Chapter 5 - Employment-Based Applicant Not in Lawful Nonimmigrant Status (INA 245(c)(7))
Any employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing for adjustment is barred from adjusting status, even if the applicant is lawfully present in the United States.[1] For example, a parolee is barred from seeking employment-based adjustment, because a parolee is not a lawful nonimmigrant status.[2]
Employment-based applicants may be eligible for exemption from this bar under INA 245(k).[3] The INA 245(c)(7) bar also does not apply to Violence Against Women Act (VAWA)-based applicants, immediate relatives, family-based applicants, special immigrant juveniles, or certain members of the U.S. armed forces because these applicants are not seeking adjustment as employment-based applicants.[4]
For purposes of this bar to adjustment, the term “lawful nonimmigrant status” refers to:
-
An applicant in a lawful status classified under the nonimmigrant statutory provisions;[5] and
-
An applicant in temporary protected status.[6]
Lawful nonimmigrant status does not include parolees, asylees, or certain other noncitizens who are otherwise authorized to be physically present in the United States.
Period of Time to Consider and Effect of Departure
In determining whether this adjustment bar applies, an officer should only consider the applicant’s immigration status on the date the applicant filed the current adjustment application. Any time the applicant was not in lawful status prior to filing the adjustment application is irrelevant for INA 245(c)(7) purposes.
Furthermore, this bar does not apply to applicants who were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. Advance parole simply allows the applicant to resume the processing of the adjustment application without abandoning the application because of a brief departure.
The examples below highlight when this adjustment bar applies and when it does not apply.
|
Date |
Event |
|---|---|
|
April 26, 2009 |
A noncitizen is admitted as a B-2 nonimmigrant visitor and departs the United States on August 5, 2009. |
|
September 2, 2009 |
The noncitizen is paroled into the United States on public interest grounds until September 1, 2010. |
|
December 20, 2009 |
The noncitizen is approved as the beneficiary of a second-preference employment-based immigrant visa petition on December 20, 2009. |
|
January 7, 2010 |
The noncitizen files an adjustment of status application on January 7, 2010. |
In this case, even though the applicant had previously been a B-2 nonimmigrant, the applicant was a parolee at the time of filing for adjustment of status. Therefore, INA 245(c)(7) bars the applicant from adjustment of status as the beneficiary of an employment-based petition.
|
Date |
Event |
|---|---|
|
January 2, 2008 |
A noncitizen is admitted as an H-2B nonimmigrant. |
|
January 1, 2009 |
The H-2B nonimmigrant’s authorized stay expires, as indicated on the Arrival/Departure Record (Form I-94). |
|
April 1, 2009 |
A company files an employment-based immigrant visa petition for the noncitizen concurrently with the filing of an adjustment of status application. |
In this case, the applicant stayed past the time authorized to remain in the United States and was not in a valid nonimmigrant status at the time his adjustment application is filed. INA 245(c)(7) bars the applicant from adjusting status under an employment basis. The applicant, however, may qualify for the INA 245(k) exemption.[7]
|
Date |
Event |
|---|---|
|
January 2, 2008 |
A noncitizen is admitted as an H-2B nonimmigrant. |
|
March 2, 2008 |
A company files an employment-based petition for the H-2B nonimmigrant concurrently with the following applications: adjustment of status, advance parole, and employment authorization. |
|
April 1, 2008 |
The H-2B nonimmigrant has a family emergency and needs to travel back to her home country. |
|
May 1, 2008 |
USCIS grants the H-2B nonimmigrant’s advance parole application. |
|
June 1, 2008 |
The H-2B nonimmigrant returns to the United States using her advance parole document. |
|
August 1, 2008 |
USCIS approves the H-2B nonimmigrant’s adjustment application. |
|
January 1, 2009 |
The H-2B nonimmigrant’s authorized stay expires, as indicated on the Arrival/Departure Record (Form I-94). |
In this instance, the adjustment application is properly filed before expiration of the applicant’s H-2B nonimmigrant status. Even though the adjustment applicant departs and returns to the United States using the advance parole document, the INA 245(c)(7) bar does not apply to the applicant.
Footnotes
[^ 1] See 8 CFR 245.1(b)(9).
[^ 2] This bar does not apply to applicants who were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States on advance parole, and subsequently were paroled into the United States upon return while the adjustment application remains pending. The parole simply allows the applicant to resume the processing of the adjustment application without having the application considered abandoned due to a brief departure. See 62 FR 39417, 39421 (PDF) (Jul. 23, 1997).
[^ 3] See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
[^ 4] See 8 CFR 245.1(b)(9).
[^ 5] See INA 101(a)(15).
[^ 6] See INA 244(f)(4). See 8 CFR 244.10(f)(2)(iv)-(v).
[^ 7] See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].