Adjustment of Status – INA Section 209



            An alien who has been admitted to the United States under Section 207 of the Immigration and Nationality Act, as amended, shall return or be returned to the custody of the Department of Homeland Security at the end of one year for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of Sections 235, 240 and 241 of the Act if (1) the alien’s admission has not been terminated by the Secretary of Homeland Security or the Attorney General pursuant to such regulations as the Secretary of Homeland Security or the Attorney General may prescribe; (2) the alien has been physically present in the United States for at least one year; and (3) the alien has not acquired permanent resident status. INA § 209(a)(1). The denial of the alien’s adjustment of status application by the District Director will be without prejudice to his or her right to renew the application in removal proceedings under Section 240 of the Act. 8 C.F.R. § 1209.1(e). An alien who is found after a hearing before an Immigration Judge to be admissible as an immigrant, except as provided by Section 209(c) of the Act, is regarded as lawfully admitted to the United States for permanent residence as of the date of his or her arrival in the United States, notwithstanding any numerical limitation specified in the Act. INA § 209(a)(2).


            The Court may, in its discretion, adjust the status of any alien granted asylum and in removal proceedings to the status of an alien lawfully admitted for permanent residence, if the alien (1) applies for adjustment; (2) has been physically present in the United States for at least one year after being granted asylum; (3) continues to be a refugee within the meaning of Section 101(a)(43)(A) of the Act or a spouse or child of such a refugee; (4) is not firmly resettled in any foreign country; and (5) is admissible as an immigrant under the Act, except as otherwise provided in Section 209(c), at the time of examination for the alien’s adjustment. INA § 209(b); Matter of K-A-, 23 I&N 661, 664 (BIA 2004). Upon approval of an the alien’s application for adjustment of status under Section 209(b), the Attorney General shall establish a record of the alien’s admission for lawful permanent residence as of the date one year before the date of the approval of the application. INA § 209(b).

Grounds of Inadmissibility and 209(c) Waiver

            The grounds of inadmissibility under Sections 212(a)(4) (likely to become a public charge), 212(a)(5) (not in possession of a labor certification), and 212(a)(7)(A) (not in possession of a valid, unexpired immigrant visa, etc.) shall not apply to an alien seeking adjustment of status under section 209 of the Act. INA § 209(c). Any other ground of inadmissibility—except for Sections 212(a)(2)(C) (reason to believe alien is an illicit trafficker in controlled substances), 212(a)(3)(A) (reason to believe alien seeks to enter the U.S. to violate any law of the U.S. relating to espionage or sabotage, etc.), 212(a)(3)(B) (engaged or is likely to engage in terrorist activity), 212(a)(3)(C) (entry or proposed activity in the U.S. would adversely affect foreign policy) or 212(a)(3)(E) (participated in persecution by the Nazi government of Germany or its allies) of the Act—may be waived in the exercise of discretion for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest. INA § 209(c). These considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible in determining whether a discretionary waiver under section 209(c) of the Act should be granted. Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002). Aliens who have committed violent or dangerous crimes may not be granted a discretionary waiver except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Id. Moreover, depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient. Id.

            Requests for discretionary waivers under Section 209(c) of the Act may be adjudicated by the Court following the initial denial of the waiver by the Department of Homeland Security for refugees applying to adjust to lawful permanent resident status under Section 209(a) of the Act; or in the first instance for asylees applying to adjust to lawful permanent resident status under section 209(b) of the Act who have been placed in removal proceedings. See Matter of K-A-, 23 I&N Dec. at 664; Matter of H-N-, 22 I&N Dec. 1039, 1044 (BIA 1999), disagreement on other grounds recognized by Matter of Jean, 23 I&N Dec. at 382.