Has USCIS clarified the distinction between unauthorized employment, failure to maintain status, and unlawful presence.
USCIS has provided the following clarification:
Background: A Form I-485, Application to Register Permanent Residence or Adjust Status, seeks to accord Lawful Permanent Resident (LPR) status to an alien who is the beneficiary of an approved employment-based (EB) or other immigrant visa petition, such as Form I-140, Immigrant Petition for Alien Worker. Section 245 of the Immigration and Nationality Act (the Act), as amended, is the statutory basis for adjustment, which is discretionary and regulated by U.S. Citizenship and Immigration Services (USCIS).
To adjust, an alien in the U.S. must apply, have an immigrant visa immediately available to them, and be admissible. They must also undergo a medical examination, security checks and, in some instances, an interview. An alien is not entitled to adjustment and a denied Form I-485 may not be appealed; however motions may be filed. Common grounds for the denial of an EB Form I-485 include failure to maintain a lawful status and/or engaging in unauthorized employment after admission. Much less common, yet noteworthy due to the lengthy statutory bars entailed, are denials due to unlawful presence.
This clarification will address maintenance of lawful status, unauthorized employment, and unlawful presence as applied to adjustment under section 245 of the Act. (The information provided herein does not supersede existing USCIS statute, regulation, or existing policy. For additional information on the topics herein, readers should refer to official USCIS statute, regulation, field manuals, and binding policy.) Since lawful status and employment authorization are not required for adjustment under section 245(i) of the Act, emphasis will be given to sections 245(a) and (k) of the Act, under which the majority of EB applicants presently adjust.
Section 245 Overview: Sections 245(a), (k) and (i) of the Act provide the three main “avenues” to adjustment. Eligibility under a specific section is contingent largely on the applicant’s means of entry to the U.S., maintenance of status, employment authorization (if applicable), admissibility under section 212 of the Act, and submission of required initial evidence. Section 245(c) of the Act describes the classes of aliens who are restricted from adjustment. These provisions are further applied by Title 8, Code of Federal Regulations, part 245, and Chapter 23.5 of the Adjudicator’s Field Manual. EB adjustments are also subject to a number of binding Service policy memoranda and precedent decisions.
Section 245(a) of the Act applies to an alien who:
Is not restricted under sections 245(c), (d), (e), or (f) of the Act, or Title 8 CFR Part 245.1(c) (includes alien crewmen, transit without visa aliens, K-1 fiancées, conditional permanent residents, aliens in removal proceedings, inadmissible aliens without waivers and other classes), and
Is present in the U.S. pursuant to a lawful entry (admission), and
Has maintained, continuously, a lawful status from the time of their last admission until filing for adjustment, and
Is in a lawful status upon filing for adjustment, and
Has not, at any time since their last admission, engaged in unauthorized employment.
A number of otherwise eligible aliens fail to maintain lawful status or engage in unauthorized employment after their admission, or they may not be in a lawful status upon filing for adjustment. This renders them subject to the restrictions under sections 245(c)(2), (7) and (8) of the Act and therefore ineligible to adjust under section 245(a).
Section 245(k) of the Act provides certain preference aliens with limited relief from the aforementioned restrictions. The full section is as follows:
(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)
(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission.
Section 245(i) of the Act, which was created and extended, respectively, by Public Laws 105-119 and 106-554, permits certain aliens who are further restricted under section 245(c) of the Act [and generally ineligible to adjust under sections 245(a) or (k)], to overcome those restrictions.
Examples include applicants who failed to maintain a lawful status or engaged in unauthorized employment for more than 180 days; aliens who entered without inspection; crewmen and transit without visa (TWOV) aliens. The sunset of this provision was on April 30, 2001. However, section 245(i) remains available to an adjustment applicant who:
Is the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001 (or is a grandfathered alien), and
Has failed to maintain, continuously, a lawful status and/or engaged in unauthorized employment for more than 180 days since their last entry, or is otherwise restricted from adjustment under certain sections of 245(c) of the Act, and
Was physically present in the U.S. on December 20, 2000 (applies only to principal applicants whose visa petition or labor certification was filed between 1/14/1998 and 4/30/2001), and
Completes a Supplement A to Form I-485, and
Pays a penalty fee of $1,000 (if aged 17 or older at filing).
Under section 245(i) of the Act, an alien remains eligible to adjust regardless of unlawful entry, failure to maintain status or unauthorized employment. However, such aliens may be subject to the accrual of unlawful presence, which shall be discussed in that section.
