Chapter 8 - Inapplicability of Bars to Adjustment

Some or all of the INA 245(c) adjustment bars do not apply to certain categories of adjustment applicants. When adjudicating an adjustment application, an officer should carefully consider which bars apply. 

A. VAWA Self-Petitioners and Beneficiaries

All bars to adjustment do not apply to a battered or abused spouse, child, or parent of a U.S. citizen or a battered or abused spouse or child of a lawful permanent resident with an approved Violence Against Women Act (VAWA) self-petition.^[1]

B. Immediate Relatives

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21.^[2]

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if: 

• The applicant is now employed or has ever been employed in the United States without authorization; 
• The applicant is not in lawful immigration status on the date he or she files the adjustment application; 
• The applicant has ever failed to continuously maintain a lawful status since entry into the United States; 
• The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen; 
• The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or 
• The applicant has ever violated the terms of his or her nonimmigrant status. 

C. Certain Special Immigrants

Some adjustment bars to not apply to certain special immigrants (employment-based fourth preference category), depending on program-specific requirements. Specific information about some of these special immigrants and the adjustment bars that apply to them is provided below. 

1. Religious Workers^[3]

An adjustment applicant may be eligible to adjust status based on an approved religious worker petition even if: 

• The applicant is now employed or has ever been employed in the United States without authorization; 
• The applicant is not maintaining a lawful nonimmigrant status on the date he or she files the adjustment application; 
• The applicant has ever failed to continuously maintain a lawful status since entry into the United State; or
• The applicant has ever violated the terms of his or her nonimmigrant status. 

2. Special Immigrant Juveniles^[4]

The only adjustment bar that applies to a special immigrant juvenile adjustment applicant is the bar for being deportable due to involvement in a terrorist activity or group.^[5] There is no exemption if this bar applies. 

3. Afghanistan and Iraq Nationals^[6]

This immigrant visa category generally includes: 

• Special immigrant Afghanistan or Iraq national who worked with the U.S. armed forces as a translator; 
• Special immigrant Iraq national who was employed by or on behalf of the U.S. government; and 
• Special immigrant Afghanistan national who was employed by or on behalf of the U.S. government or in the International Security Assistance Force (ISAF) in Afghanistan. 

An adjustment applicant applying as a special immigrant Afghanistan or Iraq national may be eligible to adjust status even if:

• The applicant is now employed or has ever been employed in the United States without authorization; 
• The applicant is not in lawful immigration status on the date he or she files the adjustment application;
• The applicant has ever failed to continuously maintain a lawful status since entry into the United States; 
• The applicant is not maintaining a lawful nonimmigrant status on the date he or she files the adjustment application; or
• The applicant has ever violated the terms of his or her nonimmigrant status. 

4. G-4 International Organization Employees, NATO-6 Employees, and Their Family Members

This immigrant visa category generally includes: ​

• Retired officer or employee of an international organization or a North Atlantic Treaty Organization (NATO) (and derivative spouse);
• ​Surviving spouse of a deceased officer or employee of an international organization or NATO; and
• ​Unmarried son or daughter of a current or retired officer or employee of an international organization or NATO. 

An adjustment applicant applying as a NATO-6 employee or family member is ineligible for adjustment of status if any of the bars to adjustment of status apply. However, certain adjustment bars do not apply to G-4 international organization employees and family members.^[7] A G-4 international organization employee or family member may be eligible to adjust status even if:

• The applicant is now employed or has ever been employed in the United States without authorization; 
• The applicant is not in lawful immigration status on the date he or she files the adjustment application; 
• The applicant has ever failed to continuously maintain a lawful status since entry into the United States; or 
• The applicant has ever violated the terms of his or her nonimmigrant visa. 

If a G-4 special immigrant falls under any other adjustment bar, however, he or she is not eligible to adjust status. 

More information on the adjustment bar applicability and exemptions available to special immigrants is provided in the program-specific parts of this Volume.

D. Applicants Eligible to Adjust under INA 245(i)

An applicant who is ineligible to adjust status under INA 245(a) or is barred from adjusting by INA 245(c) may be eligible to adjust status under INA 245(i). 

