Applying for employment-based adjustment (I-485 Form) based upon an EB category requires walking a gauntlet through regulations.  USCIS may deny an employment-based I-485 Form when an applicant violates nonimmigrant status and works without authorization. However, USCIS can forgive certain violations if the foreign national satisfies the criteria for the exemption pursuant to Immigration and Nationality Act § 245(k) (“INA § 245(k)”).

U.S. law generally prohibits USCIS from approving an I-485 Form when INA §§ 245(c)(2), (c)(7), and (c)(8) violations happen. Stated simply, these provisions prohibit USCIS from granting permanent resident status if an applicant commits the following actions:

• works without authorization in the United States,
• fails to continuously maintain a lawful status since entering America, or
• violates the conditions imposed upon her or his admission.

The § 245(k) exemption applies to an employment-based applicant who files an I-485 Form pursuant to a lawful admission. Customs and Border Protection (“CBP”) lawfully admits a noncitizen when a CBP officer inspects the person at a checkpoint and authorizes entrance into the U.S.  The section 245(k) exemption benefits applicants in the EB-1, EB-2, and EB-3 categories as well as EB-4 religious employees. The section 245(k) exemption does not apply if a CBP officer paroled the I-485 applicant into the United States. USCIS focuses upon the timeframe after the applicant’s most recent lawful admission into the United States. After a lawful admission, the INA § 245(k) exemption provides mercy if the applicant does not continuously maintain a lawful status, work without authorization, or violate the admission’s conditions for more than 180 days.