Unauthorized Employment Bars to Adjustment of Status

 

Introduction: Unauthorized Employment Bars to Adjustment of Status

Unauthorized EmploymentEngaging in unauthorized employment has numerous adverse immigration consequences. In the adjustment of status complex, having at any time engaged in unauthorized employment may trigger the adjustment of status bars found in sections 245(c)(2) and (8) of the Immigration and Nationality Act (INA). In this article, we will follow the United States Citizenship and Immigration Services (USCIS) Policy Manual chapter on the issue [see 7 USCIS-PM B.6] and examine the relevant statutes, regulations, and administrative guidance to provide an overview of the effect of unauthorized employment on a nonimmigrant's ability to adjust status under section 245(a).

AOS Statute and the Relevant Bars

Section 245(a) allows for an alien who has been admitted into the United States as a nonimmigrant or who has been paroled into the United States to apply for adjustment of status. Section 245(c) contains eight separate bars to adjustment of status. The two bars that address unlawful employment are found in sections 245(c)(2) and (c)(8).

Where the Bars do not Apply

Before examining the two bars, it is important to note that there are several cases in which they do not apply per 7 USCIS-PM B.6:

  • Immediate relatives of U.S. citizens;
  • Violence Against Women Act (VAWA)-based applicants [see article];
  • Certain physicians defined under section 101(a)(27)(H) and their spouses and children;
  • Certain G-4 international organization employees, NATO-6 employees, and their family members under section 101(a)(27)(I) [see article];
  • Special immigrant juveniles [see category]; or
  • Certain members of the U.S. armed forces and their accompanying spouse and children under section 101(a)(27)(K).

In footnote 5 in 7 USCIS-PM B.6, the PM notes that section 245(c)(8) does not explicitly exempt immediate relatives and certain special immigrants whereas 245(c)(2) does. Nevertheless, USCIS applies the exemptions listed in 245(c)(2) to (c)(8) through 8 C.F.R. 245.1(b)(10).

Furthermore, section 245(k) provides for limited waivers for employment-based adjustment of status applicants [see category] from the bars in sections 245(c)(2), (3), and (8). With regard to unauthorized employment specifically, 245(k) may waive up to 180 days of unauthorized employment accrued subsequent to the alien's last lawful admission or parole into the United States. To learn more about section 245(k), please read our full article [see article].

Special Considerations for Immediate Relatives

The Board of Immigration Appeals (BIA) held in the Matter of Adalatkhah, 17 I&N Dec. 404 (BIA 1980) [PDF version] that an alien seeking adjustment of status on the basis of an approved immediate relative petition as the spouse of a U.S. citizen may be exempt from section 245(c)(2) even if the marriage is no longer viable.

In 1988, the Immigration and Nationality Service (now Department of Homeland Security) took the position that an alien applying for adjustment of status on the basis of an approved immigrant visa petition in the EB3 preference category who was also an immediate relative of a U.S. citizen was exempt from the section 245(c)(2) bar.1 This is noteworthy in that the exemption for immediate relatives was interpreted to include an alien whose immigrant visa petition was not based upon immediate relative status. However, a General Counsel legal opinion from 1990 suggested that, in order to be exempt from 245(c)(2) as an immediate relative, the alien must be applying for adjustment of status on the basis of an approved petition as an immediate relative.2

It is clear from the statutes and regulations that an alien applying for adjustment of status on the basis of an approved family-based petition in the immediate relative category will be exempt from the bars based upon unauthorized employment. It is less clear whether an alien applying for adjustment of status on a different basis who happens to be the immediate relative of a U.S. citizen would be exempt from the 245(c)(2) and (c)(8) bars.

Examining and Developing the Statutory Bars

Taken together, the unauthorized employment bars for adjustment of status apply “if the alien has ever been employed in the United States without authorization…” [see Memo see 3.B.].3 USCIS regulations take this position in 8 C.F.R. 245.1(b)(4) and (10). As we will see, this means that unauthorized employment before or after the filing of an adjustment of status application will trigger at least one of the bars unless the alien is otherwise exempt.

Section 245(c)(2) bars adjustment of status under 245(a) for an alien “who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States. This provision covers unauthorized employment predating the adjustment of status application.

While this article will focus only on unauthorized employment, it is important to bear in mind that 245(c)(2) sweeps more broadly, also barring adjustment of status for an alien “who has failed … to maintain continuously a lawful status since entry into the United States.”