E. Employment-Based Exemption under INA 245(k)

INA 245(k) provides certain employment-based adjustment applicants with an exemption from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) adjustment bars. 

This exemption applies to an applicant who has not failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms and conditions of his or her admission for an aggregate period exceeding 180 days. When determining whether an applicant is eligible for the INA 245(k) exemption, USCIS only considers the time period following the applicant’s most recent lawful admission. Therefore, the exemption applies to:

• An eligible applicant who fails to maintain a lawful status, engages in unauthorized employment, or violates the terms and conditions of his or her nonimmigrant visa following his or her most recent admission, as long as the aggregate period of the violations is 180 days or less;
• An eligible applicant who does not commit any status, employment, or nonimmigrant visa violations following his or her most recent lawful admission but failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms and conditions of his or her nonimmigrant visa following previous admissions or entries, regardless of the aggregate period of the violations; and
• An eligible applicant who has committed status, nonimmigrant visa, and employment violations following his or her previous admissions or entries and his or her most recent lawful admission, as long as the aggregate period of the violations following the most recent lawful admission is 180 days or less. The 180-day period can range from 0 days for no violations to a maximum of 180 days for multiple violations following the applicant’s most recent admission.

The table below summarizes the effect of certain immigration violations on eligibility for the exemption.

1. General Eligibility

An adjustment applicant must meet the following requirements to be eligible for the INA 245(k) exemption:

• The applicant must be eligible to adjust based on certain employment-based immigrant categories;
• ​The applicant must be physically present in the United States on the date he or she files the adjustment application pursuant to a lawful admission; and
• ​The applicant must not have committed certain immigration violations for more than 180 days in the aggregate following that last lawful admission.

2. Employment-Based Applicants

An adjustment applicant seeking the INA 245(k) exemption must be the beneficiary of an approved immigrant petition in one of the following employment-based categories: 

• Persons of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives (1st preference, EB-1); 
• Persons who are members of the professions holding advanced degrees or persons of exceptional ability(2nd preference, EB-2); 
• ​Skilled workers, professionals, and other workers (3rd preference, EB-3);
• Qualified immigrant investors (5th preference, EB-5); or 
• ​Religious workers.^[8]

Eligible dependents of principal applicants described above may also benefit from the exemption in their own right if they meet the exemption requirements.

3. Violations Totaling More Than 180 Days

To be eligible for the exemption, an adjustment applicant must not have committed any of the following immigration violations for more than an aggregate of 180 days since the applicant’s most recent lawful admission:

• ​Failed to continuously maintain a lawful immigration status;
• Engaged in unauthorized employment; or
• Violated the terms of the applicant’s nonimmigrant status. 

Count Only Violations After Most Recent Lawful Admission 

When determining whether an applicant is eligible for the exemption, the law counts only status violations and unauthorized employment since the applicant’s most recent lawful admission. Any such violations the applicant committed during previous periods of stay in the United States are not counted.^[9]

Therefore, regardless of how many days of immigration violations described in INA 245(c)(2), INA 245(c)(7), or INA 245(c)(8) an applicant commits, if he or she leaves and is readmitted lawfully (and is an eligible employment-based adjustment applicant), the applicant may qualify for an the exemption if the applicant’s violations do not total more than 180 days in the aggregate since that most recent lawful admission.

In this example, the noncitizen violated her nonimmigrant status when she stopped attending the university. This violation resulted in the noncitizen’s failure to maintain lawful status from March 1 through November 30, a total of 275 days of immigration violations. When the noncitizen applies for adjustment on June 1, 2016, however, she has committed no immigration violations since her most recent lawful admission. 

Because the noncitizen is an employment-based adjustment applicant and since her last lawful admission she has not exceeded the 180-day limit on immigration violations imposed by INA 245(k), the noncitizen qualifies for the exemption. Therefore, the noncitizen is exempted from the INA 245(c)(2) and INA 245(c)(8) bars that would otherwise have made her ineligible for adjustment. The 275 days of violations the noncitizen committed during her prior stay in the United States are irrelevant and do not bar her from adjustment. 

