USCIS Clarifies 245(k) Exemption

Donald Neufeld, Acting Associate Director, Domestic Operations for USCIS, in a memo published July 14, 2008, explains how section 245(k) of the Immigration and Nationality Act (the Act) renders waives three grounds of inadmissibility to adjustment of status to legal permanent residency under section 245(c).  He states that 245(k) waives status violations, unauthorized employment and other violations of the alien’s admission normally applicable to employment-based adjustment of status applicants, provided that, since the applicant’s last lawful admission to the United States, the violations did not occur for more than an aggregate period of 180 days.  He states that 245(k) applies to the EB1 through EB-4 categories and to the eligible derivatives of the applicants in these categories. 

The following is a summary of other key parts of the memo:

1.  “USCIS reads the phrase “aggregate period exceeding 180 days” in section 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation.”

2.  “The adjudicator must only examine the period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.”

3.  “An alien, however, who entered the United States pursuant to an advance parole document is not “lawfully admitted,” because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k).”

4.  “[A]ll periods of unauthorized employment since the date of the alien’s last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application.”

5.  “With respect to engaging in unlawful employment, the count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated.”

6.  “Unlike an alien who has failed to maintain lawful nonimmigrant status, an alien who has worked without authorization may unilaterally avoid the accrual of additional days counted against such violation by simply terminating the unauthorized employment.”

7.  “An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment.”

8.  “In most cases, the 180-day counting period commences on the date the alien’s status expires, is revoked, or is violated following the alien’s most recent admission.”

9. “With the exception of a dual intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application with USCIS. . .” 

10.  “[F]or purposes of the 180-day counting period, calculation of the number of days for failing to maintain status or violating a nonimmigrant visa will stop as of the date USCIS receives a properly filed adjustment of status application.”

11.  “In examining any period where an application for extension of stay (EOS) or change of status (COS) was ultimately approved, the period during which the EOS or COS had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status regardless of whether the EOS or COS application was timely or untimely filed. The period would not be disqualifying for section 245(c) purposes, and the period would not count against the 180-day period.”

12.  “The period during which an alien has a pending EOS, COS, or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful “status.” This means that if the EOS or COS is denied, the time during which either was pending will be counted toward the 180-day aggregate period.

13.  If the period of unlawful status results from only a “technical violation” or through no fault of the applicant, then “such period does not count against the 180-day period.”