Introduction
Adjustment of status is a process that allows certain nonimmigrant visa holders to apply for lawful permanent resident status (a green card) while they are already in the United States.
It is beneficial to many applicants because they are able to get a green card without having to return to their home country to complete visa processing. It can save time and money for the applicants.
However, if an applicant had violations of immigration law such as failing to maintain legal status, unauthorized employment, or other visa violations, the applicant may not be able to apply for adjustment of status.
If that happens, it is possible to have a waiver so that the applicant can still apply for adjustment of status. For example, a waiver may be available if the applicant:
- Been married to a US citizen or green card holder for at least two years
- Experienced extreme hardship if you are deported
If neither of these two above situations apply, there is a provision within immigration law that may provide a relief for certain green card applicants, which is the section of INA 245(k).
Who Needs 245(K) Waiver?
Some applicants need Immigration Act 245(k) because it allows them to adjust to lawful permanent resident status in the United States even if they have violated their immigration status in the past.
This can be a very helpful provision for employment-based immigrants who have made minor status violations, as it allows them to remain in the United States and continue working without having to leave the country and go through the consular processing process.
There are a number of reasons why employment-based immigrants may violate their status. Some common reasons include:
- Overstaying their visa: This can happen for a variety of reasons, such as difficulty finding a job that is willing to sponsor them for a green card, or personal or family circumstances that prevent them from returning to their home country.
- Working without authorization: This may happen if their employer fails to file an immigration petition on their behalf, or if their job offer falls through.
- Violating the terms of their nonimmigrant visa: This can happen for a variety of reasons, such as traveling outside the United States without permission, or engaging in certain types of employment that are not allowed under their visa status.
245(k) provides a safety net for employment-based immigrants who have made minor status violations. It allows them to correct their mistakes and become lawful permanent residents of the United States, which can lead to a number of benefits, such as the ability to travel freely, work without restrictions, and apply for citizenship.
Who Qualifies for the INA 245(k) Exemption?
INA 245(k) can help certain employment-based green card applicants. It applies to individuals falling into the following categories:
- EB1 Applicants: Those in the EB1 category.
- EB2 Applicants: Individuals in the EB2 category.
- EB3 Applicants: Those applying for green cards under the EB3 category.
- EB4 Religious Workers: Religious workers pursuing green cards in the EB4 category.
Here are some specific examples of how 245(k) can benefit employment-based immigrants:
- A software engineer from India who overstayed his visa by 90 days after graduating from college in the United States may be able to use 245(k) to adjust her status and obtain a green card. This would allow her to continue working as a software engineer in the United States without fear of deportation.
- A nurse from the Philippines who worked without authorization for 60 days after her employer failed to file an H-1B visa petition on her behalf may be able to use 245(k) to adjust her status and obtain a green card. This would allow her to continue working as a nurse in the United States without fear of deportation.
The Unique Benefit of 245(k)
One of the remarkable aspects of INA 245(k) is its ability to focus solely on the most recent lawful admission, effectively ignoring past violations. Let’s consider a common scenario to illustrate this point:
Suppose you initially entered the U.S. on an F-1 student visa but later violated your status by dropping out of school. This violation typically poses a significant obstacle to adjusting your status in the future because you were out of status.
However, if you left the U.S. after this violation and subsequently re-entered on a valid visa, you could still be eligible to adjust your status under an eligible employment-based category. This is because USCIS only considers your behavior since your most recent lawful admission.
Exceptions and Limitations
INA 245(k) has exceptions and limitations you should be aware of:
- Advance Parole: Entering the U.S. on an Advance Parole document does not count as a new lawful admission under INA 245(k). For example, if you violated your visa terms for an extended period, left the U.S., and returned on an Advance Parole document, you would not be eligible for the 245(k) exemption.
- Violation Types: USCIS forgives three types of violations under INA 245(k): failure to maintain status, visa term violations, and unauthorized employment. Each day you engage in any of these violations since your last lawful admission counts toward the 180-day period. However, if you commit all three violations on the same day, USCIS will only count that as one day toward the 180-day limit.
A Practical Example
Let’s take a hypothetical situation to demonstrate how the INA 245(k) exemption works:
A foreign national entered the U.S. on a B-1 business visitor visa with an I-94 that expired on February 1, 2022.
- On January 15, 2022, she filed for a change of status to an E-2 visa. The E-2 visa was denied on February 15, 2022.
- The foreign national decided to apply for an EB-2 National Interest Waiver and submitted the I-140 and I-485 petitions on March 15, 2022.
In this case, the foreign national had two violations: failing to maintain lawful status and violating the terms of her visa, both occurring as of the date her I-94 expired on February 1st.
Since these two violations happened on the same day, they were counted as one. When the I-485 was filed, the foreign national had accumulated 42 days of violations since her last lawful admission. This didn’t exceed the 180-day limit, making her eligible for the INA 245(k) exemption.
The Impact of INA 245(k)
As illustrated in the example, INA 245(k) can be a valuable tool for certain employment-based applicants. It offers a pathway to adjust status despite past violations, as long as they haven’t accumulated more than 180 days of violations since their most recent lawful admission.
Conclusion
However, it’s crucial to understand that the exemption has its limits and won’t protect applicants from other potential bars to adjustment or grounds of inadmissibility. Therefore, a detailed review of your immigration history with an attorney is essential before filing an adjustment of status application to ensure its chance of approval.
In conclusion, INA 245(k) is a way of hope for those navigating the complexities of immigration law. If you fall into one of the eligible categories and meet the criteria, it may provide an exemption to legal permanent residency even after past violations.
