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U.S. Code as of:
01/03/05
Section 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
Except as provided in subparagraph (B), the alien must apply
for such adjustment during the 12-month period beginning on a
date (not later than 180 days after November 6, 1986)
designated by the Attorney General.
(B) Application within 30 days of show-cause order
An alien who, at any time during the first 11 months of the
12-month period described in subparagraph (A), is the subject
of an order to show cause issued under section 1252 of this
title (as in effect before October 1, 1996), must make
application under this section not later than the end of the
30-day period beginning either on the first day of such
12-month period or on the date of the issuance of such order,
whichever day is later.
(C) Information included in application
Each application under this subsection shall contain such
information as the Attorney General may require, including
information on living relatives of the applicant with respect
to whom a petition for preference or other status may be filed
by the applicant at any later date under section 1154(a) of
this title.
(2) Continuous unlawful residence since 1982
(A) In general
The alien must establish that he entered the United States
before January 1, 1982, and that he has resided continuously in
the United States in an unlawful status since such date and
through the date the application is filed under this
subsection.
(B) Nonimmigrants
In the case of an alien who entered the United States as a
nonimmigrant before January 1, 1982, the alien must establish
that the alien's period of authorized stay as a nonimmigrant
expired before such date through the passage of time or the
alien's unlawful status was known to the Government as of such
date.
(C) Exchange visitors
If the alien was at any time a nonimmigrant exchange alien
(as defined in section 1101(a)(15)(J) of this title), the alien
must establish that the alien was not subject to the two-year
foreign residence requirement of section 1182(e) of this title
or has fulfilled that requirement or received a waiver thereof.
(3) Continuous physical presence since November 6, 1986
(A) In general
The alien must establish that the alien has been continuously
physically present in the United States since November 6, 1986.
(B) Treatment of brief, casual, and innocent absences
An alien shall not be considered to have failed to maintain
continuous physical presence in the United States for purposes
of subparagraph (A) by virtue of brief, casual, and innocent
absences from the United States.
(C) Admissions
Nothing in this section shall be construed as authorizing an
alien to apply for admission to, or to be admitted to, the
United States in order to apply for adjustment of status under
this subsection.
(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) of this
section,
(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 App. U.S.C. 451 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) of
this section 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
The alien must apply for such adjustment during the 2-year
period beginning with the nineteenth month that begins after
the date the alien was granted such temporary resident status.
(B) Continuous residence
(i) In general
The alien must establish that he has continuously resided
in the United States since the date the alien was granted
such temporary resident status.
(ii) Treatment of certain absences
An alien shall not be considered to have lost the
continuous residence referred to in clause (i) by reason of
an absence from the United States permitted under paragraph
(3)(A).
(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) of this
section, 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
The Attorney General may, in his discretion, waive all or
part of the requirements of clause (i) in the case of an
alien who is 65 years of age or older or who is
developmentally disabled.
(iii) Relation to naturalization examination
In accordance with regulations of the Attorney General, an
alien who has demonstrated under clause (i)(I) that the alien
meets the requirements of section 1423(a) of this title may
be considered to have satisfied the requirements of that
section for purposes of becoming naturalized as a citizen of
the United States under subchapter III of this chapter.
(2) Termination of temporary residence
The Attorney General shall provide for termination of temporary
resident status granted an alien under subsection (a) of this
section -
(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) of this section, 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 first 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) of this section -
(A) Authorization of travel abroad
The Attorney General shall, in accordance with regulations,
permit the alien to return to the United States after such
brief and casual trips abroad as reflect an intention on the
part of the alien to adjust to lawful permanent resident status
under paragraph (1) and after brief temporary trips abroad
occasioned by a family obligation involving an occurrence such
as the illness or death of a close relative or other family
need.
(B) Authorization of employment
The Attorney General shall grant the alien authorization to
engage in employment in the United States and provide to that
alien an "employment authorized" endorsement or other
appropriate work permit.
