245(k) and I-485 for Employment-Based Immigration
Attorney Jerry Zhang (02/11/2025)
In the process of U.S. employment-based immigration, I-485 application is filed by foreign nationals residing in the United States to adjust their non-immigrant status to immigrant status (obtaining a green card) with the U.S. Citizenship and Immigration Services (USCIS). Once I-485 application is approved, the applicant obtains permanent residency in the United States.
The requirements for filing I-485 application based on EB-1, EB-2, EB-3 and EB-4 include: the applicant must be physically present in the United States, hold a valid non-immigrant status, comply with all entry regulations, and not have violated immigration laws (e.g., violating entry terms, misrepresentation, or fraud).
245(k) allows certain non-immigrant visa applicants to apply for adjustment of status (I-485 application) process, even if they have violated the status requirements for no more than 180 days in the past.
245(k) is a special provision in U.S. immigration law. In certain cases, applicants may invoke 245(k) to file an I-485 application. Specifically, if the applicant is filing an adjustment of status based on employment-based categories (EB-1, EB-2, EB-3, or EB-4) and has overstayed, engaged in unauthorized employment, or violated other non-immigrant status terms during the adjustment process, but the cumulative violation period does not exceed 180 days, and the applicant has not violated other restrictions on entry into the United States such as illegal entry or criminal records, the applicant may invoke 245(k) to adjust status in the U.S. This provision offers a pathway for applicants who, due to special circumstances, failed to maintain lawful status continuously, allowing them to still have an opportunity to obtain a green card. 245(k) applies only to employment-based immigration categories under the first, second, third, and fourth preferences.
Below are common scenarios where 245(k) may be invoked:
1. Overstaying: An applicant overstayed their visa but did not exceed 180 days when filing the I-485.
2. Unauthorized Employment: An applicant engaged in unauthorized employment but did not exceed 180 days when filing the I-485.
3. Violations of Other Non-immigrant Status Provisions: An applicant committed other status violations but did not exceed 180 days when filing the I-485.
Examples:
1. Overstaying Case: Mr. Zhang entered the U.S. on B-2 tourist visa and overstayed for 150 days after his visa expired. Since his overstay did not exceed 180 days, he qualifies under 245(k).
2. Unauthorized Employment Case: Ms. Li was studying in the U.S. on F-1 student visa and engaged in unauthorized employment for 120 days. Since her unauthorized employment period did not exceed 180 days, she qualifies under 245(k).
3. Violations of Other Non-immigrant Status Provisions Case: Mr. Wang was working in the U.S. on H-1B work visa. Due to company layoffs, he failed to timely apply for a change of status or leave the U.S. He remained out of status for 170 days without taking any action. Since his violation period did not exceed 180 days, he qualifies under 245(k).
I-485 application is a critical step in obtaining a green card in the U.S., and 245(k) provides special legal protection for eligible employment-based immigration applicants. However, it is important to note its applicable conditions and limitations. Applicants should carefully evaluate their situations to ensure a smooth application process.
Please note that immigration laws and regulations may change over time. Therefore, when preparing immigration applications, it is advisable to consult a professional immigration attorney or advisor for the most up-to-date and accurate information and guidance.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand 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, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand 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.
Zhang & Associates, P.C.
| Tel: | 1-800-230-7040, 713-771-8433 |
| Email: | info@hooyou.com |
| website: | http://www.hooyou.com |
(02/11/2025)