Adjustment of Status – INA Section 245(a)


            The status of an alien who was inspected and admitted or paroled into the United States may be adjusted to that of an alien lawfully admitted for permanent residence if s/he (1) applies for adjustment; (2) is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (3) an immigrant visa is immediately available to her/him at the time her/his application is filed. INA Section 245(a). If eligibility is established, adjustment of status may be granted in the exercise of discretion. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The alien bears the burden of establishing eligibility for adjustment of status and demonstrating that relief is merited in the exercise of discretion. See Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Blas, 15 I&N Dec. 626 (BIA 1974, A.G. 1976).


            The Court’s discretionary decision depends on the facts of the particular case and, as such, is “a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised... even though the statutory prerequisites have been met.” Matter of Ortiz-Prieto, 11 I&N Dec. 317, 319 (BIA 1965); see also Matter of Blas, 15 I&N Dec. at 628. A favorable exercise of administrative discretion is warranted where positive factors, such as family ties, length of residency, and hardship, outweigh adverse considerations. Matter of Arai, 13 I&N Dec. at 496. However, where adverse factors are present, it may be necessary for the applicant to present unusual or outstanding countervailing equities to merit a grant of an application for adjustment of status. Id.

 

 

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