Ina 245 K Employment Based I 485 Eligibility With Unauthorized Employment Less Than 180 Days: Understanding the 180-Day Exception Rule for EB-1/EB-2/EB-3

What Is INA 245(k) in Adjustment of Status? (Simple Definition)

Quick Answer:

INA §245(k) is a statutory carve-out that makes certain adjustment bars inapplicable to eligible employment-based applicants who have no more than 180 days of specified violations after their last lawful admission (INA §245(k), USCIS Policy Manual). Eligible applicants may adjust status pursuant to section 245(k) of the INA. U.S. Citizenship and Immigration Services (USCIS) is responsible for adjudicating these applications. The adjustment application process for employment based adjustment is governed by specific statutory and regulatory requirements.

Put plainly, if you are an adjustment applicant adjusting under EB-1, EB-2, or EB-3 and—after your most recent legal entry—you briefly (≤180 days cumulative) fell out of status, violated status terms, or worked without authorization, 245(k) may still allow a Form I-485 approval so long as you meet all other requirements for an employment based adjustment application (USCIS AOS Overview, USCIS Policy Manual Vol. 7).

Who Qualifies Under the 245(k) Exception?

Quick Answer: EB-1, EB-2, EB-3 principals and derivatives are considered adjustment applicants and may use 245(k) if their post-admission violations, calculated as the aggregate period of all violations after their most recent lawful admission, do not exceed 180 days (USCIS Policy Manual, Vol. 7, Pt. B, Ch. 8). The applicant’s status following the most recent lawful admission is what determines eligibility.

Eligible:

• Principal applicants whose I-485 is based on EB-1, EB-2, or EB-3 (with an approved or concurrently filed I-140 as applicable) (USCIS EB categories).

• Derivative family members (spouse and unmarried children <21) of those principals (INA §245).

Not eligible (typical):

• Family-based adjusters (unless independently qualifying under an EB basis).

• Applicants whose aggregate qualifying violations exceed 180 days after their most recent lawful admission. This includes those with more than one violation, or with nonimmigrant visa violations that are status based and together exceed the 180-day limit.

• Entries without inspection (EWI)—245(k) does not cure EWI or unrelated inadmissibility grounds (USCIS inadmissibility overview).

The “180-Day Grace” Explained

Quick Answer: 245(k) covers three buckets of post-admission conduct, counted in the aggregate period: (1) unauthorized employment, (2) failure to maintain status, (3) violation of status terms—capped at ≤180 days total (USCIS Policy Manual). Only violations that occurred after your most recent lawful admission are included in the aggregate period for the 180-day calculation.

Counts toward 180 days (after your last lawful admission):

• Unauthorized employment (all days the applicant worked without required authorization are included in the aggregate period, even if part-time or on weekends)

• Failure to maintain lawful status (e.g., no timely extension/change; falling out of status)

• Violation of status terms/conditions (e.g., using F-1 to work off-campus without authorization) (DHS Study in the States).

• The aggregate period sums all days of unauthorized employment and other status violations that occurred after the most recent lawful admission.

Does not count:

• Only violations before your most recent lawful admission are excluded (the clock starts over upon that lawful admission) (USCIS Policy Manual).

Practice tip: Days are typically counted calendar-day style. Weekend/holiday days count while a violation is ongoing. If multiple violations occurred on the same day, USCIS counts them as a single day toward the 180-day limit under INA 245(k).

How “Most Recent Admission” Resets the Clock

Quick Answer: The 180-day counter begins at the most recent lawful admission; a new lawful admission can reset the clock. Advance parole is not the same as a lawful admission for 245(k) counting (USCIS Policy Manual).

• For 245(k) purposes, the alien’s admission must be a lawful admission to reset the 180-day clock. Lawful admission means entry after inspection and admission (not parole) under the INA. Being lawfully admitted is a prerequisite for the 245(k) exemption. Parole (including advance parole reentry) generally does not equal an “admission” for this purpose (USCIS Glossary: Admission vs. Parole, USCIS Policy Manual).

• Example (reset): H-1B worker departs and returns with a valid H-1B visa; the new I-94 is a new lawful admission and resets the 180-day tally. Only a recent entry with such lawful admission will reset the violation count.

