Green Card for Aliens who have Violated their Immigration Status.
Adjustment of Status under Section 245(k) of the Immigration and Nationality Act:
Section 245 of the Immigration and Nationality Act governs eligiblity requirement for Adjustment of status (Green Card) in the U.S. It allows an alien to apply for adjustment of status to that of a Lawful Permanent Resident while in the United States if certain conditions are met. Such Alien must
- Have been inspected and admitted or paroled into the U.S,
- Be eligible for an immigrant visa,
- Have not violated the terms of their admission into the U.S ,
- Not have engaged in Unlawful employment,
- Be admissible for permanent residence, and
- Have maintained lawful non immigrant status with some exceptions,
Section 245 (k) of the Immigration and Nationality Act covers exemptions for Certain Employment-Based Adjustment of Status (Green Card) Applicants. Aliens described in this section can file for Adjustment of Status and are exempt from certain bars to Adjustment of Status such as violation of the terns of their admission and unlawful employment.
The provision of this section of Law covers:
- Employment based category 1 (EB-1): Priority workers;
- Employment based category 2 (EB-2): Professionals with advanced degrees or Aliens of exceptional ability;
- Employment based categroy 3 (EB-3): Skilled workers, professionals, or others;
- Employment based category 4 (EB-4): Religious Workers (only); and
- The Spouse and children of the above eligible Aliens.
An alien seeking to file an Adjustment of Status (Green card) application under section 245 (k) of the Immigration and Nationality Act must be:
Present in the United States on the date of filing of the Application pursuant to a lawful admission into the United States (not parole), and have not, subsequent to that admission, violated Status in the following manners for an aggregate period of 180 days.
- Failed to maintain a Lawful Immigration Status continuously,
- Engaged in unlawful employment; and/or
- Otherwise violated the terms and conditions of his or her admission.
The ony violations excused are the failure to maintain a lawful Status and engaging in unauthorized employment for less than 180 days. Any other violation will render the applicant ineligible for Adjustment of Status.
Applicants not Eligible for Benefits of Section 245 (k) of the Immigration & Nationality Act
- Aliens/Applicants with more than 180 days of Immigration Status violations;
- Employment based Category 4 (EB-4): Special Immigrants other than Religious Workers;
- Employement based Category 5 (EB-5): Employment creation Immigrants;
- Family-preference Immigrants;
- Diversity visa Immigrants; and,
- Asylum/Refugee Adjustment Applications.
Counting Time : The 180-days clock:
The Immigration Status Violation begins on the first day that the Alien falls out of Status from the last entry into the United States and ends on the date the Alien files for Adjustment of Status.The 180-day clock Begins with the first day that the Alien works without authorization, and ends on the last day the Alien works without authorization. .