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and any other requests for benefits that derive from the adjustment application, unless Supplement A to Form I-485 and any required additional sum is filed within 30 days of the date of the notice. If the application for adjustment of status is pending before the Executive Office for Immigration Review, the Executive Office for Immigration Review will deny the application and permit the applicant to file a motion to reopen in accordance with $$ 3.2(c) and 3.23 of this chapter along with proof of payment to the Immigration and Naturalization Service of the additional sum within 30 days of the denial.

(e) Applications for Adjustment of Status filed before October 1, 1994. The provisions of section 245(i) of the Act shall not apply to an application for adjustment of status that was filed before October 1, 1994. The provisions of section 245(i) of the Act also shall not apply to a motion to reopen or reconsider an application for adjustment of status if the application for adjustment of status was filed before October 1, 1994. An applicant whose pre-October 1, 1994, application for adjustment of status has been denied may file a new application for adjustment of status pursuant to section 245(i) of the Act on or after October 1, 1994, and before October 23, 1997, or any other such date as Congress may determine in an extension of section 245(i), provided that such new application is accompanied by: the required fee; Supplement A to Form I485; and additional sum required by section 245(i) of the Act; and all other required initial and additional evidence.

(f) Completion of processing of pending applications. (1) An application for adjustment of status filed on or after October 1, 1994, and before October 23, 1997 or any other such date as Congress may determine in an extension of section 245(i) of the Act, shall be adjudicated to completion by an officer of the Service or by the Executive Office for Immigration Review, regardless of whether the final decision is made after the termination of this program. The provisions of paragraph (d) of this section regarding amended applications shall apply to all such applications. The Service or the Executive Office for Immigration

Review may consider a motion to open or reconsider an application for adjustment of status on the basis of section 245(i) if the applicant submitted a copy of the application for adjustment of status, a copy of Supplement A to Form I-485, and any other required documentation on or after October 1, 1994, and before October 23, 1997 or any other such date as Congress may determine in an extension of section 245(i). However, in order to receive the benefit of a motion to reopen or reconsider that has been granted, the applicant must have remitted to the Immigration and Naturalization Service before October 23, 1997 or any other such date as Congress may determine in an extension of section 245(i), any additional sum required by section 245(i). Even if a motion to reopen or reconsider is granted, failure to pay the additional sum to the Immigration and Naturalization Service before October 23, 1997 or any other such date as Congress may determine in an extension of 245(i) will result in the ultimate denial of the application for adjustment of status.

(2) Any application for adjustment of status submitted pursuant to section 245(i) and considered in deportation or removal proceedings must be filed between October 1, 1994, and October 23, 1997 or any other such date as Congress may determine in an extension of section 245(i).

(g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status. Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the Act, persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. Any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Act.

(59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20. 1994, as amended at 62 FR 10384, Mar. 6, 1997; 62 FR 39424, July 23, 1997; 62 FR 55153, Oct. 23, 1997]

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8245.11 Adjustment of aliens in S non

immigrant classification. (a) Eligibility. An application on Form 1-854, requesting that an alien witness or informant in S nonimmigrant classification be allowed to adjust status to that of lawful permanent resident, may only be filed by the federal or state law enforcement authority (“LEA") (which shall include a federal or state court or a United States Attorney's Office) that originally requested S classification for the alien. The completed application shall be filed with the Assistant Attorney General, Criminal Division, Department of Justice, who will forward only properly certified applications to the Commissioner, Immigration and Naturalization Service, for approval. Upon receipt of an approved Form 1-854 allowing the S immigrant to adjust status to that of lawful permanent resident, the alien may proceed to file with that Form, Form I-485, Application to Register Permanent Residence or Adjust Status, pursuant to the following process.

(1) Request to allow S nonimmigrant to apply for adjustment of status to that of lawful permanent resident. The LEA that requested S nonimmigrant classification for an S nonimmigrant witness or informant pursuant to section 101(a)(15)(S) of the Act may request that the principal s nonimmigrant be allowed to apply for adjustment of status by filing Form I-854 with the Assistant Attorney General, Criminal Division, in accordance with the instructions on, or attached to, that form and certifying that the alien has fulfilled the terms of his or her admission and classification. The same Form I-854 may be used by the LEA to request that the principals nonimmigrant's spouse, married and unmarried sons and daughters, regardless of age, and parents who are in derivative S nonimmigrant classification and who are qualified family members as described in paragraph (b) of this section similarly be allowed to apply for adjustment of status pursuant to section 101(a)(15)(S) of the Act.

(2) Certification. Upon receipt of an LEA's request for the adjustment of an alien in S nonimmigrant classification on Form 1-854, the Assistant Attorney General, Criminal Division, shall re

view the information and determine whether to certify the request to the Commissioner in accordance with the instructions on the form.

(3) Submission of requests for adjustment of status to the Commissioner. No application by an LEA on Form I-854 requesting the adjustment to lawful permanent resident status of an S nonimmigrant shall be forwarded to the Commissioner unless first certified by the Assistant Attorney General, Criminal Division.