• Example (no reset): Applicant travels and reenters on advance parole only; that reentry does not create a new admission for 245(k). Earlier counted days may continue to matter.

Always preserve I-94s, entry stamps, and travel records to prove the admission date you rely on (CBP I-94).

How to Count the 180 Days (Step-by-Step)

Quick Answer: Build a simple timeline anchored to your last lawful admission, list each violation window, and sum the days; keep the total at ≤180 (USCIS Policy Manual).

1. Identify last lawful admission date. Use your most recent I-94 (CBP I-94).

2. Map violation periods (post-admission):

• Unauthorized employment: note the exact date unauthorized employment began and track through the last unauthorized day.

• Failure to maintain status: day after status expired/was violated → restoration/filing date.

• Terms/conditions violation: first day of violating terms → cure date.

3. Add all days across all violation types—aggregate cannot exceed 180.

4. Document proof: pay records, employer letters, college/SEVIS records for F-1, USCIS receipts for extensions/changes, etc. (see evidence section below). For some employment-based categories, labor certification may be required as part of the adjustment application.

5. Monitor days after filing: Maintaining proper work authorization is critical to avoid accruing additional days of unauthorized employment. Post-filing unauthorized work may still count toward the cap—avoid it (Form I-485 instructions).

Quick reference table

Common Scenarios and Case Examples

Quick Answer: Real-world patterns: H-1B layoffs, L-1 EB-1C transitions, F-1/OPT gaps, and post-filing missteps often decide outcomes under 245(k).

1. H-1B Layoff + I-485 Plan

• Laid off while in H-1B; a gap occurs before a new employer files. If total “out-of-status/unauthorized work” days post-admission stay ≤180, 245(k) can preserve AOS eligibility. If the applicant committed multiple violations, each violation must be counted toward the 180-day limit.

2. L-1A to EB-1C Manager

• Short status gaps before filing may be forgiven if ≤180 after the last lawful admission; EB-1C still requires robust multinational management evidence (USCIS L-1, USCIS EB-1C). The applicant must also have an approved immigrant visa petition to proceed with adjustment.

3. F-1/OPT Gaps Before EB-2 Filing

• Brief lapses between OPT end and a status fix (e.g., reinstatement) may fit under 245(k) if ≤180 days post-admission and other requirements are met (DHS Study in the States)

4. Post-Filing Work Without Authorization

• Unauthorized post-filing work can still count toward the 180 days; avoid it to preserve eligibility (USCIS I-485).

Benefits of the 245(k) Exemption

The 245(k) exemption is a powerful tool for employment based applicants seeking adjustment of status to lawful permanent resident in the United States. One of its most significant benefits is that it provides a safety net for those who have experienced brief lapses in lawful status or engaged in unauthorized employment after their most recent lawful admission. For many foreign nationals, maintaining lawful status at all times can be challenging due to the complexities of immigration law, unexpected job changes, or misunderstandings about employment authorization. The 245(k) provision recognizes these realities and offers a practical solution for certain employment based categories.

By allowing applicants to adjust status despite up to 180 days of aggregate status violations or unauthorized employment since their last lawful admission, 245(k) helps many individuals avoid the uncertainty and delays of consular processing abroad. This is especially valuable for those who are physically present in the United States and have built their lives, careers, and families here. Instead of facing the risk of triggering a 3-year or 10-year bar for unlawful presence by departing the country, eligible applicants can remain present in the United States and pursue permanent residence through adjustment of status.

The 245(k) exemption is available to a broad range of employment based immigrants, including those in the EB-1, EB-2, and EB-3 categories, as well as certain religious workers and other select EB-4 applicants. This flexibility means that professionals, skilled workers, and even multinational managers can benefit from the provision, regardless of their specific occupation or industry. As long as the applicant is present in the United States pursuant to a lawful admission, has not exceeded the 180-day limit for status violations or unauthorized employment, and meets all other eligibility requirements for adjustment of status, 245(k) can be a lifeline.

Another key advantage of the 245(k) rule is that it reflects a more realistic approach to immigration compliance. U.S. immigration laws are complex, and even diligent applicants can inadvertently fall out of status or work without proper authorization. The 245(k) exemption acknowledges that such violations, when brief and not repeated, should not automatically bar a foreign national from becoming a lawful permanent resident. This approach promotes fairness and helps retain talented individuals who contribute to the U.S. workforce and economy.

