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What is INA 245(k)?

By March 3, 2022Immigration
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Many green card applicants are barred from adjusting status if they have ever failed to maintain status, engaged in unauthorized employment or violated the terms of their visa. INA 245(k) is a provision in immigration law that allows certain employment-based green card applicants to adjust status even if they have previously failed to maintain status, engaged in unauthorized employment and/or violated the terms of a nonimmigrant visa as long as they have not done so for more than 180 days in aggregate during their most recent lawful admission to the United States.

Which employment-based categories qualify for this exemption?

INA 245(k) applies to employment-based green card applicants in the EB1, EB2 and EB3 categories. It also applies to religious workers in the EB4 category.

If I previously violated my status as a student in the U.S. but am now here on a lawful visa, can I benefit from 245(k)?

One major benefit of INA 245(k) is that USCIS will only look at the applicant’s status & visa violations and unauthorized employment from the most recent lawful admission. For example, if you came to the U.S. on an F-1 visa and violated your status by dropping out of school and remaining in the U.S., this would normally bar you from adjusting status in the future. However, if you left the United States after dropping out of school and later returned on a valid visa, you would still be able to adjust status in the U.S. under an eligible employment-based category as USCIS will only look back to your behavior since your most recent lawful admission.

If I enter the U.S. using an Advance Parole document, does this count as a new lawful admission for INA 245(k)?

No. Entering the U.S. on advance parole is not considered an admission so it would not restart the 180 day clock. Let us take the example of someone who is on a TN visa whose employer has filed for a green card application in the EB3 category and the person has received advance parole. If this person violated the terms of their visa for a year, then left the U.S. and re-entered on advance parole, they would not be eligible for the exemption under INA 245(k), because they violated the terms of their visa for more than 180 days and the most recent entry on the advance parole document does not count as a new lawful admission.

How are the violations counted by USCIS?

INA 245(k) forgives three types of violations that normally bar the ability to adjust status: failure to maintain status, violation of the terms of your visa and engaging in unauthorized employment. Any day that you engage in one of these violations since your last lawful admission is counted towards the 180-day period. However, if you engage in all three violations on the same day, USCIS will only count that as one day for the 180-day period.

Example of INA 245(k) Exemption

Let us look at the hypothetical situation below to illustrate the impact of the INA 245(k) exemption.

A foreign national enters as a B-1 business visitor with an I-94 that expires February 1, 2022.

On January 15, 2022, she files for a change of status to E-2. The E-2 is denied on February 15, 2022.

The foreign national then decides she would like to apply for an EB-2 National Interest Waiver and she files the I-140 and I-485 petitions on March 15, 2022.

In this example, the foreign national failed to maintain lawful status and violated the terms of her visa as of the date the I-94 expired on February 1. Since the two violations occurred on the same days, they are only counted once. At the time the I-485 was filed, the foreign national had 42 days of violations since her last lawful admission. Since the immigration violations did not exceed 180 days, she is eligible for the 245(k) exemption.

Impact of INA 245(k)

As described above, certain employment-based applicants can utilize INA 245(k) to avoid the bars to adjustment of status for failure to maintain status, violation of the terms of their visa and engaging in unauthorized employment if they have not accrued more than 180 days of violations since their most recent lawful admission. However, the exemption is limited to these parameters and does not exempt the applicant from other potential bars to adjustment or grounds of inadmissibility. Applicants should do a detailed review of their immigration history with their attorney before filing an adjustment of status application to ensure their petition is approvable.

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