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INA §245(c) • Statutory Ineligibility

INA §245(c) Adjustment Bars

A person may satisfy the basic requirements of INA §245(a) and still be unable to adjust status because a separate statutory bar applies. INA §245(c) identifies eight principal classes that Congress excluded from ordinary §245(a) adjustment, subject to important exemptions and exceptions.

Does every adjustment applicant face the same bars?

No. The applicability of a §245(c) bar depends on the applicant's immigration classification, manner of entry, status history, employment history, and the particular subsection involved. Immediate relatives, VAWA-based applicants, certain special immigrants, and qualifying employment-based applicants may be exempt from one or more bars.

Statutory Map

The eight INA §245(c) bars

Each paragraph addresses a different class or immigration violation.

(c)(1)

Crewmen

Bars ordinary §245(a) adjustment for alien crewmen, subject to other statutory provisions that may independently apply.

(c)(2)

Status & Employment

Covers specified unauthorized employment, unlawful status at filing, and failure to continuously maintain lawful status.

(c)(3)

Transit Without Visa

Applies to persons admitted in transit without a visa under the referenced statutory authority.

(c)(4)

Visa Waiver Entrants

Restricts adjustment for specified visa-waiver admissions, while expressly protecting qualifying immediate relatives.

(c)(5)

S Nonimmigrants

Bars ordinary §245(a) adjustment for S nonimmigrants, whose permanent residence mechanism is addressed separately.

(c)(6)

Terrorism-Related Bar

Applies to persons deportable under INA §237(a)(4)(B).

(c)(7)

Employment-Based Status

Bars specified employment-based adjustment applicants who are not in lawful nonimmigrant status.

(c)(8)

Unauthorized Work / Visa Violations

Addresses unauthorized employment and other violations of the terms of a nonimmigrant visa.

Exceptions Matter

The existence of a violation does not automatically answer the adjustment question.

Congress and the regulations provide substantial exemptions from particular adjustment bars. The precise exemption must be matched to the precise bar.

Immediate Relatives

Receive important exemptions from status and unauthorized-employment bars and from the visa-waiver bar when adjusting in the qualifying immediate-relative category.

VAWA Applicants

Approved VAWA self-petitioners receive exceptionally broad protection from the §245(c) bars.

INA §245(i)

Can allow qualifying grandfathered applicants to proceed notwithstanding §245(a) and §245(c), subject to its separate requirements.

INA §245(k)

Can make §245(c)(2), (c)(7), and (c)(8) inapplicable to qualifying employment-based applicants within the statutory 180-day limit.

INA §245(c)(1): crewmen

Section 245(c)(1) excludes an alien crewman from ordinary adjustment under §245(a).

The legal analysis depends on the person's classification and circumstances of entry, not merely whether the person happened to work aboard a ship or aircraft.

The crewman bar can be highly fact-specific. The visa classification, purpose of entry, admission record, and actual role surrounding the entry should all be examined.

INA §245(c)(2): unlawful status and unauthorized employment

Section 245(c)(2) is one of the most frequently encountered adjustment bars. It addresses several different forms of immigration violation.

Subject to the statutory exceptions, the provision can apply where an applicant:

  • Continues in or accepts unauthorized employment before filing Form I-485;
  • Is in unlawful immigration status on the date Form I-485 is filed; or
  • Failed to continuously maintain lawful status since entry, unless the failure occurred through no fault of the applicant or for technical reasons.
Do not combine the concepts

Unauthorized employment, unlawful status at filing, and failure to maintain continuous lawful status are separate ways in which §245(c)(2) can arise.

No fault or technical reasons

The statute expressly contains an exception for specified failures to continuously maintain lawful status that occurred through no fault of the applicant or for technical reasons. Federal regulations define this exception narrowly.

Immediate relatives

The statutory language excludes immediate relatives from the principal §245(c)(2) bar. This is why unauthorized employment and ordinary overstays often do not prevent adjustment for a qualifying spouse, parent, or unmarried child under 21 of a U.S. citizen who otherwise satisfies the applicable adjustment requirements.

Exemption from §245(c)(2) is not a waiver of inadmissibility. A separate ground under INA §212 can still prevent adjustment.

INA §245(c)(3): transit without visa

Section 245(c)(3) bars ordinary adjustment under §245(a) for a person admitted in transit without a visa under the statutory provision referenced by §245(c)(3).

These cases are relatively uncommon today but can arise in older immigration histories. Historical admission records may therefore be important.

INA §245(c)(4): Visa Waiver Program and related admissions

Section 245(c)(4) restricts adjustment for specified persons admitted without a visa under statutory visa-waiver provisions.

The statute expressly excludes qualifying immediate relatives from this particular bar. As a result, a Visa Waiver Program entrant who becomes eligible to adjust as an immediate relative of a U.S. citizen can present a materially different legal analysis from another Visa Waiver entrant.

Visa Waiver cases involve procedural issues beyond §245(c)(4). The waiver of contest rights associated with Visa Waiver admission can become important if USCIS does not approve the adjustment application.

