August 4, 2008 - In an internal memorandum issued on July 14, 2008 but just released last week, USCIS clarified its procedures for adjudicating certain adjustment applications filed pursuant to section 245(k) of the Immigration and Nationality Act ("the Act").

Section 245(k) allows an individual applying for a green card in the first, second, third, or fourth employment-based categories to adjust to legal permanent resident status despite having failed to maintain his/her lawful status, having violated the terms of such status, or having worked without authorization so long as any of these three violations occurred for an aggregate of 180 days or less since the applicant's last lawful admission into the U.S. Highlights from the USCIS memo are summarized below.

Applicants Covered by Section 245(k)

The memo indicates that section 245(k) is applicable to those individuals applying for green cards as multinational managers or executives, outstanding researchers or professors, individuals of extraordinary ability, members of professions holding advanced degrees, individuals of exceptional ability, skilled workers and other professionals, other workers, and religious workers. Section 245(k) extends not only to the principal applicant, but also spouses and children applying for green card status based on the principal's I-140 or I-360 petition. The category does not include other employment-based categories or other types of green card applications.

Calculating When the 245(k) Clock Starts and Stops and How to Count Days Where Multiple Violations Occur

According to the memo, the adjudicator may only calculate time that the applicant has been out of status, worked without authorization, or violated his/her status since the applicant's last lawful admission into the United States. Any violations that occurred prior to the applicant's last admission are not included in the calculation. An applicant who travels on advanced parole, however, cannot restart the 180 day clock by re-entering using the parole document. If an applicant has more than one violation on a given day (i.e., out of status and worked without authorization), the day is only counted once in the total calculation.

For purposes of counting days in which an individual is out of status, the clock will stop on the day that the adjustment application is received by USCIS. For purposes of counting unauthorized employment, USCIS maintains that it will continue counting these days until one of the following three events occur: (1) the application is denied or approved, (2) the applicant stops working, or (3) the applicant receives valid work authorization. This difference is significant as someone may be eligible to file an adjustment application (as they have less than 180 days of unauthorized employment) but may render themselves ineligible for approval of their adjustment application if they continue working without authorization after filing and cross the 180 day mark.

Additional Guidance in Calculating Days of Unauthorized Employment

The memo provides that unauthorized employment includes each day that an individual works without authorization, regardless of the number of hours worked or amount of pay given. Therefore, even where an individual works a part-time schedule, the entire day will be counted in calculating whether the applicant has worked more than 180 days without authorization. Notably, USCIS indicates that it is the continuing employer-employee relationship that is controlling and, therefore, weekends, vacation days, and other non-working days are included in the total tally.

Additional Guidance in Calculating Days During Which an Applicant is Out of Status

The memo provides that the number of days an individual will be considered out of status for purposes of 245(k) will stop when the application for adjustment of status is filed with USCIS. If, however, the adjustment application is subsequently denied and a second application is filed, the calculation will include the total number of days the applicant has been out of status, including the period when the first application was pending with USCIS.

For individuals with F and J status, USCIS will begin counting the days he/she is out of status on the first day that the individual violates his/her status. For example, if USCIS finds that an F-1 student was working without authorization, USCIS would begin counting the applicant's out-of-status days from the date that such employment began.