FAILURE TO MAINTAIN STATUS
Title 8, CFR Part 245.1(d)(1) defines “lawful immigration status” to include nonimmigrant status (e.g. B2, F1, H1B, J1, L1A), refugee status and asylum. Temporary protected status (TPS) granted under section 244 of the Act and F-1 student occupational practical training (OPT) are also considered lawful status for adjustment purposes. Examples of persons not in lawful status include aliens who entered without inspection, aliens whose nonimmigrant status has expired, and parolees who were not inspected and admitted.
In terms of Form I-485 adjudication, lawful status is counted from the date of the alien’s last admission until the Form I-485 is filed. Any gaps or violations that occurred prior to the alien’s last admission or after Form I-485 was filed are not counted. (These limitations do not, in any way, bar USCIS from scrutinizing an applicant’s full immigration and employment history within the record of proceeding to otherwise determine admissibility or eligibility.) Lapses or violations totaling 180 days or less are permissible under section 245(k) of the Act.
An alien fails to maintain lawful status when their status has expired, has been revoked, or has been terminated. In particular, an alien admitted as a nonimmigrant fails to maintain lawful status upon overstaying his or her authorized period of admission, as specified by the expiration date on the alien’s Form I-94 (Arrival/Departure Record) or Form I-797 (Notice of Action). Applicants also fail to maintain lawful status by violating the terms and conditions of their admission. This means that although the alien held (or was granted) a lawful status, he or she engaged in activities which violated the terms and conditions of that status.
Example 1: Marie, who is the beneficiary of an approved Form I-140 immigrant visa petition, was last admitted to the U.S. as a B-2 nonimmigrant visitor on April 15, 2006, valid until October 15, 2006. She was not granted any other status and filed her Form I-485 on January 15, 2007.
Marie was out of status from October 16, 2006, until filing for adjustment on January 15, 2007, a period of 91 days. She was also not in a lawful status at the time of filing her Form I-485. Consequently, she is a restricted alien as per sections 245(c)(2) and (7) of the Act and ineligible to adjust under section 245(a). However, Marie remains eligible to adjust under section 245(k) of the Act, because (k) does not require a lawful status upon filing and the aggregate period in which she failed to maintain a lawful status did not exceed 180 days.
Example 2: Lee, who is the beneficiary of an approved Form I-360 special immigrant (religious worker) visa petition, was last admitted as an R-1 nonimmigrant religious worker on April 10, 2005, valid until April 10, 2007. Lee worked for the petitioning religious organization until July 4, 2006, then quit to pursue a nursing degree. Lee was not granted any other status. Lee files a Form I-485 on April 1, 2007, with the intention of returning to his Form I-360 employer once approved.
By leaving the position that was the basis for his R-1 nonimmigrant status and attending school, Lee violated the terms and conditions of his admission from July 5, 2006, until filing for adjustment April 1, 2007, a period of 270 days. Consequently, Lee is a restricted alien as per sections 245(c)(2) and (8) of the Act and ineligible to adjust under section 245(a). Lee is also ineligible to adjust under section 245(k) of the Act, because the aggregate period in which he failed to maintain, continuously, a lawful status exceeded 180 days. Assuming Lee is further ineligible for section 245(i) relief, his Form I-485 would be denied.
• Adjustment applicants who have been in the U.S. for extended periods may have multiple extensions of status (EOS) or changes of status (COS). If an EOS/COS is filed timely, but not approved until after the prior status has expired, the applicant will still be considered to have maintained a lawful status from the date the EOS/ COS was filed. The gap created by the period the EOS/COS request was pending with CIS should not be held against the applicant.
• If an alien’s EOS/COS request is denied, his or her lawful status is considered to have ended as of the original expiration date. A denied EOS/COS does not confer a “lawful status” for adjustment purposes or have the effect of such status.
• A previously filed Form I-485 that has been denied does not confer a “lawful status” for the purposes of re-filing for adjustment or have the effect of such status.
• As set forth in Title 8 CFR part 245.1(d)(2), an alien’s failure to maintain lawful status may be forgiven for a particular period, provided such failure was through no fault of their own or for technical reasons. However, the burden of proof remains with the alien.
The term “employment,” for adjustment purposes, means any service or labor performed by an employee for an employer within the U.S. Employment after admission must generally be authorized by USCIS. EB adjustment applicants are most often authorized by being admitted in (or granted) an employment-authorized nonimmigrant status (e.g. H1B, L1, R-1, TN). It is important to recognize that such nonimmigrant classifications confer both lawful status and authorization to work, specifically for the petitioning employer.
