INA §245(K) as an Option for Beneficiaries of Employment Based Petitions who are Out of Status

INA §245(K) AS AN OPTION FOR BENEFICIARIES OF EMPLOYMENT BASED PETITIONS WHO ARE OUT OF STATUS

The limitations in B-2 extensions, the H-1b caps, and the unavailability of EB visa have made it difficult for many immigrants to maintain their status in the US. Unfortunately, it is important to maintain your status in the US if you plan to adjust to legal permanent resident.

Certain beneficiaries of employment based petitions may still adjust to legal permanent residents even if their status in the US has expired under INA §245(k). Specifically, § 245(k) allows aliens eligible to receive an employment-based visa to adjust status notwithstanding past violations under §§ 245(c)(2), (c)(7), and (c)(8). Thus, if applicable, § 245(k) permits applicants to become permanent residents even if they have accepted unauthorized employment, failed to maintain continuously a lawful status, failed to be in lawful nonimmigrant status when applying for permanent residence, or violated the terms of a nonimmigrant visa.

To be eligible to benefit from § 245(k), an adjustment applicant must meet the following conditions:
(1) The applicant must, on the date of filing an application for adjustment of status, be present in the United States pursuant to a lawful admission; and
(2) The applicant, subsequent to such lawful admission must not have, for an aggregate period exceeding 180 days-
(A) Failed to maintain, continuously, a lawful status;
(B) Engaged in unauthorized employment; or
(C) Otherwise violated the terms and conditions of the applicant's admission.
The language of § 245(k) appears to render unauthorized employment, status violations, and violations of the terms of a nonimmigrant visa taking place after an adjustment application is filed irrelevant for purposes of adjustment of status eligibility.
Section 245(k) specifically provides that an employment-based applicant for adjustment of status "may adjust status notwithstanding subsection (c)(2), (c)(7), and (c)(8)," if the "alien, on the date of filing an application for adjustment of status," meets the elements of § 245(k).

In summary, if an employment-based applicant for adjustment of status meets the elements of § 245(k) at the time his or her adjustment of status application is filed, continued violations of INA § 245(c)(2), (7), and/or (c)(8) will not render the applicant ineligible for adjustment. For purposes of section 245(k), an alien may adjust under section 245(a) as long as the alien, as of the date of filing, has not violated status, has not engaged in unlawful employment, and has not had any violations of the terms and conditions of nonimmigrant admission, for a period in excess of 180 days in the aggregate subsequent to the alien's last admission under which she is presently in the United States."

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.

Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com; visit at www.kenreyeslaw.com