Obtaining Green Card after Status Violation: 245(k) Benefit

The immigration provision of Section 245(k) of the Immigration and Nationality Act (INA) allows certain individuals who are present in the United States after having failed to maintain lawful immigration status to adjust their status to that of a lawful permanent resident (LPR) without having to leave the country.

This exemption applies to an applicant who has not failed to maintain 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.

Section 245(k) of the INA applies only to employment-based green card categories. It applies to all EB-1, EB-2, and EB-3 cases, as well as certain EB-4 cases. While it is available to the primary applicant in EB green card categories and qualifying derivative family members, it is not available to family-based green card cases.

Another benefit of 245(k) is that it allows individuals to remain in the United States while their green card application is pending, rather than having to wait outside the country for a decision. This can be especially important for individuals who have lived in the United States for many years and have established roots in their communities.

To qualify for 245(k), the individual must be otherwise eligible to adjust status and must not have any other grounds of inadmissibility. This can include issues involving criminal convictions, prior immigration violations, or other concerns that may affect eligibility for lawful permanent residence.

The 245(k) provision is discretionary and may be applied by a United States Citizenship and Immigration Services (USCIS) officer based on the facts of the case. Because status violations, unauthorized employment, adjustment of status, and employment-based filings can have serious consequences, applicants should understand the broader green card process before applying.

It is also important to consult with an immigration attorney before applying for adjustment of status under 245(k) to ensure that you meet all requirements and to help you navigate the process.