Immigration Information Article: Appealing a denial of adjustment of status

Appealing a denial of adjustment of status

Decisions on applications for adjustment of status are purely discretionary and not subject to appeal. A denial of an application for adjustment of status may not be appealed unless the applicant has been placed in removal (deportation) proceedings and is appealing a final order of deportation. The regulation governing this is 8 C.F.R. §245.2(a)(5)(ii), which provides:

(ii) Under section 245 of the Act.

If the application is approved, the applicant's permanent residence shall be recorded as of the date of the order approving the adjustment of status. An application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State, except when the applicant has established eligibility for the benefits of Public Law 101-238. No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in proceedings under 8 CFR part 240. [Emphasis added]

[Note: The term “proceedings under 8 CFR part 240 refers to deportation proceedings]