1994 US Code
Title 8 - ALIENS AND NATIONALITY
CHAPTER 11 - NATIONALITY
SUBCHAPTER II_2 - SUBCHAPTER II-IMMIGRATION
Part V - Deportation; Adjustment of Status
Sec. 1255 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence

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§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 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

Subsection (a) of this section shall not be applicable to (1) an alien crewman; (2) 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; or (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title.

(d) Alien admitted for permanent residence on conditional basis; fiancée or fiancé 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 (relating to an alien fiancée or fiancé or the minor child of such alien) 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 exclusion 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 enter 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 entry 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) or 1184(d) 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) 1 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 who—

(A) entered the United States without inspection; or

(B) is within one of the classes enumerated in subsection (c) of this section,

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 five times the fee required for the processing of applications under this section 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) Sums 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 sections 1356(m), (n), and (o) of this title.

(i) 1 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 paragraphs 2 (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.

(June 27, 1952, ch. 477, title II, ch. 5, §245, 66 Stat. 217; Aug. 21, 1958, Pub. L. 85–700, §1, 72 Stat. 699; July 14, 1960, Pub. L. 86–648, §10, 74 Stat. 505; Oct. 3, 1965, Pub. L. 89–236, §13, 79 Stat. 918; Oct. 20, 1976, Pub. L. 94–571, §6, 90 Stat. 2705; Dec. 29, 1981, Pub. L. 97–116, §5(d)(2), 95 Stat. 1614; Nov. 6, 1986, Pub. L. 99–603, title I, §117, title III, §313(c), 100 Stat. 3384, 3438; Nov. 10, 1986, Pub. L. 99–639, §§2(e), 3(b), 5(a), 100 Stat. 3542, 3543; Oct. 24, 1988, Pub. L. 100–525, §§2(f)(1), (p)(3), 7(b), 102 Stat. 2611, 2613, 2616; Nov. 29, 1990, Pub. L. 101–649, title I, §§121(b)(4), 162(e)(3), title VII, §702(a), 104 Stat. 5011, 5086; Oct. 1, 1991, Pub. L. 102–110, §2(c), 105 Stat. 556; Dec. 12, 1991, Pub. L. 102–232, title III, §§302(d)(2), (e)(7), 308(a), 105 Stat. 1744, 1746, 1757; Aug. 26, 1994, Pub. L. 103–317, title V, §506(b), 108 Stat. 1765; Sept. 13, 1994, Pub. L. 103–322, title XIII, §130003(c), 108 Stat. 2025; Oct. 25, 1994, Pub. L. 103–416, title II, §219(k), 108 Stat. 4317.)

Amendment of section

For termination of amendment by section 506(c) of Pub. L. 103–317, see Effective and Termination Dates of 1994 Amendments note below.

References in Text

Section 202 of the Immigration Reform and Control Act of 1986, referred to in subsec. (i)(1), is section 202 of Pub. L. 99–603, which is set out as a note under section 1255a of this title.

Section 301 of the Immigration Act of 1990, referred to in subsec. (i)(1)(iii), is section 301 of Pub. L. 101–649, which is set out as a note under section 1255a of this title.

Amendments

1994—Subsec. (c)(5). Pub. L. 103–322, §130003(c)(2), added cl. (5).

Subsec. (h)(2)(B). Pub. L. 103–416 substituted “and (3)(E)” for “or (3)(E)”.

Subsec. (i). Pub. L. 103–322, §130003(c)(1), added subsec. (i) relating to adjustment to permanent resident status.

Pub. L. 103–317, §506(b), (c), temporarily added subsec. (i) relating to adjustment in status of certain aliens physically present in United States. See Effective and Termination Dates of 1994 Amendments note below.

1991—Subsec. (b). Pub. L. 102–232, §302(e)(7), substituted “sections 1152 and 1153” for “sections 1151(a)” and “for the fiscal year then current” for “for the succeeding fiscal year”.

Subsec. (c)(2). Pub. L. 102–232, §302(d)(2)(A), inserted “(J),” after “(I),”.

Pub. L. 102–110, §2(c)(1), substituted “, (I), or (K)” for “or (I)”.

Subsec. (e)(3). Pub. L. 102–232, §308(a), substituted “section 1154(g)” for “section 1154(h)”.

Subsec. (g). Pub. L. 102–110, §2(c)(2), added subsec. (g).

Subsec. (h). Pub. L. 102–232, §302(d)(2)(B), added subsec. (h).

