& 1255

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 fiancee or fiance 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.

1

(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

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

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 fiancee or fiance 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 non

immigrant 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.

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 Presi-
dent 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)AXI) 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."