Pursuant to Part 242 of this chapter and section 244 of the Act a special inquiry officer in his discretion may authorize the suspension of an alien's deportation; or, if the alien establishes that he is willing and has the immediate means with which to depart promptly from the United States, a special inquiry officer in his discretion may authorize the alien to depart voluntarily from the United States in lieu of deportation within such time as may be specified by the special inquiry officer when first authorizing voluntary departure, and under such conditions as the district director shall direct. An application for suspension of deportation shall be made on Form I-256A. § 244.2 Extension of time to depart. Authority to extend the time within which to depart voluntarily specified initially by a special inquiry officer or the Board is within the sole jurisdiction of the district director. A request by an alien for an extension of time within which to depart voluntarily shall be filed with the district director having jurisdiction over the alien's place of residence. Written notice of the district director's decision shall be served upon the alien, and no appeal may be taken therefrom. The basis and purpose of the aboveprescribed rules is to authorize a special inquiry officer to specify the time during which the respondent who has been granted voluntary departure may depart, fix the responsibility for extending initially authorized voluntary departure time with the district director, and permit the special inquiry officer to grant a stay of deportation in connection with a motion to reopen or reconsider filed in a deportation proceeding. (a) General. An alien who on arrival in the United States was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act. An alien who is a native of any country of the Western Hemisphere or of any adjacent island named in section 101 (b) (5) of the Act is not eligible for the benefits of section 245 of the Act. An alien who has been allocated an immigrant visa number and who entered the United States conditionally pursuant to section 203 (a) (7) of the Act, is not eligible for the benefits of section 245 of the Act unless he qualifies as an immediate relative pursuant to section 201(b) of the Act on the basis of a visa petition approved in his behalf. (b) Exchange aliens. Pursuant to section 212(e) of the Act, an alien who has or has had the status of an exchange alien or of a nonimmigrant under section 101(a) (15) (J) of the Act and who is subject to the foreign residence requirement of section 212(e) of the Act is not eligible for status as a permanent resident under section 214(d) of the Act, section 245 of the Act, section 13 of the Act of September 11, 1957, or section 1 of the Act of November 2, 1966, unless he has complied with the foreign residence requirement of that section or has been granted a waiver thereof. (c) Officials and treaty aliens. An alien who has a nonimmigrant status (f) Concurrent applications to overcome exclusionary grounds. Except as provided in Parts 235 and 249 of this chapter, an application under this part shall be the sole method of requesting the exercise of discretion under sections 212 (g), (h), and (i) of the Act, insofar as they relate to the excludability of an alien in the United States. An applicant for adjustment under this part may also apply for the benefits of section 212(c) of the Act, for permission to reapply after deportation or removal and for the benefits of section 212(a) (28) (I) (ii) of the Act. under paragraph (15)(A), (15) (E), or he is within Schedule A (29 CFR Part (15) (G) of section 101 (a) of the Act, or 60). has an occupational status which would, if he were seeking admission to the United States, entitle him to a nonimmigrant status under any of such paragraphs of section 101 (a) of the Act is not eligible for the benefits of section 245 of the Act, section 13 of the Act of September 11, 1957, or section 1 of the Act of November 2, 1966, unless he first executes and submits with his application the written waiver required by section 247(b) of the Act and Part 247 of this chapter. A member of the immediate family of an alien having status under section 101 (a) (15) (A) or (G) of the Act, and a spouse or child of an alien having status under section 101(a) (15) (E) of the Act may apply for adjustment of status only if such member, spouse, or child executes the written waiver required by section 247(b) of the Act, irrespective of whether the principal alien also applies for adjustment and executes such waiver. (d) Immediate relatives under section 201(b) and preference aliens under section 203(a)(1) through 203(a)(7). An applicant who claims immediate relative status under section 201(b) or preference status under section 203(a) (1) through 203 (a) (6) of the Act is not eligible