The statutory classes eligible for INA §245(k)
Current INA §245(k) applies to a person eligible to receive an immigrant visa under:
- INA §203(b)(1) — EB-1;
- INA §203(b)(2) — EB-2;
- INA §203(b)(3) — EB-3;
- INA §203(b)(5) — EB-5; or
- INA §203(b)(4) when the applicant is the special immigrant religious worker described in INA §101(a)(27)(C).
Section 245(k) is not a general employment-related adjustment exception. The applicant must be adjusting through one of the immigrant categories Congress specifically listed.
EB-1 applicants
All three principal EB-1 classifications can potentially use §245(k):
- EB-1A — extraordinary ability;
- EB-1B — outstanding professors and researchers; and
- EB-1C — multinational managers and executives.
An EB-1A applicant can qualify even though the immigrant petition is self-petitioned and no permanent job offer is required.
EB-2 applicants
Qualifying EB-2 applicants can include:
- Advanced-degree professionals;
- Persons of exceptional ability;
- PERM-based EB-2 beneficiaries;
- Schedule A applicants classified under EB-2 where applicable;
- Physician NIW applicants; and
- National Interest Waiver self-petitioners.
An EB-2 NIW applicant can invoke §245(k). The absence of a traditional employer petitioner does not remove the case from INA §203(b)(2).
EB-3 applicants
INA §245(k) also covers the principal EB-3 classifications:
- Skilled workers;
- Professionals; and
- Other workers.
The applicant must still establish that the underlying Form I-140 and any required permanent labor certification support the immigrant classification.
EB-5 investors qualify under current law
Older §245(k) memoranda and practice materials may omit EB-5 because the statute formerly did not include INA §203(b)(5).
The EB-5 Reform and Integrity Act of 2022 amended the statute. Current INA §245(k) expressly includes applicants eligible to receive immigrant visas under INA §203(b)(5).
This can include qualifying investors adjusting through:
- Form I-526;
- Form I-526E; and
- Derivative EB-5 classification where all applicable requirements are met.
Special immigrant religious workers
Congress specifically extends §245(k) to an immigrant described in INA §101(a)(27)(C) who receives an immigrant visa through INA §203(b)(4).
That includes qualifying religious workers, subject to the substantive requirements governing the special immigrant religious worker classification.
Special immigrant religious workers are expressly included in the classes that can potentially use INA §245(k). See Religious Workers and INA §245(k) for the category-specific analysis.
Not every EB-4 applicant qualifies
INA §245(k) does not state that all persons receiving visas under INA §203(b)(4) qualify.
Instead, it specifically identifies the immigrant described in INA §101(a)(27)(C)—the religious worker classification.
Derivative spouses and children can invoke §245(k) in their own right
USCIS policy recognizes that an eligible derivative of a qualifying employment-based principal can benefit from §245(k) independently.
That means each derivative should have a separate analysis of:
- Most recent lawful admission;
- Lawful status history;
- Unauthorized employment;
- Other admission violations; and
- Total covered days.
A principal applicant's violation history is not automatically attributed to the spouse or child, and a derivative's violations do not automatically disqualify the principal.
The derivative must still remain eligible for immigrant classification through the principal under the applicable derivative provisions.
Self-petitioners can qualify
INA §245(k) focuses on immigrant classification rather than whether the petition was filed by an employer.
Qualifying self-petition categories therefore can include:
- EB-1A extraordinary ability;
- EB-2 National Interest Waiver; and
- Qualifying EB-5 investor cases.
Every §245(k) applicant must satisfy the lawful admission requirement
On the date Form I-485 is filed, INA §245(k)(1) requires the applicant to be present in the United States pursuant to a lawful admission.
This requirement can potentially be satisfied through a lawful admission in classifications such as:
- H-1B;
- L-1;
- F-1;
- J-1;
- O-1;
- B-1/B-2;
- TN;
- E classification; or
- Another lawful admission.
The person does not necessarily have to remain in that original status at filing, because §245(k) exists precisely to excuse limited status violations. The covered post-admission violations, however, must remain within the statutory 180-day aggregate.
The applicant must remain at 180 aggregate days or less
After the most recent lawful admission, the applicant must not have accumulated an aggregate period exceeding 180 days of:
- Failure to maintain continuously a lawful status;
- Unauthorized employment; or
- Other violations of the terms and conditions of admission.
180 days can potentially qualify. 181 aggregate days exceeds the statutory limit.
The three categories do not receive separate 180-day allowances.
What violations does §245(k) excuse?
| Violation | Potentially Covered by §245(k)? |
|---|---|
| Unlawful status after lawful admission | Yes, subject to 180-day aggregate. |
| Failure to maintain continuously lawful status | Yes. |
| Unauthorized employment | Yes. |
| Employment outside authorized employer or scope | Potentially yes as unauthorized employment and/or status violation. |
| Other violation of terms of admission | Yes, subject to counting rules. |
| Entry without inspection | No. §245(k) requires lawful admission. |
| Fraud inadmissibility | No. |
| Criminal inadmissibility | No. |
| Prior removal bar | No. |
Violations before the most recent lawful admission generally do not count toward §245(k)
Current USCIS policy evaluates covered violations occurring after the applicant's most recent lawful admission.
Therefore, a person can sometimes have:
- A prior overstay longer than 180 days;
- A prior period of unauthorized employment;
- A departure from the United States;
- A subsequent lawful admission; and
- Fewer than 181 days of covered violations after that later admission
and potentially satisfy the §245(k) calculation.
