Section 245k Adjustment of Status

If you need help with Section 245k adjustment of status, Manji Law, P.C. can help. Get in touch with us for more information.

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Atlanta Immigration Attorney Jameel Manji

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).

Section 245(k) permits specific ineligible individuals with employment-based immigrant visas to adjust their status. It grants them relief from three adjustment bars under sections 245(c)(2), (c)(7), and (c)(8).

If you are concerned that you might be ineligible to adjust your status, the following information is for you. For additional resources and support, you can contact a skilled immigration attorney from Manji Law, P.C.

 

What Are the Requirements for Section 245K?

 

You must meet the following requirements to qualify for section 245(k) relief. You must be present in the U.S. according to a lawful admission on the date of filing Form I-485. Following your lawful admission, you must not have, for a total period exceeding 180 days:

  • Failed to continuously maintain lawful status

  • Engaged in unauthorized employment

  • Violated the terms and conditions of their admission

Section 245(k) will not exempt you from other grounds of inadmissibility or immigration violations.

What Type of Employment-Based Applicants Qualify for Section 245K?

 

Section 245(k) covers the following employment-based (E.B.) categories:

  • Priority workers (EB1) with extraordinary ability, outstanding professors, and certain multinational managers
  • Individuals holding advanced degrees or with exceptional ability (EB2)
  • Skilled workers, professionals, and other workers (EB3)
  • Religious workers (described in section 101(a)(27)(C) INA only) (EB4)
  • 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):

  1. Alien crewmen
  2. Certain aliens in unauthorized employment or without lawful immigration status
  3. Aliens in transit without visa
  4. Nonimmigrant visitors without a visa
  5. Specific individuals with nonimmigrant status
  6. Certain aliens who are deportable
  7. Aliens seeking a green card without lawful nonimmigrant status
  8. Aliens employed as unauthorized aliens with nonimmigrant visa status violations

Application Process for Section 245K Adjustment of Status

 

You must properly file your Form I-485 application under section 245(a) of the INA. You do not have to submit an additional application if you request relief under section 245(k). Additionally, you will not be required to make extra payments of a penalty surcharge.

The U.S. Citizenship and Immigration Services (USCIS) is responsible for deciding whether section 245(k) applies to your case. They will examine the supporting evidence provided with your adjustment of status application.

The USCIS may not deny your application immediately if you fail to provide enough supporting evidence. They may notify you of their intent to deny your application and issue a Request for Evidence (RFE).

Failing to provide the specific evidence requested by the USCIS may lead to denying your application. Therefore, consulting an immigration attorney to strengthen your chances for relief is necessary.

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.

It’s important to note that USCIS interprets 180 days as referring to the total of all three types of violations together, rather than allowing 180 days for each type.

 

Calculating Time Against Unlawful Employment

The filing of an AOS application does not authorize or excuse unlawful employment. That means the clock will keep counting until the adjudication of your AOS application. The USCIS will count every single day of unauthorized employment, including holidays and weekends.

For example, if you worked without authorization for five hours a day Monday through Friday throughout May, all thirty days in the month count as unauthorized employment. So, it is possible to accrue more than 180 days of unauthorized work after filing for AOS.

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.

Employing the services of an immigration attorney Atlanta would be advantageous in avoiding future violations.

 

Contact Manji Law, P.C. for Immigration Matters

At Manji Law P.C., we can help you properly file your adjustment of status application. Our attorneys will analyze the facts of the case and advise you on your eligibility for relief. If you are eligible, we can help you submit the necessary evidence for your AOS application.

We work hard to give our clients a better chance at obtaining a green card. We also understand immigration law and, if need be, can represent you at your removal proceeding.

To learn more about how we can help, contact us today!