Basta Pinoy News
  Listen to Radio
  Watch video clips
  Daily Horoscope

Filipino Channel
Filipino newspaper edition Washington DC Maryland Viriginia
Basta Pinoy News
Filipino entertainment news
Basta Pinoy Entertainment Digest
Filam Community News and Videos
Filamvision TV
Filam Community News
Filam News Digest
Politics, Empowerment, Advocacy
Immigration Q and A
Immigration Q and A
Advertising in South Florida Profiles in Health
Ê Print this Page email article Email Article  Share Story

US Immigration

Posted 9/07/2008

Certain Out of Status Aliens May Apply for Adjustment

Aliens who are unlawfully present in the U.S. generally cannot apply for adjustment of status. They have to leave and apply for an immigrant visa at a U.S. consulate abroad. This could trigger the three-year or ten-year bars of inadmissibility.

One exception is provided by Section 245 (i) of the Immigration and Nationality Act. To be covered under this exception, an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001.
In addition, he/she must have been physically present in the U.S. on December 21, 2000, if the petition or application was filed after January 14, 1998.
There is another exception that applies to certain employment-based applicants. This is authorized by Section 245 (k) of the Immigration and Nationality Act.

A new memo from Donald Neufeld, Acting United States Citizenship and Immigration Services (USCIS) Associate Director, clarified the applicability of Section 245 (k).

To be eligible, the adjustment applicant’s violation of status must have been due to his/her failure to maintain, continuously, a lawful status or engaging in unauthorized employment or otherwise violating the laws and conditions of his/her admission.

Applicants who are ineligible to adjust under any other basis, such as entering without inspection or as crewmen, are not covered.

Only certain employment-based categories benefit from this law. These are the EB-1 aliens (those of extraordinary ability, outstanding professors and researchers, and multinational managers and executives); EB-2 (advanced degree professionals and aliens of exceptional ability); EB-3 (skilled workers, professionals and other workers) and EB-4 religious workers. Their derivative spouse and children also benefit.

The violation must not last for an aggregate period of more than 180 days since their lawful admission.

If the alien committed more than one violations, these violations are treated in the aggregate. An example is a tourist who worked without authorization, violated his/her lawful status and failed to maintain continuously a lawful status. Each day in which one or more of these violations occurred must be counted as one day.

All periods of unauthorized employment since the date of the applicant’s last lawful admission, including any periods after the filing of adjustment application are counted. The filing of an adjustment of status application will not stop the counting period. It will stop only when the employment authorization document (EAD) is approved.
But in the case of failure to maintain lawful status and/or violation of a nonimmigrant visa, the counting stops when the USCIS receives a properly filed adjustment of status application.

has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at or call (212) 695-5281
Terms of Use. Privacy Policy. Disclaimer.

Domain hosting as low as 9.99
Popular Topics
‘Short Sale’ of Real Estate Can Help Homeowners Lenders, Avoid Costly Foreclosure Proceedings
Making Money in Real Estate: Mistakes to Avoid
Are You a Landlord or Want to Become One? If So, Screen Your Tenants!
Business News Feed