Immigration Solutions

INA 245(k) Forgives Brief Status Violations When Filing I-485

INA 245(k) Forgives Brief Status Violations When Filing I-485
A. Permits individuals to obtain approval of the adjustment of status to permanent residence in most employment-based green card categories, even if the applicant has been out of status, worked without authorization, or otherwise violated the terms and conditions of the admission IF the aggregate period of such violations does not exceed 180 days. This provision does not, however, cure all immigration violations, such as entry without inspection or any of the various grounds of inadmissibility that otherwise would prevent adjustment of status. Nonetheless, INA Section 245(k) can be an extremely helpful provision, as many applicants have brief periods of inadvertent violations due to misunderstandings of the law and other mistakes made along the way in the years that usually precede the I-485 filing stage.
B. Count Violations Occurring from the Last Lawful Admission
The USCIS released a July 2008 memorandum that interpreted the provisions of Section 245(k). This memorandum addresses how violations are counted and aggregated. The USCIS states that only violations occurring after the most recent lawful admission into the United States count against the 180-day period for purposes of 245(k).
Reentry based on an advance parole does not reset the clock for the purpose of 245(k). Such entries are not considered admissions as that term is used in immigration law. It is important to note, however, rather than permit up to 180 days for each type of violation, the USCIS interprets the 180-day period to refer to the total of all three types of violations combined.
C. Unauthorized Employment: Counted Before and After I-485 Filing

The filing of an adjustment-of-status application does not, in and of itself, authorize employment. Thus, if a foreign national continues unauthorized employment, even after filing an application for AOS, s/he continues to accrue days of unauthorized employment. These days will be counted against the period of “forgiveness” granted by 245(k). For example, one has worked without authorization for 160 days prior to filing the I-485 will become ineligible for AOS if s/he continues to work without authorization for the next 20 days.

D. Counting Unauthorized Employment:  
When determining whether a foreign national has exceeded the maximum time allowed (up to 180 days) for unauthorized employment or other lapse in status under Section 245(k), one cannot just count the number of days the individual actually worked without authorization. Instead, the USCIS will look at the existence of an employer-employee relationship. If such a relationship exists, the USCIS will count each and every day since the unauthorized employment began until it ended. This includes part-time days and non-working weekends and holidays. If an employee works four hours a day, five days a week for the month of April, all 30 days of the month – even weekends and holidays – will count toward the 180-day limit under current USCIS interpretation. It is the applicant’s burden to establish evidence of interruptions in unauthorized employment.