Effect of Parole

An adjustment applicant who entered the United States on parole is not “lawfully admitted” because parole is not an admission.^[10] Therefore, entry or reentry based on parole does not restart the clock for purposes of calculating status or work violations under the exemption. 

For example, an applicant who was lawfully admitted, worked without authorization for one year, and then departed and returned on parole does not qualify for the exemption. Because the parole is not an admission, the applicant’s unauthorized employment still counts since it occurred following his last lawful admission. The one year of unauthorized employment exceeds the 180-day limit, making the applicant ineligible for the exemption and therefore barred from adjustment by INA 245(c)(2)and INA 245(c)(8) based on the unauthorized employment.

4. Calculating Period of Violations

If an applicant has committed a status or employment violation following his or her most recent lawful admission, the phrase “aggregate period not exceeding 180 days” means the total of all types of violations taken together. The 180-day period is not counted separately for each type of violation, but altogether. 

The officer should count each day in which one or more of these violations existed as one day. Any day in which more than one violation occurred should not be double-counted. Accordingly, an officer should add together any and all days in which there is one or more of the violations to determine if the violations, as a whole, exceed the 180-day limit. 

Failed to Maintain Lawful Status or Violated Terms of Nonimmigrant Status

In most cases, the counting of days against the 180-day limit begins on the earliest of the following:

• The day the applicant’s immigration status expired; 
• ​The day the applicant’s immigration status was revoked or rescinded; or 
• ​The day the applicant violated his or her immigration status.

The counting of days out of status usually stops on the earliest of the following:

• The day the applicant properly files an adjustment application; 
• ​The day the applicant obtains lawful immigration status; or
• ​The day the applicant departs the United States.

For example, if an applicant enters the United States as a nonimmigrant and continues to stay in the United States after such nonimmigrant status expires, the applicant has failed to continuously maintain a lawful status at the point the status expires. If the applicant later acquires a new lawful status, for instance, temporary protected status, then the applicant is no longer failing to maintain a lawful status. The time period between the two lawful statuses is counted towards the 180-day limit in determining if the applicant is eligible for the exemption.

Unauthorized Employment

USCIS calculates the number of days an applicant engaged in unauthorized employment beginning on the first day of such employment and continuing until the earliest of the following:

• The day the applicant ceases the unauthorized employment;
• ​The day USCIS approves the applicant’s employment authorization document (EAD);^[11]or
• ​The day USCIS approves the applicant’s adjustment application. 

The filing of an adjustment application does not authorize employment or excuse unauthorized employment. As such, the adjustment filing does not stop the counting of days of unauthorized employment.^[12]

USCIS counts each day an applicant engaged in unauthorized employment against the 180-day limit, regardless of whether the applicant unlawfully worked only a few hours on a given day, worked a part-time schedule, or worked a full-time schedule with leave benefits and weekends and holidays off. Absent evidence of interruptions in unauthorized employment, USCIS considers each day since the date the unauthorized employment began as a day of unauthorized work regardless of the applicant’s work schedule. 

For example, if an applicant worked without authorization for four hours a day, Monday through Friday, throughout the month of April, all 30 days for that month must be counted as unauthorized employment. 

For periods in which it appears that the applicant has engaged in unauthorized employment, the applicant bears the burden of establishing that work was authorized or that he or she did not in fact engage in unauthorized employment. Evidence of termination or interruption of unauthorized employment may include a letter of termination or other documentation from the applicant’s employer. 

In addition, an applicant who works without authorization after filing an adjustment application does not stop the counting of time by departing the United States and re-entering on parole.

