Employment-based green cards may still be achievable for individuals with complex immigration histories through provisions like INA § 245(i) and INA § 245(k). These statutes offer relief for those who might otherwise face barriers due to unauthorized employment, failure to maintain lawful status, or other violations.
INA § 245(i): Adjustment of Status Despite Violations
Key Eligibility Requirements:
- Qualifying Petition: Must be the principal or derivative beneficiary of a petition filed on or before April 30, 2001.
- Physical Presence (If Applicable): Required if the petition was filed between January 15, 1998, and April 30, 2001.
- Immigrant Visa Availability: An immigrant visa must be immediately available.
- Admissibility or Waiver Eligibility: Must meet admissibility criteria or qualify for a waiver.
- Penalty Fee: Payment of a $1,000 penalty fee is required.
- Discretionary Favorability: USCIS must exercise discretion favorably.
Derivative beneficiaries who were children or spouses at the time of filing remain eligible even if they have since aged out or their relationship has changed.
INA § 245(k): Relief for Employment-Based Applicants
Exemption Scope:
INA § 245(k) allows certain employment-based green card applicants to bypass the INA §§ 245(c)(2), (c)(7), and (c)(8) bars related to:
- Unauthorized employment.
- Failure to maintain lawful status.
- Violations of nonimmigrant visa conditions.
Covered Employment-Based Categories:
- EB-1: Persons of extraordinary ability, outstanding professors/researchers, multinational executives/managers.
- EB-2: Professionals with advanced degrees or exceptional ability.
- EB-3: Skilled workers, professionals, and other workers.
- EB-5: Immigrant investors.
- Religious Workers: Eligible applicants under specific criteria.
Key Conditions:
- Applicants must be physically present in the U.S. at the time of filing.
- Violations must not exceed an aggregate of 180 days since the most recent lawful admission.
Case Studies
Example 1: Siri and INA § 245(i)
Jane, a DACA recipient, benefits from an employment-based green card petition under INA § 245(i) because a qualifying family petition was filed on behalf of his mother in 2001.
Example 2: Ben and INA § 245(k)
Paul, a DACA recipient, was previously barred due to unauthorized employment. By obtaining an H-1B visa with an INA § 212(d)(3) waiver, Paul re-entered with lawful admission. His employer then filed for his employment-based green card. Paul qualifies under INA § 245(k) because:
- His violations before his most recent H-1B admission no longer count.
- He has not committed any violations since re-entry.
Special Considerations for DACA Recipients
DACA recipients often face challenges with INA §§ 245(i) and 245(k) due to the lack of lawful admission. Returning on advance parole does not qualify as lawful admission under INA § 245(k). Potential pathways include:
- Temporary Nonimmigrant Status: Obtaining an H-1B or similar status.
- Re-Entry with Lawful Admission: Ensuring compliance with INA § 245(k) by avoiding violations exceeding 180 days after the most recent lawful admission.
Steps to Determine Eligibility
- Review Immigration History: Assess any qualifying petitions or previous lawful admissions.
- Consult Attorneys: Immigration attorneys can evaluate INA §§ 245(i) and 245(k) eligibility.
- File Necessary Requests: Use FOIA to retrieve petition records, if necessary.
- Plan for Lawful Admission: Explore options like H-1B visas or similar categories for re-entry.
Conclusion
Both INA § 245(i) and INA § 245(k) provide vital opportunities for employment-based green card applicants. Whether overcoming prior violations or securing lawful admission, understanding these provisions is key to achieving adjustment of status.
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Citations
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