The three adjustment bars covered by INA §245(k)
Section 245(k) is not a general waiver of the adjustment statute. It specifically makes three provisions in INA §245(c) inapplicable to a qualifying employment-based applicant.
| Adjustment Bar | General Subject |
|---|---|
| INA §245(c)(2) | Specified unauthorized employment, unlawful status at filing, and failure to continuously maintain lawful status |
| INA §245(c)(7) | Employment-based adjustment applicant who is not in lawful nonimmigrant status |
| INA §245(c)(8) | Unauthorized employment or other violations of the terms of nonimmigrant status |
INA §245(k) addresses §245(c)(2), §245(c)(7), and §245(c)(8). It does not automatically eliminate another adjustment bar or an inadmissibility ground.
The lawful-admission requirement
On the date Form I-485 is filed, the applicant must be physically present in the United States pursuant to a lawful admission.
This is different from requiring the applicant to still hold valid nonimmigrant status on the filing date. One purpose of §245(k) is to excuse limited periods in which lawful status was not maintained.
Evidence of lawful admission may include an I-94, passport admission stamp, CBP records, or other reliable entry documentation.
Why the most recent lawful admission matters
USCIS generally determines §245(k) eligibility by examining covered violations after the applicant's most recent lawful admission.
Violations occurring during an earlier period in the United States do not ordinarily count toward the §245(k) 180-day calculation if the applicant later departed and was again lawfully admitted.
Advance parole generally does not create a new lawful admission for §245(k)
Parole and admission are legally distinct. A return to the United States pursuant to advance parole ordinarily does not constitute a lawful admission that resets the §245(k) calculation.
As a result, an applicant should not assume that leaving on advance parole and returning erases prior violations for purposes of §245(k).
For §245(k), identify the most recent qualifying lawful admission—not merely the most recent physical entry into the United States.
How the 180-day aggregate rule works
Section 245(k) covers three types of violations after the relevant lawful admission:
- Failure to continuously maintain lawful status;
- Unauthorized employment; and
- Other violations of the terms and conditions of admission.
The statutory limit is measured in the aggregate. An applicant does not receive a separate 180 days for each type of violation.
| Covered Violations Since Most Recent Lawful Admission | General §245(k) Result |
|---|---|
| No covered violations | Within the statutory limit |
| 90 aggregate days | Potentially within §245(k) |
| 180 aggregate days | Potentially within §245(k) |
| 181 aggregate days | Exceeds the statutory limit |
Failure to continuously maintain lawful status
A lapse in lawful immigration status can trigger adjustment problems under §245(c)(2) and, for employment-based applicants, §245(c)(7).
Section 245(k) can make those bars inapplicable if all statutory requirements are met and the applicant's covered violations do not exceed the aggregate limit.
Common situations
- An I-94 expires before Form I-485 is filed;
- An applicant violates F-1 or other nonimmigrant status;
- An employment relationship ends and the applicant no longer maintains the underlying employment status;
- A status extension is filed late or denied; or
- The applicant otherwise ceases complying with the requirements of the admission.
The exact start and stop dates must be established before calculating the aggregate period.
Unauthorized employment under INA §245(k)
Unauthorized employment generally means service or labor performed in the United States without authorization under the immigration laws or beyond the scope or period of the applicant's employment authorization.
Examples can include:
- Working after employment authorization expires;
- Working for an employer not authorized under the applicant's nonimmigrant classification;
- Beginning work before required employment authorization exists;
- Working after nonimmigrant employment authorization has ended; or
- Performing work outside the authorized scope of employment.
Other violations of the terms and conditions of admission
Section 245(k) also covers other violations of the terms and conditions associated with the applicant's admission.
Depending on the nonimmigrant classification, examples can include:
- Failure to pursue required full-time study;
- Working in a manner inconsistent with the nonimmigrant classification;
- Failure to comply with classification-specific requirements;
- Engaging in prohibited activities; or
- Other conduct that constitutes a violation of the terms of admission.
One event can create more than one legal violation. For example, unauthorized employment may simultaneously cause a status violation and constitute unauthorized employment.
What happens to the count after Form I-485 is properly filed?
USCIS generally treats a nonimmigrant as needing to maintain nonimmigrant status for adjustment-bar purposes until a properly filed Form I-485 is submitted, assuming no later unauthorized employment occurs.
Therefore, a properly filed adjustment application can stop additional accrual for certain failures to maintain status or violations associated with remaining in the United States.
Derivative spouses and children
Eligible derivative applicants of qualifying employment-based principal applicants may benefit from §245(k) in their own right.
The derivative's eligibility is not determined solely by whether the principal qualifies. USCIS examines the derivative applicant's own admission and immigration-violation history.
A derivative spouse or child relying on §245(k) should independently satisfy the lawful-admission requirement and the 180-day limitation.
What INA §245(k) does not cure
Section 245(k) is targeted relief. It does not erase every possible adjustment or immigration problem.
It does not itself:
- Waive inadmissibility under INA §212;
- Excuse more than 180 aggregate days of covered violations;
- Waive the crewman bar in §245(c)(1);
- Waive the transit-without-visa bar in §245(c)(3);
- Waive the Visa Waiver bar in §245(c)(4);
- Waive §245(c)(5) or §245(c)(6);
- Create a lawful admission where none occurred;
- Convert parole into admission;
- Create employment authorization; or
- Confer lawful nonimmigrant status.
Evidence for an INA §245(k) case
A careful §245(k) submission should establish the dates necessary to calculate the applicant's covered violations.
| Issue | Potential Evidence |
|---|---|
| Most recent lawful admission | I-94, passport admission stamp, CBP travel history, admission records |
| Immigrant category | I-140, I-526/I-526E, I-360 religious-worker petition where applicable, approval notices |
| Status expiration | I-94, I-797 approval notices, extension or change-of-status filings |
| Employment authorization | EADs, I-797 notices, H-1B or other employment petition approvals, I-94 records |
| Employment dates | Pay stubs, W-2s, tax records, employment agreements, employer letters |
| Status compliance | School records, SEVIS history, employer records, immigration filings, classification-specific evidence |
| 180-day calculation | Chronology showing each covered violation and the precise calendar days counted |
In a close §245(k) case, create a day-by-day immigration chronology rather than relying on a general statement that the applicant was “out of status for less than six months.”
Example of the 180-day calculation
Assume an employment-based applicant was lawfully admitted, later ceased maintaining status, and properly files Form I-485 120 days after the status violation began. The applicant did not work without authorization after filing.
If there are no other covered periods after the most recent lawful admission, the applicant may potentially fall within §245(k) because the aggregate violation is 120 days.
If the applicant instead files after 190 covered days, §245(k) ordinarily cannot exempt the applicant from the covered §245(c) bars.