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Unauthorized Employment and Form I-485 Application for U.S. Green Card

Hi William:

My Form I-140 application based on the EB1-Outstanding Researcher (EB-1B) was approved 6 months ago by USCIS. Thereafter, I filed the Form I-485 application and EAD (Work Permit) for adjusting my status for U.S. Green Card. 

But then, I was laid off by my employer due to the company's business problem, and found a work in a small company with a lower pay. There is a gap between my approved EAD and the new employment, do you think it will be a problem for my Form I-485 approval with USCIS?


For the impact of the unauthorized employment during the EAD gap on the pending Form I-485 application, the I-485 applicants should keep in mind two points. First, 245(k) provision makes I-485 applicants still eligible for I-485 approval, if since last admission to the U.S. before filing of I-485 application, and they should have accumulated an aggregate of less than 180 days of unlawful stay or unauthorized employment, during the period either before or after filing of I-485 application.

As a USCIS rule, a foreign national is barred from adjustment of status (Form I-485 application) for certain immigration-related violations. The alien applicants who are not in lawful immigration status on the date of filing the Form I-485, or who have failed to maintain lawful immigration status since entry into the U.S., generally are not eligible to file the Form I-485 and obtain approval. The rule is true of those who violate the terms and conditions of their admission inthe United States. The alien applicants who engage in unauthorized employment are also ineligible to file or obtain approval of the I-485. However, Section 245(k) provides a helpful exception to these general rules for those who may have violated their respective statuses for a limited period.

In calculating 180 days, they should aggregate both the days of unlawful stays and the days of unauthorized employment. Consequently, even if the unauthorized employment has lasted less than 180 days, the alien can be ineligible for I-485 application approval, if the total period of unlawful stay AND unauthorized employment add up to 180 days or longer.

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