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Adjustment of Status under Section 245(k) of the Immigration and Nationality Act:
Section 245 of the Immigration and Nationality Act allows an alien to apply for adjustment of status to that of a Lawful Permanent Resident (LPR) while in the United States if certain conditions are met. The Alien must have been inspected and admitted or paroled, be eligible for an immigrant visa and admissible for permanent residence, and, with some exceptions, have maintained lawful non immigrant status. The alien must also not have engaged in unauthorized employment. Section 245 (k) of the Immigration and Nationality Act covers exemptions for Certain Employment-Based (EB) Adjustment of Status (Green Card) Applicants. Aliens described in 245(k) of the Immigration and Nationality Act can file for Adjustment of Status under 245 of the Immigration and Nationality Act 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 the Immigration 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): Relgious Workers (only); and
- The Spouse and children of the above eligible Aliens.
An Adjustment of Status 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 for Adjustment of Status (green card), 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 continuoulsy,
- Engaged in unlawful employment; and/or
- Otherwise violated the terms and conditons of his or her admission.
Despite the protection of section 245 (k), Applicants applying under the provision of the Immigration law may still have issues such as overstaying their visa and accrung unlawful presence.
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 to Adjust Status. Applicants Not Eligible for Benefits of Section 245 (k) of the Immigration and 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;
- Employemnt based Category 5 (EB-5): Employment creation Immigrants;
- Family-preference Immigtrants;
- Diversity visa Immigrants; and,
- Asylum/Refugee Adjustment Applications.
Counting Time Out of Immigration Status: The 180-days clock: The Immigration Status Violation begins on - The first day of the Alien falls out of Status from the last entry into the United States
- Ends on the date the Alien files for Adjustment of Status
Counting Unauthorized Employment The 180-day clock: Begins with the first day of the Alien works without authorization, and Ends on the last day the Alien works without authorization.
The filing of the Adjustment of Status (green card) Application stops the clock for unauthorized employment. However it is the aggregate time the Alien works, so if he or she stops and starts, each day counts toward the total. See information on Benefits and Responsiblities of Permananent Residence Status. Link to Form I-485: Application for Adjustment of Status.
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