INA §245(c)(2): unlawful status and failure to maintain status
INA §245(c)(2) contains several related adjustment restrictions for covered applicants.
It can apply where the person:
- Is in unlawful immigration status on the date Form I-485 is filed;
- Failed to maintain continuously a lawful status since entry, other than through no fault or for technical reasons; or
- Accepted or continued unauthorized employment before filing.
A person can satisfy INA §245(a)'s admission requirement and still be barred by §245(c)(2) because of what happened after admission.
INA §245(c)(7): additional employment-based lawful nonimmigrant status requirement
INA §245(c)(7) separately bars a person seeking adjustment under an employment-based immigrant classification when the person is not in lawful nonimmigrant status.
This can affect applicants who:
- Overstayed nonimmigrant status;
- Hold no current nonimmigrant status;
- Are merely in a period of authorized stay;
- Have certain pending applications but no lawful nonimmigrant classification; or
- Otherwise cannot establish the required status at the relevant time.
INA §245(i) operates notwithstanding these §245(c) bars
A person who is properly grandfathered can seek adjustment under §245(i) even though the person falls within a class enumerated in subsection (c).
Past or current unlawful status does not automatically prevent adjustment when the applicant independently satisfies INA §245(i).
The applicant still needs:
- Valid grandfathering;
- Current immigrant classification;
- An immediately available immigrant visa;
- Admissibility or an available waiver;
- Form I-485;
- Supplement A;
- The additional statutory sum where required; and
- Favorable discretion.
Overstaying a nonimmigrant admission
An overstay commonly occurs when the authorized nonimmigrant period ends and the person remains in the United States without another lawful status.
Examples include:
- B-2 admission expires and the person remains;
- F-1 status terminates after a qualifying status violation;
- H-1B petition validity ends without another valid status;
- L-1 status expires;
- O-1 status ends; or
- An extension or change request is denied after the underlying status has already expired.
Unlawful immigration status on the date Form I-485 is filed
INA §245(c)(2) expressly addresses the applicant's status on the filing date.
A non-grandfathered family-preference or other covered applicant who files while out of status can therefore be barred even if an immigrant visa is available.
A qualifying §245(i) applicant can potentially proceed notwithstanding that bar.
Failure to maintain continuously a lawful status since entry
Section 245(c)(2) is not limited to the applicant's status on the day Form I-485 is filed.
A historical gap can matter even if the person later regained some form of lawful status.
Examples include:
- Overstay followed by a later status grant;
- Unauthorized employment that violated nonimmigrant status;
- Failure to comply with student-status requirements;
- Unauthorized change in employment;
- Failure to maintain the activities required by the admitted classification; or
- Another earlier status violation.
Period of authorized stay is not the same as lawful immigration status
Immigration law uses several overlapping but distinct concepts.
| Concept | General Meaning |
|---|---|
| Lawful nonimmigrant status | A current nonimmigrant classification maintained according to its terms. |
| Lawful immigration status | A regulatory concept broader than some individual nonimmigrant classifications but still limited to recognized categories. |
| Period of stay authorized | A period DHS may treat as authorized for specified purposes even though it does not necessarily constitute lawful immigration status. |
| Unlawful presence | A separate statutory concept principally relevant to INA §212(a)(9)(B). |
A pending asylum application does not necessarily maintain lawful status
USCIS has specifically held in adjustment adjudications that filing an asylum application does not, by itself, extend an expired nonimmigrant status for purposes of INA §245(c).
A person can therefore have:
- A pending Form I-589;
- Permission to remain while asylum is adjudicated;
- Employment authorization based on the asylum application; and yet
- No lawful nonimmigrant status for purposes of §245(c)(2) or §245(c)(7).
Authorization to remain while a benefit request is pending does not necessarily equal maintenance of the person's former nonimmigrant status.
A pending adjustment application does not itself create lawful nonimmigrant status
A properly filed Form I-485 can place the applicant in a period in which DHS authorizes the applicant's stay for specified purposes, but adjustment pendency is not itself a nonimmigrant classification.
