8 USC 1255a - Adjustment of status of certain entrants before

U.S Code last checked for updates: Nov 22, 2024

§ 1255a.

Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence

(a)

Temporary resident status

The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the alien meets the following requirements:

(1)

Timely application

(A)

During application period

(B)

Application within 30 days of show-cause order

(C)

Information included in application

(2)

Continuous unlawful residence since 1982

(A)

In general

(B)

Nonimmigrants

(C)

Exchange visitors

(3)

Continuous physical presence since November 6, 1986

(A)

In general

(B)

Treatment of brief, casual, and innocent absences

(C)

Admissions

(4)

Admissible as immigrant

The alien must establish that he—

(A)

is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2),

(B)

has not been convicted of any felony or of three or more misdemeanors committed in the United States,

(C)

has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion, and

(D)

is registered or registering under the Military Selective Service Act [50 U.S.C. 3801 et seq.], if the alien is required to be so registered under that Act.

For purposes of this subsection, an alien in the status of a Cuban and Haitian entrant described in paragraph (1) or (2)(A) of section 501(e) of Public Law 96–422 [8 U.S.C. 1522 note] shall be considered to have entered the United States and to be in an unlawful status in the United States.

(b)

Subsequent adjustment to permanent residence and nature of temporary resident status

(1)

Adjustment to permanent residence

The Attorney General shall adjust the status of any alien provided lawful temporary resident status under subsection (a) to that of an alien lawfully admitted for permanent residence if the alien meets the following requirements:

(A)

Timely application after one year’s residence

(B)

Continuous residence

(i)

In general

(ii)

Treatment of certain absences

(C)

Admissible as immigrant

The alien must establish that he—

(i)

is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2), and

(ii)

has not been convicted of any felony or three or more misdemeanors committed in the United States.

(D)

Basic citizenship skills

(i)

In general

The alien must demonstrate that he either—

(I)

meets the requirements of section 1423(a) of this title (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States), or

(II)

is satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States.

(ii)

Exception for elderly or developmentally disabled individuals

(iii)

Relation to naturalization examination

(2)

Termination of temporary residence

The Attorney General shall provide for termination of temporary resident status granted an alien under subsection (a)—

(A)

if it appears to the Attorney General that the alien was in fact not eligible for such status;

(B)

if the alien commits an act that (i) makes the alien inadmissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2), or (ii) is convicted of any felony or three or more misdemeanors committed in the United States; or

(C)

at the end of the 43rd month beginning after the date the alien is granted such status, unless the alien has filed an application for adjustment of such status pursuant to paragraph (1) and such application has not been denied.

(3)

Authorized travel and employment during temporary residence

During the period an alien is in lawful temporary resident status granted under subsection (a)—

(A)

Authorization of travel abroad

(B)

Authorization of employment

(c)

Applications for adjustment of status

(1)

To whom may be made

The Attorney General shall provide that applications for adjustment of status under subsection (a) may be filed—

(A)

with the Attorney General, or

(B)

with a qualified designated entity, but only if the applicant consents to the forwarding of the application to the Attorney General.

As used in this section, the term “qualified designated entity” means an organization or person designated under paragraph (2).

(2)

Designation of qualified entities to receive applications

For purposes of assisting in the program of legalization provided under this section, the Attorney General—

(A)

shall designate qualified voluntary organizations and other qualified State, local, and community organizations, and

(B)

may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under section 1159 or 1255 of this title, Public Law 89–732 [8 U.S.C. 1255 note], or Public Law 95–145 [8 U.S.C. 1255 note].

(3)

Treatment of applications by designated entities

(4)

Limitation on access to information

(5)

Confidentiality of information

(A)

In general

Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—

(i)

use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application, for enforcement of paragraph (6), or for the preparation of reports to Congress under section 404 of the Immigration Reform and Control Act of 1986;

(ii)

make any publication whereby the information furnished by any particular applicant can be identified; or

(iii)

permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.

(B)

Required disclosures

(C)

Authorized disclosures

(D)

Construction

(i)

In general

(ii)

Criminal convictions

(E)

Crime

(6)

Penalties for false statements in applications

(7)

Application fees

(A)

Fee schedule

(B)

Use of fees

(C)

Immigration-related unfair employment practices

(d)

Waiver of numerical limitations and certain grounds for exclusion

(1)

Numerical limitations do not apply

(2)

Waiver of grounds for exclusion

In the determination of an alien’s admissibility under subsections (a)(4)(A), (b)(1)(C)(i), and (b)(2)(B)—

(A)

Grounds of exclusion not applicable

(B)

Waiver of other grounds

(i)

In general

(ii)

Grounds that may not be waived

The following provisions of section 1182(a) of this title may not be waived by the Attorney General under clause (i):

(I)

Paragraphs (2)(A) and (2)(B) (relating to criminals).