1990—Subsec. (b). Pub. L. 101–649, §162(e)(3), struck out “or nonpreference” after “number of the preference” and substituted “1151(a)” for “1152(e) or 1153(a)” and “succeeding fiscal year” for “fiscal year then current”.

Subsec. (e)(1). Pub. L. 101–649, §702(a)(1), substituted “Except as provided in paragraph (3), an alien” for “An alien”.

Subsec. (e)(3). Pub. L. 101–649, §702(a)(2), added par. (3).

Subsec. (f). Pub. L. 101–649, §121(b)(4), added subsec. (f).

1988—Subsec. (c)(2). Pub. L. 100–525, §2(f)(1), substituted “1101(a)(27)(H) or (I)” for “1101(a)(27)(H)”, inserted “or” after “no fault of his own”, and substituted “in unlawful” for “not in legal” and “lawful status” for “legal status”.

Subsec. (c)(4). Pub. L. 100–525, §2(p)(3), made technical correction to Pub. L. 99–603, §313(c). See 1986 Amendment note below.

Subsec. (d). Pub. L. 100–525, §7(b), amended Pub. L. 99–639, §3(b). See 1986 Amendment note below.

1986—Subsec. (c). Pub. L. 99–639, §5(a)(1), substituted “Subsection (a) of this section” for “The provisions of this section”.

Subsec. (c)(2). Pub. L. 99–603, §117, inserted “or who is not in legal immigration status on the date of filing the application for adjustment or who has failed (other than through no fault of his own for technical reasons) to maintain continuously a legal status since entry into the United States”.

Subsec. (c)(4). Pub. L. 99–603, §313(c), as amended by Pub. L. 100–525, §2(p)(3), added cl. (4).

Subsec. (d). Pub. L. 99–639, §3(b), as amended by Pub. L. 100–525, §7(b), inserted “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 (relating to an alien fiancée or fiancé or the minor child of such alien) 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.”

Pub. L. 99–639, §2(e), added subsec. (d).

Subsec. (e). Pub. L. 99–639, §5(a)(2), added subsec. (e).

1981—Subsec. (c)(2). Pub. L. 97–116 inserted “or a special immigrant described in section 1101(a)(27)(H) of this title” after “section 1151(b) of this title”.

1976—Subsec. (a). Pub. L. 94–571 struck out “, other than alien crewman,” after “status of an alien” and substituted “filed” for “approved”.

Subsec. (b). Pub. L. 94–571 inserted reference to section 1152(e) of this title and struck out comma after “chargeable”.

Subsec. (c). Pub. L. 94–571 substituted provision making the section inapplicable to alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa for provision making the section inapplicable to natives of contiguous country or adjacent island.

1965—Subsec. (b). Pub. L. 89–236, §13(a), struck out reference to quota area to which the alien is chargeable under section 1152 of this title and substituted reference to number of preference or nonpreference visas authorized to be issued under section 1153(a) of this title within the class to which the alien is chargeable.

Subsec. (c). Pub. L. 89–236, §13(b), substituted “any country of the Western Hemisphere” for “any country contiguous to the United States”.

1960—Subsec. (a). Pub. L. 86–648 substituted “alien, other than an alien crewman, who was inspected and admitted or paroled into the United States” for “alien who was admitted to the United States as a bona fide nonimmigrant”, struck out former cl. (3) which read “an immigrant visa was immediately available to him at the time of his application”, redesignated cl. (4) as (3), and struck out concluding sentence which read as follows: “A quota immigrant visa shall be considered immediately available for the purposes of this subsection only if the portion of the quota to which the alien is chargeable is undersubscribed by applicants registered on a consular waiting list.”

1958—Pub. L. 85–700 among other changes, substituted provisions allowing adjustment of status of alien who was admitted as a bona fide nonimmigrant to that of an alien lawfully admitted for permanent residence, for provisions allowing adjustment of status of alien who was lawfully admitted as a bona fide nonimmigrant and continued to maintain that status, to that of a permanent resident either as a quota immigrant or as a nonquota immigrant claiming nonquota status as the spouse or child of a citizen under certain specified conditions, by striking out provision terminating nonimmigrant quota status of alien who files application for adjustment of status, and by adding subsec. (c).

Effective and Termination Dates of 1994 Amendments

Amendment by Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.

Subsec. (i) of this section, relating to adjustment in status of certain aliens physically present in United States, effective Oct. 1, 1994, and ceases to have effect Oct. 1, 1997, see section 506(c) of Pub. L. 103–317, set out as a note under section 1182 of this title.

Effective Date of 1991 Amendments

Amendment by section 302(d)(2), (e)(7) of Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.

Section 308(a) of Pub. L. 102–232 provided that the amendment made by that section is effective Oct. 1, 1991.

Amendment by Pub. L. 102–110 effective 60 days after Oct. 1, 1991, see section 2(d) of Pub. L. 102–110, set out as a note under section 1101 of this title.

Effective Date of 1990 Amendment

Amendment by sections 121(b)(4), 162(e)(3) of Pub. L. 101–649 effective Oct. 1, 1991, and applicable beginning with fiscal year 1992, see section 161(a) of Pub. L. 101–649, set out as a note under section 1101 of this title.

Amendment by section 702(a) of Pub. L. 101–649 applicable to marriages entered into before, on, or after Nov. 29, 1990, see section 702(c) of Pub. L. 101–649, set out as a note under section 1154 of this title.

Effective Date of 1988 Amendment

Section 2(f)(2) of Pub. L. 100–525 provided that: “The amendments made by paragraph (1) [amending this section] and by section 117 of IRCA [section 117 of Pub. L. 99–603, amending this section] shall apply to applications for adjustment of status filed on or after November 6, 1986.”

Amendment by section 2(f)(1), (p)(3) of Pub. L. 100–525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525, set out as a note under section 1101 of this title.

Amendment by section 7(b) of Pub. L. 100–525 effective as if included in enactment of Immigration Marriage Fraud Amendments of 1986, Pub. L. 99–639, see section 7(d) of Pub. L. 100–525, set out as a note under section 1182 of this title.

Effective Date of 1986 Amendments

Section 3(d)(2) of Pub. L. 99–639 provided that: “The amendment made by subsection (b) [amending this section] shall apply to adjustments occurring on or after the date of the enactment of this Act [Nov. 10, 1986].”

Amendment by section 5(a) of Pub. L. 99–639 applicable to marriages entered into on or after Nov. 10, 1986, see section 5(c) of Pub. L. 99–639, set out as a note under section 1154 of this title.

Amendment by section 117 of Pub. L. 99–603 applicable to applications for adjustment of status filed on or after Nov. 6, 1986, see section 2(f)(2) of Pub. L. 100–525, set out as an Effective Date of 1988 Amendment note above.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Pub. L. 97–116, set out as a note under section 1101 of this title.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–571 effective on first day of first month which begins more than sixty days after Oct. 20, 1976, see section 10 of Pub. L. 94–571, set out as a note under section 1101 of this title.

Effective Date of 1965 Amendment

For effective date of amendment by Pub. L. 89–236, see section 20 of Pub. L. 89–236, set out as a note under section 1151 of this title.

Fingerprint Checks

Section 506(d) of Pub. L. 103–317 provided that: “The Immigration and Naturalization Service shall conduct full fingerprint identification checks through the Federal Bureau of Investigation for all individuals over sixteen years of age adjusting immigration status in the United States pursuant to this section [amending this section and section 1182 of this title and enacting provisions set out as a note under section 1182 of this title].”

Adjustment of Status of Certain Nationals of People's Republic of China

Pub. L. 102–404, Oct. 9, 1992, 106 Stat. 1969, provided that:

“SECTION 1. SHORT TITLE.

“This Act may be cited as the ‘Chinese Student Protection Act of 1992’.

“SEC. 2. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS OF CERTAIN NATIONALS OF THE PEOPLE'S REPUBLIC OF CHINA.

“(a) In General.—Subject to subsection (c)(1), whenever an alien described in subsection (b) applies for adjustment of status under section 245 of the Immigration and Nationality Act [8 U.S.C. 1255] during the application period (as defined in subsection (e)) the following rules shall apply with respect to such adjustment:

“(1) The alien shall be deemed to have had a petition approved under section 204(a) of such Act [8 U.S.C. 1154(a)] for classification under section 203(b)(3)(A)(i) of such Act [8 U.S.C. 1153(b)(3)(A)(i)].

“(2) The application shall be considered without regard to whether an immigrant visa number is immediately available at the time the application is filed.

“(3) In determining the alien's admissibility as an immigrant, and the alien's eligibility for an immigrant visa—

“(A) paragraphs (5) and (7)(A) of section 212(a) and section 212(e) of such Act [8 U.S.C. 1182(a), (e)] shall not apply; and

“(B) the Attorney General may waive any other provision of section 212(a) (other than paragraph (2)(C) and subparagraph (A), (B), (C), or (E) of paragraph (3)) of such Act with respect to such adjustment for humanitarian purposes, for purposes of assuring family unity, or if otherwise in the public interest.

