White Paper · Family Immigration

Who Can Adjust Status: Inspection, Parole, and the Section 245(c) Bars

Whether someone can get a green card without leaving depends on how they entered, what happened since, and which category applies. The legal framework, element by element.

By Lincoln Square Law · 7-minute read

Whether an immigrant can become a permanent resident without leaving the United States often turns on a few technical questions: how the person entered, what has happened since, and which category the petition falls in. Those questions decide whether adjustment of status is available at all, and when it is not, whether leaving for a consular interview is safe. Our companion guide explains the practical choice between adjustment and consular processing. This paper examines the legal framework behind the threshold question: who is eligible to adjust.

The statutory starting point

Adjustment of status is available to a person who was inspected and admitted or paroled into the United States, who applies for adjustment, who is eligible to receive an immigrant visa and is admissible for permanent residence, and for whom an immigrant visa is immediately available when the application is filed (INA 245(a)). Each element has been litigated, and each can be decisive.

Inspected and admitted or paroled

Admission. An admission is the lawful entry of a person after inspection and authorization by an immigration officer (INA 101(a)(13)(A)). A person who presented at a port of entry and was waved through without questioning may still have been admitted, because the Board of Immigration Appeals has held that an admission requires procedural regularity, not substantive lawfulness (Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)). Proving a waved-through entry, however, can be difficult, and the applicant bears the burden.

Parole. A person paroled into the United States, for example on humanitarian parole or with advance parole after departing, is not admitted but satisfies the parole alternative in section 245(a). Parole programs have changed frequently. The parole-in-place program announced in 2024 for certain spouses and stepchildren of U.S. citizens was vacated by a federal district court in November 2024, and should not be assumed to be available.

Temporary Protected Status. The Supreme Court held that a grant of TPS does not by itself constitute an admission for purposes of adjustment (Sanchez v. Mayorkas, 593 U.S. 409 (2021)). A TPS holder who entered without inspection generally needs another basis, such as a later admission or parole.

Entry without inspection. A person who entered without inspection and has never been admitted or paroled generally cannot adjust under section 245(a), unless protected by section 245(i).

Visa availability

Immediate relatives of U.S. citizens, meaning spouses, unmarried children under 21, and parents of citizens who are at least 21, are not subject to numerical limits, so a visa is always available. Preference categories, including spouses and children of permanent residents and most employment categories, must wait until the priority date is current under the Department of State’s monthly Visa Bulletin, using whichever chart USCIS designates for filing that month. An application filed before a visa is available will be rejected or denied.

The section 245(c) bars

Section 245(c) lists categories of people who cannot adjust under section 245(a), even if inspected and admitted. The most common are people who:

• Accepted unauthorized employment before filing (INA 245(c)(2) and (8)).
• Failed to maintain continuous lawful status since entry, other than through no fault of their own or for technical reasons (INA 245(c)(2)).
• Are in lawful status but violated the terms of a nonimmigrant visa (INA 245(c)(8)).
• Were admitted as crewmen, in transit without a visa, or under the Visa Waiver Program, with exceptions (INA 245(c)(1), (3), and (4)).

The immediate relative exemption. Immediate relatives of U.S. citizens are exempt from the bars in section 245(c)(2) and (8), which is why an overstayed visitor who marries a U.S. citizen can often adjust even after years without status and unauthorized work.

The employment-based exemption. For certain employment-based applicants, section 245(k) forgives up to 180 days in the aggregate of status violations and unauthorized employment since the last lawful admission.

Section 245(i): the grandfathering provision

A person who is the beneficiary of an immigrant petition or labor certification filed on or before April 30, 2001, and who meets the related requirements, may adjust under section 245(i) despite having entered without inspection or violated status, upon payment of an additional penalty fee. Grandfathering can attach to later petitions in some circumstances, so old petitions filed for the applicant or a parent or spouse should always be investigated.

Special categories

• K-1 fiancé(e)s may adjust only on the basis of marriage to the petitioner (INA 245(d)).
• Marriages during removal proceedings require clear and convincing evidence that the marriage is bona fide (INA 245(e)).
• Special immigrant juveniles, asylees, refugees, and certain other groups adjust under separate provisions with their own rules.

Two hypotheticals

A visitor who overstayed. A woman entered on a tourist visa eight years ago, overstayed, and worked without authorization. Her U.S. citizen son, now 23, files a petition for her. She was inspected and admitted, a visa is immediately available because she is the parent of an adult citizen, and as an immediate relative she is exempt from the 245(c) bars for her overstay and unauthorized work. Subject to admissibility, she can generally adjust without leaving.

The same history, a different petitioner. Suppose instead her permanent resident husband files the petition. She is now in a preference category, a visa is not immediately available, and she is not exempt from the 245(c) bars. She cannot adjust under section 245(a). Unless an old petition gives her 245(i) protection, she would have to consular process, and her eight years of unlawful presence would trigger the ten-year bar on departure, making a provisional waiver based on extreme hardship to her permanent resident husband the central question.

When adjustment is unavailable

If the applicant cannot adjust, the case moves to consular processing, and the question becomes whether departure is safe. A person who accrued more than 180 days of unlawful presence and departs faces a three-year bar, and one who accrued a year or more faces a ten-year bar (INA 212(a)(9)(B)). A provisional waiver on Form I-601A may be available to certain applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship. A person subject to the permanent bar for reentering after a year of unlawful presence or a removal faces much more serious obstacles (INA 212(a)(9)(C)). Our white paper on the provisional waiver covers that process.

Public charge and other admissibility issues

Eligibility to adjust is necessary but not sufficient. The applicant must also be admissible. For adjustment applications filed on or after September 18, 2026, the public charge determination follows DHS’s new case-by-case framework (91 Fed. Reg. 45324), and criminal, fraud, and prior-removal grounds apply as always. USCIS has also stated that filing a family-based petition does not protect against removal.

Building the record on eligibility

• Proof of entry. The I-94 record, a passport with an admission stamp, parole documents, or, for a waved-through entry, credible evidence of the circumstances.
• Immigration history. Every status held, every extension or change, and every period without status.
• Employment history. Every job, with dates, to evaluate the section 245(c) bars and any 245(k) exemption.
• Prior petitions and labor certifications. Any filing on or before April 30, 2001 for the applicant or a family member.
• Removal history. Any prior order, voluntary departure, or proceedings.

Establish the documents before filing or traveling

Adjustment of status turns on four statutory elements and a set of bars and exceptions that treat applicants very differently depending on their category. Immediate relatives who were admitted or paroled can often adjust despite years of status problems. Others cannot, and for them, the analysis shifts to whether departure is safe and whether a waiver is available. The answers depend on documents, and they should be established before any application is filed or any trip is taken.