Never Say "i" (Unless You Must): Employment-Based Options for Adjustment of Status that Avoid INA § 245(i) (Finale)
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.
THE KILLER (c)'s: §§ 245(c)(2), 245(c)(7), AND 245(c)(8)
In general, the INS has narrowly construed § 245(c)(2) in a manner that ensnares more aliens and limits the availability of the forgiveness provisions (no-fault-of-alien or for technical reasons). For example, purely as a matter of textual analysis, the INS could have found that the language prohibiting adjustment of status for aliens who failed to maintain continuously a lawful status since entry applies only to one who fails to maintain continuously lawful status since his or her last entry. This interpretation of the subsection would be reasonable. Instead, the INS-in an informal letter to an immigration attorney-has interpreted the language to include a failure to maintain continuously a lawful status at any time after any prior entry.12
In addition, the INS has also promulgated regulations that narrowly construe the exception to the bar for failure to maintain continuously a lawful status. INS regulations provide that the parenthetical phrase, "other than through no fault of his own or for technical reasons," is limited to the following:
(1) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization as, for example, a case where a designated school official or exchange program sponsor fails to provide required notification to the Service of continuation of status, or fails to forward a request for continuation of status to the Service.Although the INS maintains that the four regulatory exceptions to the grounds of ineligibility for adjustment of status found in INA § 245(c)(2) are all-inclusive as written, Mart v. Beebe14 provides an argument that additional exceptions should be permitted. In Mart v. Beebe, the B-2 visa status of plaintiff Veronica Mart15 expired while her husband's application for asylum was pending with the INS. The District Court found that she never applied for an extension of status because she was unaware of the need to do so. Her husband's asylum application was eventually denied. Subsequently, Ms. Mart and her family received word from the Department of State that they had been selected to apply for a visa under the diversity immigrant visa program. She submitted an application to adjust status, but the INS denied her application under § 245(c)(2) because she had failed to maintain continuously a lawful status after the expiration of her B-2 status. The court found that 8 CFR § 245(d)(2) limited excusable unlawful status to four narrowly defined circumstances, none of which applied to Ms. Mart's case. The court agreed with the plaintiffs, however, that the cited regulation impermissibly limits the applicability of the words, "or for technical reasons," found in INA § 245(c)(2).
The court also agreed with the plaintiffs' assertion that the regulation defied Congress' intent that individuals such as the plaintiffs, who have tried diligently to obey the law and have since their arrival contributed substantially to the U.S. (through their work and community involvement) ought not be precluded from adjustment because they were unaware of their duty to keep their nonimmigrant status current while awaiting the INS's decision on their request for asylum.
The INS may not acquiesce in the Mart decision, but the case should nevertheless be cited by adjustment applicants as persuasive authority for the proposition that the INS's regulatory exceptions to the § 245(c)(2) adjustment bars are too narrowly drafted. Indeed, there are sound reasons to challenge these regulations. INA § 245(c)(2) clearly states that its provisions barring adjustment of status for those who have failed to maintain continuously a lawful status since entry into the U.S. should not apply in two alternative situations. Thus, even if the alien is at "fault," the other saving grace (for "technical reasons") could conceivably apply.
Yet the INS regulations do not permit an exception for all technical reasons or for all status violations caused solely by entities or individuals other than the alien (i.e., where the alien is above reproach). For example, a nonimmigrant worker should not be ineligible for adjustment of status solely because a petitioning employer incorrectly completed or filed a Form I-129 petition for an extension of stay in H or L or some other nonimmigrant work visa status, even though there is no exception to this violation under 8 CFR § 245.1(d)(2).16 The employer is required under penalty of perjury to state information correctly on this form.17 The nonimmigrant is not responsible for filling out the form or filing it.18 Therefore, in a given case, the employer may be solely at fault for a rejected petition or a denial based on incorrectly stated information or a faulty filing. If, because of this type of error, the nonimmigrant is found to have remained in the U.S. beyond the period of authorized stay, this overstay occurred through no fault of the alien. It also may have occurred because of a technical violation (such as the failure of an employer to sign a check to cover a filing fee). Therefore, the adjustment applicant can argue that these circumstances constitute an exception that excuses the status violation because it was caused through no fault of the alien or for technical reasons.