To maximize the benefits of the 245(k) exemption, it is crucial for applicants to work with an experienced immigration attorney. Legal counsel can help document the applicant’s immigration history, employment authorization, and periods of lawful status, ensuring that the adjustment of status application is as strong as possible. Proper documentation and a clear timeline of any status violations or unauthorized employment are essential to demonstrate eligibility under 245(k).

It is important to remember that the 245(k) exemption does not waive all grounds of inadmissibility or eligibility requirements for adjustment of status. Applicants who have committed certain crimes, engaged in more than 180 days of unauthorized employment, or have other serious immigration violations may not qualify. Each case is unique, and a careful review of the applicant’s history is necessary to determine eligibility.

In summary, the 245(k) exemption offers employment based applicants a valuable opportunity to adjust status in the United States, even if they have experienced limited immigration violations after their most recent lawful admission. By providing a path to permanent residence for those who have maintained close compliance with immigration laws, 245(k) supports family unity, workforce stability, and a fairer adjustment process for those present in the United States.

245(k) and I-485 Filing: What USCIS Looks For

Quick Answer: Expect USCIS to verify admission, counting, and evidence; unclear timelines trigger RFEs/NOIDs (USCIS Policy Manual). Immigration services will also check whether you were authorized to work during the relevant period.

In your core proof package, be prepared to provide evidence of authorized employment if requested.

Core proof package:

• I-140 basis (approval or concurrent filing) in EB-1/EB-2/EB-3 (USCIS I-140).

• Last lawful admission evidence: I-94 printout, passport entry stamps, CBP travel history (CBP I-94).

• Violation accounting: timeline table + corroboration (HR letters, pay records, DSOs/SEVIS logs, prior receipt notices).

• Other AOS eligibility under INA §245(a) and related rules (USCIS AOS).

Frequent RFE triggers:

• Missing/ambiguous I-94 history.

• Poorly documented employment gaps or side gigs.

• Misunderstanding advance parole vs. admission.

• Derivatives listed without proof of relationship and admission/violation timelines (USCIS Evidence Tips).

245(k) vs. 245(c) vs. Unlawful Presence Bars

Quick Answer: 245(k) turns off particular adjustment bars for EB cases; it does not waive separate inadmissibility or the 3/10-year bars for unlawful presence after departure (INA/8 CFR)

 

USCIS Policy Manual & Legal References (Authoritative Sources)

• USCIS Policy Manual, Vol. 7, Part B, Ch. 8: Employment-Based Exemption Under INA 245(k) — primary operational guidance for adjudicators
  👉 Open the chapter

• Adjustment of Status Framework (INA §245; 8 C.F.R. Part 245)
  👉 Read 8 C.F.R. Part 245

• I-485 (Application to Register Permanent Residence or Adjust Status)
  👉 Form I-485

• I-140 (Immigrant Petition for Alien Workers)
  👉 Form I-140

• Admission vs. Parole Concepts
  👉 USCIS Glossary

• Research/Trade Association Context & Trends

  • Congressional Research Service (CRS): Backgrounders on employment-based immigration mechanics
    👉 CRS Reports (public portal)

  • Government Accountability Office (GAO): Program oversight reports
    👉 GAO Immigration Oversight

  • Migration Policy Institute (MPI): Nonpartisan research on employment-based flows
    👉 MPI Employment-Based Immigration

  • National Foundation for American Policy (NFAP): EB policy briefs
    👉 NFAP Research

  • American Immigration Lawyers Association (AILA) (trade association): Practice advisories, policy analysis
    👉 AILA

Mistakes to Avoid When Relying on 245(k)

Quick Answer: Most denials trace back to miscounting or misunderstanding “admission”—and to weak documentation.

• Miscounting days (forgetting weekends/holidays in ongoing violations).

• Assuming travel on advance parole resets the 180-day clock (generally no for 245(k)).

• Ignoring post-filing unauthorized work that continues to accrue days.

• Counting pre-admission violations (they don’t count against the 180-day post-admission limit).

• Confusing 245(k) with broad waivers (it’s not; it only neutralizes specific 245(c) bars for EB cases).

• Applicants admitted as a nonimmigrant visitor (such as B-1/B-2) are generally not eligible for 245(k) adjustment.