Therefore, a person should not assume:
- Filing I-485 repairs an earlier status violation;
- A denied I-485 retroactively cures an overstay;
- A second I-485 creates new lawful nonimmigrant status; or
- Adjustment pendency by itself satisfies §245(c)(7).
An employment authorization document does not necessarily create lawful status
An EAD answers the question whether employment is authorized during its validity period.
It does not necessarily determine:
- Whether the person has lawful nonimmigrant status;
- Whether §245(c)(2) has been violated historically;
- Whether §245(c)(7) applies;
- Whether the person is accruing unlawful presence; or
- Whether the person qualifies for an immigrant classification.
“No fault of his own or for technical reasons” is a separate §245(c)(2) exception
INA §245(c)(2) itself contains an exception where the failure to maintain continuously a lawful status occurred through no fault of the applicant or for technical reasons.
The implementing regulation defines limited circumstances that can qualify.
Potential examples require careful regulatory analysis and can include certain situations involving:
- Inaction by USCIS on a properly filed request in circumstances recognized by regulation;
- Technical agency errors;
- Specific circumstances involving maintenance requests; or
- Other narrowly defined regulatory situations.
Immediate relatives are exempt from important status-maintenance bars
Current USCIS policy recognizes that INA §245(c)(2) and §245(c)(8) do not apply to immediate relatives of U.S. citizens.
An immediate relative who was lawfully admitted or paroled can therefore often adjust despite:
- Overstay;
- Prior unlawful status;
- Failure to maintain continuously a lawful status;
- Unauthorized employment; or
- Specified nonimmigrant visa violations.
INA §245(i) versus INA §245(k)
| Issue | INA §245(i) | INA §245(k) |
|---|---|---|
| Primary purpose | Grandfathered adjustment notwithstanding §245(a) and ordinary §245(c) restrictions. | Limited exemption from §245(c)(2), (7), and (8) for specified employment-based applicants. |
| Old qualifying filing required? | Yes, generally by April 30, 2001. | No. |
| Lawful admission | Can overcome EWI. | Requires qualifying lawful admission. |
| Maximum covered violation | No comparable 180-day limitation. | Aggregate covered violations cannot exceed 180 days after the relevant lawful admission. |
| Additional $1,000 sum | Generally yes, subject to exceptions. | No. |
Failure to maintain status is not the same as unlawful presence
This distinction is especially important in §245(i) cases because many applicants have been in the United States for years.
A person may:
- Be out of lawful status;
- Be barred from ordinary adjustment under §245(c); but
- Not accrue unlawful presence during every day of that same period for §212(a)(9)(B).
Conversely, a person who has accrued unlawful presence can activate a separate inadmissibility problem by departing the United States.
Departure can create a problem that §245(i) does not solve
A grandfathered person who remains in the United States can potentially adjust despite unlawful status.
If the person departs after accruing unlawful presence, however, the departure can trigger:
- INA §212(a)(9)(B)(i)(I) three-year bar;
- INA §212(a)(9)(B)(i)(II) ten-year bar;
- INA §212(a)(9)(A) after prior removal; or
- INA §212(a)(9)(C) after specified unlawful reentry conduct.
Section 245(i) does not excuse eligibility requirements for the underlying immigrant petition
Grandfathering does not automatically require USCIS to approve a new immigrant petition.
For example, if the current immigrant classification separately requires:
- A qualifying employer;
- Specific lawful work experience;
- Licensure;
- A qualifying relationship;
- A bona fide marriage;
- Continuous qualifying employment; or
- Other petition-specific conditions
those requirements must still be established independently.
§245(i) addresses adjustment eligibility. It does not convert an otherwise unapprovable immigrant petition into an approvable one.
Long-term status violations can still matter to discretion
Statutory eligibility under §245(i) does not guarantee approval.