(II)

Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.

(III)

Paragraph (3) (relating to security and related grounds).

(IV)

Paragraph (4) (relating to aliens likely to become public charges) insofar as it relates to an application for adjustment to permanent residence.

Subclause (IV) (prohibiting the waiver of section 1182(a)(4) of this title) shall not apply to an alien who is or was an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act [42 U.S.C. 1382c(a)(1)]).

(iii)

Special rule for determination of public charge

(C)

Medical examination

(e)

Temporary stay of deportation and work authorization for certain applicants

(1)

Before application period

The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(A) and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien—

(A)

may not be deported, and

(B)

shall be granted authorization to engage in employment in the United States and be provided an “employment authorized” endorsement or other appropriate work permit.

(2)

During application period

The Attorney General shall provide that in the case of an alien who presents a prima facie application for adjustment of status under subsection (a) during the application period, and until a final determination on the application has been made in accordance with this section, the alien—

(A)

may not be deported, and

(B)

shall be granted authorization to engage in employment in the United States and be provided an “employment authorized” endorsement or other appropriate work permit.

(f)

Administrative and judicial review

(1)

Administrative and judicial review

(2)

No review for late filings

(3)

Administrative review

(A)

Single level of administrative appellate review

(B)

Standard for review

(4)

Judicial review

(A)

Limitation to review of deportation

(B)

Standard for judicial review

(C)

Jurisdiction of courts

(g)

Implementation of section

(1)

Regulations

The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe—

(A)

regulations establishing a definition of the term “resided continuously”, as used in this section, and the evidence needed to establish that an alien has resided continuously in the United States for purposes of this section, and

(B)

such other regulations as may be necessary to carry out this section.

(2)

Considerations

In prescribing regulations described in paragraph (1)(A)—

(A)

Periods of continuous residence

(B)

Absences caused by deportation or advanced parole

The Attorney General shall provide that—

(i)

an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation, and

(ii)

any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Service shall not be considered as part of the period of time during which an alien is outside the United States for purposes of this section.

(C)

Waivers of certain absences

(D)

Use of certain documentation

The Attorney General shall require that—

(i)

continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents, and

(ii)

the documents provided under clause (i) be employment-related if employment-related documents with respect to the alien are available to the applicant.

(3)

Interim final regulations

(h)

Temporary disqualification of newly legalized aliens from receiving certain public welfare assistance

(1)

In general

During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a), and notwithstanding any other provision of law—

(A)

except as provided in paragraphs (2) and (3), the alien is not eligible for—

(i)

any program of financial assistance furnished under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need, as such programs are identified by the Attorney General in consultation with other appropriate heads of the various departments and agencies of Government (but in any event including the State program of assistance under part A of title IV of the Social Security Act [42 U.S.C. 601 et seq.]),

(ii)

medical assistance under a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], and

(iii)

assistance under the Food and Nutrition Act of 2008 [7 U.S.C. 2011 et seq.]; and

(B)

a State or political subdivision therein may, to the extent consistent with subparagraph (A) and paragraphs (2) and (3), provide that the alien is not eligible for the programs of financial assistance or for medical assistance described in subparagraph (A)(ii) furnished under the law of that State or political subdivision.

Unless otherwise specifically provided by this section or other law, an alien in temporary lawful residence status granted under subsection (a) shall not be considered (for purposes of any law of a State or political subdivision providing for a program of financial assistance) to be permanently residing in the United States under color of law.

(2)

Exceptions

Paragraph (1) shall not apply—

(A)

to a Cuban and Haitian entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of Public Law 96–422 [8 U.S.C. 1255 note], as in effect on April 1, 1983), or

(B)

in the case of assistance (other than assistance under a State program funded under part A of title IV of the Social Security Act [42 U.S.C. 601 et seq.]) which is furnished to an alien who is an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act [42 U.S.C. 1382c(a)(1)]).

(3)

Restricted medicaid benefits

(A)

Clarification of entitlement

Subject to the restrictions under subparagraph (B), for the purpose of providing aliens with eligibility to receive medical assistance—

(i)

paragraph (1) shall not apply,

(ii)

aliens who would be eligible for medical assistance but for the provisions of paragraph (1) shall be deemed, for purposes of title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], to be so eligible, and

(iii)

aliens lawfully admitted for temporary residence under this section, such status not having changed, shall be considered to be permanently residing in the United States under color of law.

