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Listserv Q&A for
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Question:

Regarding 245(k) which I understand to cover situations where someone has worked without permission and allows them to adjust if they are otherwise eligible, even if they've worked a certain period without authority. Does it also apply to all people who are adjusting after entering on parole?

Answer by Silvia Boecker:

245(k) allows an employment based immigrant who has been admitted to the USA to file the I-485 even though he/she may have overstayed the visa by fewer than 180 days or worked without permission for fewer than 180 days after the period of stay expired. Only employment based aliens who have been admitted (not paroled) into the U.S.A. can use 245(k). As soon as the I-485 is filed, the alien is considered to be in a status. However, if the alien works after the I-485 is filed and before receiving the EAD, this employment is not forgiven by 245(k) and the I-485 may be denied. So if the nurse is filing the I-485 and taking advantage of 245(k), have her stop work from the time the I-485 is filed to the time she receives her EAD card. 245(k) only forgives work or overstay before the I-485 is filed. Nothing forgives unauthorized employment after the I-485 is filed. I do not allow my nurses to leave on a parole visa because if the I-140/I-485 is denied for any reason they will not be able to apply again under 245(k). So suggest that the nurse remain in the USA until she receives her green card.

Answer by Frank Novak:

An alien may file for adjustment under 245(k) only if on the date of filing the aplication the alien is present in the U.S. pursuant to a lawful admission. Presence in the U.S. pursuant to parole is not a lawful admission and such a person would therefore not be eligible for 245(k) benefits.


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