Section 245k Adjustment of Status Explained (2024)

For immigrants located in the United States, adjustment of status can be a useful process to help obtain local permanent resident status without having to leave the country. A relevant provision that can aid people interested in going through an adjustment of status is Section 245(k) of the Immigration and Nationality Act. Relevant individuals should have Section 245k adjustment of status explained to them to understand whether they can benefit from such provisions.

Section 245(k) of the Immigration and Nationality Act (INA)

Section 245(k) was introduced as a part of the Immigration and Nationality Act, which helps certain individuals who would otherwise be banned to adjust their status due to minor immigration violations overcome these challenges. This provision empowers certain people seeking to adjust their status on the premise that they only committed minor violations and that it was for a short period of time.

Individuals who commit immigration violations are usually considered inadmissible for adjusting their status under Section 245(a). Immigration violations can include working without proper authorization, overstaying a visa, or violating the terms and conditions of their existing visa. Section 245(k) allows people applying for certain green card categories to adjust their status even if they carried out these minor immigration violations.

What Makes a Person Eligible for Exemptions Under Section 245(k)?

Section 245(k) is relevant to people who meet the eligibility requirements for an employment-based green card, such as employment-based green card applicants and their immediate family members. Individuals adjusting their status using an employment petition, such as those applying for an EB-1, EB-2, or EB-3 green card can enjoy the full benefits of this provision. Eligible family members include their children under 21 and spouses.

Green card applicants who are not applying under the employment-based category do not have access to benefits provided under section 245(k). Therefore, they will need to ensure they meet the strict requirements for adjustment of status or explore other legal exemptions based on the details of their case.

Immigration Violations Forgiven Under Section 245(k)

Section 245(k) of the Immigration and Nationality Act allows certain individuals who would otherwise be considered inadmissible for an adjustment of status to continue forward with the process. While minor immigration violations can be forgiven under certain circumstances, more severe violations, such as unlawful entry into the United States are not waived under Section 245 (k).

The following minor immigration violations can be forgiven under Section 245(k):

• Failure to maintain lawful status in the United States.
• Working without proper authorization in the country.
• Violations of terms and conditions of a non-immigrant visa.

The aforementioned minor immigration violations can only be forgiven if they were committed for no longer than a cumulative number of 180 days from the date of the applicant’s most recent lawful entry into the country. It’s important to note that violations carried out before the most recent lawful entry to the country cannot be forgiven under Section 245(k).

How Section 245(k) Looks in Practice

When individuals apply for an Adjustment of Status, a USCIS officer will review their application to determine whether they are admissible. Usually, if USCIS finds violations of immigration terms and conditions, such as the overstaying of a visa, they would reject the application due to inadmissibility.

However, if they find that the immigration violations can be forgiven under the conditions of Section 245(k), they will proceed to adjust the status, helping applicants achieve lawful permanent residency. An experienced immigration lawyer can help you navigate the process of applying for your adjustment of status, working to ensure that relevant provisions are applied to your case so you can be granted the status you are entitled to.

FAQs

What Is Section 245(k) of the Immigration and Nationality Act?

Section 245(k) is a part of the Immigration and Nationality Act, or INA, that provides specific individuals with eligibility to apply for an employment-based green card. This allows individuals to become lawful permanent residents despite any minor immigration violations they may have committed. There is a limited time – up to 180 days, however, that this section may apply to.

This means that if an individual overstays their visa, for example, for more than 180 days, this section cannot be applied to their application.

Am I Eligible for Section 245(k)?

To understand whether you are eligible for Section 245(k) of the Immigration and Nationality Act, it is highly recommended to work with an experienced immigration lawyer. Section 245(k) is applicable for certain employment-based green card applicants and their immediate family members – spouses and children under the age of 21 – who have committed certain immigration violations within a short period of time.

What Immigration Violations Does Section 245(k) Forgive?

The immigration violations that Section 245(k) forgives include minor immigration violations like working without authorization and overstaying a visa. Any violation of the terms and conditions of a non-immigrant visa can also be considered forgiven under Section 245(k). However, these immigration violations may not have occurred for a period of more than 180 days since the applicant last entered the United States lawfully.

How Does the 180-Day Rule Work in Section 245(k)?

Under the 180-day rule laid out by Section 245(k) of the Immigration and Nationality Act, individuals who have committed minor immigration violations for up to 180 cumulative days after the date they lawfully entered the U.S. can still be eligible to apply for an employment-based green card.

There is no exception to the 180-day rule, meaning that immigration violations exceeding more than 180 cumulative days are not eligible for Section 245(k) protection.

Explore Your Employment-Based Immigration Options With a Skilled Attorney

If you are located in the U.S. and are unsure about the legal pathways you can take to meet your immigration goals, an immigration lawyer from U.S. Law Center is here to support you. During an initial consultation, we can work to understand your case details, such as your immigration history, and consider your professional and immigration goals to help you understand whether options such as Section 245(k) protection may apply to you. Contact us today.