“Counting unlawful status” is shorthand for the §245(k)(2)(A) inquiry
INA §245(k)(2)(A) asks whether, after the relevant lawful admission, the applicant has for an aggregate period exceeding 180 days “failed to maintain, continuously, a lawful status.”
The broader adjustment statute also uses concepts including:
- Unlawful immigration status on the date Form I-485 is filed;
- Failure to maintain continuously lawful status;
- Lawful nonimmigrant status;
- Violation of the terms of nonimmigrant status; and
- Unauthorized employment.
This page addresses the lawful-status portion of the §245(k) calculation. Unauthorized employment and other nonimmigrant-status violations have separate counting rules.
What qualifies as lawful immigration status?
Current 8 C.F.R. §245.1(d)(1) defines lawful immigration status for INA §245(c)(2) purposes and includes specified persons in:
- Lawful permanent resident status;
- Valid nonimmigrant status whose period has not expired or has been extended;
- Unrevoked refugee status;
- Unrevoked asylee status;
- Valid parole status; and
- A narrow historical statutory category no longer relevant to most current cases.
When does USCIS begin counting days against §245(k)?
Current USCIS policy states that in most cases the calculation starts on the earliest applicable date on which:
- The applicant's immigration status expires;
- The applicant's immigration status is revoked or rescinded; or
- The applicant violates the immigration status.
Do not assume the I-94 expiration date controls if a status violation occurred earlier.
Status expiration and the I-94
For many nonimmigrants admitted until a fixed date, the Form I-94 provides the most obvious status-expiration date.
If the person remains after the authorized status expires without a qualifying extension, change, or other lawful status, USCIS generally treats the person as having failed to maintain lawful status beginning when that status expires.
Relevant documents include:
- Electronic Form I-94;
- Old paper I-94;
- I-797 approval notices containing replacement I-94s;
- Passport admission stamps; and
- CBP entry history.
A status violation can start the clock before the I-94 expires
An applicant can lose lawful status by violating the terms of admission even though the facial expiration date has not arrived.
Examples can include:
- A B-2 visitor engaging in unauthorized employment;
- An F-1 student failing to maintain the required course of study;
- An employee working outside the conditions of an employer-specific classification;
- A person ceasing the activity required by the classification; or
- Another substantive violation of nonimmigrant status.
Revocation, rescission, or termination can also begin the count
Status does not always end through the ordinary passage of time.
DHS action can terminate or revoke a person's status before the originally expected expiration date.
The factual chronology should therefore include:
- USCIS revocation notices;
- Status termination decisions;
- SEVIS termination records;
- Employer petition revocations;
- Notice dates and effective dates; and
- Any subsequent reinstatement or status grant.
When does the §245(k) unlawful-status count stop?
USCIS states that counting days out of status usually stops on the earliest applicable date on which:
- The applicant properly files Form I-485;
- The applicant obtains lawful immigration status; or
- The applicant departs the United States.
Proper I-485 filing, a new lawful status, or departure can end the relevant failure-to-maintain-status period for the §245(k) calculation.
Why does properly filing Form I-485 stop the status calculation?
USCIS's §245(k) guidance expressly uses proper adjustment filing as a stopping point for the failure-to-maintain-status calculation.
This does not mean the I-485 places the applicant back into H-1B, F-1, O-1, or another nonimmigrant classification.
Instead, it is a specialized adjustment counting rule.
A pending immigration application does not automatically confer lawful status
Current USCIS policy specifically states that a pending:
- Form I-129 extension or change request;
- Form I-539 extension or change request;
- Form I-485 adjustment application; or
- Immigrant or nonimmigrant petition
does not, merely by remaining pending, confer lawful immigration status.
Pending extension-of-stay or change-of-status applications
An applicant whose underlying nonimmigrant status expires while a Form I-129 or Form I-539 extension or change-of-status request is pending presents a conditional calculation issue.
The ultimate USCIS decision matters.
An approved EOS or COS can retroactively protect the pending period
Current USCIS policy excludes from the §245(k) 180-day calculation a period during which an extension-of-stay or change-of-status application was pending if USCIS ultimately approves the request and the approval provides lawful-status treatment for that period.
