Lawful Admission
The applicant must be in the United States pursuant to a lawful admission when the adjustment application is filed.
INA §245(k) • Employment-Based Adjustment
Last Lawful Admission Rule Under INA §245(k)
INA §245(k) does not ordinarily require USCIS to count every status or employment violation in an applicant's entire immigration history. The critical measuring point is generally the applicant's most recent lawful admission to the United States.
Covered violations occurring before that admission ordinarily are not included in the current §245(k) 180-day calculation. Violations occurring after it can be counted until the relevant violation stops or another rule ends the accrual.
For §245(k), the correct question is not simply “When did the applicant last enter?” It is “What was the applicant's most recent lawful admission?”
StatuteINA §245(k)
Measuring pointMost recent lawful admission
Maximum180 aggregate days
Legal reviewAugust 30, 2026
Direct Answer
What Is the Last Lawful Admission Rule?
USCIS generally examines only the period following the applicant's most recent lawful admission when calculating violations under INA §245(k). Covered violations before that admission ordinarily are not carried into the new §245(k) calculation.
The statute requires the applicant to be present in the United States pursuant to a lawful admission on the date Form I-485 is filed. It then asks whether, subsequent to that lawful admission, the applicant has exceeded 180 aggregate days of covered violations.
This can make a later lawful admission extremely important in an employment-based adjustment case.
Statutory Framework
Section 245(k) Has Two Admission Questions
The admission requirement and the day-counting rule are related but should be analyzed separately.
Post-Admission Conduct
USCIS then identifies covered status, employment, or admission-condition violations occurring after the relevant admission.
180-Day Aggregate
The combined period of covered violations must not exceed 180 days in the aggregate.
Exactly 180 days can potentially remain within §245(k). The statutory problem arises when the aggregate period exceeds 180 days. Do not substitute “six months” for the statutory 180-day calculation.
Why Reentry Can Matter
A Later Lawful Admission Can Change the Measuring Period
Earlier Period in the United States
An applicant may have accumulated significant unauthorized employment or status violations during an earlier stay.
Departure
The applicant leaves the United States. Any separate consequence of that departure must be analyzed independently.
New Lawful Admission
The applicant later returns after inspection and is lawfully admitted in an appropriate classification.
New §245(k) Measuring Period
USCIS generally focuses on covered violations occurring after that most recent lawful admission.
Earlier conduct is not erased. It may remain relevant to unlawful presence, admissibility, fraud or misrepresentation, removal issues, visa eligibility, or discretion even when it is outside the §245(k) day count.
Admission vs. Other Events
Not Every Immigration Event Creates a New §245(k) Admission
| Immigration event | New lawful admission? | General §245(k) effect |
|---|---|---|
| Inspected and admitted in H-1B, L-1, or another lawful nonimmigrant classification | Generally yes | Can become the new measuring point if it is the most recent lawful admission. |
| Return on ordinary advance parole | Generally no | Parole ordinarily does not restart the §245(k) calculation. |
| Parole in place | No | May matter under §245(a), but is not itself a lawful admission for §245(k). |
| Extension of stay | No | May affect lawful-status calculations but does not create a new admission. |
| Change of status inside the United States | No | Changes classification without creating a new port-of-entry admission. |
| Qualifying TPS-authorized travel and return | Special rule | Current USCIS policy can treat qualifying TPS travel as an admission for §§245(a) and 245(k). |
Prior Violations
What Happens to Violations Before the Most Recent Lawful Admission?
Unlawful Status
Covered status violations before the most recent lawful admission ordinarily are not added to the current §245(k) total.
Unauthorized Employment
Unauthorized employment before the most recent lawful admission ordinarily falls outside the current §245(k) measuring period.
Other Admission Violations
Other covered violations from the earlier stay generally are not included once a later lawful admission becomes the controlling admission.
Examples
How the Rule Works in Practice
Earlier 250-Day Violation, Later H-1B Admission
The applicant had more than 180 covered days during an earlier stay, departed, and was later lawfully admitted in H-1B status. The earlier violation ordinarily is not included in the new §245(k) calculation.
120 Days After the Last Admission
The applicant lawfully entered and later accumulated 120 covered days. If no additional days push the aggregate above 180 and all other requirements are met, §245(k) may protect the case.
Advance-Parole Return
The applicant accumulated 190 covered days and then departed and returned as a parolee. Ordinary advance parole does not restart the §245(k) clock.
Change of Status Without Travel
The applicant changes from F-1 to H-1B inside the United States. The change of status may affect current lawful status but is not itself a new admission.
Evidence
Prove the Admission Before Calculating the Days
Admission and Travel Records
- Current and historical Forms I-94
- Passport admission stamps
- Nonimmigrant visas
- CBP travel history
- Advance parole documents
- TPS travel documents where applicable
Status and Employment Records
- Forms I-797
- Extension and change-of-status filings
- Employment authorization documents
- Pay records and W-2s
- Employer letters
- Complete immigration chronology
Best practice: create a chronological table identifying every entry, departure, admission, parole, I-94 expiration, status approval, employment period, alleged violation, and Form I-485 filing date.
Current Travel Caution
A §245(k) Admission Strategy Cannot Be Analyzed in Isolation
On August 13, 2026, the BIA held in Matter of Delcarmen-Lara, 29 I&N Dec. 830, that departure under advance parole is a departure for purposes of INA §212(a)(9)(B)(i)(II), overruling Matter of Arrabally and Yerrabelly.
That precedent concerns unlawful-presence inadmissibility rather than the §245(k) counting rule itself, but it makes departure strategy especially important. A person should not leave the United States merely to try to obtain a new admission without separately analyzing unlawful presence, visa eligibility, admissibility, abandonment, CBP inspection, and the ability to return.
Primary Authorities
Legal Sources
Related INA245 Guides
Continue the §245(k) Analysis
Frequently Asked Questions
Last Lawful Admission FAQs
What does “last lawful admission” mean under INA §245(k)?
It generally means the applicant's most recent lawful admission to the United States. USCIS ordinarily measures covered §245(k) violations from that admission forward.
Do violations before the last lawful admission count?
Ordinarily not in the current §245(k) 180-day calculation, although they can remain relevant under other immigration provisions.
Does advance parole create a new lawful admission?
Ordinarily no. A return pursuant to ordinary advance parole is generally parole rather than admission and does not restart the §245(k) clock.
Does an approved change of status create a new admission?
No. A USCIS change-of-status approval inside the United States does not itself constitute a new admission.
Can a later H-1B or L-1 admission become the new measuring point?
Yes, a genuine later lawful admission can become the controlling admission for §245(k), subject to the complete immigration record.
Complex §245(k) Cases
Schedule a ConsultationWhich Admission Controls the 180-Day Calculation?
The Messersmith Law Firm, P.A. reviews the complete admission, travel, status, and employment chronology before determining whether INA §245(k) protects an employment-based Form I-485 case.
Legal content reviewed August 30, 2026. INA §245(k) calculations are fact-specific and should be based on the applicant's complete immigration, admission, travel, status, and employment history.