Section 245(k) is a provision in the Immigration and Nationality Act (INA) that assists some immigrants in gaining permanent residence even though they may have violated the terms of their status. The specific section is geared towards employment based immigrants who seek to obtain their green card while still remaining in the United States. While, there are legal bars that can keep an immigrant from adjusting their status due to certain violations, Section 245(k) provides with an opportunity for relief.
USCIS released The Neufeld Memorandum on INA 245(K) on July 14, 2008. The intent of the memo was to offer guidance and policy clarification for the USCIS personnel who are responsible for reviewing various immigration applications and to offer further explanation regarding who can make use of section 245(k) when applying for an adjustment of status.
A foreign national who makes use of Section 245(k) normally has violated the terms of their status for 180 days or less from the time of their last lawful admission. The Neufeld memo clarifies numerous areas within the use of Section 245(k). First, the three violations include failing to maintain a lawful status, engaging in unauthorized employment, and violating terms and conditions of employment. Section 245(k) can only be applied to approved immigrant petitions in specific employment categories (EB-1 through EB-4). The EB-1 category includes individuals with extraordinary abilities including professors, researchers, and executives. EB-2 includes immigrants who are professionals with advanced degrees. The EB-3 category consists of skilled workers and professionals. The EB-4 category only includes religious workers as described in Section 101(a)(27)(c). No other employment based immigration classifications are considered when using Section 245(k).
The 180 day period that is used in the section begins accruing after the immigrant's last lawful admission. It is possible for an immigrant to commit more than one violation. In this case, all of the days for each violation will be taken into account. Filing the application for status adjustment will not stop the 180 day counting period. Unlawful employment is a specific violation that counts towards to 180 day period. The days of unauthorized employment include holidays and weekends whether or not the job is full-time or part-time.
The Neufeld memo further clarified additional points. An immigrant who comes to the United States on advanced parole is not considered as obtaining "lawful admission" and as such the benefit of the 180 days counting afresh is not available. However, INA 245(K) benefit also extends in most instances to derivative beneficiaries.
Once the immigrant files the application for status adjustment, the USCIS uses the submitted evidence in order to determine if the individual is eligible for Section 245(k). At any time, USCIS can request additional information.
