INA §245(c)(1): crewmen
Section 245(c)(1) excludes an alien crewman from ordinary adjustment under §245(a).
The legal analysis depends on the person's classification and circumstances of entry, not merely whether the person happened to work aboard a ship or aircraft.
INA §245(c)(2): unlawful status and unauthorized employment
Section 245(c)(2) is one of the most frequently encountered adjustment bars. It addresses several different forms of immigration violation.
Subject to the statutory exceptions, the provision can apply where an applicant:
- Continues in or accepts unauthorized employment before filing Form I-485;
- Is in unlawful immigration status on the date Form I-485 is filed; or
- Failed to continuously maintain lawful status since entry, unless the failure occurred through no fault of the applicant or for technical reasons.
Unauthorized employment, unlawful status at filing, and failure to maintain continuous lawful status are separate ways in which §245(c)(2) can arise.
No fault or technical reasons
The statute expressly contains an exception for specified failures to continuously maintain lawful status that occurred through no fault of the applicant or for technical reasons. Federal regulations define this exception narrowly.
Immediate relatives
The statutory language excludes immediate relatives from the principal §245(c)(2) bar. This is why unauthorized employment and ordinary overstays often do not prevent adjustment for a qualifying spouse, parent, or unmarried child under 21 of a U.S. citizen who otherwise satisfies the applicable adjustment requirements.
INA §245(c)(3): transit without visa
Section 245(c)(3) bars ordinary adjustment under §245(a) for a person admitted in transit without a visa under the statutory provision referenced by §245(c)(3).
These cases are relatively uncommon today but can arise in older immigration histories. Historical admission records may therefore be important.
INA §245(c)(4): Visa Waiver Program and related admissions
Section 245(c)(4) restricts adjustment for specified persons admitted without a visa under statutory visa-waiver provisions.
The statute expressly excludes qualifying immediate relatives from this particular bar. As a result, a Visa Waiver Program entrant who becomes eligible to adjust as an immediate relative of a U.S. citizen can present a materially different legal analysis from another Visa Waiver entrant.
INA §245(c)(5): S nonimmigrants
Section 245(c)(5) prevents an S nonimmigrant from using the ordinary §245(a) process.
Congress instead created a specialized adjustment mechanism in INA §245(j) for qualifying S nonimmigrants whose information or assistance satisfies the statutory requirements.
INA §245(c)(6): terrorism-related deportability
Section 245(c)(6) applies to a person who is deportable under INA §237(a)(4)(B), the terrorism-related deportability provision.
These cases implicate complex security and terrorism-related provisions elsewhere in the INA and require an analysis extending well beyond the ordinary adjustment framework.
INA §245(c)(7): employment-based applicants not in lawful nonimmigrant status
Section 245(c)(7) applies specifically to a person seeking adjustment based on an employment-based immigrant classification under INA §203(b) who is not in lawful nonimmigrant status.
This provision can create a problem even where the applicant has a pending immigration application or another authorized period of stay, because a period of authorized stay is not necessarily the same thing as lawful nonimmigrant status.
INA §245(c)(8): unauthorized employment and nonimmigrant visa violations
Section 245(c)(8) separately addresses unauthorized employment and other violations of the terms of a nonimmigrant visa.
In practical adjudication, §245(c)(2) and §245(c)(8) frequently overlap in cases involving unauthorized employment.
USCIS policy recognizes important exemptions from the unauthorized-employment bars for categories including immediate relatives, VAWA-based applicants, and certain special immigrants.
Immediate-relative exemptions
Immediate relatives of U.S. citizens receive some of the most important exceptions within the §245(c) framework.
For adjustment purposes, the immediate-relative classification generally includes:
- The spouse of a U.S. citizen;
- The unmarried child under 21 of a U.S. citizen; and
- The parent of a U.S. citizen who is at least 21 years old.
USCIS policy treats qualifying immediate-relative applicants as exempt from the unauthorized-employment bars under §245(c)(2) and §245(c)(8). The statute also expressly provides immediate-relative protection from specified status and Visa Waiver adjustment bars.
Immediate-relative status does not cure every adjustment problem. The applicant still must satisfy the applicable §245(a) entry requirement and remain admissible for permanent residence.
VAWA-based applicants
INA §245(c) begins with an express exclusion for a person with an approved petition for classification as a VAWA self-petitioner.
VAWA-based adjustment therefore receives broad protection from the §245(c) bars. Additional special rules elsewhere in the INA can also affect the applicant's adjustment and inadmissibility analysis.
INA §245(i) and adjustment bars
INA §245(i) begins with language making the provision applicable notwithstanding §245(a) and §245(c). This can be crucial for an applicant who entered without inspection or who falls within one of the §245(c) classes.
Eligibility generally depends on a qualifying immigrant petition or labor certification filed on or before April 30, 2001, along with the other grandfathering requirements.
See the complete INA §245(i) Guide.
INA §245(k) and employment-based adjustment bars
INA §245(k) is a specific statutory exception for qualifying employment-based immigrants.
It makes §245(c)(2), §245(c)(7), and §245(c)(8) inapplicable where the applicant satisfies the statutory requirements, including being present pursuant to a lawful admission on the filing date and not having accumulated more than 180 days in the aggregate of the covered violations after the relevant lawful admission.
| Covered by §245(k) | Potential Violation |
|---|---|
| §245(c)(2) | Failure to maintain lawful status and specified unauthorized employment |
| §245(c)(7) | Employment-based applicant not in lawful nonimmigrant status |
| §245(c)(8) | Unauthorized employment or other covered nonimmigrant-status violation |
See the complete INA §245(k) Guide.
Adjustment bars versus inadmissibility
A §245(c) bar controls whether the applicant may use the adjustment mechanism under §245(a). An inadmissibility ground generally concerns whether the applicant may be admitted as a lawful permanent resident.
| Question | Primary Statute | Typical Remedy |
|---|---|---|
| Can this person use adjustment of status? | INA §245 | Exemption, §245(i), §245(k), different adjustment provision, or consular strategy |
| Is this person admissible as a permanent resident? | INA §212 | Exception, statutory limitation, waiver, or challenge to the inadmissibility finding |
Both questions must be answered before concluding that a case is approvable.