Generally, with the exception of “immediate relatives,” the law provides that anyone who violates their nonimmigrant status may not adjust status to lawful permanent residency. Section 245(k) of the Immigration and Nationality Act provides relief from ineligibility to adjust status based on violations of nonimmigrant status. The specific statutory language provides:

“Sec. 245(k) Inapplicability of certain provisions for certain employment-based immigrants.--An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien's admission.”

This section applies as well to dependents of principal applicants who are accompanying or following to join the principal employment based applicant. An applicant need not file any additional documentation or pay an additional fee to receive the benefits of this section.

In applying this provision, the CIS must first determine when the adjustment applicant was last lawfully admitted into the United States. Parole is not considered a “lawful admission.” For purposes of this section, the last lawful admission means the last time the applicant used a nonimmigrant visa to enter the US from abroad.

That date is important because no status violation that occurred before that date may be counted against the 180 day maximum limit. Using the last lawful admission as a benchmark, the CIS adjudicator must then count the number of days, if any, that constitute a status violation or unauthorized employment. Status violations such as doing something inconsistent with the individual’s nonimmigrant category (working while on a visitor’s visa) will be counted, as will all days the person remained in the US after his or her I-94 expired. The counting of these days stops, however, as of the date the I-485 is filed. Unauthorized employment, on the other hand, continues to be counted after the filing of an adjustment of status application.

If the adjustment applicant has 180 days or more of status violations, in the aggregate, then the applicant is no longer eligible for adjustment of status and their application must be denied on that basis alone. If, as of the date the adjustment application is adjudicated, the total is less than 180 days, then the applicant remains eligible and may adjust status.

The term “aggregate” means individual days, taken together as a group. For example, if an applicant works without authorization for two calendar weeks, in most cases that would constitute an aggregate of ten days of unauthorized employment – the ten days actually worked. The smallest portion of a day of unauthorized employment counts as an entire day, however.