(4) Decision on request to allow adjustment of snonimmigrant. The Commissioner shall make the final decision on a request to allow an S nonimmigrant to apply for adjustment of status to lawful permanent resident.

(i) In the event the Commissioner decides to deny an application on Form I854 to allow an S nonimmigrant to apply for adjustment of status, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to deny.

(ii) Upon approval of the request on Form I-854, the Commissioner shall forward a copy of the approved form to the Assistant Attorney General and the S nonimmigrant, notifying them that the S nonimmigrant may proceed to file Form I-485 and request adjustment of status to that of lawful permanent resident, and that, to be eligible for adjustment of status, the nonimmigrant must otherwise:

(A) Meet the requirements of paragraph (b) of this section, if requesting adjustment as a qualified family member of the certified principal S nonimmigrant witness or informant;

(B) Be admissible to the United States as an immigrant, unless the

non

non

ground of inadmissibility has been waived;

(C) Establish eligibility for adjustment of status under all provisions of section 245 of the Act, unless the basis for ineligibility has been waived; and

(D) Properly file with his or her Form 1-485, Application to Register Permanent Residence or Adjust Status, the approved Form I-854.

(b) Family members—(1) Qualified family members. A qualified family member of an S nonimmigrant includes the spouse, married or unmarried son or daughter, or parent of a principal S nonimmigrant who meets the requirements of paragraph (a) of this section, provided that:

(i) The family member qualified as the spouse, married or unmarried son or daughter, or parent (as defined in section 101(b) of the Act) of the principal S nonimmigrant when the family member was admitted as or granted a change of status to that of a immigrant under section 101(a)(15)(S) of the Act;

(ii) The family member was admitted in S nonimmigrant classification to accompany, or follow to join, the principal S-5 or S-6 alien pursuant to the LEA's request;

(iii) The family member is not inadmissible from the United States as a participant in Nazi persecution genocide described in section 212(a)(3)(E) of the Act;

(iv) The qualifying relationship continues to exist; and

(v) The principal alien has adjusted status, has a pending application for adjustment of status or is concurrently filing an application for adjustment of status under section 101(a)(15)(S) of the Act.

(vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if the alien witness or informant has died and, in the opinion of the Attorney General, was in compliance with the terms of his or her S classification under section 245(i) (1) and (2) of the Act.

(2) Other family member. The adjustment provisions in this section do not apply to a family member who has not been classified as an S nonimmigrant pursuant to a request on Form I-854 or who does not otherwise meet the requirements of paragraph (b) of this sec

tion. However, a spouse or an unmarried child who is less than 21 years old, and whose relationship to the principal S nonimmigrant or qualified family member was established prior to the approval of the principal S immigrant's adjustment of status application, may be accorded the priority date and preference category of the principal s nonimmigrant or qualified family member, in accordance with the provisions of section 203(d) of the Act. Such a spouse or child:

(i) May use the principal S nonimmigrant or qualified member's priority date and category when it becomes current, in accordance with the limitations set forth in sections 201 and 202 of the Act;

(ii) May seek immigrant visa issuance abroad or adjustment of status to that of a lawful permanent resident of the United States when the priority date becomes current for the spouse's or child's country of chargeability under the fourth employmentbased preference classification;

(iii) Must meet all the requirements for immigrant visa issuance or adjustment of status, unless those requirements have been waived;

(iv) Is not applying for adjustment of status under 101(a)(15)(S) of the Act, is not required to file Form I-854, and is not required to obtain LEA certification; and

(v) Will lose eligibility for benefits if the child marries or has his or her twenty-first birthday before being admitted with an immigrant visa or granted adjustment of status.

(c) Waivers of inadmissibility. An alien seeking to adjust status pursuant to the provisions of section 101(a)(15)(S) of the Act may not be denied adjustment of status for conduct or a condition that:

(1) Was disclosed to the Attorney General prior to admission; and

(2) Was specifically waived pursuant to the waiver provisions set forth at section 212(d)(1) and 212(d)(3) of the Act.

(d) Application. Each S nonimmigrant requesting adjustment of status under section 101(a)(15)(S) of the Act must:

(1) File Form I-485, with the prescribed fee, accompanied by the approved Form 1-854, and the supporting

or

as

documents specified in the instructions to Form I-485 and described in 8 CFR 245.2. Secondary evidence may be submitted if the nonimmigrant is unable to obtain the required primary evidence as provided in 8 CFR 103.2(b)(2). The S nonimmigrant applying to adjust must complete Part 2 of Form I485 by checking box “h-other" and writing “S” or “S-Qualified Family Member.” Qualified family members must submit documentary evidence of the relationship to the principal S nonimmigrant witness or informant.

