The Unauthorized Employment and
the Section 245(k) Eligibility for I-1485 Application 

Dr. William:

I am working on my EB1-Outstanding Researcher I-140 application, and want to file concurrent I-485 application at the same time. One of my problem is that I had worked several months in unauthorized employment several years ago. Do you think my previous unauthorized employment may be the potential problem for my I-1485 application and the whole Green Card application process?


Answer:

The Section 245(k) of the Immigration and Nationality Act allows the nonimmigrants who either violated the nonimmigrant status or engaged in unauthorized employment for a period of less than 180 days since their "last admission" to the United States, to file I-485 application despite their violation of nonimmigrant status. Accordingly, if an I-485 applicant engages in unauthorized employment, the unauthorized employment period continues to accumulate and aggregate for the purpose of 245(k) eligibility of less than 180 days.

Also, for some people, the situation which is troublesome is the employment during the gap of expiration of the current EAD and the issuance of a new EAD renewal, or after expiration of EAD or violation of H-1B or L-1 and engaging in unauthorized employment without possessing EAD. The USCIS views such period as unauthorized employment for the purpose of 245(k) eligibility.

 

 

 

     

 

 

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