Adjustment applicants may also challenge 8 CFR § 245.1(d)(2)(i) as an impermissible limitation on the statutory phrase, "through no fault of his own," found in § 245(c)(2). This regulation excuses past unlawful status if it was caused by the inaction of another individual or organization designated by regulation to act on behalf of the alien, but only "if the inaction is acknowledged by that individual or organization." If the adjustment applicant can show that his or her failure to maintain continuously a lawful status was caused by the inaction of such an individual or organization, and not because of any action or inaction on the applicant's part, it should not be necessary to obtain an acknowledgement of fault from the responsible party.19 Indeed, in the right factual situation, the applicant could conceivably show, by submitting other evidence, that the status violation was caused through no fault of the alien.20 This showing satisfies the exception to ineligibility under the plain meaning of the statute.21
While a violation of the terms of a nonimmigrant visa is normally a bar to adjustment of status, the INS has acknowledged exceptions to this bar in the following cases:
The INS, however, would likely not agree that the nonimmigrant worker is authorized to remain in the U.S. during this period. In a non-binding advisory letter, an INS official has stated that the agency would find a status violation in this circumstance. This advisory letter adds that as soon as the nonimmigrant's services for the H-1B employer have been terminated, the individual is no longer in valid nonimmigrant status.30 Thus, according to this advisory letter, if a nonimmigrant worker remains in the U.S for one day after his or her termination, the INS could find that the nonimmigrant worker violated the terms of a nonimmigrant visa and is no longer in valid nonimmigrant status.31
The INS has hinted that it will use its discretion32 somewhat generously in deciding whether to forgive a status violation that occurs when a nonimmigrant worker remains in the U.S. for a short period of time after a sudden termination.33 There is no official grace period, however, in these circumstances. The INS reportedly has been known to grant a change of employer/extension of status petition when the nonimmigrant is able to file a new petition within a short time after the termination,34 and the agency has acknowledged its authority to do so when adjudicating untimely filed requests for change or extension of status that invoke H-1B portability.35
Aside from a positive exercise of discretion by the INS, possible solutions to the hypothetical situation exist. Under INA § 245(k), described below, a trip outside the U.S. after the status violation, with a subsequent lawful admission, could eliminate the negative consequences of the status violation.36 If departing and re-entering the U.S. is not a practical solution, the adjustment applicant should carefully consider the statutory exceptions that would forgive the status violation and allow adjustment of status. As discussed above, the individual may be eligible for adjustment of status based on an assertion that the violation occurred through no fault of his or her own or for technical reasons. The circumstances of this situation do not appear to meet the four narrow circumstances in 8 CFR § 245.1(d)(2). If, however, the alien was genuinely unaware of the obligation to take affirmative steps to maintain his or her nonimmigrant visa status upon termination, perhaps the argument can be made that lapse of lawful status was excusable as a mere technicality under the reasoning in Mart. Another possible argument is that the alien has not committed a status violation because the overstay was not caused by his or her own conduct.37
While § 245(k) is not nearly a complete remedy for immigration provisions barring adjustment found in § 245(c), it is a powerful remedy for many employment-based applicants facing bars to adjustment. Specifically, § 245(k) allows aliens eligible to receive an employment-based visa to adjust status notwithstanding past violations under §§ 245(c)(2), (c)(7), and (c)(8). Thus, if applicable, § 245(k) permits applicants to become permanent residents even if they have accepted unauthorized employment, failed to maintain continuously a lawful status, failed to be in lawful nonimmigrant status when applying for permanent residence, or violated the terms of a nonimmigrant visa.