Special Considerations

The following situations do not count toward the 180-day limit: 

• Any violations that occurred prior to the applicant’s last lawful admission;
• Any time period for which the applicant had USCIS authorization to engage in employment;^[13]
• Any time period when the applicant had a pending application for extension of nonimmigrant status or change of nonimmigrant status, if USCIS ultimately approved the application; 
• Any time period of unlawful status that USCIS determines was the result of a “technical violation” or through no fault of the applicant;^[14]
• Any time period before or after completion of a nonimmigrant student’s educational objective or a nonimmigrant exchange visitor’s program as authorized by regulation,^[15] if the nonimmigrant did not violate the terms and conditions of the status; and 
• Any time period in violation of nonimmigrant student or exchange visitor status if the status was later reinstated, but only for the time covered by the reinstatement.^[16]

In this example, the applicant’s work results in three separate immigration violations: The applicant engaged in unauthorized employment, violated the terms and conditions of his nonimmigrant admission, and failed to continuously maintain a lawful status. Since these three violations occur on the same days, they are only counted once. Therefore, these immigration violations add up to 30 days, counting from June 1 through June 30. 

Once the applicant began to work without authorization on June 1, he stopped maintaining a lawful status. The failure to continuously maintain a lawful status continues until the applicant files a properly filed adjustment application on September 1, totaling 92 days without lawful status. Because the time period from June 1 through June 30 was already counted for the three violations above, the failure to continuously maintain lawful status only adds 62 days, counting from July 1 through August 31.

If USCIS approves the applicant’s petition for EB-3 immigrant visa classification, he is eligible for the INA 245(k) exemption. The applicant’s immigration violations total 92 days and therefore do not exceed the 180-day limit. The applicant meets the eligibility requirements for the exemption and is not barred from adjustment by INA 245(c)(2), INA 245(c)(7), or INA 245(c)(8) bars, which would otherwise apply.

In this example, the noncitizen’s initial period of admission as a B-2 nonimmigrant visitor expired more than three months prior to the initial departure. During the subsequent admission, the noncitizen filed for adjustment three months after H-1B status terminated. 

The time spent out of status during the noncitizen’s first admission as a B-2 nonimmigrant was not calculated because the time spent out of status or in violation of status prior to the nonimmigrant’s last admission is not considered for INA 245(k) purposes. Since the noncitizen is an employment-based adjustment applicant and his three-month violation following his last lawful admission did not exceed 180 days, the noncitizen is exempted from the INA 245(c)(2) bar. 

5. Evidence to Consider

An applicant seeking the INA 245(k) exemption must properly file an adjustment application as specified in the form instructions, but he or she is not required to submit any additional forms or fees. If an officer determines that an INA 245(c)(2), INA 245(c)(7), or INA 245(c)(8) bar applies in a particular case, the officer should use the following evidence submitted in support of the adjustment application to analyze the applicant’s eligibility for the exemption: 

• Copies of all Arrival/Departure Records (Forms I-94) showing authorized admission into the United States;
• ​Copies of the biographic pages of any passports containing nonimmigrant visas along with the passport pages containing the visas; 
• ​Copies of any passport pages showing recorded travel into or out of the United States, such as admission stamps;
• ​Copies of any documentation showing all places of residence dating back at least five years from the date of filing for adjustment and showing all periods of employment; and
• Receipt or Approval Notices (Forms I-797) for any immigration benefit, including nonimmigrant status, changes of nonimmigrant status or extensions of stay, and employment authorization. 

If the evidence of record is insufficient to determine the applicant’s eligibility for the exemption, an officer should first attempt to obtain any missing information using authorized USCIS-approved databases. An officer also may issue a Request for Evidence or Notice of Intent to Deny.

6. Effect of Exemption

An applicant who qualifies under INA 245(k) is exempt from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) adjustment bars. This does not, however, exempt an applicant from any other bar, eligibility requirement, or ground of inadmissibility.^[17] Therefore, once an officer determines that the applicant qualifies for the exemption, the officer must next determine whether the applicant is otherwise eligible for adjustment.

Footnotes

[^ 1] See INA 245(c). See Chapter 2, Eligibility Requirements, Section F, Bars to Adjustment of Status [7 USCIS-PM B.2(F)].

[^ 2] See INA 201(b)(2)(A). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and noncitizens admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions. See INA 245(c)(2),INA 245(c)(4), and INA 245(c)(8). See Chapter 2, Eligibility Requirements, Section F, Bars to Adjustment of Status [7 USCIS-PM B.2(F)].

