Unlawful Immigration Status on the Date Form I-485 Is Filed

INA §245(c)(2) and unlawful status on the filing date

INA §245(c)(2) provides, subject to statutory exceptions, that ordinary §245(a) adjustment is unavailable to a person who:

• Continues in or accepts unauthorized employment before filing;
• Is in unlawful immigration status on the date the adjustment application is filed; or
• Failed, other than through no fault of the applicant or for technical reasons, to maintain continuously a lawful status since entry into the United States.

What counts as lawful immigration status?

For §245(c)(2), 8 C.F.R. §245.1(d)(1) defines lawful immigration status to include specified categories.

These include:

• Lawful permanent resident status;
• Nonimmigrant status where the authorized period has not expired or the status has been properly extended;
• Unrevoked refugee status;
• Unrevoked asylee status;
• Parole that has not expired, been revoked, or been terminated; and
• Certain historical statutory classifications identified by regulation.

The exact Form I-485 filing date matters

One branch of §245(c)(2) asks whether the applicant is in unlawful immigration status on the date the adjustment application is filed.

The case file should therefore establish:

• The USCIS receipt date;
• The applicant's status immediately before filing;
• The expiration date on the applicable I-94;
• Any timely extension or change-of-status request;
• Any USCIS approval effective on or before the filing date;
• Parole validity;
• TPS validity; and
• Any other statutory basis for lawful status.

Earlier Status Gaps Are a Separate Question

Lawful immigration status on the Form I-485 filing date does not necessarily cure an earlier failure to maintain status. INA §245(c)(2) contains a separate continuous maintenance requirement.

For the full historical status analysis, including prior entries, student violations, employment related violations and exceptions, see Failure to Maintain Lawful Status and Adjustment of Status.

Expired I-94 and unlawful status

For many date-certain nonimmigrant classifications, expiration of the authorized period shown on Form I-94 is a central event in determining whether lawful status continues.

Examples can include:

• B-1/B-2 visitors;
• H-1B and H-4 nonimmigrants;
• L-1 and L-2 nonimmigrants;
• O and P classifications;
• TN status; and
• Other date-limited nonimmigrant classifications.

F-1, J-1, and other Duration of Status cases

Some nonimmigrants historically have been admitted for “D/S,” or duration of status, rather than until a fixed calendar date.

In these cases the status analysis may depend on:

• Form I-20 or DS-2019 validity;
• Enrollment or program participation;
• Authorized employment;
• OPT or practical-training rules;
• SEVIS history;
• Grace periods;
• Status-reinstatement requests; and
• The particular conduct alleged to have violated status.

Pending extension or change-of-status applications

A timely filed extension or change-of-status request can create important protections, but a pending request should not automatically be described as a new grant of lawful immigration status.

For §245(c)(2), 8 C.F.R. §245.1(d)(2) contains a limited “no fault or technical reasons” exception that can apply to specified violations resulting from USCIS inaction after a properly filed timely request to maintain status.

See No Fault or Technical Reasons Exception.

Pending Form I-485 and Filing-Date Status

Filing Form I-485 does not itself create a new lawful nonimmigrant status. A properly filed adjustment application can instead create a period of stay authorized for particular immigration purposes.

For the detailed rules after Form I-485 has been filed, including unlawful presence, EADs, advance parole, denial and withdrawal, see Lawful Status vs. Period of Authorized Stay.

A pending asylum application is not automatically lawful immigration status

A person can have a bona fide asylum application pending while no longer holding the nonimmigrant status in which the person entered.

The pending asylum application can affect:

• Unlawful-presence calculations;
• Employment authorization;
• Removal procedure;
• Eligibility for particular immigration benefits; and
• The factual circumstances of any claimed technical violation.

Unexpired parole and §245(c)(2)

For the specific definition used in §245(c)(2), 8 C.F.R. §245.1(d)(1)(v) includes a person in parole status where the parole:

• Has not expired;
• Has not been revoked; and
• Has not been terminated.

See What Counts as Parole?.

Temporary Protected Status

TPS has specialized statutory treatment.

INA §244(f)(4) provides specified lawful-status treatment for adjustment and change-of-status purposes while TPS is valid.

But TPS does not necessarily erase a status violation that occurred before TPS was granted.

See TPS and Adjustment of Status.

DACA is not lawful immigration status

Deferred Action for Childhood Arrivals does not confer lawful immigration status.

A valid DACA period can have important consequences for unlawful-presence accrual and employment authorization, but it does not place the recipient in a lawful nonimmigrant classification or independently cure a §245(c)(2) status problem.

See DACA and Adjustment of Status.

Immediate relatives are exempt from the §245(c)(2) status bar

INA §245(c)(2) expressly excludes qualifying immediate relatives as defined in INA §201(b).

This generally includes:

• Spouse of a U.S. citizen;
• Unmarried child under 21 of a U.S. citizen; and
• Parent of a U.S. citizen who is at least 21 years old.

A qualifying immediate relative can therefore often adjust after:

• Visa overstay;
• Loss of nonimmigrant status;
• Long periods of unlawful immigration status; and
• Specified unauthorized employment.

Approved VAWA self-petitioners

The introductory language of INA §245(c) excludes a person with an approved petition for classification as a VAWA self-petitioner from the subsection's adjustment bars.

A qualifying approved VAWA self-petitioner therefore receives broader protection than merely an exception to the filing-date status provision.

See VAWA Adjustment Without Admission or Parole.

INA §245(i) can overcome the §245(c)(2) bar

INA §245(i) applies notwithstanding subsections (a) and (c) to qualifying grandfathered applicants.

A person can therefore potentially adjust under §245(i) despite:

• Unlawful status on the I-485 filing date;
• Earlier failure to maintain status;
• Unauthorized employment;
• Entry without inspection; or
• Another covered §245(c) problem.

See INA §245(i).

INA §245(k) and employment-based applicants

INA §245(k) permits specified employment-based applicants to adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8) if the statutory requirements are met.

The applicant must generally establish:

• A qualifying employment-based classification;
• Presence pursuant to a lawful admission; and
• No aggregate period exceeding 180 days of specified violations after the relevant lawful admission.

Covered violations include:

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

See INA §245(k).

Later Reentry Does Not Answer the Filing-Date Question

A later lawful admission can establish a new entry and a new period of nonimmigrant status, but it does not ordinarily erase an earlier INA §245(c)(2) violation. INA §245(k) applies a different rule for qualifying employment based applicants.

For the effect of departure and later lawful reentry on earlier violations, see Lawful Admission After Prior Status Violations.

Unlawful status is not the same as unlawful presence

These concepts serve different statutory purposes.

Evidence to establish lawful status on the filing date

Frequently asked questions