• Thin evidence on admission/violation start-stop dates.

• Not aligning derivative timelines (spouses/children still need proof of admission and timing).

How Immigration Lawyers Use 245(k) Strategically

Quick Answer: 245(k) is both a shield and a planning tool for EB AOS filings. However, the 245(k) exemption is not a guarantee of approval; USCIS has discretion to review your entire case.

• Pre-filing audits: Build a day-by-day timeline from the last I-94; verify violation windows and confirm all periods of lawful immigration status, as maintaining lawful immigration status is essential for a successful adjustment application.

• Travel strategy: Where appropriate and lawful, a fresh admission may reset the count before filing—requires careful planning and visa eligibility.

• Alternatives: If 245(k) cannot apply (e.g., >180 days), consider consular processing or other routes while minimizing risk

• RFE/NOID readiness: Present a clear timeline chart, corroborating records, and cite USCIS PM Vol. 7, Pt. B, Ch. 8 to focus adjudication on the correct standard.

• Derivative synchronization: Ensure dependents’ admission/violation narratives line up with the principal’s filing window.

FAQs About the 245(k) Rule

Fast answers to the questions AOs, HR, and applicants ask most.

Q1. Does leaving the U.S. reset the 180 days?
A: Only if you return with a new lawful admission (i.e., inspection + admitted). Re-entry on advance parole generally does not “admit” you for 245(k) purposes (USCIS Glossary, Policy Manual).

Q2. Do violations before my last admission count?
A: No. 245(k) counts after the most recent lawful admission. Earlier violations typically do not accrue toward the 180-day cap (USCIS Policy Manual).

Q3. Can my spouse and children benefit?
A: Yes. Derivatives of EB-1/EB-2/EB-3 principals may rely on 245(k) if their own post-admission violations are ≤180 days and all other requirements are met (INA/8 C.F.R. Part 245).

Q4. What if USCIS miscalculates my days?
A: Respond with a timeline, payroll/SEVIS records, and I-94 evidence. You can rebut via RFE/NOID, and, where appropriate, consider MTR/appeal routes (USCIS Case Status).

Q5. How does 245(k) interact with unlawful presence bars?
A: 245(k) helps with adjustment bars in 245(c); it does not waive the 3/10-year bars triggered by departure after accruing unlawful presence

Key Takeaways

• 245(k) lets eligible EB-1/EB-2/EB-3 applicants adjust status despite ≤180 days of post-admission violations.

• The clock starts at your most recent lawful admission; advance parole reentry usually does not reset that clock.

• Count all post-admission violation days in the aggregate (status lapses + unauthorized work + term violations).

• Pre-admission violations usually don’t count toward the 180-day cap.

• Document everything (I-94s, HR/pay records, SEVIS/DSO letters, receipts) and present a clear timeline.

• 245(k) doesn’t waive other inadmissibility (including 3/10-year bars upon departure).

• Careful planning and evidence often decide I-485 outcomes in close cases.

Author Bio / Profile

Richard T. Herman, Esq. is an immigration lawyer with 30+ years of practice focused on complex employment-based immigration, including strategic use of INA §245(k) in high-stakes adjustment cases. He is the founding partner of Herman Legal Group and co-author of Immigrant, Inc. Consulting an experienced immigration attorney is highly recommended when applying for I-485 with a history of unauthorized employment. For consultations or speaking engagements, contact Richard’s office directly.

Resources (Government, Trade, Research)

• USCIS Policy Manual, Vol. 7, Part B, Ch. 8 (INA 245(k)) — https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

• 8 C.F.R. Part 245 (Adjustment of Status) — https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-245

• USCIS: Adjustment of Status Overview — https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-of-status

• Form I-485 (AOS) — https://www.uscis.gov/i-485

• Form I-140 (EB immigrant petition) — https://www.uscis.gov/i-140

• CBP I-94 — https://i94.cbp.dhs.gov/I94/#/home

• DHS Study in the States (F-1/SEVIS guidance) — https://studyinthestates.dhs.gov/

• CRS Reports — https://crsreports.congress.gov/

• GAO Immigration Oversight — https://www.gao.gov/immigration

• Migration Policy Institute — https://www.migrationpolicy.org/

• NFAP — https://nfap.com/

• AILA — https://www.aila.org/