For many applicants seeking adjustment of status in the United States, certain violations such as unauthorized employment, failure to maintain lawful status, or visa violations can trigger bars under INA 245(c). However, employment-based applicants may benefit from a key exemption under INA 245(k), which provides relief in specific situations. This post will focus on employment-based exemptions to adjustment of status bars. It will explain the criteria and scenarios where they apply and provide examples to illustrate how this exemption works.
What Is the INA 245(k) Exemption?
The INA 245(k) exemption allows certain employment-based applicants to adjust their status despite having committed certain immigration violations. This exemption applies to specific employment-based immigrant categories and their dependents, provided that the violations meet the criteria outlined below.
Who Is Eligible for the INA 245(k) Exemption?
The INA 245(k) exemption applies to applicants in the following employment-based categories:
- EB-1: Persons of extraordinary ability, outstanding professors/researchers, and multinational managers/executives.
- EB-2: Members of professions holding advanced degrees or individuals with exceptional ability.
- EB-3: Skilled workers, professionals, and other workers.
- EB-5: Immigrant investors.
- Certain religious workers (employment-based fourth preference).
Eligible Dependents: If they meet the requirements, spouses, and children of principal applicants may also qualify for the exemption.
Criteria for the Exemption
To qualify for the INA 245(k) exemption, applicants must meet the following conditions:
- Physical Presence – The applicant must be physically present in the United States when filing the adjustment of status application.
- Lawful Admission – The applicant must have been lawfully admitted to the United States at least once.
- Violation Limit – The applicant must not have:
- Failed to maintain lawful status,
- Engaged in unauthorized employment, or
- Violated the terms of their nonimmigrant status for more than 180 days in total since their most recent lawful admission.
Key Points About the INA 245(k) Exemption
- Aggregate Violation Period – The exemption applies if the combined period of immigration violations does not exceed 180 days following the most recent lawful admission. Violations are aggregated, meaning days of unauthorized employment, failure to maintain status, or visa violations are added together.
- Previous Violations Ignored – Violations before the most recent lawful admission are not considered for the 180-day calculation.
- Parole vs. Admission – Entering the U.S. on parole does not reset the clock for purposes of this exemption because parole is not considered a lawful admission. Immigration violations committed before or during parole will count against the 180-day limit.
Examples of INA 245(k) Exemption in Action
Example 1: Post-Admission Violations Within 180 Days
- A noncitizen enters the U.S. on an H-1B visa and overstays for 90 days after the visa expires.
- They subsequently file an adjustment of status application based on an approved EB-2 petition.
Outcome: Because the overstay is less than 180 days and occurred after the most recent lawful admission, the applicant qualifies for the INA 245(k) exemption and may adjust status.
Example 2: Violations Before and After Admission
- A noncitizen enters the U.S. on an F-1 visa, drops out of school, and remains out of status for 275 days.
- The individual leaves the U.S., is lawfully admitted again on an H-1B visa, and later violates the terms of that visa for 90 days.
Outcome: Only the 90 days of violations following the most recent lawful admission are considered. Since this is within the 180-day limit, the applicant qualifies for the exemption.
Example 3: Violations Exceeding 180 Days
- A noncitizen on an H-1B visa works without authorization for 200 days after the visa expires.
Outcome: Because the violations exceed 180 days, the applicant does not qualify for the INA 245(k) exemption and is barred from adjusting status under INA 245(c).
How Are Violations Counted?
Unauthorized Employment
- Counted from the first day of unauthorized work until the last day, even if the work was part-time or intermittent.
- Example: If an applicant worked unauthorized for 4 hours a day during a calendar month, all 30 days count toward the 180-day limit.
Failure to Maintain Lawful Status
- Counted from the day lawful status expired, was revoked, or violated, and ends when the applicant regains lawful status or files an adjustment application.
What Does the INA 245(k) Exemption Not Cover?
While the exemption provides relief from bars under INA 245(c)(2), 245(c)(7), and 245(c)(8), it does not:
- Waive other adjustment bars (e.g., bars for criminal grounds of inadmissibility).
- Exempt applicants from other eligibility requirements for adjustment of status.
Conclusion
The INA 245(k) exemption is a critical provision for employment-based adjustment applicants who have committed minor immigration violations. This exemption facilitates lawful permanent residence for skilled professionals, investors, and other employment-based immigrants by allowing certain applicants to overcome adjustment bars. If you believe you qualify for this exemption or have questions about your eligibility, consult an experienced immigration attorney. At Richards and Jurusik, we are dedicated to helping individuals and families navigate the complexities of U.S. immigration law. Contact us today to schedule a consultation.
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