Counting Nonimmigrant Status Violations for INA §245(k)

INA §245(k)(2)(C) separately covers violations of the terms and conditions of admission

A qualifying employment-based applicant must show that, after the most recent lawful admission, the applicant has not for an aggregate period exceeding 180 days:

• Failed to maintain continuously a lawful status;
• Engaged in unauthorized employment; or
• Otherwise violated the terms and conditions of admission.

What are the “terms and conditions” of a nonimmigrant admission?

A nonimmigrant is admitted for a specific temporary classification authorized by INA §101(a)(15) and implementing regulations.

The terms can concern:

• The authorized purpose of the visit;
• Employment restrictions;
• The specific petitioning employer;
• Educational enrollment;
• Program participation;
• Authorized duration;
• Permitted activities;
• Reporting or program requirements; and
• Other classification-specific conditions.

When does a nonimmigrant status violation begin?

USCIS's §245(k) framework generally starts the covered period on the earliest applicable date when status:

• Expires;
• Is revoked or rescinded; or
• Is violated.

An unexpired I-94 does not prove that status was maintained

Consider a B-2 visitor admitted for six months who begins unauthorized employment during month two.

The visitor may still possess an I-94 displaying four remaining months, but the employment can violate the B-2 classification immediately.

The same principle can apply when:

• A student stops complying with required student activity;
• An employee begins work outside the petition's authorized framework;
• An exchange visitor abandons the authorized program; or
• Another nonimmigrant ceases complying with a material condition of classification.

B-1 and B-2 status violations

Visitors are admitted for limited business or pleasure purposes rather than unrestricted residence or employment.

Potential issues can include:

• Unauthorized employment;
• Activities inconsistent with the permitted visitor purpose;
• Failure to depart or obtain another status when the authorized period ends; or
• Other conduct inconsistent with the particular B classification.

F-1 status violations

F-1 status depends on compliance with the student rules rather than simply possession of an unexpired visa or Form I-20.

Potential violations can involve:

• Failure to pursue the required course of study;
• Unauthorized withdrawal or cessation of study;
• Unauthorized off-campus employment;
• Employment inconsistent with CPT or OPT authorization;
• Failure to comply with applicable practical-training requirements; or
• Other violations recognized under the student regulations.

Authorized grace periods and properly authorized practical training should not be treated as violations merely because ordinary classroom study has ended.

J-1 status violations

J-1 exchange visitors must comply with the authorized exchange program and applicable program regulations.

Relevant facts can include:

• DS-2019 validity;
• Program participation;
• Program termination;
• Authorized employment;
• Transfers or extensions;
• Authorized grace periods; and
• Reinstatement where legally available.

Employer-specific nonimmigrant classifications

H-1B, L-1, O-1, P, R-1 and other employment-based nonimmigrant classifications can impose conditions relating to the petition and authorized activity.

Potential violations can arise where the beneficiary:

• Works for an employer not authorized under the applicable rules;
• Begins unauthorized additional employment;
• Continues employment after authorization has ended;
• Performs activity materially outside the permitted classification; or
• Otherwise ceases complying with a condition of the approved status.

Dependent nonimmigrant classifications have their own conditions

A derivative spouse or child can possess a different immigration history from the principal.

Relevant issues can include:

• Whether the qualifying relationship continued;
• Whether the principal maintained the status on which the derivative depended;
• Whether the derivative independently violated the terms of classification;
• Whether employment was authorized for that derivative classification; and
• Whether a later extension or change of status was approved.

Properly filing Form I-485 generally stops the status-violation count for the pending application

USCIS's detailed §245(k) guidance distinguishes status violations from unauthorized employment.

For failure to maintain status or violation of a nonimmigrant visa, USCIS generally stops counting on the date it receives a properly filed Form I-485.

The pending application does not cure the earlier violation. Rather, USCIS uses the filing date as a stopping point in the §245(k) calculation for that pending adjustment application.

Unauthorized employment can continue counting after filing and must be calculated separately.

A denied I-485 can change the calculation for a later adjustment application

The distinction between a counting rule and lawful status becomes especially important if the first adjustment application is denied.

USCIS's detailed guidance gives an example in which:

1. An applicant files I-485 shortly before nonimmigrant status expires;
2. The I-485 remains pending after the nonimmigrant status expires;
3. USCIS ultimately denies the I-485; and
4. The applicant later files a second adjustment application.

The first pending I-485 did not create lawful status. Therefore, the period after expiration of the actual nonimmigrant status can become relevant when determining §245(k) eligibility for the later adjustment application.

Extension and change-of-status applications can alter the status chronology

A pending Form I-129 or Form I-539 does not by itself always establish lawful immigration status.

The final disposition can matter greatly.

Where USCIS ultimately approves an extension or change of status with appropriate effect, the covered period can receive lawful-status treatment and may be excluded from the §245(k) calculation.

F-1 and J-1 reinstatement

USCIS's §245(k) guidance recognizes that successful reinstatement can cure the violation period actually covered by the reinstatement.

Relevant documents can include:

• The reinstatement application;
• SEVIS records;
• USCIS or program decision;
• Effective dates; and
• Evidence that the applicant complied after reinstatement.

No-fault or technical reasons

A period qualifying under the narrow INA §245(c)(2) and 8 C.F.R. §245.1(d)(2) no-fault or technical-reasons exception does not create the ordinary §245(c)(2) bar and therefore should not be treated as an ordinary covered status-failure period in the §245(k) calculation.

The regulatory categories are limited.

See No Fault or Technical Reasons Exception.

Overlapping violations are counted once

Suppose an F-1 student engages in unauthorized employment for 75 days and the employment also violates F-1 status throughout the same 75-day period.

The applicant may simultaneously fall within:

• §245(k)(2)(A) — failure to maintain status;
• §245(k)(2)(B) — unauthorized employment; and
• §245(k)(2)(C) — other violation of terms and conditions.

The calendar aggregate is ordinarily 75 days, not 225.

Only violations after the most recent lawful admission generally count

The §245(k) lookback begins with the most recent lawful admission, not necessarily the applicant's first entry into the United States.

A later lawful admission can therefore exclude older status violations from the current §245(k) calculation.

See Last Lawful Admission Rule.

Ordinary advance parole does not establish a new §245(k) admission

Because parole is not admission, an ordinary advance-parole return generally does not create a new starting point for the §245(k) calculation.

The applicant ordinarily must look back to the most recent actual lawful admission.

Qualifying TPS-authorized travel can be treated differently under current USCIS policy because that return can be treated as an admission into TPS.

Section 245(k) does not cure separate immigrant-petition defects

A limited status violation can be excused for adjustment without satisfying requirements imposed by the underlying immigrant petition.

For example, §245(k) does not automatically:

• Make unauthorized employment qualifying experience;
• Establish a required employer-employee relationship;
• Satisfy a religious-worker lawful-employment requirement;
• Cure an invalid permanent labor certification;
• Establish EB-1 or EB-2 classification; or
• Preserve a petition that has otherwise been revoked.

Evidence checklist

Examples

Frequently asked questions