First Preference
Includes persons of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives.
INA §245(k) • Covered Employment-Based Categories
EB-1, EB-2, EB-3 and EB-5 Eligibility for INA §245(k)
INA §245(k) is not available to every adjustment applicant. Congress limited the exemption primarily to specified employment-based immigrant categories.
Current law expressly includes immigrants eligible under EB-1, EB-2, EB-3, and EB-5. Certain EB-4 religious workers are also covered through a separate statutory provision.
Section 245(k) follows the immigrant classification—not the applicant's temporary visa classification. An applicant does not qualify merely because he or she currently holds H-1B, L-1, O-1, F-1, or another nonimmigrant status.
CoveredEB-1, EB-2, EB-3, EB-5
Special inclusionCertain religious workers
Relief from§245(c)(2), (7), and (8)
Legal reviewAugust 30, 2026
Direct Answer
Which Employment-Based Applicants Can Use INA §245(k)?
INA §245(k) expressly applies to an applicant eligible to receive an immigrant visa under INA §203(b)(1), (2), (3), or (5)—the EB-1, EB-2, EB-3, and EB-5 categories. The statute separately includes qualifying religious workers classified under EB-4.
The applicant must still satisfy all of the other §245(k) requirements. Being the beneficiary of an EB-1, EB-2, EB-3, or EB-5 immigrant petition does not by itself excuse a status violation.
The applicant must be present pursuant to a lawful admission when Form I-485 is filed and must not have more than 180 aggregate days of covered violations after the relevant lawful admission.
Covered Preference Categories
The Four Main Employment-Based Categories
Second Preference
Includes advanced-degree professionals and persons of exceptional ability, including qualifying national interest waiver cases.
Third Preference
Includes skilled workers, professionals, and other workers who qualify under INA §203(b)(3).
Fifth Preference
Includes qualifying immigrant investors under INA §203(b)(5). Congress added EB-5 to §245(k) in 2022.
EB-1
All Three Principal EB-1 Classifications Fall Within §245(k)
Extraordinary Ability
An EB-1A self-petitioner can potentially use §245(k). The exemption does not require the immigrant petition to have been filed by an employer.
Outstanding Professors and Researchers
A qualifying EB-1B beneficiary may invoke §245(k) when the statutory admission and 180-day requirements are met.
Multinational Managers and Executives
A qualifying EB-1C adjustment applicant can use §245(k) to overcome the specified §245(c) bars where the remaining requirements are satisfied.
Self-petitioning does not prevent §245(k) eligibility. The statute looks to the employment-based immigrant classification. An EB-1A applicant can therefore qualify even though no employer filed the I-140.
EB-2
PERM and National Interest Waiver Cases Can Both Qualify
EB-2 With Labor Certification
A beneficiary adjusting through an EB-2 petition supported by PERM or another qualifying labor-certification process falls within INA §203(b)(2) and can potentially use §245(k).
EB-2 National Interest Waiver
NIW applicants remain EB-2 immigrants even though the job-offer and labor-certification requirements have been waived. A qualifying NIW self-petitioner may therefore use §245(k).
Physician NIW
A physician adjusting through a qualifying national interest waiver remains within EB-2 and may benefit from §245(k), subject to the separate requirements governing the physician's immigrant classification and adjustment case.
EB-3
Skilled Workers, Professionals, and Other Workers Are Covered
Skilled Workers
A qualifying skilled-worker beneficiary under INA §203(b)(3) can potentially use §245(k).
Professionals
A professional classified under EB-3 is within the statutory categories covered by §245(k).
Other Workers
Qualifying other-worker beneficiaries are also within EB-3 and are not excluded merely because the position is not a professional or skilled-worker position.
The labor-certification route does not determine whether §245(k) applies. The central classification question is whether the adjustment applicant is eligible to receive an immigrant visa under INA §203(b)(3).
EB-5
Congress Added Immigrant Investors to INA §245(k) in 2022
Reform and Integrity Act
The EB-5 Reform and Integrity Act amended INA §245(k) so that immigrants eligible under INA §203(b)(5) are included among the employment-based applicants who may invoke the exemption.
Current Adjustment Cases
A qualifying EB-5 investor may therefore use §245(k) when the investor is present pursuant to a lawful admission and has no more than 180 aggregate days of covered violations after the relevant admission.
Older §245(k) guidance may omit EB-5. Before the 2022 statutory amendment, §245(k) did not list the fifth preference. Current statutory text and current USCIS policy include EB-5.
Special EB-4 Rule
Most EB-4 Categories Are Not Covered by §245(k)
Religious Workers
INA §245(k) contains a specific additional provision for immigrants described in INA §101(a)(27)(C)—qualifying religious workers who receive immigrant visas through INA §203(b)(4).
Other EB-4 Special Immigrants
The statute does not generally extend §245(k) to every immigrant classified within EB-4. The religious-worker inclusion is specific and should not be generalized to other special-immigrant categories.
The separate religious-worker rules deserve their own analysis because Congress included that category through a specific cross-reference rather than by adding all of INA §203(b)(4).
What §245(k) Actually Does
Qualifying for an EB Category Is Only the First Step
Covered Immigrant Category
The applicant must fall within a category Congress included in §245(k).