Certain aliens are authorized to work incidentally to their status, such as an F-1 nonimmigrant student who works on-campus as part of their study program. As per Title 8 CFR Part 274a.12, many classes of aliens, including asylees, refugees, certain nonimmigrant dependents and pending adjustment applicants, may also apply for an Employment Authorization Document (EAD). An EAD is generally not employer-specific.
Section 245(c)(2) of the Act bars from adjustment an alien who “continues in or accepts unauthorized employment prior to the filing of an application for adjustment of status…” Section 245(c)(8) further bars “any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.”
Section 274A(h)(3) of the Act, as amended, states:
(3) Definition of unauthorized alien. As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.
Title 8, Code of Federal Regulations, Part 274a.12(c)(9) states:
An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CRF 274a.12 to engage in employment….
Additionally, Title 8, Code of Federal Regulations, Part 245.1(b) states, in pertinent part:
(10) Any alien who was ever employed in the United States without authorization of the Service….For purposes of this paragraph an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application…
Unlike lawful status, which is counted from the time of the alien’s last admission until the Form I-485 is filed, unauthorized employment is counted from the time of admission until the Form I-485 is approved. The filing of an adjustment application does not “stop the clock” for the purpose of assessing unauthorized employment.
Unauthorized employment begins when an alien accepts employment without Service authorization or continues to work after their existing authorization expires. Unauthorized employment ends upon the alien being granted authorization or the employment is terminated. For any periods in which USCIS determines the alien engaged in unauthorized employment, the alien bears the burden of establishing that such periods were authorized, or that he or she did not, in fact, engage in unauthorized employment. Again, as per section 245(k) of the Act, periods of unauthorized employment totaling 180 days or less may be forgiven.
Important: Any overlapping days of unauthorized employment and unlawful status count only once against the 180 day aggregate of section 245(k), in favor of the alien.
• Routine absences from work, such as weekends, vacations, or sick leave do not interrupt unauthorized employment. The “aggregate” of section 245(k) refers to the sum of all such periods and not simply the actual workdays within a given period.
• Unauthorized employment is not stopped by departing the U.S. and reentering with a valid advance parole document (Form I-512). In accordance with section 245(k) of the Act, an alien can begin to accrue time against the 180-day period for violations that occurred on or after the alien’s last lawful admission. An alien who enters the U.S. pursuant to an advance parole is not “lawfully admitted” and, therefore, cannot benefit from a new 180- day period.
• Religious workers engaging in their qualifying occupation or vocation are considered to be “employed” for adjustment purposes and need authorization, even if their compensation is not monetary (room and board, stipends, health insurance, etc. are considered compensation).
The unlawful presence statute was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (“IIRAIRA”). Unlawful presence is defined as an alien present in the U.S. after their “period of stay authorized by the Attorney General” expires, or present in the U.S. without having been admitted or paroled. Aliens who have been unlawfully present in the U.S. for more than 180 days may be inadmissible if they depart.
Unlawful presence, which is an inadmissibility under section 212(a) of the Act, is not the same as failure to maintain lawful status or unauthorized employment. It is an entirely separate concept, both legally and in terms of determining adjustment eligibility. Unlawful presence is pertinent to adjustment because an alien must be admissible in order to be eligible to adjust.
Section 212(a) of the Act states, in pertinent part:
(a) Classes of aliens ineligible for visas or admission. Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(9)…(B) Aliens unlawfully present.
(i) In general. Any alien (other than an alien lawfully admitted for permanent residence) who—
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, … is inadmissible.
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.
(ii) Construction of unlawful presence. For the purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled…
Unlawful presence accrues when an alien in the U.S. is not in a “period of stay authorized by the Attorney General.” “Authorized” stay includes lawful status, such as nonimmigrant status, refugee status, TPS, and asylum. However, several additional periods qualify as “authorized” stays, including:
• Grants of voluntary departure;
• Grants of withholding or deferral of removal under the United Nations Convention Against Torture;
• Legalization and special agricultural worker applications for lawful temporary residence that are pending through an administrative appeal;
• Grants of withholding or suspension of deportation, or cancellation of removal;
• Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of PL 99-603 through administrative appeal;
• Grants of Temporary Protected Status and Deferred Enforced Departure; and
• Applications for adjustment of status under section 245 of the Act (including section 245(i)).
