Adjustment Of Status For Arriving Aliens

Adjustment Of Status For Arriving Aliens: Exclusion Proceedings, Parole, And Family-Based Green Cards

By Alena Shautsova, New York Immigration Lawye

When it comes to adjusting status in the United States, few areas of immigration law are more nuanced and misunderstood than adjustment of status for arriving aliens, especially those who were once in exclusion proceedings. With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the landscape changed significantly, but pre-IIRAIRA cases remain relevant — and winnable — for many immigrants today.

In this blog, we will explore how arriving aliens who were released from exclusion proceedings prior to IIRAIRA can still adjust status based on family petitions, even when their initial parole was issued under INA § 212(d)(5) rather than the later-created INA § 236(b) parole. We will explain the legal framework, discuss real-world hypotheticals, and provide practical tips for immigrants and practitioners alike.

Legal Background: Adjustment of Status for Arriving Aliens

Under the Immigration and Nationality Act (INA) § 245(a), certain aliens who have been inspected and admitted or paroled into the United States may apply for adjustment of status to that of a lawful permanent resident (green card holder). However, arriving aliens—individuals who present themselves for inspection at a port of entry—have always faced specific hurdles.

The implementation of IIRAIRA in 1997 created new categories and procedural rules. One such addition was INA § 236(b), which allowed for a new type of parole for detained arriving aliens. However, prior to IIRAIRA, § 236(b) parole did not exist. This distinction is crucial when analyzing the rights of individuals who were in exclusion proceedings before the law changed.

Before IIRAIRA, arriving aliens who were not detained were released on § 212(d)(5) humanitarian parole. This type of parole is significant because, even today, § 212(d)(5) parole satisfies the statutory requirement for adjustment under § 245(a) — meaning these individuals can apply for adjustment of status if they have an immediately available visa, such as through a U.S. citizen spouse or child.

Exclusion Proceedings vs. Removal Proceedings

Prior to IIRAIRA, noncitizens arriving at U.S. borders who were deemed inadmissible were placed into exclusion proceedings, rather than the current unified removal proceedings. These proceedings followed a different set of legal rules, and many immigrants who were released pending the outcome of exclusion hearings were given 212(d)(5) parole, not considered formal "admission" but a valid form of entry for the purposes of INA § 245(a).

This is where confusion often arises: many mistakenly assume that being in exclusion proceedings or lacking § 236(b) parole makes an alien ineligible for adjustment. That is not the case under the pre-IIRAIRA framework.

Hypothetical Example #1: Paroled on 212(d)(5), Spouse Files I-130

Irina, a Russian national, arrived at JFK airport in 1995. She lacked proper documentation and was placed in exclusion proceedings. She was not detained but was released on § 212(d)(5) parole pending her hearing.

In 1997, her exclusion case was administratively closed and never reopened. Irina remained in the U.S. and later married a U.S. citizen. Her husband filed an I-130 petition, which was approved.

Because she was paroled under INA § 212(d)(5), she meets the threshold eligibility for adjustment under § 245(a). Her exclusion proceedings can be reopened and terminated, or she can request USCIS to exercise jurisdiction over her adjustment application, depending on the procedural posture of her case.

Practical Tip: Try to obtain documentation showing the individual was paroled under § 212(d)(5). This proves eligibility for adjustment even decades later!

Hypothetical Example #2: Misadvised About “No Adjustment” Eligibility

Mohammed, from Egypt, arrived in the U.S. in 1996 and was placed in exclusion proceedings after being paroled under § 212(d)(5). An attorney incorrectly told him he could never get a green card unless he left and re-entered on a visa. He overstayed in the U.S., fearful of being deported.

In 2025, his now 21-year-old U.S. citizen daughter files an I-130 petition. Mohammed is eligible to adjust because:

• He was paroled into the U.S. under § 212(d)(5),
• He now has an immediate relative petition, and
• He was not subject to § 236(b) (which would bar USCIS jurisdiction under certain conditions).

Practical Tip: If a client was in exclusion proceedings and even had a final order, but they were paroled under § 212(d)(5), investigate the case status — it may be ripe for a successful adjustment application.

Common Pitfalls and How to Avoid Them

Assuming No Parole Exists

Many older cases lack digital records. Attorneys and applicants must FOIA both CBP and EOIR files to locate proof of parole or the original exclusion case disposition.

Confusing INA § 212(d)(5) with Other Types of Entry

Only parole under § 212(d)(5) or § 236(b) qualifies for adjustment under § 245(a). If the individual “entered without inspection,” they generally cannot adjust unless they qualify under § 245(i).

Overlooking USCIS Jurisdiction

Practical Tip: If EOIR proceedings are concluded or never completed, and the person is not detained, USCIS may have jurisdiction to adjudicate the adjustment of status application.

Legal Support and Citations

• INA § 245(a): Governs eligibility for adjustment of status
• INA § 212(d)(5): Humanitarian parole provision
• 8 CFR § 245.1(c)(8): Bars adjustment for certain arriving aliens, but only applies in limited cases
• USCIS Policy Manual, Vol. 7, Part B, Ch. 2: Explains parole eligibility for adjustment

Practical Checklist for Adjustment of Status (Arriving Alien in Exclusion Proceedings)

1. Obtain proof of parole (I-94 or CBP records) if any
2. Determine the procedural posture of the exclusion case (terminated, pending, etc.)
3. Confirm availability of visa (immediate relative or preference category current)
4. File I-130 and I-485 with supporting documentation
5. Request termination or closure of any open proceedings, if necessary
6. Be ready to prove continuous presence and good moral character, especially in long-pending cases

Final Thoughts from a New York Immigration Lawyer

Immigration law is complicated — and even more so when you're dealing with older cases involving exclusion proceedings and pre-IIRAIRA parole. But these cases can often result in successful green card approvals if handled properly.

As a New York Immigration Lawyer, I have helped clients in these situations obtain lawful status after decades of uncertainty. Every case is unique, but the law provides pathways — especially for those with U.S. citizen spouses or children willing to petition for them.

If you or someone you know was in exclusion proceedings before 1997 and was released on 212(d)(5) parole, don’t give up. You may still be eligible for a green card today.

Book a consultation at www.shautsova.com with the best Immigration lawyer in New York and take the next step toward securing your future in the USA.