance Act of 1980 (Public Law 96–122) [8 U.S.C. 1255 note], assistance shall be continued under such section with respect to an alien without regard to the alien's adjustment of status under this section .
Dissemination of information on legalization program
Beginning not later than the date designated by the Attorney General under subsection (a)(1)(A) of this section , the Attorney General, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.