[^ 3] See INA 101(a)(27)(C) and INA 245(k). For more information, see Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

[^ 4] See INA 101(a)(27)(J) and INA 245(c). 

[^ 5] See INA 245(c)(6). Special immigrant juveniles are excluded from applicability of INA 245(c)(2) and, as previously mentioned, by applying traditional concepts of statutory construction, USCIS interprets the exclusion from INA 245(c)(2) to apply to INA 245(c)(8). as well. See 62 FR 39417 (PDF), 39422 (July 23, 1997) and 8 CFR 245.1(b)(5), 8 CFR 245.1(b)(6), and 8 CFR 245.1(b)(10). INA 245(c)(7) also does not apply. See 8 CFR 245.1(b)(9). See Chapter 5, Employment-Based Applicant Not in Lawful Nonimmigrant Status – INA 245(c)(7) [7 USCIS-PM B.5]. Finally, INA 245(c)(1), INA 245(c)(3), INA 245(c)(4), and INA 245(c)(5) also do not apply since a special immigrant juvenile is considered to be paroled into the United States and when reviewing these bars, USCIS focuses on the most recent admission. See INA 245(h)(1). See 8 CFR 245.1(a) and 8 CFR 245.1(e)(3).

[^ 6] For information about Afghan and Iraq translators, see Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163 (PDF), 119 Stat. 3136, 3443 (January 6, 2006), as amended by Pub. L. 110-36 (PDF) (June 15, 2007). For information about Iraq nationals employed by or on behalf of the U.S. Government, see Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008), as amended by Pub. L. 110-242 (PDF) (June 3, 2008) and Section 602(b)(9) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 524, 809 (March 11, 2009). For information about Afghan nationals employed by, or on behalf of, the U.S. Government, see Section 602(b) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009).

[^ 7] See INA 245(c)(2) and INA 245(c)(8). See 8 CFR 245.1(b).

[^ 8] Described in INA 101(a)(27)(C). Other than religious workers, employment-based 4th preference (EB-4) applicants are not eligible for the INA 245(k) exemption.

[^ 9] Although these specified violations committed during previous periods of U.S. stay are not relevant for purposes of eligibility for the INA 245(k) exemption, there may still be adverse immigration consequences for these violations. See INA 212(a)(9)(B)-(C) and INA 222(g). For example, if a noncitizen accumulates more than 180 days of unlawful presence in the United States and subsequently departs, he or she may be inadmissible to the United States for three years or more after such departure, unless a waiver is granted or the noncitizen is exempt. INA 222(g) also provides that a noncitizen’s nonimmigrant visa is automatically void if the noncitizen remains in the United States beyond the authorized period of stay.

[^ 10] See INA 101(a)(13)(B) and INA 212(d)(5)(A).

[^ 11] Applicants for adjustment who have no other authorization to work and wish to work based on the pending application must first file an Application for Employment Authorization (Form I-765) and wait until it is approved before beginning work.

[^ 12] Therefore, it is possible for an applicant to accrue days of unauthorized employment against the 180-day limit after filing an adjustment application. 

[^ 13] However, any unlawful employment that continues or begins after the applicant applies for adjustment is counted toward the 180-day period until USCIS approves work authorization. 

[^ 14] See 8 CFR 245.1(d)(2). See Volume 1, General Policies and Procedures, Part H, Emergencies or Unforeseen Circumstances, Chapter 2, Emergencies or Unforeseen Circumstances-Related Flexibilities, Section A, Immigration Policy Flexibilities, Subsection 1, Nonimmigrants Present in the United States [1 USCIS-PM H.2(A)(1)].

[^ 15] See 8 CFR 214.2(f) and 8 CFR 214.2(j).

[^ 16] See 8 CFR 214.2(f) and 22 CFR 62.45.

[^ 17] For example, it would not exempt the applicant from an eligibility requirement such as the requirement that an applicant must have been inspected and admitted or inspected and paroled.