For a timely extension of stay, approval is generally effective back to the prior status expiration date.
USCIS also possesses regulatory discretion to excuse certain untimely EOS or COS filings in qualifying circumstances.
A period that initially appeared to be a status gap may disappear from the §245(k) calculation after USCIS approves the relevant extension or change request.
A denied EOS or COS does not receive the same treatment
Because merely filing the extension or change request does not itself create lawful immigration status, denial can leave the applicant with a period that counts under §245(k).
The precise beginning date depends on:
- The expiration of the prior status;
- Whether another status violation occurred earlier;
- Whether any separate regulatory protection applies;
- The nature and timing of the filing; and
- The final USCIS disposition.
A pending asylum application does not itself maintain nonimmigrant status
A person can timely apply for asylum while still in B-2, F-1, or another status and remain in the United States while asylum is adjudicated.
That does not automatically extend the prior nonimmigrant status.
For example, if:
- The applicant is admitted as B-2 through July 1;
- The applicant files Form I-589 in May;
- The B-2 admission expires July 1; and
- The asylum application remains pending for years;
the pending asylum application does not by itself make those later years lawful nonimmigrant status for INA §245(c) or §245(k).
An EAD does not by itself create lawful immigration status
Employment authorization determines whether the applicant may lawfully work.
It does not necessarily determine whether the person has lawful immigration status.
An applicant can therefore:
- Possess a valid EAD;
- Be permitted to work;
- Avoid unauthorized-employment days; but
- Still lack a lawful nonimmigrant status.
Ask independently: Is the person in lawful status? Is the person's stay authorized? Is the person's employment authorized?
F-1 and J-1 status requires special counting
F-1 students and J-1 exchange visitors can be admitted for duration of status rather than to a conventional fixed I-94 expiration date.
Relevant records can include:
- Form I-20;
- Form DS-2019;
- SEVIS history;
- Program completion dates;
- Authorized practical training;
- Grace periods;
- Program extensions;
- Reinstatement requests; and
- Any status-termination record.
USCIS policy also excludes authorized periods before or after program completion that are permitted by the applicable regulations, provided the applicant otherwise complied with status.
Successful F-1 or J-1 reinstatement can cure the covered period
Current USCIS §245(k) policy states that a period in violation of F-1 or J-1 status does not count when the status is later reinstated, but only for the period actually covered by the reinstatement.
No-fault and technical-reason periods
INA §245(c)(2) contains an exception where the failure to maintain status occurred through no fault of the applicant or for technical reasons.
Current 8 C.F.R. §245.1(d)(2) limits the regulatory categories to specified circumstances, including:
- Inaction by a designated person or organization over whose actions the applicant had no control, when acknowledged by that person or organization;
- Technical violation resulting from USCIS inaction;
- Specified physical inability to request an extension; and
- A narrow historical H-1 nurse provision.
USCIS excludes a qualifying period from the §245(k) 180-day calculation.
Obtaining TPS can stop a failure-to-maintain-status period
USCIS's §245(k) guidance gives Temporary Protected Status as an example of a later lawful immigration status that can stop the status-violation count.
That proposition should be separated from the lawful-admission requirement.
| TPS Question | General Rule |
|---|---|
| Can valid TPS affect lawful-status counting? | Yes. USCIS recognizes TPS as relevant to ending a failure-to-maintain-status period. |
| Does a grant of TPS itself constitute admission? | No. Sanchez v. Mayorkas holds that TPS itself does not cure a prior EWI for §245(a). |
| Can qualifying TPS-authorized travel result in admission? | Yes under current USCIS policy when the statutory travel requirements are satisfied. |
| Can that admission matter to §245(k)? | Yes. It can potentially become the most recent lawful admission and establish a new counting point. |
Unlawful status and unlawful presence are different calculations
A pending adjustment application illustrates the distinction.
USCIS recognizes that a pending Form I-485 generally places the applicant in a period of authorized stay for unlawful-presence purposes. Yet the pending I-485 itself does not confer lawful nonimmigrant status.
| Question | Relevant Concept |
|---|---|
| Can §245(c) bar adjustment? | Lawful immigration status / status maintenance. |
| Does §245(k) excuse the covered status violation? | 180-day aggregate after most recent lawful admission. |
| Can departure trigger a three- or ten-year bar? | INA §212(a)(9)(B) unlawful presence. |
| Does an EAD authorize employment? | Employment authorization. |
Always begin with the most recent lawful admission
The applicant's historical violations from earlier stays generally are not counted toward the current §245(k) total if the applicant subsequently departed and was lawfully admitted again.
