May a foreign registered nurse (RN) or physical therapist (PT) file for a green card while in the US if she has fallen out of status?


This common situation among foreign RNs and PTs arises from a variety of reasons. For instance, the tourist visa of the RN may have expired while waiting for the CGFNS Certificate or NCLEX exam results, or perhaps the H-1b visa of the RN or PT expired or the employment of such foreign worker has been terminated.


Adjustment of status by foreign RNs and PTs may be available for those who have fallen out of status. Generally, a foreign national is not eligible to apply for a green card if she has fallen out-of-status. There are exceptions to this rule though.


The most common recourse for out-of-status foreign workers is Section 245 (i) of the Immigration and Nationality Act (INA). Since this program actually ended on or before April 30, 2001, a growing number of out-of-status aliens would find it harder to meet the eligibility criteria of this provision.


Briefly, the alien must have been the beneficiary of an immigrant visa petition or labor certification application filed on or before April 30, 2001, in order to qualify for Section 245 (1). In addition, the applicant must have been physically present in the US on December 21, 2000, if the petition or application was filed after January 14, 1998.


Another remedy for out-of-status foreign workers is Section 245 (k). this provision has another set of requirements for eligibility.


Foreign RNs and PTs who have fallen out of status may apply for their green card if they meet the following eligibility requirements of Section 245 (k): first, they must have entered the US lawfully; second, they must be present in the US at the time the adjustment of status application is filed; third, they must not have violated the conditions of their stay or engaged in unauthorized employment for an aggregate period not exceeding 180 days as of the date of filing the adjustment of status application.


The adjustment of the status application is not affected by status violations occurring after it has been filed because the above requirements for eligibility are reckoned from the date of filing. Neither will the application be affected by status violations which occurred before the alien re­ entered the US and applied for adjustment of status under section 245 (k). In other words, the requirements for eligibility refer to the last admission to the US that the alien is currently in.


Moreover, the foreign RN or PT may still qualify under this provision even if she worked without permission or violated her status, as long as such unauthorized employment or violation did not exceed 180 days.


The aggregate 180-day period must be counted from the last day of the alien’s lawful stay in the US. The expiration date of the alien’s lawful stay is stamped on the 1-94 departure record and depends upon the type of visa under which the alien enters the US.


A foreign RN or PT who meets the requirements of section 245 (k) can certainly apply for a green card, despite having fallen out of status while in the US.