Failure to maintain status for adjustment of status under INA 245(k)

[shah]

INA 245(K) can be a very helpful tool if you failed to maintain status for an aggregate 180 days. It will still allow Employment Based categories to adjust status. Make sure you are compliant. For more information call us at 510.742.5887

(k) 7/ 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.

[onair]

my wife was laid off for 2 months under H1B and we left and came back on consular processing. We were worried that we will be not be able to adjust. Now it seems we can. good to know.thanks

[advanced]

do you have to pay taxes for the illegal work?

[shah]

Well, we are not licensed to answer tax questions. But if you are paid, it is commonsense to pay your taxes. This section of the law is very interesting for people who falls out of status when their H1B are inadvertently terminated and they are not aware of and move to another job. It is important to note it is an aggregate. This means that the it does not have to be continuous. You can be 60 days in one time and another 120 days for example. More than this you will not be allowed to file for adjustment of status or obtain a permanent residence.