Additionally, there are several important statutory exemptions to unlawful presence:
• Aliens under age 18 do not accrue unlawful presence;
• Unlawful presence before April 1, 1997 (the enactment date of IIRAIA) is not counted;
• Accrual of unlawful presence stops upon filing of Form I-485 (unless the Form I-485 was filed solely to prevent removal);
• Aliens with timely filed pending EOS/COS applications do not accrue unlawful presence while their request is pending. If the EOS/COS is denied, unlawful presence resumes upon denial;
• An alien admitted as a nonimmigrant for duration of status “D/S,” particularly F-1 students and J-1 exchange visitors, do not accrue unlawful presence until CIS finds such a violation while adjudicating a benefit and notifies the alien in writing;
• Additional exemptions exist, including battered women and children described under section 212(a)(6)(A)(ii) of the Act and family unity beneficiaries.
The above exceptions aside, an alien who departs the U.S. after being unlawfully present for a period of more than 180 days (but less than one year) is inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three-year bar. An alien who departs the U.S. after being unlawfully present for more than one year is inadmissible under section 212(a)(9)(B)(i)(II) of the Act and triggers the ten-year bar. Unlawful presence is counted as continuous, not aggregate, time in the U.S. (Exception: Unlawful presence is counted in the aggregate for aliens subject to the permanent bar under section 212(a)(9)(C) of the Act. Specifically, an alien who accrues an aggregate of more than one year of unlawful presence in the U.S., then departs and re-enters without inspection, is barred permanently. The illegal entry must have occurred on or after April 1, 1997.) It is critical to note that the alien must depart in order to trigger the unlawful presence bars. In the absence of a departure, the accrual of unlawful presence is moot.
Section 212(a)(9)(B)(v) of the Act provides the (legacy) Attorney General with the sole discretion to waive the three- or ten-year unlawful presence bars, if the alien is the spouse or son or daughter of a U.S. Citizen (USC) or LPR. The alien must demonstrate that the refusal of their admission would result in extreme hardship to the USC or LPR spouse or parent. The dispensation of this waiver is rare and the burden of proof lies with the alien.
Example 1: John is admitted to the U.S. as a B-2 nonimmigrant visitor on October 30, 2001, with permission to remain until April 29, 2002. He files a timely request to extend his B-2 status on April 15, 2002. This request is denied on June 1, 2002. John does not have any other status and subsequently departs the U.S on February 10, 2003. On August 12, 2004, he is admitted as an H1B nonimmigrant specialty worker. A Form I-140 is later filed and approved on his behalf. John files his Form I-485 on March 10, 2007.
John was unlawfully present in the U.S. from June 1, 2002—the date his timely filed EOS was denied—until his departure February 10, 2003, a continuous period of 254 days. His departure, after being unlawfully present for more than 180 days, but less than one year, renders him inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three year bar. Provided John does not qualify for the waiver, his Form I-485 would be denied.
Example 2: Rita enters the U.S. as an F-1 nonimmigrant student on August 20, 2003, with permission to remain for the duration of her status (“D/S”). After attending school full time for one semester, Rita changes to part time, then drops out entirely. She spends the next sixteen months visiting friends across the U.S. and working as a house sitter. She then departs on July 1, 2005. After completing her degree abroad, Rita is admitted to the U.S. on July 30, 2007, as J-1 nonimmigrant exchange visitor. Shortly thereafter, a Form I-140 is approved on her behalf and she files for adjustment.
Although Rita violated her F-1 nonimmigrant status and engaged in unauthorized employment for over a year prior to her departure, she did not accrue unlawful presence because she was admitted for “duration of status” and CIS did not find the violation while adjudicating a benefit or notify her in writing. Her departure therefore did not render her inadmissible under section 212(a)(9)(B)(i)(II) of the Act and did not trigger the ten-year bar.
Further, her violation of status and unauthorized employment occurred prior to her most recent admission as a J-1 nonimmigrant. Provided she is otherwise eligible, her Form I-485 is approvable.
Other important unlawful presence considerations:
• The statutory unlawful presence bars under sections 212(a)(9)(B)(i) of the Act are not overcome by section 245(k) or (i) relief. Such an alien would still have to establish eligibility for the waiver;
• Departing the U.S. with a valid advance parole document (Form I-512) is considered a departure for unlawful presence purposes. Advance parole does not relieve the alien from being subject to unlawful presence.
For additional Service clarifications and policy regarding unlawful presence:
• AFM Chapter 30.1(d)
• March 27, 2003 memorandum by the CIS Chief, Inspections Law Division, Office of General Counsel:
“Interpretation of ‘Period of Stay Authorized by the Attorney General’ in determining ‘unlawful presence’ under INA section 212(a)(9)(B)(ii).”
• June 12, 2002 memorandum by the CIS Executive Associate Commissioner, Office of Field Operations: “Unlawful Presence.”