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INA § 245(a) / INA § 245(k) / Matter of Arai

Form I-485 Discretionary Review Guide

How USCIS officers apply administrative discretion when adjudicating Adjustment of Status applications.

Administrative Discretion Precedents

Under Matter of Arai (13 I&N Dec. 494) and current USCIS Policy Manual guidance, officers review the entire record and weigh positive and negative factors cumulatively. In the absence of adverse factors, a favorable exercise of discretion may ordinarily be warranted; more serious adverse factors may require additional mitigating or unusual/outstanding equities.

Employment-Based Status Violations & INA Section 245(k)

For certain employment-based applicants, Section 245(k) of the Immigration and Nationality Act can exempt the bars in INA §245(c)(2), (7), and (8). Eligible principal categories include EB-1, EB-2, EB-3, and EB-4 religious workers described in INA §101(a)(27)(C), and certain derivatives may qualify in their own right. The applicant must otherwise qualify to adjust status and have no more than 180 aggregate days of the covered violations since the last lawful admission, as provided by §245(k):

  • • The applicant was lawfully admitted to the United States and is otherwise eligible to adjust under INA §245(a).
  • • The aggregate period of covered status violations, unauthorized employment, or other violations of the terms of admission since the last lawful admission does not exceed 180 days.

Discretionary Factors Reference Table

Factor NameOfficer Consideration
Family & Community TiesFamily unity, family ties, community standing, and community involvement may be favorable factors in a discretionary analysis.
Length of ResidenceLength of residence in the United States, particularly where accompanied by favorable immigration history and community ties.
Employment & Tax ContributionsEmployment history, tax compliance, and other lawful contributions or responsibilities in the United States.
Property & Business OwnershipProperty, financial, business, or other lawful ties may be relevant where supported by the record, but USCIS weighs them as part of the totality of the circumstances.

Frequently Asked Questions (FAQ)

Under INA Section 245(a) and USCIS Policy Manual Volume 7, most adjustment-of-status cases are discretionary. Even when an applicant satisfies the applicable statutory and regulatory eligibility requirements, USCIS may grant adjustment only if the applicant merits a favorable exercise of discretion. An approved Form I-140 or Form I-130, by itself, does not establish all adjustment-of-status requirements.

Under Matter of Arai (13 I&N Dec. 494), USCIS considers the totality of the positive and negative factors. A favorable exercise of discretion may be appropriate when adverse factors are absent, while more serious adverse factors can require stronger mitigating equities.

Section 245(k) can exempt certain employment-based adjustment applicants from the INA §245(c)(2), (7), and (8) bars when the aggregate period of qualifying status violations, unauthorized employment, or other violations since the last lawful admission does not exceed 180 days. Eligible principal classifications include EB-1, EB-2, EB-3, and qualifying EB-4 religious workers; certain derivatives may also qualify in their own right.

Positive equities evaluated by USCIS include long-term U.S. residence, U.S. citizen or LPR family members, consistent tax payment history, stable employment, property ownership, military service, and active community involvement.

A denial of a Form I-485 adjustment application generally does not have a direct AAO appeal under 8 CFR 245.2(a)(5)(ii). Where the decision is eligible for a motion, an applicant may generally use Form I-290B to seek reopening based on new, material facts or reconsideration based on an incorrect application of law or policy; the applicable filing deadline is generally 30 days (33 days when the decision is served by mail), subject to the specific form instructions and regulations.

A derivative spouse or child generally cannot obtain adjustment solely through a principal applicant whose adjustment is denied, because the derivative basis depends on the principal applicant's qualifying status. The exact consequence depends on the derivative category and any independent basis for adjustment.
Official USCIS References

• USCIS Policy Manual Volume 7 (Adjustment of Status - Discretion): uscis.gov/policy-manual-vol7
• USCIS INA Section 245(k) / Adjustment of Status Guidance: uscis.gov/245k-guidance

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