(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) of this section 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
Each qualified designated entity must agree to forward to the
Attorney General applications filed with it in accordance with
paragraph (1)(B) but not to forward to the Attorney General
applications filed with it unless the applicant has consented to
such forwarding. No such entity may make a determination required
by this section to be made by the Attorney General.
(4) Limitation on access to information
Files and records of qualified designated entities relating to
an alien's seeking assistance or information with respect to
filing an application under this section are confidential and the
Attorney General and the Service shall not have access to such
files or records relating to an alien without the consent of the
alien.
(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
The Attorney General shall provide the information furnished
under this section, and any other information derived from such
furnished information, to a duly recognized law enforcement
entity in connection with a criminal investigation or
prosecution, when such information is requested in writing by
such entity, or to an official coroner for purposes of
affirmatively identifying a deceased individual (whether or not
such individual is deceased as a result of a crime).
(C) Authorized disclosures
The Attorney General may provide, in the Attorney General's
discretion, for the furnishing of information furnished under
this section in the same manner and circumstances as census
information may be disclosed by the Secretary of Commerce under
section 8 of title 13.
(D) Construction
(i) In general
Nothing in this paragraph shall be construed to limit the
use, or release, for immigration enforcement purposes or law
enforcement purposes of information contained in files or
records of the Service pertaining to an application filed
under this section, other than information furnished by an
applicant pursuant to the application, or any other
information derived from the application, that is not
available from any other source.
(ii) Criminal convictions
Information concerning whether the applicant has at any
time been convicted of a crime may be used or released for
immigration enforcement or law enforcement purposes.
(E) Crime
Whoever knowingly uses, publishes, or permits information to
be examined in violation of this paragraph shall be fined not
more than $10,000.
(6) Penalties for false statements in applications
Whoever files an application for adjustment of status under
this section and knowingly and willfully falsifies,
misrepresents, conceals, or covers up a material fact or makes
any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document
knowing the same to contain any false, fictitious, or fraudulent
statement or entry, shall be fined in accordance with title 18 or
imprisoned not more than five years, or both.
(7) Application fees
(A) Fee schedule
The Attorney General shall provide for a schedule of fees to
be charged for the filing of applications for adjustment under
subsection (a) or (b)(1) of this section. The Attorney General
shall provide for an additional fee for filing an application
for adjustment under subsection (b)(1) of this section after
the end of the first year of the 2-year period described in
subsection (b)(1)(A) of this section.
(B) Use of fees
The Attorney General shall deposit payments received under
this paragraph in a separate account and amounts in such
account shall be available, without fiscal year limitation, to
cover administrative and other expenses incurred in connection
with the review of applications filed under this section.
(C) Immigration-related unfair employment practices
Not to exceed $3,000,000 of the unobligated balances
remaining in the account established in subparagraph (B) shall
be available in fiscal year 1992 and each fiscal year
thereafter for grants, contracts, and cooperative agreements to
community-based organizations for outreach programs, to be
administered by the Office of Special Counsel for
Immigration-Related Unfair Employment Practices: Provided, That
such amounts shall be in addition to any funds appropriated to
the Office of Special Counsel for such purposes: Provided
further, That none of the funds made available by this section
shall be used by the Office of Special Counsel to establish
regional offices.
(d) Waiver of numerical limitations and certain grounds for
exclusion
(1) Numerical limitations do not apply
The numerical limitations of sections 1151 and 1152 of this
title shall not apply to the adjustment of aliens to lawful
permanent resident status under this section.
(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) of this
section -
(A) Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of section
1182(a) of this title shall not apply.
(B) Waiver of other grounds
(i) In general
Except as provided in clause (ii), the Attorney General may
waive any other provision of section 1182(a) of this title in
the case of individual aliens for humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest.
