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File I-485 Application Despite the Violation of Nonimmigrant Status

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  • File I-485 Application Despite the Violation of Nonimmigrant Status

    Section 245(k) of the Immigration and Nationality Act allows those nonimmigrant, who either violated the nonimmigrant status or engaged in unauthorized employment for a period of less than 180 days since their "last admission" to the United States, to file EB-485 application despite their violation of nonimmigrant status.

    This relief, however, needs further analysis to understand eligibility of this benefit in each individual case.

    Starting date of counting of violation of status or unauthorized employment before "filing" of EB-485: It is the date of the latest admission to the U.S. Accordingly, any violations during the previous admissions prior to the latest admission are not aggregated and counted in determination of 180 days.

    Violation of Status or Unauthorized Employment is "aggregated" and does not have to be continuous: The aggregation of 180-day violation involves two issues: One is eligibility of "filing" of EB-485 application and the other is eligibility of "approval" of EB-485.

    Eligibility of EB-485 Application "Filing": For the purpose of the eligibility of filing of EB-485, 180-day only includes the violation prior to filing of EB-485 application. Accordingly, those who violated less than 180 days "prior to filing of EB-485" are eligible to submit EB-485 application.

    Eligibility of EB-485 "Approval": It is one thing whether one is eligible for submission of EB-485 application and it is the other whether one is eligible for approval of EB-485 application at the last moment of adjudication. Filing of EB-485 "tolls" running of unlawful status.

    However, it is the current view and interpretation of the 245(k) provision of the USCIS that any violations post to filing of EB-485 "aggregate" to the violations prior to the filing of EB-485 and any unauthorized employment post to the filing of EB-485 will continue to accumulate and aggregate until the time EB-485 is actually adjudicated.

    For these reasons, EB-485 applicants and their family members have recently been receiving RFE asking them to submit the evidence of employment authorization just before the final adjudication of EB-485 applications.

    Because of this policy of aggregation of profiling and post filing period of unauthorized employment, those who were successfully able to file EB-485 application because of less than 180 days of unauthorized employment at the time of EB-485 application may face denial of EB-485 applications because of 180-day unauthorized employment because of their period of unauthorized employment after filing of the EB-485 applications.

    Accordingly, if a 485 applicant engages in unauthorized employment after expiration of EAD or violation of H-1B or L-1 and engaging in unauthorized employment without possessing EAD, the unauthorized employment period continues to accumulate and aggregate for the purpose of 245(k) eligibility. The situation which is particularly troublesome is the employment during the gap of expiration of the current EAD and the issuance of a new EAD renewal.

    The USCIS views such period as unauthorized employment for the purpose of 245(k) eligibility. It is thus imperative that those who successfully filed EB-485 applications for less than 180-day unauthorized employment prior to the filing of EB-485 applications should never engage in unauthorized employment even after the filing of EB-485 application until the 485 application is finally approved. If there is a gap between the expiration of current EAD and issuance of the new EAD, they should stop employment during the period.

    At the same token, those who violate a H-1B status and do not possess a valid EAD should also cease employment until the EAD is applied and issued or new H-1B is filed (in the context of AC-21 portability) or new H-1B petition is approved (if a change of status to a new H-1B from other nonimmigrant status).

    Also see:
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