As a general rule, a foreign national is barred from adjustment of status for certain immigration-related violations. Foreign nationals who are not in lawful immigration status on the date of filing Form I-485 (green card application), or who have failed to maintain lawful immigration status since entry into the United States, generally are not eligible to file Form I-485 and obtain their green card. Moreover, those who engage in unauthorized employment are also ineligible to file or obtain their green card. However, INA Section 245(k) provides a helpful exception to these general rules for those who may have violated their respective statuses for a limited period.
245(k) Forgives Brief Status Violations When Filing I-485
245(k) allows for green card approval 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 their admission IF the aggregate period of such violations does not exceed 180 days. 245(k) does not, forgive all immigration violations, such as entry without inspection. Nonetheless, 245(k) can be a helpful escape for applicants who have brief periods of violations.
245(k) is Limited to Employment-Based, Green Card Applicants
245(k) applies only to EB-1, EB-2, and EB-3 cases, and some EB-4 cases. The primary beneficiary and all dependent family members can take advantage of this provision. While it is not available in family-based cases, it is available to the spouse and minor children of the primary applicant when they are adjusting status in an EB category.
No Extra Forms
There is no additional form required to use the 245(k) provisions nor is there an additional filing fee. Generally, it is not necessary to even explain that this provision is being utilized. Although, at times, eligibility must be argued the U.S. Citizenship and Immigration Services (USCIS) sends a Request for Evidence (RFE).
Violation Days Count from the Last Lawful Admission
The USCIS released a July 2008 memo that interpreted the provisions of Section 245(k). This memo addresses how violations are counted and aggregated, which 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.
Unauthorized Employment: Counted Before and After I-485 Filing
The filing of a green card application does not authorize employment, nor does it stop the 245(k) clock. If an EB-3 candidate continues unauthorized employment after filing the green card application, the candidate will continue to accrue days of unauthorized employment. These days will be counted against the period of “forgiveness” granted by 245(k). For example, if you work without authorization for 100 days before filing Form I-485 and continue working authorization for the next 81 days, without receiving a valid Employment Authorization Document (EAD), you will not be eligible for 245(k).
Part-Time and Full-Time Employment
USCIS will count every single day since the unauthorized employment began until it ended. This includes part-time days and non-working weekends and holidays. If an employee works only four hours a day, five days a week for the month of December, all 31 days of the month, including weekends and holidays, will count toward the 180-day limit.
Does This Mean I can Work for 180 days?
INA 245(k) allows for the approval of a green card, regardless of certain violations. It does not mean that you are allowed to work without authorization. Any other penalties in the law, including potential removal (deportation) for failure to maintain status or comply with the requirements of the law remain in place.
Purdy Law Immigration Attorney
Immigration laws are constantly changing, and it is important that you discuss your options with a licensed US Immigration attorney who can evaluate your case. Schedule your consultation today to see if you can benefit from the provisions of INA 245(k).