First, we must note that the exemption for “through no fault of his own or for technical reasons” applies to unauthorized employment as well. The phrase “no fault of his or her own or for technical reasons” is limited in 8 C.F.R. 245.1(d)(2) to:

  • i. The inaction of an individual or organization who is authorized by immigration regulations and over whose actions the alien has no control. In order for this exemption to apply, the individual or organization must acknowledge its inaction. The regulation cities as an example of an “individual or organization” a designated school official (DSO) for certain nonimmigrant students.
  • ii. A technical violation resulting from inaction by USCIS. The regulation offers as an example a situation in which an applicant demonstrates that he or she filed a timely request to maintain status and USCIS fails to act for technical reasons.
  • iii. A technical violation resulting from the physical inability of an applicant to request an extension of stay. The regulation offers as an example a situation where the applicant is hospitalized and accordingly unable to request an extension of stay.
  • iv. “A technical violation resulting from USCIS's application of the maximum 5/6 year period of stay for certain H1 nurses only if the applicant was subsequently reinstated to H1 status in accordance with the terms of Public Law 101-656.”

Under USCIS policy, the applicant must demonstrate that he or she falls under one of the four regulatory provisions listed above in order to qualify for an exemption from 245(c)(2) for “no fault of his or her own or for technical reasons.” However, in an unpublished decision by a California federal district court titled Alimoradi v. U.S. Citizenship and Immigration Services, Case No. CV 08-02529 DDP (JCx) (C.D. Cal. Feb. 10, 2009) [PDF version], the court held that an applicant who demonstrated that he violated 245(c)(2) based on incorrect legal advice from corporate counsel qualified for an exemption from 245(c)(2) due to having violated status for “no fault of his own or for technical reasons.” Although this decision is non-precedential, it leaves open the possibility that certain courts may be willing to read the exemption more broadly than USCIS.

Section 245(c)(8) bars adjustment of status for “any alien who was unemployed while the alien was an unauthorized alien…” The term “unauthorized alien” is defined with respect to unauthorized employment as any alien who engaged in employment when not “authorized to be so employed…” Similarly to section 245(c)(2), (c)(8) also covers general violations of the terms of a nonimmigrant visa. The provision notably covers unauthorized employment engaged in after the filing of an adjustment of status application. To that effect, there is no “no fault of his or her own or for technical reasons” exemption to the bar found in section 245(c)(8).

Working While Adjustment of Status is Pending

Because of section 245(c)(8), it is important for an alien who has filed an adjustment of status application to ensure that any employment undertaken while USCIS is considering the application is authorized. Unauthorized employment after the filing of the application will not only result in the denial of the application, but would likely make it difficult, if not impossible, for the alien to be granted adjustment of status under section 245(a) in the future.

7 USCIS-PM B.6(A) lists the situations in which an alien with a pending adjustment of status application may engage in employment:

  • The applicant applied for employment authorization and USCIS granted employment authorization;
  • USCIS granted employment authorization prior to the adjustment of status application and the employment authorization has not expired;
  • The adjustment of status applicant is authorized for employment under the terms of his or her nonimmigrant status.

If the applicant is properly maintaining a nonimmigrant status for which he or she is authorized for employment, the applicant will not be required to file a separate application for employment authorization (however, the applicant will be required to follow the rules for employment in his or her nonimmigrant status).

If the adjustment of status applicant is not authorized for employment, he or she may request employment authorization by filing a Form I-765 along with the adjustment of status application or during the pendency of the application. The applicant will be ineligible to engage in employment until the application is approved. If the adjustment of status application is denied, employment authorization obtained based on the adjustment of status application will be terminated.

Conclusion: Unauthorized Employment Bars to Adjustment of Status

With limited exceptions, engaging in unauthorized employment before or after applying for adjustment of status will result in the applicant being unable to adjust status under section 245(a). The adjustment of status process is often complicated, and as such it is always advisable for applicants to consult with an experienced immigration attorney. If an applicant engaged in unauthorized employment, an experienced immigration attorney will be able to assess the situation and determine whether the applicant may still have a path to applying for adjustment of status under section 245(a), or whether the applicant will have to pursue a different route toward permanent residency.

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  1. 65 No. 6 Interpreter Releases, 138 (Feb. 28, 1988)
  2. Legal Opinion, Cook, General Counsel, CO 245-C (May 18, 1990) [as described in Kurzban's Immigration Law Sourcebook]
  3. Memo, Aytes, Assoc. Dir. Domestic Operations, USCIS HQDOMO, 70/23.1 (Jan. 12, 2007)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1141-42, Print. Treatises & Primers.