(2) Submit detailed and inclusive evidence of eligibility for the adjustment of status benefits of S classification, which shall include:

(i) A photocopy of all pages of the alien's most recent passport or an explanation of why the alien does not have a passport; or

(ii) An attachment on a plain piece of paper showing the dates of all arrivals and departures from the United States in S nonimmigrant classification and the reason for each departure; and

(iii) Primary evidence of a qualifying relationship to the principal s nonimmigrant, such as birth or marriage certificate. If any required primary evidence is unavailable, church or school records, or other secondary evidence may be submitted. If such documents are unavailable, affidavits may be submitted as provided in 8 CFR 103.2(b)(2). (e)

Priority date. The S immigrant's priority date shall be the date his or her application for adjustment of status as an S nonimmigrant is properly filed with the Service.

(f) Visa number limitation. An adjustment of status application under section 101(a)(15)(S) of the Act may be filed regardless of the availability of immigrant visa numbers. The adjustment of status application may not, however, be approved and the alien's adjustment of status to that of lawful permanent resident of the United States may not be granted until a visa number becomes available for the alien under the worldwide allocation for employment-based immigrants under section 201(d) and section 203(b)(4) of the Act. The alien may request initial or continued employment authorization

while the adjustment application is pending by filing Form I-765, Application for Employment Authorization. If the alien needs to travel outside the United States during this period, he or she may file a request for advance parole on Form I-131, Application for Travel Document.

(g) Filing and decision. An application for adjustment of status filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall be filed with the district director having jurisdiction over the alien's place of residence. Upon approval of adjustment of status under this section, the district director shall record the alien's lawful admission for permanent residence as of the date of such approval. The district director shall notify the Commissioner and the Assistant Attorney General, Criminal Division, of the adjustment.

(h) Removal under section 237 of the Act. Nothing in this section shall prevent an alien adjusted pursuant to the terms of these provisions from being removed for conviction of a crime of moral turpitude committed within 10 years after being provided lawful permanent residence under this section or for any other ground under section 237 of the Act.

(i) Denial of application. In the event the district director decides to deny an application on Form I-485 and an approved Form I-854 to allow an S nonimmigrant to adjust status, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to deny. A denial of an adjustment application under this

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paragraph may not be renewed in subsequent removal proceedings. [60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995, as amended at 62 FR 10384, Mar. 6, 1997]

8 245.12 Adjustment of status of cer

tain Polish and Hungarian parolees under the Ilegal Immigration Reform and Immigrant Responsibility

Act of 1996. (a) Application. Each person applying for adjustment of status under section 646(b) of Pub. L. 104-208 must file a completed Form 1-485, Application to Register Permanent Residence or Adjustment Status, accompanied by the appropriate filing fee, with the district director having jurisdiction over the applicant's place of residence. Each application shall be accompanied by specific evidence that the applicant meets the requirements for eligibility under section 646 of Pub. L. 104–208; a Form I643, Health and Human Services Statistical Data; the results of the medical examination made in accordance with $ 245.5; Form G-325A, Biographic Information, and, unless the applicant is under the age of 14 years or over the age of 79 years, a properly executed Form FD-258, Fingerprint Card.

(b) Effect of departure. Departure from the United States by an applicant for benefits under this provision shall be deemed an abandonment of the application as provided in $ 245.2(a)(4)(ii). (62 FR 28315, May 23, 1997]

(ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form 1-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole;

(3) Is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, with the exception of paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If available, an applicant may apply for an individual waiver as provided in paragraph (c) of this section;

(4) Is physically present in the United States at the time the application is filed; and

(5) Properly files an application for adjustment of status in accordance with this section.

(b) Qualified family members—(1) Eristence of relationship at time of adjustment. The spouse, child, or unmarried son or daughter of an alien eligible for adjustment of status under the provisions of Pub. L. 105–100 is eligible to apply for benefits as a dependent provided the qualifying relationship existed when the principal beneficiary was granted adjustment of status and the dependent meets all applicable requirements of sections 202(a) and (d) of Pub. L. 105 100.

(2) Spouse and minor children. If physically present in the United States, the spouse or minor child of an alien who is eligible for permanent residence under the provisions of Pub. L. 105-100 may also apply for and receive adjustment of status under this section, provided such spouse or child meets the criteria established in paragraph (a) of this section, except for the requirement of continuous physical presence in the United States since December 1, 1995. Such application may be filed concurrently with or subsequent to the filing of the principal's application but may not be approved prior to approval of the principal's application.

(3) Unmarried adult sons and daughters. An unmarried son or daughter of an alien who is eligible for permanent residence under the provisions of Pub. L. 105–100 may apply for and receive adjustment under this section, provided such son or daughter meets the criteria

8 245.13 Adjustment of status of cer.

tain nationals of Nicaragua and

Cuba under Public Law 105–100. (a) Aliens eligible to apply for adjustment. An alien is eligible to apply for adjustment of status under the provisions of section 202 of Pub. L. 105-100, if the alien:

(1) Is a national of Nicaragua or Cuba;

(2) Except as provided in paragraph (0) of this section, has been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier that the date the application for adjustment is granted, excluding:

(1) Any periods of absence from the United States not exceeding 180 days in the aggregate; and

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