1/22/2012

INA Section 245(k) relates to the final stage in most employment-based green card cases - the adjustment of status to permanent residence (Form I-485). The applicant's immigration history and current status are important at this stage. 

As a general rule, a foreign national is barred from adjustment of status (AOS) for certain immigration-related violations. Foreign nationals who are not in lawful immigration status on the date of filing the I-485, or who have failed to maintain lawful immigration status since entry into the United States, generally are not eligible to file the I-485 and obtain approval. The same is true of those who violate the terms and conditions of their U.S. admission. Individuals who engage in unauthorized employment are also ineligible to file or obtain approval of the I-485. However, Section 245(k) provides a helpful exception to these general rules for those who may have violated their respective statuses for a limited period. 

The exception in INA Section 245(k) permits individuals to obtain approval of the adjustment of status to permanent residence in most employment-based green card categories, even if the applicant has been out of status, worked without authorization, or otherwise violated the terms and conditions of the admission IF the aggregate period of such violations does not exceed 180 days. This provision does not, however, cure all immigration violations, such as entry without inspection or any of the various grounds of inadmissibility that otherwise would prevent adjustment of status. Nonetheless, INA Section 245(k) can be an extremely helpful provision, as many applicants have brief periods of inadvertent violations due to misunderstandings of the law and other mistakes made along the way in the years that usually precede the I-485 filing stage. 

INA Section 245(k) applies only to certain employment-based (EB) green card categories. It applies to all EB1, EB2, and EB3 cases, as well as to certain EB4 cases. The primary beneficiary and all derivative (dependent) family members can take advantage of this provision. While it is not available in family-based cases, it is available to one's spouse and minor children when they are seeking to immigrate as dependents in an EB case.

Eligibility to use INA Section 245(k) does not require the filing of an immigrant petition or labor certification on, before, or after any particular date. There is no additional form required in order to use these provisions; neither is there an additional filing fee. It is often not even necessary to specify that one is using this provision, although eligibility sometimes must be argued if questions of eligibility for adjustment of status are raised by the U.S. Citizenship and Immigration Services (USCIS) in a request for evidence (RFE). 

The USCIS released a July 2008 memorandum that interpreted the provisions of INA Section 245(k). This memorandum addresses how violations are counted and aggregated. The USCIS states that only violations occurring after the most recent lawful admission into the United States count against the 180-day period for purposes of 245(k). 

Reentry based on an advance parole does not reset the clock for the purpose of 245(k). Such entries are not considered admissions as that term is used in immigration law. It is important to note, however, rather than permit up to 180 days for each type of violation, the USCIS interprets the 180-day period to refer to the total of all three types of violations combined. 

The filing of an adjustment-of-status application does not, in and of itself, authorize employment. Thus, if a foreign national continues unauthorized employment, even after filing an application for AOS, s/he continues to accrue days of unauthorized employment. These days will be counted against the period of "forgiveness" granted by 245(k). For example, one has worked without authorization for 160 days prior to filing the I-485 will become ineligible for AOS if s/he continues to work without authorization for the next 20 days. 

When determining whether a foreign national has exceeded the maximum time allowed (up to 180 days) for unauthorized employment or other lapse in status under Section 245(k), one cannot just count the number of days the individual actually worked without authorization. Instead, the USCIS will look at the existence of an employer-employee relationship. If such a relationship exists, the USCIS will count each and every day since the unauthorized employment began until it ended. This includes part-time days and non-working weekends and holidays. If an employee works four hours a day, five days a week for the month of April, all 30 days of the month - even weekends and holidays - will count toward the 180-day limit under current USCIS interpretation. It is the applicant's burden to establish evidence of interruptions in unauthorized employment.