“(4) The numerical level of section 202(a)(2) of such Act [8 U.S.C. 1152(a)(2)] shall not apply.

“(5) Section 245(c) of such Act [8 U.S.C. 1255(c)] shall not apply.

“(b) Aliens Covered.—For purposes of this section, an alien described in this subsection is an alien who—

“(1) is a national of the People's Republic of China described in section 1 of Executive Order No. 12711 [8 U.S.C. 1101 note] as in effect on April 11, 1990;

“(2) has resided continuously in the United States since April 11, 1990 (other than brief, casual, and innocent absences); and

“(3) was not physically present in the People's Republic of China for longer than 90 days after such date and before the date of the enactment of this Act [Oct. 9, 1992].

“(c) Condition; Dissemination of Information.—

“(1) Not applicable if safe return permitted.—Subsection (a) shall not apply to any alien if the President has determined and certified to Congress, before the first day of the application period, that conditions in the People's Republic of China permit aliens described in subsection (b)(1) to return to that foreign state in safety.

“(2) Dissemination of information.—If the President has not made the certification described in paragraph (1) by the first day of the application period, the Attorney General shall, subject to the availability of appropriations, immediately broadly disseminate to aliens described in subsection (b)(1) information respecting the benefits available under this section. To the extent practicable, the Attorney General shall provide notice of these benefits to the last known mailing address of each such alien.

“(d) Offset in Per Country Numerical Level.—

“(1) In general.—The numerical level under section 202(a)(2) of the Immigration and Nationality Act [8 U.S.C. 1152(a)(2)] applicable to natives of the People's Republic of China in each applicable fiscal year (as defined in paragraph (3)) shall be reduced by 1,000.

“(2) Allotment if section 202(e) applies.—If section 202(e) of the Immigration and Nationality Act is applied to the People's Republic of China in an applicable fiscal year, in applying such section—

“(A) 300 immigrant visa numbers shall be deemed to have been previously issued to natives of that foreign state under section 203(b)(3)(A)(i) of such Act [8 U.S.C. 1153(b)(3)(A)(i)] in that year, and

“(B) 700 immigrant visa numbers shall be deemed to have been previously issued to natives of that foreign state under section 203(b)(5) of such Act in that year.

“(3) Applicable fiscal year.—

“(A) In general.—In this subsection, the term ‘applicable fiscal year’ means each fiscal year during the period—

“(i) beginning with the fiscal year in which the application period begins; and

“(ii) ending with the first fiscal year by the end of which the cumulative number of aliens counted for all fiscal years under subparagraph (B) equals or exceeds the total number of aliens whose status has been adjusted under section 245 of the Immigration and Nationality Act [8 U.S.C. 1255] pursuant to subsection (a).

“(B) Number counted each year.—The number counted under this subparagraph for a fiscal year (beginning during or after the application period) is 1,000, plus the number (if any) by which (i) the immigration level under section 202(a)(2) of the Immigration and Nationality Act for the People's Republic of China in the fiscal year (as reduced under this subsection), exceeds (ii) the number of aliens who were chargeable to such level in the year.

“(e) Application Period Defined.—In this section, the term ‘application period’ means the 12-month period beginning July 1, 1993.”

Adjustment of Status for Certain H–1 Nonimmigrant Nurses

Pub. L. 101–238, §2, Dec. 18, 1989, 103 Stat. 2099, as amended by Pub. L. 101–649, title I, §162(f)(1), Nov. 29, 1990, 104 Stat. 5011; Pub. L. 102–232, title III, §§302(e)(10), 307(l)(10), Dec. 12, 1991, 105 Stat. 1746, 1757, provided that:

“(a) In General.—The numerical limitations of sections 201 and 202 of the Immigration and Nationality Act [8 U.S.C. 1151, 1152] shall not apply to the adjustment of status under section 245 of such Act [8 U.S.C. 1255] of an immigrant, and the immigrant's accompanying spouse and children—

“(1) who, as of September 1, 1989, has the status of a nonimmigrant under paragraph (15)(H)(i) of section 101(a) of such Act [8 U.S.C. 1101(a)(15)(H)(i)] to perform services as a registered nurse,

“(2) who, for at least 3 years before the date of application for adjustment of status (whether or not before, on, or after, the date of the enactment of this Act [Dec. 18, 1989]), has been employed as a registered nurse in the United States, and

“(3) whose continued employment as a registered nurse in the United States meets the standards established for the certification described in section 212(a)(5)(A) of such Act [8 U.S.C. 1182(a)(5)(A)].

