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Author: Jameel Manji, Founder, Manji Law, P.C.
Mr. Manji founded Manji Law in 2016 to follow his passion of helping people navigate the complicated immigration system. Mr. Manji graduated from Georgia State University College of Law and received Master of Taxation from the Georgia State’s J. Mack Robinson College of Business. Published on: July 24, 2023.
Manji Law is your complete immigration solution. If you are seeking assistance with the Atlanta Immigration Court, please give us a call. Manji Law can provide valuable insight, assistance, and a guiding hand to help you achieve your goals.
What Is Section 245K Adjustment of Status (AOS)?
Immigrants who want to permanently remain in the United States (U.S.) must adjust their status. That means filing Form I-485, Application to Register Permanent Residence or Adjust Status. However, some people are ineligible to adjust their status to a lawful permanent resident.
For example, those subject to one or more adjustment bars in section 245(c) of the Immigration and Nationality Act (INA) are ineligible. You will also be barred from adjusting your status if you are engaged in acts that make you inadmissible under immigration law (section 212(a) INA).
What Type of Employment-Based Applicants Qualify for Section 245K?
Section 245(k) covers the following employment-based (E.B.) categories:
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Priority workers (EB1) with extraordinary ability, outstanding professors, and certain multinational managers
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Individuals holding advanced degrees or with exceptional ability (EB2)
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Skilled workers, professionals, and other workers (EB3)
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Religious workers (described in section 101(a)(27)(C) INA only) (EB4)
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Investors who engage in business and contribute to employment creation (EB5)
The eligible derivative of an approved E.B. applicant in the above categories is eligible for section 245(k) relief. That includes the spouses and minor children of an E.B. primary beneficiary.
Ineligibility Bars Under Section 245(C)
The following categories of immigrants are ineligible for AOS under section 245 (c):
- Alien crewmen
- Certain aliens in unauthorized employment or without lawful immigration status
- Aliens in transit without visa
- Nonimmigrant visitors without a visa
- Specific individuals with nonimmigrant status
- Certain aliens who are deportable
- Aliens seeking a green card without lawful nonimmigrant status
- Aliens employed as unauthorized aliens with nonimmigrant visa status violations
Calculating Time Against the 180 Days Timeframe
The USCIS determines eligibility for section 245(k) based on your recent lawful admission date. They will not count violations that took place before your last lawful admission. The total period for your violations under sections 245(c)(2), (c)(7), and (c)(8) must be 180 days or less.
In accordance with section 245(k), an individual’s timer for unlawful presence in the United States does not reset when they enter on parole or advanced parole. Due to the fact that advance parole is not a final act of admission, aliens who enter the United States on an advance parole document are not considered lawfully admitted.
Contact an Experienced Immigration Attorney
Section 254(k) is a difficult area of immigration law to navigate. It permits the approval of adjustment of status to permanent residence applications despite certain violations. That does not mean that it enables unlawful employment. It also does not mean it provides a means to evade immigration laws.
The USCIS will not disregard your unlawful immigration status or nonimmigrant visa violations. A failure to comply with USCIS requirements may result in removal proceedings (deportation). If the USCIS denies your AOS application, your immigration violations will count against you. You may be barred from entering the U.S. for three or ten years, depending on your length of unlawful presence.