(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
An alien is not ineligible for adjustment of status under
this section due to being inadmissible under section
1182(a)(4) of this title if the alien demonstrates a history
of employment in the United States evidencing self-support
without receipt of public cash assistance.
(C) Medical examination
The alien shall be required, at the alien's expense, to
undergo such a medical examination (including a determination
of immunization status) as is appropriate and conforms to
generally accepted professional standards of medical practice.
(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) of this section and who can
establish a prima facie case of eligibility to have his status
adjusted under subsection (a) of this section (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) of this section 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
There shall be no administrative or judicial review of a
determination respecting an application for adjustment of status
under this section except in accordance with this subsection.
(2) No review for late filings
No denial of adjustment of status under this section based on a
late filing of an application for such adjustment may be reviewed
by a court of the United States or of any State or reviewed in
any administrative proceeding of the United States Government.
(3) Administrative review
(A) Single level of administrative appellate review
The Attorney General shall establish an appellate authority
to provide for a single level of administrative appellate
review of a determination described in paragraph (1).
(B) Standard for review
Such administrative appellate review shall be based solely
upon the administrative record established at the time of the
determination on the application and upon such additional or
newly discovered evidence as may not have been available at the
time of the determination.
(4) Judicial review
(A) Limitation to review of deportation
There shall be judicial review of such a denial only in the
judicial review of an order of deportation under section 1105a
of this title (as in effect before October 1, 1996).
(B) Standard for judicial review
Such judicial review shall be based solely upon the
administrative record established at the time of the review by
the appellate authority and the findings of fact and
determinations contained in such record shall be conclusive
unless the applicant can establish abuse of discretion or that
the findings are directly contrary to clear and convincing
facts contained in the record considered as a whole.
(C) Jurisdiction of courts
Notwithstanding any other provision of law, no court shall
have jurisdiction of any cause of action or claim by or on
behalf of any person asserting an interest under this section
unless such person in fact filed an application under this
section within the period specified by subsection (a)(1) of
this section, or attempted to file a complete application and
application fee with an authorized legalization officer of the
Service but had the application and fee refused by that
officer.
(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
The Attorney General shall specify individual periods, and
aggregate periods, of absence from the United States which will
be considered to break a period of continuous residence in the
United States and shall take into account absences due merely
to brief and casual trips abroad.
(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
The Attorney General may provide for a waiver, in the
discretion of the Attorney General, of the periods specified
under subparagraph (A) in the case of an absence from the
United States due merely to a brief temporary trip abroad
required by emergency or extenuating circumstances outside the
control of the alien.
(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
Regulations prescribed under this section may be prescribed to
take effect on an interim final basis if the Attorney General
determines that this is necessary in order to implement this
section in a timely manner.
(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) of
this section, 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 Stamp Act of 1977 [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) of this section 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
The restrictions of clause (i) shall not apply to aliens
who are described in paragraph (2) or who are under 18 years
of age.
(C) Definition of medical assistance
In this paragraph, the term "medical assistance" refers to
medical assistance under a State plan approved under title XIX
of the Social Security Act [42 U.S.C. 1396 et seq.].
(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 Carl D. Perkins Vocational and Technical Education
Act of 1998 [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 Investment Act of 1998 [29
U.S.C. 2801 et seq.].
(G) Title IV of the Higher Education Act of 1965 [20 U.S.C.
1070 et seq., 42 U.S.C. 2751 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
For the purpose of section 501 of the Refugee Education
Assistance Act of 1980 (Public Law 96-122) (!1) [8 U.S.C. 1255
note], assistance shall be continued under such section with
respect to an alien without regard to the alien's adjustment of
status under this section.
(i) Dissemination of information on legalization program
Beginning not later than the date designated by the Attorney
General under subsection (a)(1)(A) of this section, the Attorney
General, in cooperation with qualified designated entities, shall
broadly disseminate information respecting the benefits which
aliens may receive under this section and the requirements to
obtain such benefits.
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