Exemptions to inadmissibility bars for employment-based adjustment applicants

FOREIGN professionals wishing to immigrate to the US (as permanent residents) may do so under 3 general classifications:

• 1st Preference (EB1) – extraordinary ability foreign professionals; outstanding researchers and professors; and multinational executives and managers known as “priority workers”

• 2nd Preference (EB2) – foreign professionals with advanced degrees and professionals of exceptional ability in the sciences, business or arts

• 3rd Preference (EB3) – foreign professionals (those with BS or BA degrees) and skilled workers (including nurses)

Eligibility for adjustment is normally based on maintaining lawful status. Thus, generally, a foreign professional whose stay has expired is NOT ELIGIBLE to adjust. Most foreign professionals immigrate under the EB-3 category, and if they are already in the US, they need to maintain lawful status while waiting for their priority date. There are non-immigrant visas available that allow a foreign professional not only to remain in the US, but also to work; while waiting for his priority date that allows him to file for adjustment/green card application.

Bars to Adjustment of Status.  The three most common inadmissibility bars to adjustment of status under the immigration laws are: (i) failing to maintain, continuously, a lawful status; (ii) engaging in unauthorized employment; (iii) otherwise violating the terms and conditions of his or her admission.

Exemptions for certain employment-based adjustment applicants.   Under Section 245(k) of the Immigration and Nationality Act, the three inadmissibility bars stated above can be rendered inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: (i) failed to maintain, continuously, a lawful status; (ii) engaged in unauthorized employment; or (iii) otherwise violated the terms and conditions of his or her admission.

Who is eligible? The following classes of employment-based adjustment of status applicants under Section 245(a) are eligible for relief under 245(k): An alien who is present in the United States pursuant to a lawful admission and whose adjustment of status application is based on an approved immigrant petition for them as the beneficiary in one of the following classifications as listed above. Additionally, the exemption is also applicable to those in the EB-4 category for religious workers as described in the Immigration and Nationality Act.

Derivative spouse and child(ren) are also eligible. The exemption under Section 245(k) is also applicable to an eligible derivative of an alien (as described in the paragraph above) if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.

It is important to be informed and know your options.  “Lawful admission,” “maintaining lawful status,” “unauthorized employment,” and “violation of terms and conditions of admission” are all technical terms within the immigration laws. An experienced immigration firm or attorney will be able to help you understand what immigration terms mean specific to the regulations. Potential employment-based adjustment of status applicants and their derivative spouses and children should consult with an experienced and competent immigration attorney, and more importantly prior to filing any applications with the USCIS, in order to explore what steps might be taken for your particular case, and the options available to you under the evolving immigration laws.  Applicants should also be wary of online tools that offer immigration help or notarios who are not licensed to practice law.

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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.