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Never Say "i" (Unless You Must): Employment-Based Options for Adjustment of Status that Avoid INA 245(i)
by Angelo A. Paparelli and John C. Valdez


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).
2In addition to the $1,000 penalty fee, there are other substantial fees associated with the filing of an adjustment of status application. The application for adjustment of status, Form I-485, fee is $220. The fee for the employment authorization document, Form I-765, is $100. The fee for an application for advance parole, Form I-131, is $95. In addition to these fees, there are fees for family members. Moreover, the INS has proposed increases to fees. See 66 Fed. Reg. 41456-62 (Aug. 8, 2001), reported on and reproduced in 78 Interpreter Releases 1303 (Aug. 13, 2001).
3This discussion will focus on employment-based adjustment of status options as alternatives to 245(i). It will not address the wisdom or folly of pursuing 245(i) in other areas of immigration law. For a discussion of this provision and its applicability as a means to adjust the status of asylees, parolees, aliens with qualifying family relationships, and persons who entered the U.S. without inspection, see, e.g., Burgess, "Unlawful Presence and Bars to Admissibility," 1998-99 Immigration & Nationality Law Handbook, vol. II (AILA 1998); Mailman, "The New Adjustment of Status Law, Background and Analysis," 71 Interpreter Releases 1505 (Nov. 14, 1994).
4The authors struggled mightily to find a title that would capture the essential theme of this article, namely, the reluctance of aliens and their employers to admit immigration-related fault or wrongdoing despite an earnest desire to adjust the alien's status to lawful permanent residence. We considered and rejected "Never Having to Say i'[m] Sorry: No Love Lost on INA 245(i)." But cloying memories of the saccharine sweethearts in Erich Segal's Love Story gagged us more than the unpalatability of 245(i). So instead the phrase "never say 'i'" was chosen, but not as a rhyming variation of the stoic American sports motto, "never say die." No, "never say 'i'" made it to the top of the page because it harkens back to an admonition often taught in grammar school: When writing prose, one should avoid using "I," the first person singular. Although challenged today, the reasons for this supposed rule vary, but in general, the argument is that the work should not be about the author, but about the subject matter. For more on this topic, see "Selected Writing Tips" on the Internet at writing.htm.
5The article will not discuss the concept of "unlawful presence" under INA 212(a)(9). For a discussion of the topic, see Burkemper, "Unlawful Presents: Congress' Gifts to Unwary Foreign Workers," AILA California Chapters Conference Handbook (1999).
6Pub. L. 104-208, 110 Stat. 3009, 375.
7Pub. L. No. 105-119, 111 Stat. 2458, 111. See 74 Interpreter Releases 1841 (Dec. 8, 1997); 75 Interpreter Releases 471 (Apr. 6, 1998).

About The Author

Angelo A. Paparelli ( is the managing partner of Paparelli & Partners LLP (, 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 ( 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.

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