Immigration and Nationality Act section 245(c) lists certain bars that will prevent person from Adjusting a status . There are some exceptions to these bars and one of the exception is under Section 245(k) of the INA. Under this section, certain applicants who are adjusting their status under the employment-based adjustment of status can be forgiven certain violations.
What is a 245(k) waiver?
If you are adjusting your status under certain employment based green card categories and you committed certain immigration violations, you may still be able to adjust your status if you fall under the 245(k) exception.
What are the immigration violations that can be excused under 245(k) waiver?
The 245(k) waiver can excuse the following violations:
- Failure to maintain lawful status in the U.S.
- Unauthorized employment
- Violations of the terms and conditions of your admission
The INA 245(k) exception applies in the following scenario:
- The applicant is physically present in the US on the date the adjustment is filed pursuant to lawful admission,
- The applicant is eligible to adjust based on certain employment-based immigrant categories (Eb-1, Eb-2, Eb-3, eb-5 or religious workers). Both the principal applicants and their beneficiaries can benefit from the 245(k) waiver.,
- The Applicant has not (i) failed to maintain your lawful status, (ii) engaged in unauthorized employment, (iii) violated the terms and conditions of your admission, for an aggregate of more than 180 days.
Does USCIS look at all entries or just the most recent entry when adjudicating 245(k) waiver?
USCIS will only look at your violations since your most recent entry in the U.S. This means, that if you previously did not maintain your status, this would not necessarily prevent you from adjusting your status and qualifying under the 245(k) waiver, but depending on what the previous violation was, it may have other negative implications on your adjustment and may still bar you from adjustment.
For example, if you previously overstayed your B-2 visa for one year and you since re-entered the U.S. on another visa status, the previous 1 year overstay would not be relevant for the 245k exemption, as it was not committed since your most recent entry. However, because you overstay for 1 year, you would be subject to the 3 year bar and you would need to get a waiver for this to be able to adjust status. This is extremely important to keep in mind, as just because your violation did not occur since your most recent entry or just because you qualify for the 245(k) exemption does not mean that all previous violations will be forgiven. If you have any previous immigration violations, it is extremely important to speak with an experienced immigration attorney.
What does the aggregate of 180 days mean?
It is important to keep in mind that you can have a maximum of 180 days of the total of the 3 violations as listed above in aggregate. However, any day in which more than one violation occurred should not be double-counted. For example, if you were violating your status and engaging in authorized employment from June 1 – June 30, it would only be counted as a 30- day violation (not 60 day violation).
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