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8 CFR 245.1: The following categories of aliens are ineligible to apply for
adjustment of status to that of a lawful permanent resident alien under
section 245 of the Act, unless the alien establishes eligibility under
the provisions of section 245(i) of the Act and § 245.10, is not
included in the categories of aliens prohibited from applying for
adjustment of status listed in § 245.1(c), is eligible to receive an
immigrant visa, and has an immigrant visa immediately available at the
time of filing the application for adjustment of status: (245.1(b))

(1) Any alien who entered the United States in transit without a visa;

(2) Any 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;

(3) Any alien who was not admitted or paroled following inspection by an
immigration officer;

(4) Any alien who, on or after January 1, 1977, was employed in the
United States without authorization prior to filing an application for
adjustment of status. This restriction shall not apply to an alien who
is:

(i) An immediate relative as defined in section 201(b) of the Act;
(ii) A special immigrant as defined in section 101(a)(27)(H) or (J) of
the Act;
(iii) Eligible for the benefits of Public Law 101-238 (the Immigration
Nursing Relief Act of 1989) and files an application for adjustment of
status on or before October 17, 1991; or
(iv) Eligible for the benefits of Public Law 101-238 (the Immigration
Nursing Relief Act of 1989), and has not entered into or continued in
unauthorized employment on or after November 29, 1990.

(5) Any alien who on or after November 6, 1986 is not in lawful
immigration status on the date of filing his or her application for
adjustment of status, except an applicant who is an immediate relative
as defined in section 201(b) or a special immigrant as defined in
section 101(a)(27)(H), (I), or (J);

(6) Any alien who files an application for adjustment of status on or
after November 6, 1986, who has failed (other than through no fault of
his or her own or for technical reasons) to maintain continuously a
lawful status since entry into the United States, except an applicant
who is an immediate relative as defined in section 201(b) of the Act or
a special immigrant as defined in section 101(a)(27)(H), (I), or (J) of
the Act;

(7) Any alien admitted as a visitor under the visa waiver provisions of
§ 212.1(e) of this chapter;

(8) Any alien admitted as a Visa Waiver Pilot Program visitor under the
provisions of section 217 of the Act and part 217 of this chapter other
than an immediate relative as defined in section 201(b) of the Act;

(9) Any alien who seeks adjustment of status pursuant to an
employment-based immigrant visa petition under section 203(b) of the Act
and who is not maintaining a lawful nonimmigrant status at the time he
or she files an application for adjustment of status; and

(10) Any alien who was ever employed in the United States without the
authorization of the Service or who has otherwise at any time violated
the terms of his or her admission to the United States as a
nonimmigrant, except an alien who is an immediate relative as defined in
section 201(b) of the Act or a special immigrant as defined in section
101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this
paragraph, an alien who meets the requirements of § 274a.12(c)(9) of
this chapter shall not be deemed to have engaged in unauthorized
employment during the pendency of his or her adjustment application.

(c) Ineligible aliens. The following categories of aliens are ineligible
to apply for adjustment of status to that of a lawful permanent resident
alien under section 245 of the Act:

(1) Any nonpreference alien who is seeking or engaging in gainful
employment in the United States who is not the beneficiary of a valid
individual or blanket labor certification issued by the Secretary of
Labor or who is not exempt from certification requirements under §
212.8(b) of this chapter;

(2) Except for an alien who is applying for residence under the
provisions of section 133 of the Immigration Act of 1990, any alien who
has or had the status of an exchange visitor 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, unless the alien has complied with the
foreign residence requirement or has been granted a waiver of that
requirement, under that section. An alien who has been granted a waiver
under section 212(e)(iii) of the Act based on a request by a State
Department of Health (or its equivalent) under Pub. L. 103--416 shall be
ineligible to apply for adjustment of status under section 245 of the
Act if the terms and conditions specified in section 214(k) of the Act
and § 212.7(c)(9) of this chapter have not been met;

(3) Any alien who has nonimmigrant status under paragraph (15)(A),
(15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational
status which would, if the alien were seeking admission to the United
States, entitle the alien to nonimmigrant status under those paragraphs,
unless the alien first executes and submits the written waiver required
by section 247(b) of the Act and part 247 of this chapter;

(4) Any alien who claims immediate relative status under section 201(b)
or preference status under sections 203(a) or 203(b) of the Act, unless
the applicant is the beneficiary of a valid unexpired visa petition
filed in accordance with part 204 of this chapter;

(5) Any alien who is already an alien lawfully admitted to the United
States for permanent residence on a conditional basis pursuant to
section 216 or 216A of the Act, regardless of any other quota or
non--quota immigrant visa classification for which the alien may
otherwise be eligible;

(6) Any alien admitted to the United States as a nonimmigrant defined in
section 101(a)(15)(K) of the Act, unless:

(i) In the case of a K--1 fiance(e) under section 101(a)(15)(K)(i) of
the Act or the K--2 child of a fiance(e) under section
101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of
status based upon the marriage of the K--1 fiance(e) which was
contracted within 90 days of entry with the United States citizen who
filed a petition on behalf of the K--1 fiance(e) pursuant to § 214.2(k)
of this chapter;

