Failure to Maintain Lawful Status and Adjustment of Status

INA §245(c)(2)

Subject to statutory exceptions and INA §245(k), INA §245(c)(2) restricts adjustment for applicants who:

• Are in unlawful immigration status on the date of filing Form I-485;
• Failed to maintain continuously lawful immigration status since entry, other than through no fault of their own or for technical reasons; or
• Accepted unauthorized employment before filing adjustment.

The statute contains significant category-based exemptions, so the first task is identifying the immigrant classification under which adjustment is sought.

What counts as lawful immigration status?

For INA §245(c)(2), 8 C.F.R. §245.1(d)(1) specifically defines lawful immigration status.

The regulation includes:

• Lawful permanent resident status;
• Unexpired lawful nonimmigrant status;
• Refugee status that has not been revoked;
• Asylee status that has not been revoked;
• Parole status that has not expired, been revoked, or terminated; and
• Certain historical statutory categories identified by regulation.

See Admission vs. Lawful Status.

Common failures to maintain lawful status

A violation can occur through expiration of status or through conduct inconsistent with the terms of the classification.

Examples can include:

• Remaining after expiration of an authorized nonimmigrant stay;
• Unauthorized employment;
• Failure to maintain a required course of study;
• Employment outside the scope of an H, L, O, or other employment classification;
• Failure to comply with the terms of J-1 exchange status;
• Activity inconsistent with the conditions of B-1/B-2 admission;
• Remaining after parole expires; or
• Other violations of the applicable nonimmigrant classification.

Visa Overstay Is One Type of Status Violation

Remaining after a fixed period of nonimmigrant status expires is one common way to fail to maintain lawful status. The historical admission does not disappear, but the expired status can create an INA §245(c)(2) problem unless an exemption or exception applies.

For the detailed overstay analysis, including immediate relatives, family preference cases, unlawful presence and travel consequences, see Visa Overstay and Adjustment of Status.

Unauthorized employment can also be a status violation

Unauthorized employment can independently trigger adjustment bars and can also violate the terms of many nonimmigrant classifications.

A single period of work can therefore implicate:

• INA §245(c)(2);
• INA §245(c)(8);
• The underlying nonimmigrant status; and
• INA §245(k) if the applicant seeks employment-based adjustment.

See Unauthorized Employment and Adjustment of Status.

F-1 and other student-status violations

Student status can involve conditions beyond a simple expiration date.

Potential violations include:

• Dropping below a full course of study without authorization;
• Failure to maintain required enrollment;
• Unauthorized off-campus employment;
• Employment outside CPT authorization;
• Employment outside OPT authorization;
• Violation of STEM OPT requirements;
• Failure to comply with reinstatement requirements; or
• Other SEVIS-related status violations.

H-1B, L-1, O-1, and employer-specific classifications

Employment-based nonimmigrant status ordinarily requires compliance with the petition and classification authorizing the work.

Potential issues can include:

• Working for an unauthorized employer;
• Unauthorized concurrent employment;
• Continuing after petition or I-94 expiration;
• Stopping required employment;
• Material changes not covered by the approved petition;
• Working before required authorization takes effect; or
• Other classification-specific violations.

Whether portability or another regulation preserves employment authorization should be determined before treating the period as a violation.

Pending Applications and Continuous Lawful Status

A pending immigration application does not automatically mean that the applicant continues to possess lawful immigration status for INA §245(c)(2).

The exact status held on the Form I-485 filing date is analyzed separately in Unlawful Status on the Date of Filing.

For applicants whose Form I-485 is already pending, the distinction between lawful status and a period of authorized stay is addressed in Lawful Status vs. Period of Authorized Stay.

Violations during prior U.S. entries

The ordinary §245(c)(2) regulation expressly addresses previous periods in the United States.

8 C.F.R. §245.1(d)(3) provides that departure and subsequent reentry do not erase an earlier failure to maintain lawful immigration status.

This differs from the statutory structure of INA §245(k), which measures covered violations after the most recent lawful admission for qualifying employment-based applicants.

See Multiple Entries and Last Lawful Admission.

Immediate-relative exemption

The status bar does not apply in the same way to immediate relatives of U.S. citizens.

Qualifying immediate relatives generally include:

• Spouse of a U.S. citizen;
• Parent of a U.S. citizen age 21 or older; and
• Qualifying unmarried child under 21 of a U.S. citizen.

Specified special immigrants and other protected categories

The statute and regulations exempt additional categories from particular adjustment bars.

Depending on the provision, these can include:

• VAWA self-petitioners;
• Certain special immigrants;
• Special immigrant juveniles under their specialized adjustment rules;
• Applicants adjusting through special humanitarian statutes; and
• Other congressionally exempt categories.

The exact category matters because the adjustment bars do not apply uniformly across every statutory pathway.

See Special Adjustment Categories.

INA §245(k) for employment-based applicants

INA §245(k) can exempt qualifying employment-based adjustment applicants from INA §245(c)(2), §245(c)(7), and §245(c)(8).

The applicant must show that, after the most recent lawful admission, covered violations did not exceed 180 days in the aggregate.

Covered conduct includes:

• Failure to maintain continuously lawful status;
• Unauthorized employment; and
• Other violation of the terms and conditions of admission.

See INA §245(k).

INA §245(i)

A qualifying grandfathered applicant may use INA §245(i) to adjust despite certain violations that would otherwise prevent ordinary §245(a) adjustment.

Grandfathering can arise from a qualifying immigrant petition or labor certification filed on or before April 30, 2001, subject to statutory requirements.

The current immigrant petition need not necessarily be the same filing that created grandfathering.

See INA §245(i) Adjustment.

No fault or technical reasons

INA §245(c)(2) contains a narrow exception where failure to maintain status occurred through no fault of the applicant or for technical reasons.

8 C.F.R. §245.1(d)(2) specifically limits that phrase to defined circumstances, including:

• Qualifying inaction by a person or organization designated by regulation to act for the applicant;
• Certain technical violations caused by USCIS inaction;
• Physical inability to request an extension, such as qualifying hospitalization; and
• A narrow historical provision involving specified H-1 nurse status.

See No Fault or Technical Reasons Under INA §245(c)(2).

Evidence for a lawful-status analysis

A complete status chronology can require:

• Every Form I-94;
• Passports and visas;
• Forms I-797;
• Forms I-20;
• Forms DS-2019;
• SEVIS records;
• Employment authorization records;
• H, L, O, or other employer petitions;
• Extension or change-of-status filings;
• USCIS receipts and decisions;
• Travel history;
• Employment records; and
• Prior immigration applications and proceedings.

Status violations and current adjustment discretion

A statutory exemption can eliminate a status violation as an adjustment bar without erasing the historical event.

Under current USCIS adjustment policy, relevant immigration history can be considered in the discretionary analysis where adjustment is discretionary.

Potential factors include:

• Nature and duration of the violation;
• Reason for the violation;
• Subsequent compliance;
• Family ties;
• Humanitarian considerations;
• Employment and community history;
• Representations made to immigration authorities;
• Criminal history; and
• Other positive or negative circumstances.

Frequently asked questions