Asian Journal- The Filipino-American Community Newspaper

GENERALLY, if you are an alien who has failed to maintain continuously your lawful status or has engaged in unauthorized employment, then you are no longer eligible to adjust your status in the United States.

As an exception, however, under Section 245(k) of the Immigration and Nationality Act, if you are an employment-based adjustment of status applicant who, since your last lawful admission to the United States has not, for an aggregate period of more than 180 days: (a) failed to maintain, continuously, a lawful status, (b) engaged in unauthorized employment, or (c) otherwise violated the terms and conditions of your admission, then you may still to adjust your status in the United States.

Note, however, that Section 245(k) does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility. Further, it does not apply to family-based petitions.

Your spouse or dependent child may benefit from Section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.

In order to avail of the benefits of Section 245(k), you must properly file an adjustment of status application based on an employment-based immigrant petition. An applicant invoking Section 245(k) is not required to submit additional application forms or pay a penalty surcharge.

According to the latest memorandum issued by the government regarding this issue, in the case of aliens who engaged in unauthorized employment, all periods of unauthorized employment since the date of the alien’s last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off.

Further, in the case of aliens who have failed to maintain a lawful status and/or violated the terms of a nonimmigrant visa, the memorandum states that the 180-day counting period commences on the date the alien’s status expired, is revoked, or is violated following the alien’s most recent admission, and stops as of the date the U.S. Citizenship and Immigration Services receives a properly filed adjustment of status application.