Unlawful Presence Exemptions: Special Immigrant

If you have not maintained lawful status in the United States, you will not be allowed to adjust status to permanent residence. The only way to adjust status despite the bar is if an exemption applies. There is one nuances category of immigrants who exempt from the unlawful presence bar. These are special Immigrants. If you fall under one of these categories, you may just be able to move forward with your adjustment of status application.

Certain Special Immigrants who are exempt from the unlawful presence bar

  1. You are an immigrant, and accompanying spouse and children, who is licensed to practice medicine in a U.S. State on January 9, 1978, graduated medical school or was qualified to practice medicine in a foreign state; entered the United States as a nonimmigrant under very specific circumstances pursuant to statute before January 10, 1978, and have been continuously present in the United States in the practice or study of medicine since the date of such entry.

  2. You are an immigrant who is the unmarried son or daughter of an officer or employee, or of a former officer or employee, of a certain international organization described by statute; have resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to an applicable status; for a period totaling at least seven years between the ages of five and 21 years, and apply for a visa or adjustment of status no later than your twenty-fifth birthday.

  3. an immigrant who is the surviving spouse of a deceased officer or employee of such an international organization, and who (I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a an applicable status; and for a period totaling at least 15 years before the date of the death of such officer or employee; and you file a petition for status no later than six months after the date of such death.

  4. You are an immigrant who is a retired officer or employee of such an international organization, and who (I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to an applicable status and for a period or periods totaling at least 15 years before the date of the officer or employee’s retirement from any such international organization; and file a petition for status no later than six months after the date of such retirement.

  5. You are an immigrant who is the spouse of a retired officer or employee accorded the status of special immigrant under section 4, accompanying or following to join such retired officer or employee as a member of his immediate family.

  6. You are a Special Immigrant Juvenile.

  7. You are an immigrant who has served honorably on active duty in the Armed Forces of the United States after October 15, 1978, and after original lawful enlistment outside the United States (under a treaty or agreement in effect on October 1, 1991) for a period or periods totaling 12 years and who, if separated from such service, was never separated except under honorable conditions, or 6 years, in the case of an immigrant who is on active duty at the time of seeking special immigrant status and who has reenlisted to incur a total active duty service obligation of at least 12 years; and the spouse or child of any such immigrant if accompanying or following to join the immigrant, but only if the executive department under which the immigrant serves or served recommends the granting of special immigrant status to the immigrant.

  8. The fiance and any accompanying child of a United States citizen granted non-immigrant status for the sole purpose of coming to the United States to get married to the U.S. citizen within 90 days.

NOTE: As always this is for informational purposes only and is not legal advice. Consult an attorney for advice regarding your particular circumstances.

Share this Article