Introduction: Exemptions to Adjustment of Status Bars for Certain Employment-Based Applications

Section 245(a) of the Immigration and Nationality Act (INA) allows for aliens who were admitted and inspected or admitted and paroled into the United States to apply for and obtain adjustment of status [see category]. Section 245(c) lists eight bars to adjustment of status. However, section 245(k) renders three of the bars listed in section 245(c) inapplicable to employment-based [see category] adjustment of status applications.

A 2008 United States Citizenship and Immigration Services (USCIS) Memorandum authored by Donald Neufeld1 [PDF version] revised Chapter 23.5(d) of the Adjudicator’s Field Manual (AFM) to provide guidance to USCIS officers regarding how to apply section 245(k) to certain employment-based adjustment of status applications. In this article, we will review the relevant statutes and the guidance in both the Memorandum and the AFM to assess section 245(k) with respect to certain employment-based adjustment of status applications.

Before reading this article, please see our full article on the effect of unauthorized employment on adjustment of status under sections 245(c)(2) and (8) of the INA [see article].

Where Relief is Applicable

Under certain circumstances, section 245(k) [link] can render three of the eight bars to adjustment of status found in section 245(c) (245(c)(2), (c)(7), and (c)(8)) [link] inapplicable to certain employment-based adjustment of status applicants who, subsequent to their last lawful admission have not, for an aggregate period of more than 180 days:

(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms of his or her admission.2

In order to be eligible for relief under section 245(k) relief, the alien must be present in the United States after being lawfully admitted and must have an adjustment of status application based on an approved immigrant petition in one of the following employment-based classifications:

EB1: aliens of extraordinary ability [see article], outstanding professors and researchers [see article], and certain multinational managers and executives [see article];
EB2 [see article]: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability;
EB3 [see article]: skilled workers, professionals, and other workers; or
EB4 [see article]: religious workers (described in section 101(a)(27)(C) of the INA only).

An eligible derivative of an alien with an approved immigrant petition in one of the categories described above is eligible for section 245(k) relief in his or her own right.3

An adjustment of status applicant who is not applying based on an approved petition in one of the classifications above is not eligible for relief under section 245(k). Section 245(k) only offers relief from sections 245(c)(2), (c)(7), and (c)(8), and does not waive a bar to adjustment of status under any other part of section 245(c).

Application Process

An employment-based adjustment of status applicant need not submit additional information or fees with his or her properly filed adjustment of status application in order to seek section 245(k) relief. It is the responsibility of the USCIS to determine whether section 245(k) relief is applicable based on the evidence submitted with the adjustment of status application. If USCIS requires additional information to determine section 245(k) relief eligibility, it may issue a request for evidence (RFE) and/or a notice of intent to deny to solicit additional evidence in support for eligibility for section 245(k) relief.4

Counting Against 180 Days

If a USCIS adjudicator determines that an employment-based adjustment of status applicant who is eligible for section 245(k) relief is subject to one of the three bars to adjustment of status which 245(k) can render inapplicable, the adjudicator must determine the aggregate period subsequent to the alien’s last lawful admission for which he or she:

failed to continuously maintain lawful status;
worked without authorization; or
otherwise violated the terms of his or her admission.

The Memorandum revised AFM 23(d)(4) to provide the following guidance to USCIS adjudicators regarding how to assess section 245(k) relief eligibility in such cases.

General Guidelines

The adjudicator must only examine the period subsequent to the alien’s last lawful admission and must not count violations that occurred before the alien’s last lawful admission.
An alien who entered the United States with an advance parole document is not “lawfully admitted.” Thus, reentry based on parole or advance parole does not restart the clock for the purpose of section 245(k). In effect, this means that the USCIS adjudicator would consider everything that happened before the alien’s reentry as a parolee but subsequent to his or her last lawful admission.
An alien may be subject to multiple bars that can be waived by section 245(k). However, USCIS adjudicators will count each day in violation of each bar to adjustment of status toward the total of 180 days. The USCIS will not read the statute as allowing each bar to be violated for up to 180 days if the aggregate violations are over 180 days. The Memorandum explains that the USCIS holds that section 245(k) was not written to provide relief from such egregious violations.5

Unauthorized Employment

All periods of unauthorized employment since the alien’s last admission, including subsequent to his or her filing for adjustment of status, are to be counted against the 180 day period.
USCIS adjudicators will count periods of unauthorized employment starting with the first date of the unauthorized employment and continuing until the point when the unauthorized employment ends.
An alien may accrue time against the 180-days for unauthorized employment after he or she files for adjustment of status. This means that an alien with a pending adjustment of status application may only work if he or she has or obtains employment authorization. The Memorandum explains that “to hold otherwise would not only reward an alien for engaging in unauthorized employment but it would also effectively eliminative the incentive and the need for an alien to maintain a valid employment authorization document in connection with the pending application for adjustment of status.”
An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship. The Memorandum provides the example that if an alien persists in unauthorized employment from Mondays to Fridays in April; all 30 days in April must be counted against the 180 days.
The alien bears the burden of demonstrating any breaks in unauthorized employment.
Departing the United States after applying for adjustment of status and subsequently reentering with a valid advance parole document will not stop the clock if the alien was engaged in unauthorized employment after filing for adjustment of status.6