(ii) In the case of a K--3 spouse under section 101(a)(15)(K)(ii) of the
Act or the K--4 child of a spouse under section 101(a)(15)(K)(iii) of
the Act, the alien is applying for adjustment of status based upon the
marriage of the K--3 spouse to the United States citizen who filed a
petition on behalf of the K--3 spouse pursuant to § 214.2(k) of this
chapter;

(7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of the
Act, unless the nonimmigrant is applying for adjustment of status
pursuant to the request of a law enforcement authority, the provisions
of section 101(a)(15)(S) of the Act, and 8 CFR 245.11;

(8) Any arriving alien who is in removal proceedings pursuant to section
235(b)(1) or section 240 of the Act; and

(9) Any alien who seeks to adjust status based upon a marriage which
occurred on or after November 10, 1986, and while the alien was in
exclusion, deportation, or removal proceedings, or judicial proceedings
relating thereto.

(i) Commencement of proceedings. The period during
which the alien is in deportation, exclusion, or removal proceedings or
judicial proceedings relating thereto, commences:

(A) With the issuance of the Form I--221, Order to Show Cause and Notice
of Hearing prior to June 20, 1991;

(B) With the filing of a Form I--221, Order to Show Cause and Notice of
Hearing, issued on or after June 20, 1991, with the Immigration Court;

(C) With the issuance of Form I--122, Notice to Applicant for Admission
Detained for Hearing Before Immigration Judge, prior to April 1, 1997,

(D) With the filing of a Form I--862, Notice to Appear, with the
Immigration Court, or

(E) With the issuance and service of Form I--860, Notice and Order of
Expedited Removal.

(ii) Termination of proceedings. The period during
which the alien is in exclusion, deportation, or removal proceedings, or
judicial proceedings relating thereto, terminates:

(A) When the alien departs from the United States while an order of
exclusion, deportation, or removal is outstanding or before the
expiration of the voluntary departure time granted in connection with an
alternate order of deportation or removal;
(B) When the alien is found not to be inadmissible or deportable from
the United States;
(C) When the Form I--122, I--221, I--860, or I--862 is canceled;
(D) When proceedings are terminated by the immigration judge or the
Board of Immigration Appeals; or
(E) When a petition for review or an action for habeas corpus is granted
by a Federal court on judicial review.

(iii) Exemptions. This prohibition shall no longer apply if:

(A) The alien is found not to be inadmissible or deportable from the
United States;
(B) Form I--122, I--221, I--860, or I--862, is canceled;
(C) Proceedings are terminated by the immigration judge or the Board of
Immigration Appeals;
(D) A petition for review or an action for habeas corpus is granted by a
Federal court on judicial review;
(E) The alien has resided outside the United States for 2 or more years
following the marriage; or
(F) The alien establishes the marriage is bona fide by providing clear
and convincing evidence that the marriage was entered into in good faith
and in accordance with the laws of the place where the marriage took
place, 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 to an attorney for assistance in preparation of a lawful
petition) for the filing of a petition.

(iv) Request for exemption. No application or fee is required to request
the exemption under section 245(e) of the Act. The request must be made
in writing and submitted with the Form I--485. Application for Permanent
Residence. The request must state the basis for requesting consideration
for the exemption and must be supported by documentary evidence
establishing eligibility for the exemption.

(v) Evidence to establish eligibility for the bona fide marriage
exemption.
Section 204(g) of the Act provides that certain visa
petitions based upon marriages entered into during deportation,
exclusion or related judicial proceedings may be approved only if the
petitioner provides clear and convincing evidence that the marriage is
bona fide. Evidence that a visa petition based upon the same marriage
was approved under the bona fide marriage exemption to section 204(g) of
the Act will be considered primary evidence of eligibility for the bona
fide marriage exemption provided in this part. The applicant will not be
required to submit additional evidence to qualify for the bona fide
marriage exemption provided in this part, unless the district director
determines that such additional evidence is needed. In cases where the
district director notifies the applicant that additional evidence is
required, the applicant must submit documentary evidence which clearly
and convincingly establishes that the marriage was entered into in good
faith and not entered into for the purpose of procuring the alien's
entry as an immigrant. Such evidence may include:

(A) Documentation showing joint ownership of property;
(B) Lease showing joint tenancy of a common residence;
(C) Documentation showing commingling of financial resources;
(D) Birth certificates of children born to the applicant and his or her
spouse;(E) Affidavits of third parties having knowledge of the bona fides of
the marital relationship, or
(F) Other documentation establishing that the marriage was not entered
into in order to evade the immigration laws of the United States.

(vi) Decision. An application for adjustment of status filed during the
prohibited period shall be denied, unless the applicant establishes
eligibility for an exemption from the general prohibition.

8 CFR 245.1: Adjustment of Status to Person Admitted for Permanent Residence

8 CFR 245.10: Adjustment of Status upon payment of additional $1000 fee under section 245(i).

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