On July 14, 2008, the USCIS released an internal memo about adjudication guidelines for certain employment-based adjustment of status applications. This new memo is an important clarification on the USCIS’s policy for aliens filing for adjustment of status who have been out of status, have held unauthorized employment, or have violated the terms of their nonimmigrant visas. In general, USCIS interpreted in favor of 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 method for examining any periods 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 timeframe for the 180 days.

The 180 days limitation in the 245(k) exception covers of all three types of violations in the aggregate. This means the exception does not allow 180 days of each type of violation but 180 days total of any violation. One day is considered any and all days in which there was one or more violation, even if the violation lasted only a few hours.

In addition, the memo states that eligible derivatives of qualified employment-based applicants can receive the benefits of the 245(k) exception. Though the USCIS has previously considered eligible derivatives to be covered by the exception, this understanding was never explicitly explained.

Examples

Ex. 1
From Sept. 2002 to Sept. 2006, Mr. Chang had been studying in the U.S. in valid F-1 status. He worked for 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 entered US in October 2006 with a valid H-1B visa. Since his last entry, Mr. Chang has 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 Comppany 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 while in the U.S. for total more than 180 days (60 days in 2004 and 175 days in 2007), he will still be eligible for the 245(k) exception and will be eligible for adjustment of status. The USCIS will only consider unauthorized employment which occurred after Mr. Chang’s last lawful entry in 2006, so 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 that time. In 2007, she had to take an unauthorized part-time job for four months (120 days) in order to help pay the bills. Ms. Hur’s H-4 I-94 card expired on June 1, 2007. When Dr. Kim’s employer filed H-1B extension for Dr. Kim, Ms. Hur did not file H-4 extension. Therefore, Ms. Hur became out of status since June 1, 2007.

On July 1, 2007, Dr. Kim filed 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 the derivatives of eligible employment-based adjustment of status applicants are also eligible for 245(k) benefits.