The Attorney General shall promulgate regulations to carry out this subsection by not later than 90 days after the date of the enactment of this Act.

“(b) Transition.—For purposes of adjustment of status under section 245 of the Immigration and Nationality Act [8 U.S.C. 1255] in the case of an alien who, as of September 1, 1989, is present in the United States in the status of a nonimmigrant under section 101(a)(15)(H)(i) of such Act [8 U.S.C. 1101(a)(15)(H)(i)] to perform services as a registered nurse, who, as of September 1, 1989, is present in the United States and had been admitted to the United States in the status of nonimmigrant under section 101(a)(15)(H)(i) of such Act to perform services as a registered nurse but has failed to maintain that status due to the expiration of the time limitation with respect to such status, or who is the spouse or child of such an alien, unauthorized employment performed before the date of the enactment of the Immigration Act of 1990 [Nov. 29, 1990] shall not be taken into account in applying section 245(c)(2) of the Immigration and Nationality Act and such an alien shall be considered as having continued to maintain lawful status throughout his or her stay in the United States as a nonimmigrant until the end of the 120-day period beginning on the date the Attorney General promulgates regulations carrying out the amendments made by section 162(f)(1) of the Immigration Act of 1990 [Pub. L. 101–649, amending this note].

“(c) Application of Immigration and Nationality Act Provisions.—The definitions contained in the Immigration and Nationality Act [8 U.S.C. 1101 et seq.] shall apply in the administration of this section. The fact that an alien may be eligible to be granted the status of having been lawfully admitted for permanent residence under this section shall not preclude the alien from seeking such status under any other provision of law for which the alien may be eligible.

“(d) Application Period.—The alien, and accompanying spouse and children, must apply for such adjustment within the 5-year period beginning on the date the Attorney General promulgates regulations required under subsection (a).”

[Section 302(e)(10) of Pub. L. 102–232 provided that the amendment made by that section to section 2(b) of Pub. L. 101–238, set out above, is effective as if included in the Immigration Nursing Relief Act of 1989, Pub. L. 101–238.]

[Section 307(l) of Pub. L. 102–232 provided that the amendment made by that section to section 2(a)(3) of Pub. L. 101–238, set out above, is effective as if included in section 603(a) of the Immigration Act of 1990, Pub. L. 101–649.]

Adjustment of Status for Certain Soviet and Indochinese Parolees

Pub. L. 101–167, title V, §599E, Nov. 21, 1989, 103 Stat. 1263, as amended by Pub. L. 101–513, title V, §598(b), Nov. 5, 1990, 104 Stat. 2063; Pub. L. 101–649, title VI, §603(a)(22), Nov. 29, 1990, 104 Stat. 5084; Pub. L. 102–232, title III, §307(l)(9), Dec. 12, 1991, 105 Stat. 1757; Pub. L. 102–391, title V, §582(a)(2), (b)(2), Oct. 6, 1992, 106 Stat. 1686; Pub. L. 102–511, title IX, §905(b)(2), Oct. 24, 1992, 106 Stat. 3356; Pub. L. 103–236, title V, §512(2), Apr. 30, 1994, 108 Stat. 466; Pub. L. 103–416, title II, §219(bb), Oct. 25, 1994, 108 Stat. 4319, provided that:

“(a) In General.—The Attorney General shall adjust the status of an alien described in subsection (b) to that of an alien lawfully admitted for permanent residence if the alien—

“(1) applies for such adjustment,

“(2) has been physically present in the United States for at least 1 year and is physically present in the United States on the date the application for such adjustment is filed,

“(3) is admissible to the United States as an immigrant, except as provided in subsection (c), and

“(4) pays a fee (determined by the Attorney General) for the processing of such application.

“(b) Aliens Eligible for Adjustment of Status.—The benefits provided in subsection (a) shall only apply to an alien who—

“(1) was a national of an independent state of the former Soviet Union, Estonia, Latvia, Lithuania, Vietnam, Laos, or Cambodia, and

“(2) was inspected and granted parole into the United States during the period beginning on August 15, 1988, and ending on September 30, 1996, after being denied refugee status.

“(c) Waiver of Certain Grounds for Inadmissibility.—The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) of the Immigration and Nationality Act [8 U.S.C. 1182(a)(4), (5), (7)(A)] shall not apply to adjustment of status under this section and the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an adjustment for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

“(d) Date of Approval.—Upon the approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission as a lawful permanent resident as of the date of the alien's inspection and parole described in subsection (b)(2).

