245(i) Applicants not Subject to Unauthorized Employment Restrictions

Many clients of our firm have expressed concerns about their previous unauthorized employment when they are applying for lawful permanent residence status through adjustment of status in the U.S. Their concerns are valid as the law specifically prohibits a foreigner from working in the U.S. without permission by the U.S. government. Specifically, Section 245(c)(2) of the Immigration and Nationality Act makes an applicant ineligible for adjustment of status if he or she engaged in or continued to accept unauthorized employment. In other words, for a foreign national who has worked illegally, even if he has an approved immigrant visa petition sponsored by a family member or employer, his application for a green card may still be denied.

Unauthorized Employment and Adjustment
Such a rule may seem harsh to the illegal immigrants considering many of them came to the U.S. for economic opportunities. Some others, such as those who were brought to this country as children, simply have to work, legally or illegally, to survive. Fortunately, Congress makes certain exceptions to this prohibition. First of all, applicants who are parents, spouses or children of U.S. citizens are not subject to this rule. These applicants are considered "immediate relatives" of U.S. citizens and an exception is made to foster family reunion. Secondly, for applicants who base their green card application on an employment visa, as long as they come to the U.S. lawfully and the total number of days of their immigration violations (including unauthorized employment and other status violations) is no more than 180 days, they are still eligible to adjust status.

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Immediate Relatives and 180-Day Exception
What about those applicants who are not immediate relatives of U.S. citizen and who have more than 180 days of status violations or unauthorized employment? Generally, they are not eligible to apply for adjustment of status unless they meet the requirements under section 245(i) of the Immigration Act, which makes an exception to allow foreign nationals with immigration violations to apply for adjustment of status.  For instance, a person entered the U.S. on a tourist visa, overstayed her period of admission, and also worked without authorization.  Several years later, she applies to adjust her status to become a legal resident based on an approved family-sponsored visa petition (I-130) filed by her U.S. citizen brother.  In this situation, she would not be eligible to apply for a green card unless she is also eligible for section 245(i) relief. The requirements for section 245(i) were discussed in previous articles. Suffice to say that one must have filed a non-frivilous immigrant visa petition on or before April 30, 2001, to be eligible for section 245(i) relief.

245(i) and Unauthorized Employment
In spite of the exceptions provided by section 245(i) of the Immigration Act, some adjustment applications are still being denied because of the applicant's unauthorized employment. One such employment-based adjustment case was denied by an immigrant judge because the applicant had engaged in more than 180 days of unauthorized employment. However, on appeal, the Board of Immigration Appeals (BIA) reversed the judge's decision and held that Section 245(i) does allow the applicant to apply for adjustment of status.

In Matter of ALANIA-Martin, decided on April 30, 2010, the BIA examined the language of the statute and also the legislative history and intent. The Board also reviewed the regulations promulgated for section 245(i) by the government. The conclusion is that section 245(i) does allow applicants who had engaged unauthorized employment to apply for adjustment of status if they are otherwise eligible.

Conclusion
Although these exceptions of law permit a foreign national who have engaged in unauthorized employment to apply for adjustment of status, it does not mean that their green card applications will always be approved. Adjustment of status is a discretionary application and the U.S. government may still deny an adjustment application if there exists serious immigration violations and other negative aspects in the case. One must proceed carefully and file substantial supporting evidence to support an adjustment application.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)