Some Afghans and Iraqis physically present in America may apply for permanent resident status by filing an adjustment application (I-485 Form).  Congress created a special immigrant visa (“SIV”) for Afghans and Iraqis (“principal applicant” or “petitioner”), who assisted the U.S. Government during the wars in Afghanistan and Iraq. The special immigrant visa category applies to:

• Afghan or Iraqi nationals who worked as translators with the U.S. military,
• Iraqi nationals employed by the United States Government, and
• Afghan nationals who worked for the U.S. Government or the International Security Assistance Force (ISAF) in Afghanistan.

After assisting the U.S. Government, some Afghan and Iraqis may now live in the U.S. in nonimmigrant status or parole. This special program allows the principal applicants, spouses, and children to apply for permanent resident status.  

How Does the Special Immigrant Visa Process Begin?

Afghan and Iraqi nationals, who worked in the above categories, must file an application for the chief of mission’s approval.

After receiving approval from the chief of mission, an Iraqi applicant may file a petition for classification as a special immigrant (I-360 Form). Filing the I-360 Form allows USCIS to determine the petitioner’s eligibility for classification as a special immigrant. USCIS must approve the I-360 Form before the applicant files the I-485 Form. Iraqi special immigrants may not file the I-360 and I-485 Forms at the exact same time.

On 20 July 2022, the Department of Homeland Security issued a policy alert regarding special immigrant classification for Afghans. Beginning on 20 July 2022, the petition process changes for Afghan applicants. Rather than filing an I-360 petition with USCIS, Afghans should file a DS-157 Form when applying for chief of mission approval. Under certain circumstances, an Afghan SIV applicant may file an I-360 petition with USCIS.  

Requirements for Adjustment of Status as a Special Immigrant

To apply for permanent resident status by filing an adjustment application (I-485 Form), a petitioner must satisfy the following criteria:

• inspection and admission as a nonimmigrant or parole,
• physical presence in America when he or she files the I-485 application and when USCIS adjudicates the application,
• an approved I-360 Form or DS-157 Form, thus making the applicant eligible for an immigrant visa, 
• an immigrant visa’s immediate availability when filing the I-485 Form and when USCIS issues its final administrative order,
• no INA § 212 inadmissibility bars prohibiting USCIS from granting permanent resident status,
• the applicant is admissible or eligible for an inadmissibility waiver or other relief, and
• the applicant’s circumstances merit USCIS favorably exercising discretion for approval.

For clarification, inspection and admission as a nonimmigrant refers to a person currently in nonimmigrant status (H-1B, L-1, etc.). A petitioner may request a fee waiver if needed.  

May a Spouse and Child Apply for Permanent Residency with the Petitioner?

Yes. U.S. law authorizes a spouse and children (unmarried and under age 21) to apply for permanent resident status. The petitioner’s priority date and special immigrant category will apply to a spouse and unmarried child. 

What Happens if the Principal Applicant Dies?

If the principal applicant died, USCIS may have revoked the approved petition. A surviving spouse or child may apply for special immigrant classification if USCIS revoked the petition because the principal applicant died, and if USCIS would have approved the petition during the principal applicant’s lifetime. See Refugee Crisis in Iraq Act of 2007, Pub. L. 110-181 § 1244(b)(3), 122 Stat. 395, 397 (2008); Afghan Allies Protection Act of 2009, Pub. L. No. 111-8, § 602(b)(2)(C), 123 Stat. 807, 808 (2009).

Forgiveness for Some Immigration Violations When Applying for INA § 245(a) Adjustment

For Afghan and Iraqis benefitting from an approved petition, Congress forgives certain violations and allows admission to permanent residency. USCIS may grant permanent resident status even if the applicant violated INA §§ 245(c)(2), (c)(7), or (c)(8). Stated simply, unauthorized employment, unlawful status, failing to continuously maintain lawful status, or violating nonimmigrant visa terms do not prohibit an applicant from applying for permanent residency. See Afghan Allies Protection Act of 2009, Pub. L. No. 111-8, § 602(b)(9), 123 Stat. at 809; INA § 245(c), 8 U.S.C. § 1255(c).