Section 245(k) may come to rescue those with short status gaps or violations

One may realize during an I-485 adjustment that they have a status gap through their own review of documentation or because USCIS issues a Request for Evidence pointing it out. One may find out that they were unemployed a little longer than the allowed unemployment period; that they were employed after their employment authorization had expired; that their nonimmigrant status expired and the I-485 application was filed after the expiry date; or that they are dependents and their principal applicant had a lapse in their status; etc.

Normally, US immigration is known to be draconic. Therefore, even a day of unauthorized employment or stay can make one ineligible. If you discover your client or you, as an applicant, have to prove that one has maintained their nonimmigrant status, then Section 245(k) offers an important exception that should be explored.

USCIS handles adjustment of status under section 245 of the Immigration and Nationality Act (INA). In the INA, Section 245(c) establishes eight (8) bars to adjustment. Section 245(k) is a powerful section in adjustment because it grants relief from three (3) of those bars: sections 245(c)(2), (c)(7) and (c)(8) if –

the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days-

(1) failed to maintain, continuously, a lawful status;

(2) engaged in unauthorized employment; or

(3) otherwise violated the terms and conditions of the alien's admission.

Only certain employment-based adjustment applicants may benefit from Section 245(k)

To take advantage of Section 245(k), the adjustment application must be based on an approved immigrant petition in one of the following employment-based categories:

1. EB1 Persons of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives;

2. EB2 Persons who are members of the professions holding advanced degrees or persons of exceptional ability;

3. EB3 Skilled workers, professionals, and other workers;

4. EB4 Religious Workers

5. EB5 Qualified immigrant investors; and

6. their derivative applicants.

A key consideration is determining how to count the 180 days

First, it is an aggregate period. Second, USCIS only considers the time period following the applicant’s most recent lawful admission. Third, USCIS does not double count. That is, if one has three violations on one day, that still counts as one day and not three.

USCIS provides useful examples to illustrate how they count 180 days.

Example #1:

On January 1, 2015, a noncitizen is admitted as an F-1 nonimmigrant student.

On March 1, 2015, the noncitizen stops attending the university and begins working without employment authorization.

On December 1, 2015, the noncitizen departs the US.

On January 1, 2016, the noncitizen is admitted as a B-2 nonimmigrant visitor for 6 months.

On June 1, 2016 , the noncitizen files an adjustment application with an employer’s immigrant petition seeking EB-2 classification.

The noncitizen violated their nonimmigrant status from March 1, 2015 until December 1, 2015, which amounts to more than 180 days. However, because USCIS only considers violations following the most recent lawful admission, and the noncitizen in this example does not have any violations since January 1, 2016, they are eligible to adjust their status.

Example #2:

On January 1, 2010, a noncitizen is admitted as a B-2 nonimmigrant visitor for pleasure.

On June 1, 2010 , the noncitizen files an I-539 application to extend his B-2 status. He also begins working for an employer on a one-month contract without work authorization.

On July 1, 2010, the noncitizen’s contract with the employer ends.

On September 1, 2010, the noncitizen submits an I-485 adjustment application with an employer’s immigrant petition seeking EB-3 classification.

On February 28, 2011, the noncitizen’s B-2 status expires.

From June 1 until June 30, the applicant working resulted in 3 separate immigration violations: the applicant engaged in unauthorized employment; violated the terms and conditions of his nonimmigrant admission; and failed to continuously maintain a lawful status. When multiple violations occur on the same days, they are only counted once. Therefore, during this period, he accumulated a total of 30 days for the purposes of Section 245(k).

Once the applicant began to work without authorization on June 1, he stopped maintaining a lawful status. The failure to continuously maintain a lawful status continued until the applicant properly filed an adjustment application on September 1, which brought the total days without lawful status to 92. Because the time period from June 1 through June 30 was already counted for the three violations above, the failure to continuously maintain lawful status would only add an additional 62 days by counting the days from July 1 through August 31.

If USCIS approves the applicant’s petition for EB-3 immigrant visa classification, he is eligible for the INA 245(k) exemption because the applicant’s immigration violations totaled 92 days.

Special considerations

Please note if one enters the US with an advance parole document (following an I-131 approval), they are not considered to be “admitted,” but rather they are considered to be “paroled.” This technical distinction is important because reentry based on a parole or advance parole does not restart the clock for the purposes of section 245(k).

Filing an I-485 adjustment of status application will bring to an end one’s failure to maintain status. However, it won’t do the same for unauthorized employment. Unauthorized employment ends only with the approval of an I-765 application.

Finally, a reinstatement of F-1 or J-1 status cures time out of or in violation of status for the particular period of time covered by the reinstatement. One does not have to count the same time against the 180-day period.

In conclusion, Section 245(k) may be a determinative legal provision and should be explored in complex adjustment cases with short status gaps or work authorization violations.

The information contained in article is provided for general information only and should not serve as a substitute for legal advice.

Jenny ParkNovember 9, 2022Comment