The Immigration and Nationality Act (INA) specifically provides the eligibility requirements for nonimmigrant applicants who wish to apply for employment-based adjust of status lawful permanent resident by filing a Form I-485 application. Similarly, the INA also provides specific bars to adjustment of status for nonimmigrant applicants applying for employment-based adjustment of status under the INA Section 245(c). This section specifically bars nonimmigrant applicants from employment-based adjustment of status if the applicant[1]:

• Failed to maintain continuous lawful status at the time of filing;
• Has engaged in unauthorized employment;
• Does not have lawful nonimmigrant status at the time of filing; or
• Has violated the terms and conditions of a nonimmigrant visa.

 

A nonimmigrant who engaged in any of the above-listed listed INA § 245(c) violations is typically not eligible to adjust status to lawful permanent resident. However, employment-based applicants may be able to apply for employment-based adjustment of status under the specific circumstances permitted under the INA Section 245(k). This exemption is also applicable to family members who are applying as derivative beneficiaries of the principal employment-based applicant. 

 

How does the INA §245(k) employment-based exemption apply?

 

In particular, INA § 245(k) allows EB-1, EB-2, and EB-3 nonimmigrant applicants to adjust their status to lawful permanent resident who may have failed to maintain continuous lawful status, worked without valid work authorization, or otherwise violated the terms and conditions of their nonimmigrant visa only where the total period of such violations does not exceed 180 days by the time of filing.

 

Additionally, USCIS will determine whether a nonimmigrant employment-based applicant is eligible for this exception based only on the time period after the applicant’s most recent lawful admission into the United States. This means that qualified employment-based applicants are eligible to adjust their nonimmigrant status under INA § 245(k) even if they violated their status by failing to maintain continuous lawful status, engaged in unauthorized employment, or otherwise violated the terms and conditions of their nonimmigrant visa as long as the applicant (1) did not engage in the immigrations violations for a total period exceeding 180 days and (2) is present in the United States at the time of filing the Form I-485 application pursuant to their most recent lawful status admission.

 

Here are a few examples of how the INA §245(k) employment- based exemption can apply to an applicant’s case: 

 

Example of violation committed	Eligible for Exemption?
Applicant was lawfully admitted into the U.S. pursuant to valid nonimmigrant status on May 1, 2020 and committed a status, employment, or nonimmigrant visa violations for a period of time between December 20, 2020 and March 5, 2021.	YES, because applicant’s violation does not exceed the aggregate 180 days permitted under INA §245(k).
Applicant committed a status, employment, or nonimmigrant visa violations and since departed from the U.S. Applicant was later lawfully admitted into the U.S. pursuant to a valid nonimmigrant status and has not committed a status, employment, or nonimmigrant visa violations since their most recent date of entry in lawful status.	YES, because applicant’s violation does not exceed the aggregate 180 days permitted under INA §245(k) after their most recent date of entry in lawful status.
Applicant was lawfully admitted into the U.S. pursuant to valid nonimmigrant status has committed a status, employment, or nonimmigrant visa violations between February 6, 2019 through October 26, 2019.	NO, because applicant’s violation exceeds the aggregate 180 days permitted under INA §245(k).

 

Essentially the INA §245(k) employment-based exemption gives qualifying employment-based adjustment applicants a fresh start upon their most recent date of lawful status admission into the United States. Although this exemption allows for a fresh start, it is by no means grants a right or permission to violate nonimmigrant visa status by engaging in unauthorized work or failure to otherwise maintain lawful nonimmigrant status. Violating immigration status requirements are never advisable, for any brief or extended duration. Further, please be mindful that although this employment-based exemption may allow the adjustment applicant to apply for and file the Form I-485, the exemption alone does not protect the applicant from any other applicable penalties or disregard any other committed violations not included in INA §245(k).

 

Please be sure to consult with an experienced immigration attorney if you have any doubts about whether you are eligible to apply for employment-based adjustment of status based on this exemption.

 

 

By: Jeanetly Garcia, Associate Attorney

 

 

 

 

Jeanetly Garcia advises employers and individuals through all phases of the non-immigrant visa process. As an attorney in the Nonimmigrant Visa Department at Reddy Neumann Brown PC she is experienced in filing nonimmigrant petitions and applications for immigrant benefits, as well as, responding to USCIS issued requests for evidence concerning an array of legal issues. Jeanetly joined the firm as a law clerk in 2018, and has since collaborated with attorneys from each of the firm’s departments on assignments ranging from drafting successful requests for evidence and appeals to conducting legal research on immigration matters. 

 

[1] http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim