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Adjustment of Status for Employment Based Applicants
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Special rules apply for employment based adjustment of status applicants. Section 245(k) of the Immigration and Nationality Act modifies the general rule that an adjustment of status (AOS) applicant must show that he or she has never violated their nonimmigrant status at any time in the past - even on previous stays many years ago. In cases involving employment based (EB) adjustment applicants, the law only requires that the EB AOS applicant show that he or she has not accumulated more than 180 days of time in status violations since his or her last lawful entry into the United States prior to filing for adjustment of status. Violations on previous stays are irrelevant.
The CIS has recently taken the position that that if an AOS applicant works without authorization, after filing for AOS, that time counts against this 180 day limit. Thus, if someone insists on trying to maintain H1B status while applying for AOS, and they commit even a technical violation of status, their subsequent work will be deemed unauthorized employment and all such days will be counted against the 180 day limit. If the unauthorized employment exceeds 180 days, the AOS application will be denied. Simply remaining beyond the expiration date of an I-94, after filing for AOS does not, however, count against the 180 days.