INA §245(c)(5): S nonimmigrants

Section 245(c)(5) prevents an S nonimmigrant from using the ordinary §245(a) process.

Congress instead created a specialized adjustment mechanism in INA §245(j) for qualifying S nonimmigrants whose information or assistance satisfies the statutory requirements.

INA §245(c)(6): terrorism-related deportability

Section 245(c)(6) applies to a person who is deportable under INA §237(a)(4)(B), the terrorism-related deportability provision.

These cases implicate complex security and terrorism-related provisions elsewhere in the INA and require an analysis extending well beyond the ordinary adjustment framework.

INA §245(c)(7): employment-based applicants not in lawful nonimmigrant status

Section 245(c)(7) applies specifically to a person seeking adjustment based on an employment-based immigrant classification under INA §203(b) who is not in lawful nonimmigrant status.

This provision can create a problem even where the applicant has a pending immigration application or another authorized period of stay, because a period of authorized stay is not necessarily the same thing as lawful nonimmigrant status.

INA §245(k) is especially important here. Qualifying employment-based applicants can obtain an exemption from §245(c)(7), along with §245(c)(2) and §245(c)(8), if the statutory requirements are satisfied.

INA §245(c)(8): unauthorized employment and nonimmigrant visa violations

Section 245(c)(8) separately addresses unauthorized employment and other violations of the terms of a nonimmigrant visa.

In practical adjudication, §245(c)(2) and §245(c)(8) frequently overlap in cases involving unauthorized employment.

USCIS policy recognizes important exemptions from the unauthorized-employment bars for categories including immediate relatives, VAWA-based applicants, and certain special immigrants.

A pending Form I-485 does not itself authorize employment. An applicant who is not otherwise employment-authorized generally must obtain employment authorization before working.

Immediate-relative exemptions

Immediate relatives of U.S. citizens receive some of the most important exceptions within the §245(c) framework.

For adjustment purposes, the immediate-relative classification generally includes:

  • The spouse of a U.S. citizen;
  • The unmarried child under 21 of a U.S. citizen; and
  • The parent of a U.S. citizen who is at least 21 years old.

USCIS policy treats qualifying immediate-relative applicants as exempt from the unauthorized-employment bars under §245(c)(2) and §245(c)(8). The statute also expressly provides immediate-relative protection from specified status and Visa Waiver adjustment bars.

Important

Immediate-relative status does not cure every adjustment problem. The applicant still must satisfy the applicable §245(a) entry requirement and remain admissible for permanent residence.

VAWA-based applicants

INA §245(c) begins with an express exclusion for a person with an approved petition for classification as a VAWA self-petitioner.

VAWA-based adjustment therefore receives broad protection from the §245(c) bars. Additional special rules elsewhere in the INA can also affect the applicant's adjustment and inadmissibility analysis.

INA §245(i) and adjustment bars

INA §245(i) begins with language making the provision applicable notwithstanding §245(a) and §245(c). This can be crucial for an applicant who entered without inspection or who falls within one of the §245(c) classes.

Eligibility generally depends on a qualifying immigrant petition or labor certification filed on or before April 30, 2001, along with the other grandfathering requirements.

§245(i) does not erase inadmissibility. The applicant must still be eligible to receive an immigrant visa, be admissible for permanent residence, and satisfy visa-availability requirements.

See the complete INA §245(i) Guide.

INA §245(k) and employment-based adjustment bars

INA §245(k) is a specific statutory exception for qualifying employment-based immigrants.

It makes §245(c)(2), §245(c)(7), and §245(c)(8) inapplicable where the applicant satisfies the statutory requirements, including being present pursuant to a lawful admission on the filing date and not having accumulated more than 180 days in the aggregate of the covered violations after the relevant lawful admission.

Covered by §245(k)Potential Violation
§245(c)(2)Failure to maintain lawful status and specified unauthorized employment
§245(c)(7)Employment-based applicant not in lawful nonimmigrant status
§245(c)(8)Unauthorized employment or other covered nonimmigrant-status violation

See the complete INA §245(k) Guide.

Adjustment bars versus inadmissibility

A §245(c) bar controls whether the applicant may use the adjustment mechanism under §245(a). An inadmissibility ground generally concerns whether the applicant may be admitted as a lawful permanent resident.

QuestionPrimary StatuteTypical Remedy
Can this person use adjustment of status?INA §245Exemption, §245(i), §245(k), different adjustment provision, or consular strategy
Is this person admissible as a permanent resident?INA §212Exception, statutory limitation, waiver, or challenge to the inadmissibility finding

Both questions must be answered before concluding that a case is approvable.

Does an adjustment bar apply to your case?

The Messersmith Law Firm, P.A. handles complex adjustment matters involving unauthorized employment, unlawful status, Visa Waiver admission, §245(i), §245(k), parole and admission questions, RFEs, NOIDs, and adjustment denials.

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