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I-485 Application under 245(k) If the Unauthorized Employment Did not Last 180 Days

6/19/2007

Dr. William:

I submitted I-485 application to USCIS last year, now I got a RFE asked my work permit 3 years ago, for a short period that I worked for my previous employer after my optional practical training but before the H-1B approval. I do not have the work permit for that period of time to show to USCIS, What should I do?

A: An alien is eligible for I-485 application under 245(k) if the unauthorized stay relating to the overstay and the unauthorized employment did not last 180 days or longer "since the last admission" to the United States. Accordingly, if you had the unauthorized employment lasted less than 180 days, the USCIS may approve the I-485 application based on 245(k) provision.

The 245(k) rule provides that even the ineligibility of I-485 for the reasons provided in 245(c)(8), the alien would still be eligible for I-485 application if the alien meets the requirements in 245(k). So you should take advantage of 245(K) benefit that makes I-485 eligible if the unauthorized employment or unlawful status did not last more than 180 days since the latest admission to the United States.

Those who can file the I-485 timely under 245(K) should cease employment before it reaches 180 days and wait for the EAD approval. Record keeping will be extremely important in this case.




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