Adjustment of Status Before an Immigration Judge

EOIR’s current Policy Manual states that Immigration Judges generally have authority to adjudicate adjustment of status as relief from removal, subject to statutory and regulatory jurisdictional exceptions. The most important preliminary question is whether the court or USCIS has jurisdiction over the particular applicant.

Do not file until jurisdiction is confirmed.

Adjustment under INA §245 generally requires an eligible statutory basis, an immediately available immigrant visa where applicable, admissibility or an available waiver, and favorable discretion. Different subsections impose additional requirements or grandfathering rules.

The exact adjustment category should be identified in the application and brief.

8 C.F.R. §1245.2 limits Immigration Judge jurisdiction over adjustment applications filed by arriving aliens, with specific exceptions. Matter of Silitonga is a leading BIA decision applying that jurisdictional division.

Check the NTA classification, parole history, prior filing, and advance-parole facts.

Family- or employment-based adjustment usually requires a valid underlying petition and visa availability, but the Immigration Judge must still address admissibility, statutory bars, jurisdiction, and discretion.

Obtain the approval notice, petition record where relevant, and current visa-availability evidence.

Many applicants adjust under §245(a), which generally requires inspection and admission or parole, subject to separate statutory exceptions or §245(i) grandfathering. The entry record can therefore be dispositive.

Review every arrival, parole document, I-94, and prior immigration filing.

Applicants who entered without inspection or otherwise face §245(a) obstacles may qualify through §245(i) if the statutory grandfathering and filing-date requirements are met. Grandfathering can depend on a qualifying petition or labor certification and approvable-when-filed rules.

Old family and employment records may be essential.

An adjustment applicant generally must be admissible for permanent residence or obtain an available waiver. Criminal, fraud, unlawful presence, health, security, public-charge, and prior-removal grounds should be screened before hearing.

Do not assume that defeating deportability means adjustment is available.

Where §212(h), §212(i), or another waiver is available, the Immigration Judge can in appropriate cases adjudicate the waiver together with adjustment. Each waiver has separate qualifying relatives, bars, hardship, and discretion.

Prepare the waiver evidence as an independent element of the adjustment case.

A conviction may create inadmissibility, trigger a waiver requirement, or remain merely an adverse discretionary factor. Arrests and conduct not resulting in conviction can also affect discretion if reliably established.

Classify each incident before deciding what relief is needed.

Matter of L-L-R-, 29 I&N Dec. 799 (BIA 2026), held that the Immigration Judge erred in granting a waiver and adjustment in discretion where serious and lengthy criminal history and inadequate evidence of rehabilitation outweighed favorable factors.

Adjustment cases with criminal history need affirmative rehabilitation evidence, not just statutory waiver eligibility.

Matter of Garcia Martinez, 29 I&N Dec. 169 (BIA 2025), rejected termination to pursue Cuban adjustment before USCIS where eligibility depended on speculative future parole. The decision illustrates the need for a concrete jurisdictional and eligibility path before seeking procedural delay or termination.

Relief strategy should be based on current legal posture, not hoped-for future agency action.

Common evidence includes birth and marriage certificates, divorce records, passport and entry documents, petition approvals, visa records, medical examination, tax materials, affidavit-of-support evidence where applicable, and criminal dispositions.

Resolve name and date inconsistencies before filing.

Even a statutorily eligible applicant can be denied adjustment as a matter of discretion. Immigration violations, fraud, criminal conduct, tax problems, and adverse credibility weigh against family ties, long residence, rehabilitation, employment, hardship, and community service.

Prepare a discretionary balance intentionally.

Divorce, death, employer changes, aging children, petition revocation, priority-date changes, or marriage-fraud findings can affect the underlying immigrant basis. Update the court promptly when the petition foundation changes.

Do not litigate adjustment on a petition that no longer supports visa classification.

Matter of L-A-B-R- and related cases require attention to the likelihood collateral relief will be granted and whether it will materially affect the case. Provide current petition evidence and visa availability rather than requesting open-ended delay.

Where USCIS jurisdiction is exclusive, consider whether closure or termination is legally appropriate.