for the benefits of section 245 of the Act unless he is the beneficiary of a valid unexpired visa petition filed in accordance with Part 204 of this chapter and approved to accord him such status. An alien who claims preference status under the proviso to section 203 (a) (7) of the Act is not eligible for the benefis of section 245 of the Act and as provided in § 245.4, unless the district director has approved the alien's Application for Classification as a Refugee under the Proviso to Section 203 (a) (7), Immigration and Nationality Act. (e) Nonpreference aliens. An applicant who is a nonpreference alien seeking adjustment of status for the purpose of engaging in gainful employment in the United States, and who is not exempted under § 212.8(b) of this chapter from the labor certification requirement of section 212a (a) (14) of the Act, is ineligible for the benefits of section 245 of the Act unless an individual labor certification is issued by the Secretary of Labor or his designated representative, or unless the applicant establishes that (g) Availability of immigrant visas under section 245 and priority dates-(1) Availability of immigrant visas under section 245. If the applicant for adjustment of status under section 245 of the Act is a preference or nonpreference alien, the current Department of State Visa Office Bulletin on Availability of Immigrant Visa Numbers will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 if the applicant has a priority date on the waiting list which is not more than 90 days later than the date shown in the Bulletin or the Bulletin shows that numbers for visa applicants in his category are current. Information as to the immediate availability of an immigrant visa may be obtained at the nearest Service office. (2) Priority dates. The priority date of an applicant who is seeking the allotment of an immigrant visa number under one of the first six preference classes specified in section 203 (a) of the Act by virtue of a valid visa petition approved in his behalf shall be fixed by the date on which such approved petition was filed. The priority date of an applicant who is seeking the allotment of a nonpreference immigrant visa number shall be fixed by the following factors, whichever is the earliest: (i) The priority date accorded the applicant by the consular officer as a nonpreference immigrant; (ii) the date on which Form I-485 is filed if the applicant establishes that he is a member of a profession or a person with exceptional ability in the sciences or arts not included in Schedule A (29 CFR Part 60) provided a certification is issued on that basis, or that he is within the Department of Labor's Schedule A (29 CFR Part 60), or that the provisions of section 212(a) (14) of the Act do not apply to him; or (iii) the date on which an approved valid third or sixth preference visa petition in his behalf was filed; or (iv) the date an application for certification based on a job offer was accepted for processing by any office within the employment service system of the Department of Labor, provided the certification applied for was issued. A nonpreference priority date, once established, is retained by the alien even though at the time a visa number becomes available and he is allotted a nonpreference visa number he meets the provisions of section 212(a) (14) of the Act by some means other than that by which he originally established entitlement to the nonpreference priority date. [30 F.R. 14778, Nov. 30, 1965, as amended at 31 F.R. 535; Jan. 15, 1966; 31 FR. 2373, Feb. 4, 1966; 31 F.R. 15235, Dec. 6, 1966; 32 F.R. 9632, July 4, 1967; 34 F.R. 7328, May 6, 1969; 35 F.R. 5960, Apr. 10, 1970; 36 F.R. 5836, Mar. 30, 1971; 36 F.R. 18784, Sept. 22, 1971] § 245.2 Application. (a) General-(1) Jurisdiction. An applicant for adjustment of status as a nonpreference alien under section 245 of the Act must submit Forms MA 7-50A with his application if he is qualified for and will be engaged in an occupation currently listed in Schedule A or Schedule C-Precertification List (29 CFR Part 60) when the latter list has not been suspended, or if he is a member of a profession for which the Secretary of Labor does not require a job offer, or if he has exceptional ability in the sciences or the arts. In any other case, an alien who believes that he meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, and § 245.1, shall apply to the district director having jurisdiction over his place of residence. (2) Filing application. Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available only upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If a visa petition is submitted simultaneously with the adjustment application, the adjust ment application shall be retained and processed only if the petition is found to be in order for approval upon initial review by an immigration officer, is approved, and approval makes a visa immediately available. If the petition is returned to the petitioner for any reason, or decision thereon is deferred for investigation, interview, labor certification or consultation with another Government agency, or if the petition is denied, the adjustment application shall not be considered as having been properly filed. An application for adjustment of status under section 245 of the Act as a nonpreference alien shall not be considered properly filed unless the applicant establishes that he is entitled to a priority date for allotment of a nonpreference visa number in accordance with 245.1(g) (2) and that a visa is immediately available within the contemplation of § 245.1 (g) (1). A nonpreference alien for whom a visa is not immediately available may not file an application for adjustment of status, but may seek to establish a nonpreference priority date through an application for an immigrant visa at a United States consular office. The application under section 245 of the Act shall be made on Form I485, while the application under section 1 of the Act of November 2, 1966, shall be made on Form I-485A. Each application shall be accompanied by executed Form G-325A, if the applicant has reached his 14th birthday, which shall be considered as part of the application. An application under this subparagraph shall be accompanied by the documents specified in the instructions which are attached to the application. (3) Departure. The departure from the United States of an applicant under section 245 of the Act prior to decision in his case shall be deemed an abandonment of his application constituting grounds for termination thereof unless he had previously been granted permission by the Service for such absence and he was thereafter inspected upon his return, or it is determined by the officer having jurisdiction over his application that his departure was unintended or innocent and casual, that his absence was brief, and that he was inspected upon his return. If the determination reached is favorable to the applicant, the application shall be adjudicated without regard to the departure and absence. In determining the date of "last arrival" within the meaning of section 1 of the Act of November 2, 1966, in the case of an applicant who was inspected and admitted or paroled into the United States subsequent to January 1, 1959, and who subsequently departed temporarily with no intention of abandoning his residence in the United States and was readmitted or paroled into the United States upon his return, the date of the applicant's arrival after such temporary absence or absences shall not be included. (4) Decision. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter. An applicaton for adjustment of status under section 245 of the Act as a preference or nonpreference alien shall not be approved until an immigrant visa number has been allocated by the Department of State. (b) Application by nonpreference alien seeking adjustment of status for purpose of engaging in gainful employment—(1) Alien whose occupation is included in Schedule A (29 CFR Part 60), or who is a member of the professions, or has exceptional ability in the sciences or arts. An applicant for adjustment of status as a nonpreference alien under section 245 of the Act who is subject to the labor certification requirement of section 212 (a) (14) of the Act must submit Form MA 7-50A with his application, if he is qualified for and will be engaged in an occupation currently listed in Schedule A (29 CFR Part 60), or if he is a member of a profession or has exceptional ability in the sciences or arts. The Forms MA 750A must be executed in accordance with the instructions for completion of that form, and must be accompanied by the evidence of the applicant's qualifications specified in the instructions attached to the application for adjustment of status. The other documents specified in paragraph (a) of this section must also be submitted in support of the application for adjustment of status. Determination concerning certification under section 212(a) (14) of the Act will be made in accordance with the pertinent provisions of § 204.2(e) (4) of this chapter. (2) Other nonpreference aliens who will engage in gainful employment. An applicant for adjustment of status as a nonpreference alien under section 245 of the Act, who is subject to the labor certification requirement of section 212 (a) (14) of the Act, must submit the certification with his application if he is not a member of a profession, is not a person with exceptional ability in the sciences or the arts, and is unqualified for a category of employment currently listed in Schedule A (29 CFR Part 60). The applicant's employer or prospective employer may apply for the certification to the