U.S. immigration law is complex. Sometimes, legal immigrants with the best of intentions may fall out of status or violate their non-immigrant visa status at some point during their time in the U.S. For example:

Mr. Worker was employed by Company A in H-1B status and was looking to change employers to Company B. Company B filed an H-1B “transfer” petition in order to hire Mr. Worker. The day after the petition was delivered to USCIS, Mr. Worker began working for Company B pursuant to the portability provision of AC-21. Unfortunately, a signature was missing in Company B’s H-1B petition and the filing was rejected two weeks later. Company B quickly corrected the error and re-filed the petition, but Mr. Worker has now been working for Company B without authorization for two weeks. This is a violation of H-1B status as well as unauthorized employment.

I am often asked about how a prior violation such as this may impact an individual’s future ability to obtain a green card.

The Immigration and Nationality Act provides the basic requirements for a non-immigrant to be eligible for employment-based adjustment of status:

• the applicant must have entered the country legally (i.e. been inspected and admitted);
• the applicant must be admissible (or eligible for a waiver if not admissible); and
• the priority date must be current (i.e. an immigrant visa is immediately available).

In addition to meeting these basic requirements, an applicant must demonstrate that he or she does not fall into one of the bars to adjustment of status. An individual who

• has failed to maintain continuous lawful status,
• does not have lawful nonimmigrant status,
• has engageed in unauthorized employment, or
• has violated the terms of a nonimmigrant visa.

is normally not eligible to adjust status to lawful permanent resident by filing an I-485 application. But, specifically for employment-based applicants, Section 245(k) of the Immigration and Nationality Act may still allow an individual to adjust status under certain circumstances.

INA §245(k) allows EB-1, EB-2, and EB-3 applicants for adjustment of status who may have been out of status, worked without authorization, or otherwise violated the terms and conditions of the admission to still apply for adjustment of status IF the aggregate period of such violations does not exceed 180 days.  This benefit also applies to family members applying as derivative beneficiaries of the primary employment-based adjustment applicant.

Qualified employment-based applicants are eligible to adjust under INA §245(k) even if they failed to maintain continuous lawful status, engaged in unauthorized employment, or violated the terms of a non immigrant visa as long as:

• none of the immigration violations exceeded 180 days since the applicant’s last admission to the U.S., and
• the applicant is present in the U.S. pursuant to a lawful admission at the time of filing the I-485.

USCIS only considers status violations after the most recent date of entry in lawful status. This means that employment-based adjustment applicants can have a fresh start after the last admission and allows adjustment to permanent residency as long as there has not been unauthorized employment or a status violation exceeding 180 days since that last entry.

Going back to our example of Mr. Worker above, how does 245(k) benefit him? Since his period of unauthorized employment was less than 180 days and this was his only violation since his last entry, 245(k) allows him to file the I-485 application to adjust status.

Here is another example:

Mr. Worker is currently in the United States in L-1A status with an approved I-140 petition. He is ready to file his I-485 application when he discovered that his wife’s L-2 has expired. The last time she traveled, her passport was expiring before her I-797 approval notice was set to expire. At the port of entry, she was given a new I-94 card that expired according to her passport instead of her I-797 approval (see:  http://immigrationgirl.com/travel-when-your-passport-expires-before-your-i-797-expires/). She was not aware until now that her I-94 actually expired 3 months ago.

Since her admission to the U.S. in L-2 status was lawful and her I-94 has been expired for less than 180 days, she is still eligible to file the I-485 application along with her husband to adjust status in the employment-based category. Note that if she did not realize her I-94 had expired until more than 180 days had passed, she would not be eligible to adjust status. She would need to get back into L-2 status prior to filing the I-485.

This does not mean that it is OK to work without authorization or violate status, even briefly. It is not intended to help you circumvent immigration laws. It also does not mean that status and other violations will be disregarded for purposes other than filing the I-485. Any other penalties, including potential deportation for failure to maintain or comply with status requirements, can still be applied. It therefore is important to do everything possible to avoid any violation. INA 245(k) is simply a way for some of those with inadvertent immigration violations to still be eligible to adjust status.

Be sure to discuss any potential situations with a qualified immigration attorney before filing your adjustment of status to ensure that you are eligible for this type of relief.

 ~ImmigrationGirl

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