On July 14, 2008, the USCIS released an internal memo regarding adjudication guidelines for certain employment-based adjustment of status applications. This new memo provides important clarification about the USCIS policy on aliens filing for adjustment of status that have been out of status, held unauthorized employment, or otherwise violated the terms of their nonimmigrant visas. In general, the USCIS interpretations favor the I-485 applicant in several violation issues.
The adjustment of status process allows an alien who has been inspected and admitted or paroled into the U.S. to apply to change his or her nonimmigrant status to an immigrant status while in the U.S. if his/her immigration petition has been approved and an immigrant visa number is immediately available. According to section 245(c) of the Immigration and Nationality Act (INA), an alien is restricted from adjusting status if he/she has been in unlawful immigration status/out of status, has held unauthorized employment, or violated the terms of his/her nonimmigrant visa.
However, there are several exceptions in EB based I-485 adjustment cases. According to section 245(k) of the INA, aliens with certain types of employment-based petitions are eligible for relief from these bars provided that they have been out of status, held unauthorized employment, or otherwise violated the conditions of their nonimmigrant status for no more than 180 days. Individuals qualify for the 180 day exemption if they are the beneficiary of an EB-1, EB-2, EB-3, or EB-4 category immigration petition.
The new memo details the USCIS understanding and adjudication policy for the 180 day exception by describing the appropriate methods for examining any period of violation. When counting the 180 days, the USCIS will only consider the period from the date of the last lawful admission and will not consider any days of violation prior to that admission date. Entering the U.S. as a parolee using an advanced parole document, however, is not considered by the USCIS as a lawful admission and will not reset the 180 day timeframe.
The 180 days limitation in the 245(k) exception covers the aggregation of all three types of violations. This means that the exception does not allow 180 days for each type of violation but instead, 180 days total for all violations added together. One day is considered any and all days in which there were one or more violations, even if the violation lasted only a few hours.
In addition, the memo states that eligible derivatives of qualified employment-based applicants can receive benefits from the 245(k) exception. Though the USCIS has previously considered eligible derivatives to be covered by the exception, this understanding has never been explicitly stated.
Examples
Ex. 1
From Sept. 2002 to Sept. 2006, Mr. Chang was studying in the U.S. with valid F-1 status. He worked in a restaurant without authorization for around 60 days in 2004. In Sept. 2006, he received an approved H-1B petition and returned to Taiwan for a family visit. Meanwhile, he received an H-1B visa stamp in Taiwan. He reentered the U.S. in Oct. 2006 with a valid H-1B visa. Since his last entry, Mr. Chang had been using his H-1B to work for Company A. However, in 2007, in order to help out a friend, Mr. Chang took unauthorized, part-time employment with Company B, where he worked for 175 days.
Mr. Chang is now applying for adjustment of status based on his EB-2 I-140 petition. Even though Mr. Chang held unauthorized employment in the U.S. for a total of more than 180 days (60 days in 2004 and 175 days in 2007), he will still be eligible for the 245(k) exception and for adjustment of status. The USCIS will only consider unauthorized employment that occurred after Mr. Chang’s last lawful entry in 2006. Thus, Mr. Chang will only have accumulated 175 days of violation.
Ex. 2
Ms. Hur is in the U.S. in valid H-4 status as a derivative spouse of her husband, Dr. Kim. She entered the U.S. using her H-4 visa in March 2006 and has not left the country since. In 2007, she took an unauthorized part-time job for four months (120 days) in order to help pay bills. Ms. Hur’s H-4 I-94 card expired on June 1, 2007. When Dr. Kim’s employer filed an H-1B extension for Dr. Kim, Ms. Hur did not file an H-4 extension. Consequently, Ms. Hur was out of status since June 1, 2007.
On July 1, 2007, Dr. Kim filed an EB-1(a) I-140 petition, and both Dr. Kim and Ms. Hur filed I-485 applications. Even though Ms. Hur has accumulated 150 days of violation because of her unauthorized employment and out of status, she will still be able to adjust status because of the 245(k) exception. It is the USCIS’ understanding that derivatives of eligible employment-based adjustment of status applicants are also eligible for 245(k) benefits.
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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(09/08/2008)
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