USCIS can evaluate the totality of the circumstances, including:
- Length of unlawful status;
- Repeated immigration violations;
- Failure to depart when required;
- Unauthorized employment;
- Misrepresentations;
- Compliance after filing;
- Family ties;
- Hardship;
- Community and employment history; and
- Other positive and negative equities.
Evidence checklist for a §245(i) status-maintenance case
| Evidence | Purpose |
|---|---|
| All I-94 records | Establish admissions and authorized stay periods. |
| Passport entry stamps | Corroborate entry and departure history. |
| I-797 status approvals | Establish extensions and changes of status. |
| I-539 / I-129 filings | Reconstruct status-maintenance attempts. |
| SEVIS records | Relevant to F-1 or J-1 status history. |
| Asylum filing and decision records | Separate pending authorized stay from lawful status. |
| Prior I-485 records | Establish adjustment pendency and prior decisions. |
| EADs | Establish employment authorization, not necessarily status. |
| Qualifying grandfathering filing | Establishes access to INA §245(i). |
| Current immigrant petition | Establishes present immigrant classification. |
| Form I-485 Supplement A | Requests adjustment under §245(i). |
| Complete chronology | Identifies every period of lawful status, authorized stay, unlawful status, employment, departure, and return. |
Examples
| Scenario | Potential Result |
|---|---|
| Grandfathered applicant entered B-2, overstayed for 15 years, never departed | §245(i) can potentially overcome the §245(c)(2) status-maintenance bar if all other requirements are met. |
| Grandfathered employment-based applicant is not in lawful nonimmigrant status at filing | §245(i) can potentially overcome the §245(c)(7) bar. |
| Applicant's B-2 expires while asylum application remains pending | Pending asylum does not itself extend B-2 status for §245(c); §245(i) may provide an adjustment route if applicant is grandfathered. |
| Applicant has pending I-485 after nonimmigrant status expires | I-485 pendency does not itself create lawful nonimmigrant status; §245(i) may nonetheless overcome the adjustment bar if applicable. |
| Immediate-relative spouse entered lawfully and overstayed | Immediate-relative exemption may already remove §245(c)(2)/(8) barriers; §245(i) may not be necessary solely for the overstay. |
| EB-3 applicant has only 90 aggregate days of covered violations after lawful admission | INA §245(k) may independently preserve adjustment eligibility if all its requirements are met. |
| Grandfathered applicant departs after more than one year of unlawful presence | Separate INA §212(a)(9)(B) inadmissibility analysis arises; §245(i) does not itself waive it. |
Frequently asked questions
Can I use §245(i) if I overstayed my visa?
Potentially yes. A qualifying grandfathered applicant can adjust notwithstanding ordinary §245(c) status-maintenance restrictions.
Does §245(i) make my overstay lawful?
No. It prevents specified adjustment bars from defeating a qualifying adjustment application; it does not retroactively grant lawful nonimmigrant status.
Is there a limit on how many years I can have been out of status?
INA §245(i) does not contain a 180-day or similar ceiling on the §245(c) status violation itself. Other requirements, inadmissibility, and discretion still apply.
Does a pending asylum application mean I am maintaining lawful status?
Not by itself. USCIS has held that a pending asylum application does not automatically continue an expired nonimmigrant status for §245(c).
Does my pending I-485 give me lawful nonimmigrant status?
No. Adjustment pendency and lawful nonimmigrant status are different concepts.
Does having an EAD mean I am in lawful status?
Not necessarily. An EAD authorizes employment during its validity period but does not by itself confer lawful nonimmigrant status.
How is §245(i) different from §245(k)?
Section 245(i) depends on grandfathering through a qualifying pre-April 30, 2001 filing and can even overcome entry without inspection. Section 245(k) is a separate employment-based exemption with a lawful-admission requirement and a 180-day aggregate limit.
Does §245(i) waive the unlawful-presence bar if I leave the United States?
No. INA §212(a)(9)(B) is an inadmissibility provision separate from the §245(c) status-maintenance bars. A departure can therefore create a waiver issue even for a grandfathered applicant.