“(e) No Offset in Number of Visas Available.—When an alien is granted the status of having been lawfully admitted for permanent residence under this section, the Secretary of State shall not be required to reduce the number of immigrant visas authorized to be issued under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.].”

[Section 307(l) of Pub. L. 102–232 provided that the amendment made by that section to section 599E of Pub. L. 101–167, set out above, is effective as if included in section 603(a) of the Immigration Act of 1990, Pub. L. 101–649.]

Adjustment of Status of Nonimmigrant Aliens Residing in the Virgin Islands to Permanent Resident Alien Status

Pub. L. 97–271, Sept. 30, 1982, 96 Stat. 1157, as amended by Pub. L. 101–649, title I, §162(e)(6), Nov. 29, 1990, 104 Stat. 5011, provided that:

“short title and findings

“Section 1. (a) This Act may be cited as the ‘Virgin Islands Nonimmigrant Alien Adjustment Act of 1982’.

“(b) Congress finds—

“(1) that in order to eliminate the uncertainty and insecurity of aliens who—

“(A) legally entered the Virgin Islands of the United States as nonimmigrants for employment under the temporary alien labor program,

“(B) have continued to reside in the Virgin Islands for long periods (some for as long as twenty years), and

“(C) have contributed to the economic, social, and cultural development of the Virgin Islands and have become an integral part of the society of the Virgin Islands,

it is necessary and equitable to provide for the orderly adjustment of their immigration status to that of permanent resident aliens; and

“(2) because—

“(A) the Congress has special responsibility and authority with respect to the territories and the establishment of immigration policy, and

“(B)(i) the Virgin Islands is a small and densely populated insular territory with limited resources,

“(ii) most of the aliens eligible for benefits under section 2 of this Act are natives of islands in the Caribbean and have relatives residing in such islands, and such relatives, if they were permitted to immigrate to the United States, are likely to settle in the Virgin Islands, and

“(iii) the admission of a significant number of these relatives would have a severe and detrimental impact on the limited health, education, housing, and other services available in the Virgin Islands,

there is a necessary and compelling need to prevent a secondary migration of a significant number of such relatives to the Virgin Islands.

“adjustment of immigration status

“Sec. 2. (a) The status of any alien described in subsection (b) 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 the alien—

“(1) makes application for such adjustment during the one-year period beginning on the date of the enactment of this Act [Sept. 30, 1982],

“(2) is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except for the grounds of exclusion specified in paragraphs (14), (20), (21), (25), and (32), of section 212(a) of the Immigration and Nationality Act [section 1182(a)(14), (20), (21), (25), and (32) of this title] (hereinafter in this Act referred to as ‘the Act’), and

“(3) is physically present in the Virgin Islands of the United States at the time of filing such application for adjustment.

If such an alien has filed such an application and is or becomes deportable for failure to maintain nonimmigrant status, the Attorney General shall defer the deportation of the alien until final action is taken on the alien's application for adjustment.

“(b) The benefits provided by subsection (a) apply to any alien who—

“(1) was inspected and admitted to the Virgin Islands of the United States either as a nonimmigrant alien worker under section 101(a)(15)(H)(ii) of the Act [section 1101(a)(15)(H)(ii) of this title] or as a spouse or minor child of such worker, and

“(2) has resided continuously in the Virgin Islands of the United States since June 30, 1975.

“(c)(1) The numerical limitations described in sections 201(a) and 202 of the Act [sections 1151(a) and 1152 of this title] shall not apply to an alien's adjustment of status under this section. Such adjustment of status shall not result in any reduction in the number of aliens who may acquire the status of an alien lawfully admitted to the United States for permanent residence under the Act [this chapter].

“(2) The Secretary of State, in his discretion and after consultation with the Secretary of the Interior and the Governor of the Virgin Islands of the United States, may limit the number of immigrant visas that may be issued in any fiscal year to aliens with respect to whom second preference petitions (filed by aliens who have had their status so adjusted) are approved.

“(3) Notwithstanding any other provision of law, no alien shall be eligible to receive an immigrant visa (or to otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence)—

“(A) by virtue of a fourth or fifth preference petition filed by an individual who had his status adjusted under this section unless the individual establishes to the satisfaction of the Attorney General that exceptional and extremely unusual hardship exists for permitting the alien to receive such visa (or otherwise acquire such status); or

“(B) by virtue of a second preference petition filed by an individual who was admitted to the United States as an immigrant by virtue of an immediate relative petition filed by the son or daughter of the individual, if that son or daughter had his or her status adjusted under this section.

