Thursday, July 30, 2009

How to Use Your H-1B to Qualify Under Section 245K

For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

How can they do that? Easy!

Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

Or maybe you moonlighted at another job without INS's (This was in 2003!) permission. Adjustment of status denied!

There are endless variations to this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

All those years of working in the U.S. and paying your taxes, all for naught?

Not so fast!

If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa Poof! Upon returning to the U.S., you are once again qualified to adjust status under section 245K.


Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

Not bad, am I right?

A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

Not at all.

Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

No harm, no foul.

Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at


  1. Although the U.S demand is lower than last year, there are still many H1B employers who are currently recruiting International professionals and students this year.
    More :
    Canada Immigration

  2. I was on h1b unfortunately out of status for more than 180 days because of error by my law office. My AOS was denied. I went out of country, got h1b visa stamped, reentered US and applied new I485. Again, my I485 was denied stating that I was out of status > 180 days and subject to 3 year bar.

  3. Some people will want to seek professional help as soon as they see the mountain of forms, checklist and supporting documents needed. The forms used for adjustment of status. based on marriage can also be used for other adjustment applications, hence the confusion and the likelihood to make mistakes. Any mistake in the form can return the case back to you, resulting in delays and even denials.

  4. H-1B as a remedy for labor shortages and as a means of hiring "the best and the brightest" from around the world

    strongly support), the vast majority are ordinary people doing ordinary work. Instead of being about talent, H-1B is about cheap labor.

    H-1B visa holders may only work for sponsoring employers after approval by the Departments of Labor and Homeland Security.

    Although most of the non-compliant H-1B workers had posted wages from employers in fields associated with technical or

    specialty occupations, the report noted that one H-1B worker had earnings from a restaurant and janitorial service.

    H-1b visa

  5. Looking for H1B visa. There are many companies which looking for workers in Canada. Immigration Canada

  6. Get any information about H-1b and H1B Visa related.
    There have any this type of information is representing to actual law by this blog.
    There have number of information have. H-1B is classification used by an alien who will be employed
    temporarily in a specialty occupation as present model.
    There have information for making a good ability to build expert in Law with
    confidence for getting more ability by this information...

  7. Marrying in the United States using the adjustment of status process is one of the most common ways couples can ensure they can stay together and still get their Marriage Visa. It is very important you understand this adjustment of status process, otherwise your Marriage Visa may get denied.