To be eligible to benefit from § 245(k), an adjustment applicant must meet the following conditions:
(1) The applicant must, on the date of filing an application for adjustment of status, be present in the United States pursuant to a lawful admission; andThe language of § 245(k) appears to render unauthorized employment, status violations, and violations of the terms of a nonimmigrant visa taking place after an adjustment application is filed irrelevant for purposes of adjustment of status eligibility.
Section 245(k) specifically provides that an employment-based applicant for adjustment of status "may adjust status notwithstanding subsection (c)(2), (c)(7), and (c)(8)," if the "alien, on the date of filing an application for adjustment of status," meets the elements of § 245(k). Thus, if an employment-based applicant for adjustment of status meets the elements of § 245(k) at the time his or her adjustment of status application is filed, continued violations of INA § 245(c)(2), (7), and/or (c)(8) will not render the applicant ineligible for adjustment. The INS General Counsel has stated the following position with regard to this issue:
For purposes of section 245(k), an alien may adjust under section 245(a) as long as the alien, as of the date of filing, has not violated status, has not engaged in unlawful employment, and has not had any violations of the terms and conditions of nonimmigrant admission, for a period in excess of 180 days in the aggregate subsequent to the alien's last admission under which she is presently in the United States."39 [italics added]Two recent developments will undoubtedly make the availability of INA § 245(k) especially important. The first is the recent proliferation of termination notices for H-1B and other nonimmigrant workers.40 When nonimmigrant workers are suddenly, without warning, terminated, they immediately face a crisis situation: they must choose to leave the U.S. immediately or speedily find another petitioning employer. Nonimmigrant workers choosing to remain in the U.S. to find a new employer subject themselves to a possible INS determination that they have failed to maintain continuously a lawful status because, as discussed above, INS does not recognize an official grace period in these situations to find new employment.
The second development is the enactment of portability provisions for H-1B workers. New provisions that allow H-1B workers to change employers before INS adjudicates a change of employer petition may-depending on the facts-increase the risk that a nonimmigrant worker will be found by INS to have violated immigration laws.41 Under the American Competitiveness in the 21st Century Act (AC21) § 105, an H-1B nonimmigrant may now begin working for a new H-1B employer immediately after the new employer files an H-1B petition on the nonimmigrant's behalf if the following conditions are met:
1. The nonimmigrant has been lawfully admitted into the U.S.;If the new H-1B petition is denied, employment authorization "shall cease."42
This new "portability" provision provides nonimmigrant H-1B workers with flexibility to change employers while working in H-1B status. Many questions remain unanswered with regard to this new law, however. For example, what happens if the INS finds that the new employer has filed a petition that is frivolous based on the employer's mishandling of the case?43
At this time, there are no regulations on AC 21 portability provisions.44 Nor is there a regulation that allows a laid-off nonimmigrant worker a reasonable grace period in which to find a new job. Therefore, there is considerable uncertainty for nonimmigrants who are terminated abruptly or who take advantage of H-1B portability provisions.45
If a problem arises in one of these areas, the adjustment applicant may be able to cure an immigration law violation by filing a § 245(i) application; however, when applicable, the applicant should try to rely on § 245(k) instead of § 245(i). Unlike the case with INA § 245(i), an alien may benefit from the ameliorative effects of § 245(k) without filing a separate application or paying a supplemental fee. Moreover, an applicant for adjustment of status will avoid certifying on an official document that he or she violated a U.S. immigration law, if the violation is cured under INA § 245(k).
As has been shown, some adjustment applicants may be motivated by a fondness for preserving greenbacks, others by a reluctance to admit misdeeds in a government document with a long shelf-life. Whatever the reason, the lemming-like (and rather ungrammatical) rush to say "(i)" may be entirely unnecessary and downright harmful to the adjustment applicant's life, liberty and ongoing pursuit of happiness. Instead, a stroll down to the apothecary on "(k)" street may produce a more salubrious elixir, forgiveness without pain, and permanent residence without breaking the bank.
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 (email@example.com) 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 (firstname.lastname@example.org) 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.