(B)

Restriction of benefits

(i)

Limitation to emergency services and services for pregnant women

Notwithstanding any provision of title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] (including subparagraphs (B) and (C) of section 1902(a)(10) of such Act [42 U.S.C. 1396a(a)(10)(B), (C)]), aliens who, but for subparagraph (A), would be ineligible for medical assistance under paragraph (1), are only eligible for such assistance with respect to—

(I)

emergency services (as defined for purposes of section 1916(a)(2)(D) of the Social Security Act [42 U.S.C. 1396o(a)(2)(D)]), and

(II)

services described in section 1916(a)(2)(B) of such Act (relating to service for pregnant women).

(ii)

No restriction for exempt aliens and children

(C)

Definition of medical assistance

(4)

Treatment of certain programs

Assistance furnished under any of the following provisions of law shall not be construed to be financial assistance described in paragraph (1)(A)(i):

(A)

The Richard B. Russell National School Lunch Act [42 U.S.C. 1751 et seq.].

(B)

The Child Nutrition Act of 1966 [42 U.S.C. 1771 et seq.].

(C)

The The 1

 So in original.

Carl D. Perkins Career and Technical Education Act of 2006 [20 U.S.C. 2301 et seq.].

(D)

Title I of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 6301 et seq.].

(E)

The Headstart-Follow Through Act [42 U.S.C. 2921 et seq.].

(F)

Title I of the Workforce Innovation and Opportunity Act [29 U.S.C. 3111 et seq.].

(G)

Title IV of the Higher Education Act of 1965 [20 U.S.C. 1070 et seq.].

(H)

The Public Health Service Act [42 U.S.C. 201 et seq.].

(I)

Titles V, XVI, and XX [42 U.S.C. 701 et seq., 1381 et seq., 1397 et seq.], and parts B, D, and E of title IV [42 U.S.C. 620 et seq., 651 et seq., 670 et seq.], of the Social Security Act (and titles I, X, XIV, and XVI of such Act [42 U.S.C. 301 et seq., 1201 et seq., 1351 et seq., 1381 et seq.] as in effect without regard to the amendment made by section 301 of the Social Security Amendments of 1972).

(5)

Adjustment not affecting Fascell-Stone benefits

(i)

Dissemination of information on legalization program

(June 27, 1952, ch. 477, title II, ch. 5, § 245A, as added Pub. L. 99–603, title II, § 201(a)(1), Nov. 6, 1986, 100 Stat. 3394; amended Pub. L. 100–525, § 2(h)(1), Oct. 24, 1988, 102 Stat. 2611; Pub. L. 101–649, title VI, § 603(a)(13), title VII, § 703, Nov. 29, 1990, 104 Stat. 5083, 5086; Pub. L. 102–140, title I, Oct. 28, 1991, 105 Stat. 785; Pub. L. 102–232, title III, § 307(l)(6), Dec. 12, 1991, 105 Stat. 1756; Pub. L. 103–382, title III, § 394(g), Oct. 20, 1994, 108 Stat. 4028; Pub. L. 103–416, title I, § 108(b), title II, § 219(l)(1), Oct. 25, 1994, 108 Stat. 4310, 4317; Pub. L. 104–132, title IV, § 431(a), Apr. 24, 1996, 110 Stat. 1273; Pub. L. 104–193, title I, § 110(s)(2), Aug. 22, 1996, 110 Stat. 2175; Pub. L. 104–208, div. C, title III, §§ 308(g)(2)(B), (5)(A)(iii), 377(a), 384(d)(1), title VI, § 623(a), Sept. 30, 1996, 110 Stat. 3009–622, 3009–623, 3009–649, 3009–653, 3009–696; Pub. L. 105–277, div. A, § 101(f) [title VIII, § 405(d)(4), (f)(4)], Oct. 21, 1998, 112 Stat. 2681–337, 2681–419, 2681–430; Pub. L. 105–332, § 3(a), Oct. 31, 1998, 112 Stat. 3125; Pub. L. 106–78, title VII, § 752(b)(5), Oct. 22, 1999, 113 Stat. 1169; Pub. L. 109–270, § 2(a), Aug. 12, 2006, 120 Stat. 746; Pub. L. 110–234, title IV, § 4002(b)(1)(B), (2)(J), May 22, 2008, 122 Stat. 1096, 1097; Pub. L. 110–246, § 4(a), title IV, § 4002(b)(1)(B), (2)(J), June 18, 2008, 122 Stat. 1664, 1857, 1858; Pub. L. 113–128, title V, § 512(q), July 22, 2014, 128 Stat. 1712.)

cite as: 8 USC 1255a

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