For example:
- First stay: 400 days out of status;
- Departure;
- Later lawful H-1B admission;
- 90 days out of status after that admission;
- Proper I-485 filing.
The §245(k) status calculation can potentially be 90 days rather than 490.
Evidence for calculating lawful-status days
| Evidence | Purpose |
|---|---|
| Forms I-94 | Establish admission and authorized expiration dates. |
| Passport stamps | Confirm travel and admission chronology. |
| Forms I-797 | Document extensions, changes, revocations, and status grants. |
| I-129 and I-539 receipts | Show filing dates of extension and change requests. |
| EOS/COS approval or denial | Determines whether the pending period ultimately receives lawful-status treatment. |
| SEVIS history | Establishes F-1 or J-1 compliance and termination dates. |
| I-20 / DS-2019 | Documents authorized student or exchange program periods. |
| Reinstatement decision | Can remove the covered reinstated period from the §245(k) calculation. |
| Form I-485 receipt | Establishes the date on which the status count usually stops. |
| TPS approval | Can document acquisition of a lawful immigration status relevant to the stop date. |
| Employment records | Can reveal an earlier status violation based on unauthorized work. |
| Chronology | Allows day-by-day calculation and comparison with the 180-day limit. |
Examples
| Scenario | Potential §245(k) Status Count |
|---|---|
| H-1B status expires January 1; I-485 properly filed April 1 | Approximately 90 days, depending on exact date-counting facts. |
| B-2 valid until July but applicant begins unauthorized work April 1 | Status violation may begin April 1 rather than July expiration. |
| Timely H-1B extension pending after I-94 expiration and later approved | Covered pending period generally excluded. |
| Extension remains pending and is ultimately denied | Pending filing alone does not confer lawful status; period requires calculation under the actual status chronology. |
| B-2 expires while asylum application remains pending | Pending asylum does not itself continue B-2 status. |
| F-1 falls out of status but later receives reinstatement covering the period | Period covered by reinstatement generally excluded. |
| Applicant lacks status for 120 days and then properly files I-485 | Status count generally stops at I-485 filing; unauthorized work may continue separately. |
| Applicant had 300 prior status-violation days, departed, later lawfully admitted, then accumulated 60 days | Current §245(k) count generally focuses on the 60 days after the most recent lawful admission. |
Frequently asked questions
When does unlawful status begin for §245(k)?
USCIS generally starts counting on the earliest applicable date the status expires, is revoked or rescinded, or the applicant violates the status.
Does the I-94 expiration date always control?
No. A substantive status violation can occur before the I-94 expires and cause the §245(k) count to begin earlier.
When does the status count stop?
USCIS says it usually stops on the earliest date the applicant properly files Form I-485, obtains lawful immigration status, or departs the United States.
Does a pending I-485 give me lawful status?
No. USCIS expressly distinguishes a pending adjustment application from lawful immigration or nonimmigrant status, even though the §245(k) status-counting rule generally stops at proper I-485 filing.
Does a pending I-539 or I-129 automatically maintain lawful status?
No. A pending extension or change request does not itself confer lawful immigration status. If USCIS ultimately approves the request, however, the covered period can receive retroactive lawful-status treatment.
Does pending asylum maintain my B-2 or F-1 status?
No by itself. A pending asylum application does not automatically extend an expired nonimmigrant status.
Does an EAD mean I am in lawful status?
No. An EAD authorizes employment but does not by itself create lawful nonimmigrant status.
Does F-1 reinstatement remove the status violation?
USCIS policy recognizes successful reinstatement as curing the period covered by the reinstatement for §245(k) purposes.
Are unlawful-status days the same as unlawful-presence days?
No. INA §245(k) and INA §212(a)(9)(B) use different concepts and different counting rules.
Do old status violations before a later lawful admission count?
Not generally toward the current §245(k) total. They can still create separate immigration consequences.