INA §245(c)(7): The Employment-Based Lawful Nonimmigrant Status Bar

The statutory rule in INA §245(c)(7)

INA §245(c)(7) bars ordinary adjustment under §245(a) for a person who seeks adjustment as an employment-based immigrant under INA §203(b) and is not in lawful nonimmigrant status.

INA §245(k) expressly allows qualifying employment-based applicants to adjust notwithstanding §245(c)(7), as well as §245(c)(2) and §245(c)(8).

Who is subject to §245(c)(7)?

The statute applies to a person seeking adjustment under an employment-based immigrant classification in INA §203(b).

Common examples include:

• EB-1 extraordinary ability;
• EB-1 outstanding professor or researcher;
• EB-1 multinational manager or executive;
• EB-2 advanced-degree professional;
• EB-2 exceptional ability;
• EB-2 national interest waiver;
• EB-3 professional, skilled worker, or other worker;
• Qualifying EB-4 employment-related special immigrant categories; and
• EB-5 investors.

What is lawful nonimmigrant status?

For §245(c)(7), the relevant inquiry is whether the applicant holds a lawful nonimmigrant classification—not merely whether DHS is permitting the applicant to remain physically present.

Examples of nonimmigrant classifications include:

• H-1B;
• H-4;
• L-1 or L-2;
• O-1 or O-3;
• F-1 or F-2;
• J-1 or J-2;
• E-1 or E-2;
• TN or TD;
• B-1 or B-2; and
• Other classifications under INA §101(a)(15).

See Admission vs. Lawful Status.

The filing-date requirement

Section 245(c)(7) focuses on whether the employment-based applicant is in lawful nonimmigrant status when Form I-485 is filed.

A status expiration shortly before filing can therefore create a bar even if:

• The I-140 is approved;
• The priority date is current;
• The applicant has employment authorization from another source;
• The applicant is lawfully present for some other purpose; or
• The applicant expects USCIS to approve another pending benefit.

Pending asylum does not itself satisfy §245(c)(7)

USCIS addressed this issue in a 2021 certification decision involving an employment-based adjustment applicant whose B-2 status expired while a Form I-589 asylum application was pending.

The agency concluded that the pending asylum application did not maintain lawful nonimmigrant status for §245(c)(7).

An applicant relying on a pending asylum case should therefore determine whether:

• Another lawful nonimmigrant status existed at I-485 filing;
• INA §245(k) applies;
• INA §245(i) applies;
• A special adjustment provision governs; or
• Employment-based adjustment in the United States is unavailable.

A pending Form I-485 does not create nonimmigrant status

An adjustment applicant may remain in an authorized period while Form I-485 is pending and may qualify for C09 employment authorization.

That does not ordinarily transform the applicant into a nonimmigrant.

Any second filing should also be evaluated under INA §245(k), where applicable.

Parole is not lawful nonimmigrant status

A parolee has not been admitted as a nonimmigrant.

Parole can satisfy the alternative threshold in INA §245(a), but it should not automatically be treated as lawful nonimmigrant status for §245(c)(7).

See Parole and Adjustment of Status.

TPS and §245(c)(7)

Temporary Protected Status receives specialized statutory treatment under INA §244(f)(4), which provides specified lawful-status treatment for adjustment and change-of-status purposes.

TPS cases should therefore not be reduced to the ordinary parole or pending-application analysis.

Questions can include:

• Whether TPS was valid when Form I-485 was filed;
• Whether earlier status violations remain relevant;
• Whether TPS-authorized travel produced a lawful admission;
• Whether INA §245(k) applies; and
• Whether another §245(c) bar independently exists.

See TPS and Adjustment of Status.

H-1B and L-1 applicants

H-1B and L-1 classifications are frequently used to preserve a clear employment-based adjustment path because Congress recognizes dual intent for these categories.

The applicant should still verify:

• Current I-94 validity;
• Underlying petition validity;
• Employer-specific requirements;
• Any portability rules relied upon;
• Any termination or grace period;
• Any unauthorized employment; and
• Whether the applicant actually remained in the classification through the I-485 filing date.

F-1, J-1, and duration-of-status cases

Applicants admitted for duration of status can violate the substantive requirements of the classification even without a fixed calendar expiration date on the I-94.

Potential problems include:

• Failure to maintain required enrollment;
• Unauthorized employment;
• OPT or CPT violations;
• SEVIS termination;
• Failure to comply with J-1 program requirements; or
• Other conduct inconsistent with the classification.

Derivative spouses and children

Derivative employment-based adjustment applicants must independently satisfy applicable adjustment requirements.

A derivative should not assume that the principal applicant's valid H-1B, L-1, or other status automatically resolves the derivative's own immigration history.

Review:

• The derivative's own I-94;
• H-4, L-2, F-2, or other dependent classification;
• Any employment authorization;
• Any status expiration or violation;
• Travel and later admissions; and
• Independent INA §245(k) eligibility.

INA §245(k) is the principal employment-based exception

INA §245(k) expressly permits qualifying applicants to adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8).

Current statutory coverage includes qualifying immigrants under:

• EB-1;
• EB-2;
• EB-3;
• EB-5; and
• Specified religious-worker EB-4 classifications.

The applicant must be present pursuant to a lawful admission on the filing date and, after the relevant lawful admission, must not have accumulated more than 180 days in the aggregate of:

• Failure to maintain lawful status;
• Unauthorized employment; or
• Other violation of the terms and conditions of admission.

See INA §245(k).

Transfer of underlying basis can create a §245(c)(7) problem

A pending I-485 may initially be based on a category exempt from certain adjustment bars and later be transferred to an employment-based petition.

For example, an applicant who originally filed as an immediate relative may later request transfer to an employment-based I-140.

USCIS policy instructs officers to consider whether transfer to the new basis makes the applicant subject to adjustment bars that did not apply under the original basis.

Evidence for a §245(c)(7) analysis

A complete filing or RFE response may require:

• Every relevant Form I-94;
• Passports and visa stamps;
• Forms I-797 approving nonimmigrant petitions;
• H-1B, L-1, O-1, or other employment records;
• Forms I-20 or DS-2019;
• SEVIS history;
• TPS documentation;
• Employment Authorization Documents;
• Extension or change-of-status applications;
• Prior I-485 filings and decisions;
• Travel records; and
• A day-by-day INA §245(k) calculation where applicable.

Employment-based status violations and current adjustment discretion

If INA §245(k) removes an otherwise applicable §245(c)(7) bar, the applicant has established a statutory exception to that bar.

Where adjustment remains discretionary, USCIS may separately consider relevant immigration history along with favorable and unfavorable circumstances.

Potential factors include:

• Nature and duration of the status issue;
• Reason the violation occurred;
• Subsequent immigration compliance;
• Professional and economic contributions;
• Family ties;
• Humanitarian factors;
• Prior immigration representations;
• Criminal history; and
• Other relevant circumstances.

Frequently asked questions