Violations can continue after Form I-485 is filed
Filing adjustment does not freeze the §245(k) calculation for continuing unauthorized employment or other violations.
A person who files Form I-485 while still working without authorization can continue accumulating unauthorized-employment days until:
- The employment stops;
- A valid EAD becomes effective;
- Another valid source of work authorization begins; or
- The employment otherwise becomes authorized.
What does INA §245(k) not excuse?
The statute makes only §245(c)(2), §245(c)(7), and §245(c)(8) inapplicable.
It does not itself overcome:
- INA §245(c)(1) crewman bar;
- INA §245(c)(3) transit-without-visa bar;
- INA §245(c)(4) Visa Waiver Program bar;
- INA §245(c)(5) S nonimmigrant bar;
- INA §245(c)(6) terrorism-related bar;
- INA §245(d), §245(e), or §245(f);
- Entry without inspection;
- Ordinary parole in place of lawful admission;
- Independent INA §212 inadmissibility;
- Lack of an immigrant visa;
- Visa retrogression;
- An unapprovable immigrant petition; or
- Unfavorable adjustment discretion.
Who may need INA §245(i) instead of §245(k)?
| Issue | INA §245(k) | INA §245(i) |
|---|---|---|
| Requires old pre-2001 qualifying filing | No | Yes |
| Requires lawful admission | Yes | No; can overcome EWI |
| 180-day ceiling | Yes | No comparable ceiling |
| Qualifying immigrant categories | Specified employment-based categories | Can be used with many current immigrant bases if applicant is grandfathered |
| Overcomes §245(c)(2), (7), and (8) | Yes, within 180 days | Yes for qualifying grandfathered applicant |
| Additional $1,000 statutory sum | No | Generally yes |
The applicant bears the burden of proving §245(k) eligibility
There is no separate Form I-245K.
USCIS evaluates §245(k) within the Form I-485 adjudication. If the existing record is insufficient, USCIS can request evidence concerning:
- Admission;
- Immigration status;
- Employment authorization;
- Employer history;
- Travel;
- Exact dates of violations; and
- The aggregate calculation.
Where §245(k) is necessary to eligibility, provide the legal argument and violation chronology affirmatively rather than forcing USCIS to reconstruct the case from scattered immigration records.
Evidence checklist
| Evidence | Purpose |
|---|---|
| Current immigrant petition | Establishes qualifying EB classification. |
| Passport | Documents travel and admissions. |
| I-94 records | Establish admission class and dates. |
| I-797 notices | Document status changes, extensions, and petition validity. |
| SEVIS records | Relevant to student or exchange-visitor status. |
| EADs | Identify periods of authorized employment. |
| Pay records | Establish employment start and end dates. |
| W-2 and 1099 records | Corroborate work history. |
| Employer letters | Document employment and termination dates. |
| Travel records | Identify the most recent lawful admission. |
| TPS travel documentation | Relevant where current TPS travel policy may establish a lawful admission. |
| Day-by-day chronology | Shows aggregate covered violations are 180 days or less. |
Examples
| Applicant | Potential Result |
|---|---|
| EB-1A applicant with lawful H-1B admission and 120 days out of status | Potentially qualifies. |
| EB-2 NIW applicant with lawful F-1 admission and 90 days unauthorized employment | Potentially qualifies. |
| EB-3 applicant with 181 aggregate days of covered violations | Does not qualify for §245(k). |
| EB-5 investor with lawful admission and 100 aggregate days of violations | Potentially qualifies under current law. |
| Religious worker with 150 covered days | Potential §245(k) adjustment relief, but separate I-360 petition requirements still apply. |
| Qualifying derivative spouse with 80 days unauthorized employment | Can potentially invoke §245(k) independently. |
| EB-2 applicant whose only entry was EWI | Does not satisfy §245(k)'s lawful-admission requirement. |
| EB-3 applicant with 400 days of old violations before later lawful H-1B admission and only 30 days afterward | Potentially qualifies under §245(k), subject to separate review of any consequences created by the earlier history. |
Frequently asked questions
Can an EB-1A applicant use §245(k)?
Yes. EB-1A falls within INA §203(b)(1), one of the categories expressly covered by §245(k).
Can an EB-2 NIW applicant use §245(k)?
Yes. The NIW is an EB-2 classification. Self-petitioning does not prevent §245(k) eligibility.
Can an EB-5 investor use §245(k)?
Yes under current law. INA §245(k) now expressly includes applicants eligible under INA §203(b)(5).
Can all EB-4 applicants use §245(k)?
No. The statute specifically includes the special immigrant religious worker described in INA §101(a)(27)(C), not every EB-4 classification.
Can a derivative spouse use §245(k) even if the principal never violated status?
Yes. USCIS recognizes that an eligible derivative can invoke §245(k) in the derivative's own right based on that person's separate immigration history.
Does an approved I-140 automatically mean I qualify?
No. You must also establish lawful admission, no more than 180 aggregate days of covered post-admission violations, admissibility, visa availability, and all other adjustment requirements.
Can I qualify with exactly 180 days?
Potentially yes. The statute excludes an aggregate period exceeding 180 days. Day 181 exceeds the statutory limit.
Can I use §245(k) if I entered without inspection?
Not solely on that entry. INA §245(k) requires presence pursuant to a lawful admission on the date the I-485 is filed.
Do violations before my most recent lawful admission count?
USCIS generally counts the covered §245(k) violations after the most recent lawful admission. Earlier history can still create independent inadmissibility or other immigration consequences.