local State Employment Service. (c) Application under section 2 of the Act of November 2, 1966. An application by a native or citizen of Cuba or by his spouse or child residing in the United States with him, who was lawfully admitted to the United States for permanent residence prior to November 2, 1966, and who desires such admission to be recorded as of an earlier date pursuant to section 2 of the Act of November 2, 1966, shall be made on Form I-485A. The application shall be accompanied by the Alien Registration Receipt Card, Form I-151, issued to the applicant in connection with his lawful admission for permanent residence, and shall be submitted to the district director having jurisdiction over the applicant's place of residence in the United States. The decision on the application shall be made by the district director. No appeal shall lie from his decision. If the application is approved, the applicant will be furnished with a replacement of his Form I-151 bearing the new date as of which the lawful admission for permanent residence has been recorded. (d) Application under section 214(d). An application for permanent resident status pursuant to section 214(d) of the Act shall be filed on Form I-485 with the district director having jurisdiction over the applicant's place of residence. A separate application shall be filed by each applicant. If the application is approved, the district director shall record the lawful admission of the applicant as of the date of approval. The fee previously paid for filing the application shall be considered payment of the required visa fees, as of the date of the approval of the application. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter. [30 F.R. 14778, Nov. 30, 1965, as amended at 31 F.R. 15235, Dec. 6, 1966; 33 F.R. 17136, Nov. 19, 1968; 34 F.R. 14761, Sept. 25, 1969; 35 F.R. 5960, Apr. 10, 1970; 36 F.R. 5836, Mar. 30, 1971; 36 F.R. 7415, Apr. 20, 1971; 36 F.R. 14830, Aug. 7, 1971; 36 F.R. 18784, Sept. 22, 1971; 36 F.R. 23619, Dec. 11 1971] $ 245.3 Adjustment of status under section 13 of the Act of September 11, 1957. An application for the benefits of section 13 of the Act of September 11, 1957, shall be filed on Form I-485 with the district director having jurisdiction over the applicant's place of residence. The benefits of section 13 of the Act of September 11, 1957, shall be accorded only to an alien admitted to the United States under the provisions of either section 101 (a) (15) (A) (i) or (ii) or 101(a) (15) (G) (i) or (ii) of the Act who performed diplomatic or semidiplomatic duties and to members of his immediate family. Aliens whose duties were of a custodial, clerical, or manual nature, and members of their immediate families, are not eligible. In view of the annual limitation of 50 on the number of aliens whose status may be adjusted under section 13 of the Act of September 11, 1957, an alien who is prima facie eligible for adjustment of status to that of a lawful permanent resident under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. An applicant for the benefits of section 13 of the Act of September 11, 1957 shall not be subject to the labor certification requirement of section 212(a) (14) of the Act. The applicant shall be notified of the decision and if the application is denied of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter. [30 F.R. 14779, Nov. 30, 1965, as amended at 31 F.R. 6196, April 22, 1966; 32 F.R. 9632, July 4, 1967] suant to section 203 (a) (7) of the Act shall execute and attach to his application for adjustment a Form I-590A, Application for Classification as a Refugee under the proviso to section 203 (a) (7), Immigration and Nationality Act. The determination as to whether an alien is entitled to the claimed preference status shall be made by the district director; no appeal shall lie from his determination. [34 F.R. 19799, Dec. 18, 1969, as amended at 36 F.R. 23866, Dec. 16, 1971] 245.5 Documentary requirements. The provisions of Part 211 of this chapter relating to the documentary requirements for immigrants shall not apply to an applicant under this part. [30 F.R. 14779, Nov. 30, 1965] § 245.6 Medical examination. Upon acceptance of an application, the applicant shall be required to submit to an examination by a medical officer of the United States Public Health Service, or by a designated civil surgeon, whose report setting forth the findings of the mental and physical condition of the applicant shall be incorporated into the record. Any applicant certified under paragraph (1), (2), (3), (4), or (5) of section 212 (a) of the Act may appeal to a board of medical officers of the U.S. Public Health Service as provided in section 234 of the Act and Part 235 of this chapter. [30 F.R. 14779, Nov. 30, 1965, as amended at 36 F.R. 7415, Apr. 20, 1971] § 245.7 Interview. |