Nonimmigrant Visa Violations Under INA §245(c)(8)

The INA §245(c)(8) adjustment bar

INA §245(c)(8) applies to a person who was employed in the United States while unauthorized or who otherwise violated the terms of a nonimmigrant visa.

The implementing adjustment regulations similarly address a person who was ever employed without authorization or otherwise violated the terms of admission as a nonimmigrant, subject to specified exemptions.

Unauthorized employment

Unauthorized employment is the most common §245(c)(8) issue.

Potential violations include:

• Working without an EAD when one is required;
• Working before an EAD becomes effective;
• Continuing after employment authorization expires;
• Working for an employer not covered by a petition;
• Working outside authorized CPT or OPT;
• Unauthorized self-employment;
• Freelance or contract work requiring authorization; and
• Other compensated labor not permitted by the classification.

See Unauthorized Employment and Adjustment of Status.

Visa, admission, and status are different concepts

The statute uses the phrase “terms of a nonimmigrant visa,” while the adjustment regulations frame the issue in terms of violation of admission as a nonimmigrant.

For practical adjustment analysis, review:

• The visa used for travel;
• The classification actually granted at admission;
• The Form I-94;
• The petition or program supporting status;
• Applicable immigration regulations; and
• The activity the applicant actually performed.

B-1 and B-2 violations

B classifications permit limited temporary visitor activity and do not authorize ordinary U.S. employment.

Potential violations can include:

• Unauthorized employment;
• Operating a business through personal labor beyond permitted B-1 activity;
• Engaging in a full course of study without required status authorization;
• Remaining beyond the authorized stay; or
• Other conduct inconsistent with the purpose of admission.

F-1, J-1, and M-1 violations

Student and exchange classifications contain substantive program requirements.

Potential violations include:

• Dropping below required enrollment without authorization;
• Failure to maintain a full course of study;
• Unauthorized off-campus employment;
• CPT work outside the approved employer or dates;
• OPT employment outside authorization;
• STEM OPT compliance problems;
• SEVIS termination;
• Failure to participate in the approved J-1 program; or
• Other violations of student or exchange regulations.

H-1B violations

H-1B status is tied to qualifying employment and the approved petition, subject to portability and other statutory or regulatory provisions.

Potential violations include:

• Unauthorized employment for a second employer;
• Working after petition or I-94 expiration without applicable protection;
• Working before legally permitted under portability rules;
• Continuing employment after termination outside an applicable grace period;
• Material employment changes requiring immigration action; or
• Other work not covered by the H-1B authorization.

L-1 and O-1 violations

L-1 and O-1 classifications are also tied to approved petition parameters and qualifying activity.

Possible issues include:

• Employment outside the petitioning organization or qualifying corporate structure;
• Activity materially outside the approved O-1 work;
• Unauthorized concurrent employment;
• Work after petition expiration;
• Failure to continue the qualifying employment basis; or
• Other noncompliance with classification requirements.

R-1 religious workers

R-1 status authorizes qualifying religious work for the approved organization and under the terms of the approved petition.

Unauthorized secular employment can violate R-1 status.

USCIS and AAO decisions have treated secular unauthorized employment as a failure to maintain the religious-worker classification even where the employment was associated factually with the same religious community.

Violations by dependent nonimmigrants

Dependent spouses and children also have classification-specific conditions.

Examples include:

• Unauthorized employment by a dependent not authorized incident to status;
• Failure to maintain the required family relationship;
• Aging out of a dependent classification;
• Expiration of the principal's underlying status;
• Failure to obtain an extension; or
• Employment outside the scope of dependent-spouse authorization.

Violations after Form I-485 is filed

INA §245(c)(8) can remain relevant after adjustment filing.

A pending Form I-485 does not itself authorize employment or automatically excuse conduct that violates a continuing nonimmigrant classification.

For many adjustment applicants, maintenance of the prior nonimmigrant classification may no longer be required after a proper I-485 filing for purposes of certain adjustment-bar calculations, but unauthorized employment remains a separate issue unless the applicant has valid employment authorization or an applicable exemption.

Immediate-relative exemption

The adjustment regulations exempt qualifying immediate relatives from the regulatory bar based on unauthorized employment or other violations of nonimmigrant admission.

Immediate relatives generally include:

• Spouse of a U.S. citizen;
• Parent of a U.S. citizen who is at least 21; and
• Qualifying unmarried child under 21 of a U.S. citizen.

Specified special immigrants

The implementing regulation also exempts specified special immigrants identified in INA §101(a)(27)(H), (I), (J), and (K) from the regulatory unauthorized-employment and nonimmigrant-violation bar.

These classifications involve specialized adjustment rules and should be analyzed under their governing statutes and USCIS policy rather than treated as ordinary employment-based adjustment cases.

See Special Adjustment Categories.

INA §245(k) and nonimmigrant violations

INA §245(k) is the principal exception for qualifying employment-based applicants affected by §245(c)(8).

The applicant can adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8) when the statute's requirements are met.

After the relevant lawful admission, the applicant must not have accumulated more than 180 days in the aggregate of:

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

See INA §245(k).

INA §245(i)

A person grandfathered under INA §245(i) may be able to adjust notwithstanding classes listed in INA §245(c), subject to the specific §245(i) requirements.

The analysis includes:

• Qualifying petition or labor certification filed by April 30, 2001;
• Approvable-when-filed requirements;
• Derivative grandfathering where applicable;
• December 21, 2000 physical presence where required;
• Current immigrant visa eligibility;
• Admissibility; and
• Payment of the statutory additional sum where required.

See INA §245(i) Adjustment.

Evidence used to prove or rebut a status violation

The proper evidence depends on the classification.

Common records include:

• Forms I-94;
• Passports and visas;
• Forms I-797;
• Forms I-20 or DS-2019;
• SEVIS history;
• Employment Authorization Documents;
• Pay records and tax forms;
• Employer letters;
• Petitions and LCAs;
• Employment contracts;
• School transcripts;
• CPT or OPT authorization;
• Corporate records;
• Travel history; and
• Prior immigration applications containing status-history answers.

Nonimmigrant violations and current adjustment discretion

A statutory or regulatory exemption can remove a §245(c)(8) eligibility bar without erasing the historical conduct.

Where adjustment is discretionary, current USCIS policy permits consideration of relevant immigration history in the totality of the circumstances.

Potential factors can include:

• Nature of the violation;
• Duration;
• Reason for the violation;
• Whether the conduct involved deception;
• Subsequent immigration compliance;
• Family ties;
• Professional history;
• Humanitarian circumstances;
• Criminal history; and
• Other favorable or adverse factors.

Frequently asked questions