Special Considerations Regarding Employment

An alien is not considered to have engaged in unauthorized employment if he or she obtains authorization to engage in employment based upon an adjustment of status application (so long as such authorization remains valid); or
The alien has been granted employment authorization prior to filing for adjustment of status and such authorization does not expire while adjustment of status is pending.7

Failure to Maintain Lawful Status and/or Violation of the Terms of a Nonimmigrant Visa

An alien is considered to be out of status from the date on which he or she is present in the United States after the expiration, revocation, or violation of status. An alien remains out of status until either some adjudication restores his or her status or he or she departs the United States.
In most cases, the 180-day counting period commences on the date that an alien’s status expires.
With the exception of a dual-intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application. For purposes of the 180-day counting period, the calculation of number of days for failing to maintain status or for after violating a nonimmigrant visa will stop as of the date the USCIS receives a properly filed adjustment of status application.
The filing of an adjustment of status application does not, in and of itself, accord lawful status or cure a violation of a nonimmigrant visa. The Memorandum uses the example of an alien who files for adjustment of status three days before his or her nonimmigrant status is set to expire. If the adjustment of status application is ultimately denied, the alien will not be considered to be in lawful status after the expiration of the nonimmigrant status. If the same alien files a second application for adjustment of status, the period after which the nonimmigrant status expired and during which the adjustment of status application was pending would count against the 180 day limit for section 245(k) relief.8

Special Considerations for Failure to Maintain Lawful Status and/or Violation of the Terms of a Nonimmigrant Visa

USCIS adjudicators are required by the Memorandum and the AFM to consider the following points when considering eligibility for section 245(k) relief for an alien who failed to continuously maintain lawful status:

Regulations found in 8 C.F.R. 245.1(d)(1) [link] define “lawful immigration status.” USCIS adjudicators are instructed to consider any period where the alien had a pending extension of stay or change of status application to be considered as “lawful immigration status” provided that the extension or change of status application was ultimately approved. This is true whether the application was timely or untimely filed. This would also not be disqualifying under section 245(c).
However, if the extension of stay or change of status application is ultimately denied, the period in which the application was pending will only be counted as “lawful status” if the alien was otherwise in lawful status.
A period of unlawful status found to result only from a “technical violation” or through no fault of the applicant (as described by regulations in 8 C.F.R. 245.1(d)(2)) does not count against the 180-day period. This would also not trigger the bar to adjustment of status under section 245(c)(2) of the INA.
An alien who complies with all of the terms and conditions of his or her nonimmigrant status is not considered to have violated her status merely by properly filing an adjustment of status application (so long as the adjustment of status application was filed before the expiration of status).
An F (student) [see article] or J (exchange visitor) [see article] nomimmigrant is considers to be in “status” for such authorized period of time before and after the completion of his or her education objective or program (in accordance with regulations found in 8 C.F.R. 214.2(f) and 214.2(j) respectively) provided that the F or J nonimmigrant did not violate the terms of his or her status. Furthermore, the reinstatement of F status (under 8 C.F.R. 214.2(f)) or J status (under 22 C.F.R. 62.45) cures time out of or in violation of status only for the particular period of time covered by the reinstatement. As such, the period of time covered by the reinstatement does not count against the 180-day limit.9

Effect of the Exemption

It is important to remember that section 245(k) relief only cures the bars to adjustment of status found in sections 245(c)(2), (c)(7), and (c)(8) for the adjustment of status application in question. It does not provide an exemption from any other basis of ineligibility for adjustment of status. The Memorandum specifically notes that section 245(k) does not, for example, cure ineligibility based on entry without inspection (EWI) or any ground of inadmissibility to the United States.10

Conclusion: Exemptions to Adjustment of Status Bars for Certain Employment-Based Applications

The forms of relief in section 245(k) cure limited grounds of ineligibility for adjustment of status for certain employment-based adjustment of status applications. It is always recommended that both the petitioner and employee in an adjustment of status application consult with an experienced immigration attorney. If an employment-based adjustment of status applicant may require a section 245(k) waiver in order to adjust status, an experienced immigration attorney will be able assess the facts of the case and, where possible, help the adjustment submit information as part of the application, or in response to an inquiry from USCIS, in order to establish eligibility for section 245(k) relief.

  1. Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act, HQDOMO 70/23.1-P, AD06-07 (Jul. 14, 2008)
  2. AFM § 23.5(d)(1)
  3. AFM § 23.5(d)(2)
  4. AFM § 23.5(d)(3)
  5. AFM § 23.5(d)(4)(A)
  6. AFM § 23.5(d)(4)(B)(1)
  7. AFM § 23.5(d)(4)(B)(2)
  8. AFM § 23.5(d)(4)(C)(1)
  9. AFM § 23.5(d)(4)(C)(2)
  10. AFM § 25.5(d)(5)

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. 1161, Print. Treatises & Primers.