Certain Out of Status Aliens May Apply for Adjustment

By Reuben Seguritan

The Trump administration has been implementing the immigration laws and rules strictly. Hence, if a person is unlawfully in the United States, he may be deported, unless there is a legal ground for him to remain in the US. Furthermore, if a person is unlawfully in the United States, he generally cannot apply for adjustment of status.

Before he is deported, the person unlawfully in the United States does have the option of leaving the United States and returning to his home country. However, he will be banned from entering the United States again for 3 years or 10 years depending on how long he unlawfully stayed in the US. If he unlawfully stayed in the US for less than 180 days, then he is barred from reentering for 3 years. If he unlawfully stayed in the US for 6 months or more, then he is barred from reentering the US for 10 years.

One of the legal grounds that the person unlawfully in the US can remain in the country and apply for adjustment of status is provided in Section 245 (i) of the Immigration and Nationality Act (INA). This section provides that aliens who are beneficiaries of an immigration visa petition or labor certification filed on or before April 30, 2001 can remain in the US. This ground further requires that the alien must have been physically present in the US on December 21, 2000, if the petition or application was filed after January 14, 1998.

Another legal ground that an alien can use to file for adjustment of status is found in Section 245 (k) of the INA. This section states that the alien’s violation of status must have been due to his failure to continuously maintain a lawful status or he engaged in unauthorized employment or otherwise violated the laws and conditions of his admission. This section is not applicable to those who entered the US without inspection or who entered as crewmen.

Only certain employment-based categories are covered under Section 245 (k). These are 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 under this section and file for adjustment of status. However, these aliens must not have been unlawfully in the US for an aggregate period of more than 180 days since their lawful admission in the US. If they did then they may not file for adjustment of status.

If the alien has committed more than one violation, these violations are treated in the aggregate. An example is an alien who was lawfully admitted in the US as a tourist but he stayed beyond his authorized stay and he also worked without authorization in the US. 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 alien’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.