Organize proof around statutory adjustment requirements, each inadmissibility issue and waiver, then discretionary equities. This allows the Immigration Judge to make clear alternative findings if one issue is appealed.

Prepare witnesses for both favorable factors and adverse history.

An adjustment grant changes status to LPR and ordinarily resolves the removal case consistent with the judge’s order. The applicant should then obtain documentary evidence from DHS and verify the permanent-resident record.

Future naturalization eligibility should be assessed separately.

For preference categories, an approved petition is not enough if the priority date is not current under the governing chart for adjustment. Visa availability can change while proceedings are pending, so counsel should monitor the Department of State Visa Bulletin and applicable USCIS chart policy.

Do not request a merits hearing on adjustment that cannot yet be granted.

Family-based adjustment often requires a legally sufficient Form I-864 unless an exemption applies. Household size, sponsor income, domicile, tax returns, joint sponsors, and qualifying quarters can all affect admissibility under the applicable framework.

Resolve sponsor issues before the individual hearing.

Adjustment generally requires a valid immigration medical examination and vaccination record unless an exception applies. Filing validity rules change, so confirm current USCIS and EOIR practice close to hearing.

Medical inadmissibility and waiver issues should be identified before submission.

Unauthorized employment, status violations, crewman entry, certain visa categories, and other statutory bars can affect adjustment depending on category and exceptions. Immediate relatives and grandfathered applicants may receive different treatment.

Screen the exact subsection rather than assuming every status violation is fatal.

Adjustment based on a marriage entered while removal proceedings are pending can trigger statutory bona-fide-marriage requirements and evidentiary burdens. Prepare objective relationship evidence from the beginning rather than relying only on testimony.

Prior marriage-fraud findings can create far more serious petition problems.

An applicant may have an approved petition and otherwise valid adjustment route but remain inadmissible because of unlawful presence, prior removal, unlawful reentry, or related conduct. Some grounds are not cured simply by being inside the United States.

Map every departure and prior order.

List each possible §212(a) ground, whether it applies, the evidence supporting or defeating it, any waiver, the qualifying relative, and who has jurisdiction. This prevents surprise at the merits hearing.

Security, fraud, criminal, and prior-order issues deserve separate treatment.

Immigration Judge grants must be implemented by DHS systems. The new LPR should follow current procedures for documentation, card production, and correction of errors.

Keep certified or official copies of the court order permanently.

DHS can raise inadmissibility or petition-related concerns even where an I-130 was approved, depending on the issue and procedural posture. Prior marriages, inconsistent addresses, interviews, and documentary discrepancies should be reviewed before the merits hearing.

Do not equate petition approval with a binding finding on every admissibility question.

Family unity, employment, taxes, length of residence, military service, caregiving, rehabilitation, and community involvement can support discretion. The application should also address unauthorized work, status violations, fraud, criminal conduct, and prior orders.

A balanced written discretionary section helps the judge make clear findings.

Visa availability, petition validity, divorce, aging derivatives, criminal dispositions, waiver eligibility, and regulatory jurisdiction can all change before final decision. Treat adjustment as a live case that requires periodic eligibility review.

Update the court when a material prerequisite changes.

Adjustment applicants may have prior visa, marriage, asylum, or petition interviews containing statements DHS later uses to test admissibility or credibility. Obtain the A-file where possible and reconcile material inconsistencies before hearing.

Surprise from an old sworn statement is avoidable with early record review.

A respondent can seek a waiver in the alternative while disputing whether the underlying ground is established. This can matter where the criminal statute is overbroad, a misrepresentation was not material, or the record does not prove the alleged conduct.

State alternative positions clearly in pleadings and briefs.

Keep the court order, medical filing proof, petition approval, waiver decision, civil records, and key exhibits together. Later naturalization or replacement-card filings can require accurate reconstruction of how permanent residence was obtained.

A complete packet also helps correct DHS record errors.

Adjustment in removal proceedings is a jurisdiction-sensitive form of relief. The court must have authority, the applicant must satisfy the relevant §245 pathway, a visa must be available where required, inadmissibility must be resolved, and discretion must favor the applicant.

Start with jurisdiction and statutory basis, then build the waiver and discretionary record.