“(4) For purposes of this subsection, the terms ‘second preference petition’, ‘fourth preference petition’, ‘fifth preference petition’, and ‘immediate relative petition’ mean, in the case of an alien, a petition filed under section 204(a) of the Act [section 1154(a) of this title] to grant preference status to the alien by reason of the relationship described in section 203(a)(2), 203(a)(4), 203(a)(5), or 201(b), respectively, of the Act [section 1153(a)(2), (4), (5), or 1151(b) of this title] (as in effect before October 1, 1991) or by reason of the relationship described in section 203(a)(2), 203(a)(3), or 203(a)(4), or 201(b)(2)(A)(i), respectively, of such Act (as in effect on or after such date).

“(d) Except as otherwise specifically provided in this section, the definitions contained in the Act [this chapter] shall apply in the administration of this section. Nothing contained in this Act [this chapter] shall be held to repeal, amend, alter, modify, effect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Act [this chapter] or any other law relating to immigration, nationality, and naturalization. The fact that an alien may be eligible to be granted the status of having been lawfully admitted for permanent residence under this section shall not preclude him from seeking such status under any other provision of law for which he may be eligible.

“termination of temporary worker program in the virgin islands

“Sec. 3. Notwithstanding any other provision of law, on and after the date of the enactment of this Act [Sept. 30, 1982] the Attorney General shall not approve any petition filed under section 214(c) of the Act [section 1184(c) of this title] in the case of importing any alien as a nonimmigrant under section 101(a)(15)(H)(ii) of such Act [section 1101(a)(15)(H)(ii) of this title] for employment in the Virgin Islands of the United States other than for employment as an entertainer or as an athlete and for a period not exceeding forty-five days.

“impact assessment and report

“Sec. 4. The Secretaries of Health and Human Services, Education, Housing and Urban Development, Labor, and the Interior, and the Attorney General, in consultation with officials of the Government of the Virgin Islands of the United States and within such amounts as may otherwise be available through appropriations, shall jointly assess the impact on the Government of the Virgin Islands of providing health, education, housing, and other social services to individuals whose status is adjusted under section 2 of this Act (and to relatives of such individuals who enter the Virgin Islands as a result of such adjustment) and the need for assistance to the Government of the Virgin Islands to assist it in meeting the needs of these individuals and relatives. They shall, within one year after the date of the enactment of this Act [Sept. 30, 1982], report to the President and the Congress on the results of their assessment and on any recommendations for changes in legislation which may be appropriate.”

Development of Eligibility Criteria for Admission of Refugees From Cambodia

Pub. L. 95–624, §16, Nov. 9, 1978, 92 Stat. 3465, provided that: “The Attorney General, in consultation with the Congress, shall develop special eligibility criteria under the current United States parole program for Indochina Refugees which would enable a larger number of refugees from Cambodia to qualify for admission to the United States.”

Indochina Refugees; Adjustment of Status

Pub. L. 95–145, title I, §§101–107, Oct. 28, 1977, 91 Stat. 1223, as amended by Pub. L. 96–212, title II, §203(i), Mar. 17, 1980, 94 Stat. 108, provided:

“Sec. 101. That (a) the status of any alien described in subsection (b) of this section 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 within six years after the date of enactment of this title [Oct. 28, 1977];

“(2) the alien is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except for the grounds for exclusion specified in paragraph (14), (15), (20), (21), (25), and (32) of section 212(a) of the Immigration and Nationality Act [section 1182(a)(14), (15), (20), (21), (25), and (32) of this title]; and

“(3) the alien has been physically present in the United States for at least one year.

“(b) The benefits provided by subsection (a) shall apply to any alien who is a native or citizen of Vietnam, Laos, or Cambodia and who—

“(1) was paroled into the United States as a refugee from those countries under section 212(d)(5) of the Immigration and Nationality Act [section 1182(d)(5) of this title] subsequent to March 31, 1975, but prior to January 1, 1979; or

“(2) was inspected and admitted or paroled into the United States on or before March 31, 1975, and was physically present in the United States on March 31, 1975.

“Sec. 102. Upon approval of an application for adjustment of status under section 101 of this title [this note], the Attorney General shall establish a record of the alien's admission for permanent residence as of March 31, 1975, or the date of the alien's arrival in the United States, whichever date is later.

