Barriers to Adjustment of Status Within the United States and Waivers of Inadmissibility: 245(c), Entry Without Inspection, 245(i), I-601A

01

245(c) Status-Violation Bars and the Immediate-Relative Exception

The Policy Manual explains that the bars under 245(c)(2), such as failure to maintain lawful status and violations of visa conditions, do not apply to exempt groups such as immediate relatives; others may be barred from adjustment even for a single day of violation, no matter how long ago it occurred.

This is only an exception to the “bars to adjustment of status” and does not eliminate the issue of “entry without inspection”: most adjustment categories still require the applicant to have been inspected and admitted or paroled. Exceptions, such as VAWA self-petitioners and the 245(i) grandfathering provision, must each be evaluated under the applicable official rules.

02

The 3-Year / 10-Year Unlawful-Presence Bars to Admission

8 U.S.C. 1182(a)(9)(B): A person who departs after accruing more than 180 days but less than 1 year of unlawful presence in the United States is inadmissible for 3 years; a person who departs after accruing 1 year or more is inadmissible for 10 years. This bar is triggered upon departure and is distinct from the bars to adjustment of status within the United States.

03

The 245(i) Grandfathering Provision

The beneficiary must have a qualifying I-130, I-140, or labor certification (ETA-750) filed on or before 2001-04-30; if it was filed between 1998-01-15 and 2001-04-30, the principal beneficiary must have been physically present in the United States on 2000-12-21. Form I-485 and Supplement A must be filed, and the applicant must be physically present in the United States at the time of filing. The spouse or children of a grandfathered individual may also benefit, depending on the circumstances.

04

I-601A Provisional Unlawful Presence Waiver

I-601A allows people who must leave the United States to process an immigrant visa and who are inadmissible solely because of unlawful presence to first apply for a waiver while in the United States. They must demonstrate that denial of admission would cause extreme hardship to a U.S. citizen or permanent resident spouse or parent—children are not qualifying relatives. Even after approval, they must still depart for processing at a U.S. embassy or consulate; those in removal proceedings are generally ineligible unless the proceedings have been administratively closed.

Those who do not qualify for or do not choose I-601A may still file I-601 from outside the United States; the requirements for the two differ.

05

General Procedural Principles

After I-130 approval, those who are in the United States and meet the eligibility requirements file I-485 (a medical examination, interview, or additional evidence may be required); those who do not qualify for adjustment apply to the Department of State for an immigrant visa. This website only explains the rules and does not reach conclusions about whether adjustment or a waiver is available in an individual case.