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USCIS memo on INA 245(k) for EB AOS

Updated: Author: Alina Kanametova

Guide Guides 7 pages Anonymized Access on request

A USCIS policy memorandum from July 2008 on how INA 245(k) affects certain employment-based adjustment of status cases under section 245(a). It explains which…

EB-2 NIW O-1 EB-1A Petition After filing

About this document

A USCIS policy memorandum from July 2008 on how INA 245(k) affects certain employment-based adjustment of status cases under section 245(a). It explains which EB categories can use the 180-day relief rule, how USCIS counts violations, and what evidence may be requested when the record is incomplete.

Key points

  • Clarifies that section 245(k) can waive the 245(c)(2), 245(c)(7), and 245(c)(8) bars for some EB AOS applicants.
  • Applies only if, since the last lawful admission, the applicant had 180 days or less of status loss, unauthorized work, or other admission violations.
  • Covers EB-1, EB-2, EB-3, and EB-4 religious workers; other immigrant categories are excluded.
  • An eligible derivative may also qualify if the derivative's own violations total 180 days or less after lawful admission.
  • No extra form or surcharge is required to invoke 245(k); USCIS decides from the adjustment record and may issue RFE or NOID.
  • Unauthorized employment is counted day by day from the first day worked until it ends, EAD approval, or adjudication.
  • Advance parole reentry does not restart the lawful-admission clock for 245(k), and violations before the last lawful admission are not counted.
  • For status violations, the memo says counting stops when USCIS receives a properly filed adjustment application, but the filing itself does not cure status.

What is inside

  1. Field Guidance and AFM Update
  2. General Provisions
  3. Applicability
  4. Application Process
  5. Counting against 180 days
  6. Failed to Maintain Lawful Status

When it helps

Shows how USCIS instructs officers to apply the 245(k) exception in employment-based AOS adjudications. It serves as policy evidence on the 180-day counting rule, eligible EB classes, and the kinds of violations that matter.

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