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Understanding Section 245(k) & Adjustment of Status

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What Is an Adjustment of Status?

The process for applying for legal permanent residency, or a “green card,” in the United States is called “Adjustment of Status.” Section 245(k) allows employment-based applicants to adjust their status even if they overstayed or violated their status. Section 245(k) is also an exception to the general rule that in order to adjust status in the United States, an applicant must be in valid nonimmigrant status when they file their application. This is great news for applicants unable to adjust status, who otherwise would be required to leave the United States to pursue an immigration visa and trigger a 3-10-year bar of inadmissibility.

Who Is Eligible for Section 245(k) Relief?

According to the U.S. Citizenship and Immigration Services (USCIS), the following classes of employment-based adjustment of status applicants are eligible for relief under Section 245(k):

  • EB-1: aliens of extraordinary ability, including outstanding professors and researchers, certain multinational managers, and executives (priority workers);
  • EB-2: aliens in professions with advanced degrees and/or of exceptional ability.
  • EB-3: skilled workers and professionals;
  • Eb-4: religious workers, as described in section 101(a)(27)(C0 of the Act; or
  • The spouses and children of the listed eligible aliens.

How Do I Apply for Section 245(k) Relief?

An applicant seeking to file an Adjustment of Status application under Section 245(k) must be present in the United States on the date of filing of the application pursuant to a lawful admission into the United States, and, subsequent to that admission, has not violated status in the following ways for a combined total of 180 days:

  • Failed to maintain lawful immigrant status continuously;
  • Engaged in unlawful employment; and/or
  • Otherwise violated the terms and conditions of their admission.

An employment-based Adjustment of Status applicant does not need to submit additional information or fees with his or her properly filed adjustment of status application in order to obtain Section 254(k) relief. The USCIS will automatically determine whether Section 254(k) relief applies based on the evidence the applicant submits with the Adjustment of Status application. The USCIS may issue a Request for Evidence (RFE) and/or a notice of intent to deny if it wishes to inquire further about additional evidence in support of Section 254(k) relief.

Consult with a Knowledgeable Immigration Lawyer Today

The lack of directives regarding Section 254(k) relief makes it a difficult area of immigration law to navigate. Therefore, consulting an immigration attorney can strengthen your chances of obtaining Section 254(k) relief for limited grounds of ineligibility for Adjustment of Status for employment-based applications.

Related Pages

Call (949) 478-4963 or fill out an online form to discuss your circumstances with an immigration attorney at Yekrangi & Associates today.

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