Lawful Admission
The applicant must be present pursuant to a lawful admission when Form I-485 is filed.
180 Days or Less
The aggregate covered violations after the relevant lawful admission must not exceed 180 days.
Visa Availability
An immigrant visa must be immediately available under the applicable employment-based category.
Admissibility
The applicant must be admissible to the United States for permanent residence or qualify for any separately available waiver or exception.
Discretion and Other Requirements
Every other applicable adjustment requirement remains in place. Section 245(k) removes only the specified adjustment bars.
Limited Statutory Relief
Which Adjustment Bars Can §245(k) Overcome?
| Provision | General issue | Can §245(k) help? |
|---|---|---|
| INA §245(c)(2) | Specified unlawful status, failure to maintain status, and unauthorized employment issues. | Yes, when all §245(k) requirements are satisfied. |
| INA §245(c)(7) | Employment-based applicant not in lawful nonimmigrant status. | Yes, subject to §245(k). |
| INA §245(c)(8) | Unauthorized employment or other violations of nonimmigrant visa terms. | Yes, subject to §245(k). |
| INA §245(a) | Basic adjustment requirements including inspection/admission or parole. | No. §245(k) does not waive §245(a). |
| INA §212(a) | Grounds of inadmissibility. | No. §245(k) does not waive inadmissibility. |
| Other statutory adjustment bars | Bars not specifically identified in §245(k). | Not merely because §245(k) applies. |
Nonimmigrant Status Does Not Decide Eligibility
H-1B, L-1, O-1, F-1 and Other Temporary Classifications Are Not §245(k) Categories
H-1B Applicant
An H-1B worker does not qualify for §245(k) merely because of H-1B status. The person's adjustment must be based on a qualifying employment-based immigrant classification.
O-1 Applicant
An O-1 nonimmigrant may later adjust through EB-1A or another qualifying category, but O-1 classification itself is not the basis for §245(k).
F-1 Applicant
An F-1 student may potentially use §245(k) when adjusting through EB-1, EB-2, EB-3, EB-5, or a qualifying religious-worker classification and the remaining requirements are met.
Think immigrant category, not current visa. Section 245(k) asks whether the applicant is eligible to receive an immigrant visa in one of the covered statutory classifications.
Examples
Who Can Potentially Use §245(k)?
EB-1A Self-Petitioner
An extraordinary-ability applicant self-petitions, later files Form I-485, and has 90 covered days after the most recent lawful admission. The self-petition does not prevent use of §245(k).
EB-2 NIW Applicant
An NIW applicant accumulated a limited period of status violation before adjustment filing. Because NIW remains an EB-2 classification, §245(k) may apply if all statutory requirements are met.
EB-3 PERM Beneficiary
An employer-sponsored EB-3 beneficiary has a short gap in status after the last lawful admission. The applicant may invoke §245(k) if the aggregate covered period does not exceed 180 days.
EB-5 Investor
A qualifying immigrant investor files adjustment under EB-5 and has a covered status problem within the statutory limit. Current law permits EB-5 applicants to rely on §245(k).
Applicant With 181 Covered Days
The applicant is in a covered EB category but has 181 aggregate countable days after the relevant lawful admission. Being in EB-1, EB-2, EB-3, or EB-5 does not override the 180-day statutory ceiling.
Applicant With Independent Inadmissibility
The applicant satisfies §245(k) but is separately inadmissible under INA §212(a). Section 245(k) does not waive that independent ground.
Primary Authorities
Legal Sources
Related INA245 Guides
Continue the §245(k) Analysis
Frequently Asked Questions
Employment Category §245(k) FAQs
Can an EB-1A self-petitioner use INA §245(k)?
Yes. EB-1A is an immigrant classification under INA §203(b)(1), and §245(k) does not require the immigrant petition to have been filed by an employer.
Can an EB-2 NIW applicant use INA §245(k)?
Yes. A national interest waiver applicant remains classified under EB-2 and may use §245(k) if the remaining statutory requirements are satisfied.
Can an EB-3 applicant use INA §245(k)?
Yes. INA §245(k) expressly includes applicants eligible to receive immigrant visas under INA §203(b)(3).
Can an EB-5 investor use INA §245(k)?
Yes. Congress amended INA §245(k) in 2022 to include immigrants eligible under INA §203(b)(5), and USCIS subsequently incorporated EB-5 into its §245(k) policy.
Does INA §245(k) apply to every EB-4 immigrant?
No. The statute specifically includes qualifying religious workers described in INA §101(a)(27)(C); it does not generally extend §245(k) to every EB-4 classification.
Does being in H-1B status automatically make someone eligible for §245(k)?
No. Section 245(k) is tied to the applicant's employment-based immigrant classification, not merely the applicant's current nonimmigrant status.
Employment-Based Adjustment
Schedule a ConsultationDoes Your Immigrant Category Qualify for §245(k)?
The Messersmith Law Firm, P.A. reviews the immigrant classification, lawful admission, status and employment history, 180-day calculation, visa availability, and other adjustment requirements before determining whether INA §245(k) applies.
Legal content reviewed August 30, 2026. INA §245(k) currently includes qualifying EB-1, EB-2, EB-3, and EB-5 immigrants and certain religious workers, but it excuses only the adjustment bars expressly identified by Congress.