Never Say "i" (Unless You Must): Employment-Based Options for Adjustment of Status that Avoid INA § 245(i)
At times, a medicine produces too much misery, even if it promises a cure. Such is often the case with INA § 245(i). If applicable, this provision of law will forgive past immigration violations and thus allow an otherwise ineligible noncitizen to adjust status and become a lawful permanent resident. But § 245(i) should not be recommended as readily as a dentist might recommend a root canal. Reliance on this provision should ordinarily take place only as a last resort. An acknowledgement of wrongdoing on an immigration form, in this case the Form I-485, Supplement A (§ 245(i) application), never dies, and can certainly come back to haunt the confessing alien or his current or former employers.1
Aside from an alien's disinclination to reveal past misdeeds, there is also a very mundane reason to avoid § 245(i): It's pricey! In these penurious times, with the INS clamoring for ever-higher user fees, why would an adjustment applicant spend an additional $1,000 to pay the § 245(i) penalty fee unless it is absolutely necessary?2 So this article will address the question that foreign workers3 want to know: "Must I say 'i'?"4
The authors will answer the alien's question with a typical lawyerly response: "It depends." This article covers ways in which aliens may adjust status-yet avoid filing an application under § 245(i)-by utilizing specific exceptions in the law to overcome bars to adjustment. It will focus on common issues involving bars to adjustment of status based on an alien's unauthorized work or failure to maintain nonimmigrant status.5
Recent legislation has established both new bars to adjustment of status for many employment-based applicants and a new exception to these bars. On the one hand, with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress added additional bars to eligibility for adjustment of status by establishing INA §§ 245(c)(7) and (c)(8).6 These laws render an employment-based applicant ineligible to adjust status to permanent resident if the individual: (a) is not in lawful nonimmigrant status at the time the adjustment application is submitted; (b) ever accepted unauthorized employment; or (c) violated the terms of any nonimmigrant visa. On the other hand, Congress established a means for many employment-based applicants to qualify for adjustment of status despite prior violations of U.S. immigration laws with the addition of § 245(k) in 1997.7 These changes in the law increase the due diligence required of the alien, the immigration practitioner, and the sponsoring employer in assessing the factual and legal issues involved with employment-based applications to adjust status. As will be shown, INA §§ 245(c)(2), (c)(7), (c)(8), and (k) are especially important provisions to consider when evaluating the eligibility of employment-based applicants for adjustment of status.
Copyright © 2001 Paparelli & Partners LLP. Published with permission. An earlier version of this article appeared in the American Immigration Lawyers Association's (AILA)'s California Chapters Conference Handbook (2001), and in the November 12, 2001, issue of Interpreter Releases.
1For example, a fretful alien may spend some sleepless nights after certifying on a § 245(i) application that he or she violated U.S. immigration laws by acknowledging one of the following: that he or she did not enter the U.S. legally after having been inspected and admitted or paroled (question #3); that he or she entered the U.S. as a stowaway or without inspection (question #4); that he or she has been employed in the U.S. after 01/10/77 without INS authorization (question #8); that he or she is applying for adjustment of status under the Immigration Nursing Relief Act and either was employed without INS authorization after 11/29/90 or has not maintained a lawful immigration status while in the U.S. after 11/05/86 (question #9); or that he or she was not in lawful immigration status at the time of submission of the application or has not always maintained a lawful immigration status while in the U.S. after 11/05/86 (question #10).
About The Author
Angelo A. Paparelli (firstname.lastname@example.org) is the managing partner of Paparelli & Partners LLP (http://www.entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, he has been practicing business-sponsored immigration law for over 20 years. Mr. Paparelli is a nationally recognized expert on business immigration issues. He is named in the 1990-2001 editions of Best Lawyers in America under "Immigration Law."
John C. Valdez (email@example.com) is an associate at Paparelli & Partners LLP. Mr. Valdez is admitted to practice law in California and has been practicing immigration law since 1996. His areas of focus include nonimmigrant employment visas and employment-based adjustment of status. He graduated from UCLA School of Law in 1995.