“Sec. 103. Any alien determined to be eligible for lawful admission for permanent residence under this title who acquired that status under the provisions of the Immigration and Nationality Act [this chapter] prior to the date of enactment of this title [Oct. 28, 1977] may, upon application, have his admission for permanent residence recorded as of March 31, 1975, or the date of his arrival in the United States, whichever date is later.

“Sec. 104. When an alien has been granted the status of having been lawfully admitted to the United States for permanent residence pursuant to this title [this note], his spouse and children, regardless of nationality, may also be granted such status by the Attorney General, in his discretion and under such regulations he may prescribe, if they meet the requirements specified in section 101(a) of this title. Upon approval of the application, the Attorney General shall create a record of the alien's admission for permanent residence as of the date of the record of admission of the alien through whom such spouse and children derive benefits under this section.

“Sec. 105. Any alien who ordered, assisted, or otherwise participated in the persecution of any person because of race, religion, or political opinion shall be ineligible for permanent residence under any provision of this title [this note].

“Sec. 106. When an alien is granted the status of having been lawfully admitted for permanent residence pursuant to the provisions of this title [this note] the Secretary of State shall not be required to reduce the number of visas authorized to be issued under the Immigration and Nationality Act [this chapter], and the Attorney General shall not be required to charge the alien any fee.

“Sec. 107. Except as otherwise specifically provided in this title [this note], the definitions contained in the Immigration and Nationality Act [this chapter] shall apply in the administration of this title. Nothing contained in this title shall be held to repeal, amend, alter, modify, effect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act or any other law relating to immigration, nationality, and naturalization. The fact that an alien may be eligible to be granted the status of having been lawfully admitted for permanent residence under this title shall not preclude him from seeking such status under any other provision of law for which he may be eligible.”

Section 204(b)(1)(C) of Pub. L. 96–212 provided that the amendment of section 101(a)(3) of Pub. L. 95–145, set out above, by Pub. L. 96–212 is effective immediately before Apr. 1, 1980.

Cuban Refugees: Adjustment of Status

Pub. L. 89–732, Nov. 2, 1966, 80 Stat. 1161, as amended by Pub. L. 94–571, §8, Oct. 20, 1976, 90 Stat. 2706; Pub. L. 96–212, title II, §203(i), Mar. 17, 1980, 94 Stat. 108, provided: “That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act [subsec. (c) of this section], the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, 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 the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States.

“Sec. 2. In the case of any alien described in section 1 of this Act who prior to the effective date thereof [Nov. 2, 1966], has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act [Nov. 2, 1966], whichever date is later.

“Sec. 3. Section 13 of the Act entitled ‘An Act to amend the Immigration and Nationality Act, and for other purposes’, approved October 3, 1965 (Public Law 89–236) [amending subsecs. (b) and (c) of this section] is amended by adding at the end thereof the following new subsection:

“ ‘(c) Nothing contained in subsection (b) of this section [amending subsec. (c) of this section] shall be construed to affect the validity of any application for adjustment under section 245 [this section] filed with the Attorney General prior to December 1, 1965, which would have been valid on that date; but as to all such applications the statutes or parts of statutes repealed or amended by this Act [Pub. L. 89–236] are, unless otherwise specifically provided therein, continued in force and effect.’

“Sec. 4. Except as otherwise specifically provided in this Act, the definitions contained in section 101(a) and (b) of the Immigration and Nationality Act [section 1101(a), (b) of this title] shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act [this chapter] or any other law relating to immigration, nationality, or naturalization.

“Sec. 5. The approval of an application for adjustment of status to that of lawful permanent resident of the United States pursuant to the provisions of section 1 of this Act shall not require the Secretary of State to reduce the number of visas authorized to be issued in any class in the case of any alien who is physically present in the United States on or before the effective date of the Immigration and Nationality Act Amendments of 1976 [see Effective Date of 1976 Amendment note above].”

Section 204(b)(1)(C) of Pub. L. 96–212 provided that the amendment of section 1 of Pub. L. 89–732, set out above, by Pub. L. 96–212 is effective immediately before Apr. 1, 1980.

Cross References

Definition of alien, Attorney General, immigrant visa, lawfully admitted for permanent residence, nonimmigrant alien, permanent, residence, and United States, see section 1101 of this title.

Section Referred to in Other Sections

This section is referred to in sections 1154, 1160, 1251, 1252b, 1254a, 1255a, 1256 of this title.

1 So in original. Two subsecs. (i) have been enacted.

2 So in original. Probably should be “paragraph”.