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The Limits of 245(k)-Polish Research Scientist Denied Permanent Residence Due To Unauthorized Employment

A recent decision by immigration officials underscores the importance that immigrants seeking permanent residence need to be fully aware of the terms and conditions of their visa category and take personal responsibility in maintaining lawful status and following rules. A Polish-born scientist, who conducted research on bioterrorism defenses for nearly 14 years at the University of Idaho, is facing deportation after being denied residency by U.S. immigration officials. She was granted outstanding researcher status as a step toward applying for permanent residency, which she did in 2003 with the help of the university. When her previous work permit had expired, she continued to work without authorization for eight months, claiming that the university's human rights office told her she could keep working during a 240-day grace period. She later learned that the grace period did not apply to the type of document she held. Immigrations officials then told her that, because she had worked illegally for eight months without a work permit, her application for permanent residency was being denied. They further asserted that irrespective of who told her she could keep working without a permit, it was her responsibility to ensure she was following the terms of her visa status.

This case brings to mind a newly released memorandum by the Department of Homeland Security that serves to clarify the applicability of section 245(k) of the Immigration and Nationality Act. The memorandum explains in detail how section 245(k) grants relief to certain employment based adjustment of status applicants who have not maintained lawful status or engaged in unauthorized employment for an aggregate period of 180 days or less since their last admission to the U.S.

Only the following classes of employment based adjustment of status applicants are eligible for relief under 245 (k):

EB-1: aliens of extraordinary ability, outstanding professors and researchers, certain multinational managers and executives,

EB-2: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

EB-3: skilled workers, professionals, and other workers;

EB-4: religious workers

 

If for example, an alien in B-2 status who worked without authorization will also have violated a lawful status and failed to maintain continuously a lawful status. USCIS reads the phrase "aggregate period exceeding 180 days" to refer to the total of all types of violations rather than permit up to 180 days of each type of violation. Only the period from the date of the applicant's last lawful admission to the United States is examined and not the violations that occurred before the last lawful admission.

 

The filing of an adjustment of status application does not, in itself, authorize employment or excuse unauthorized employment, and accordingly the filing of an adjustment of status application will not stop the counting period of unauthorized employment. The count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated. Therefore, it is possible for an individual to accrue days of unauthorized employment against the 180 day period after the filing of the adjustment of status application.

An individual's engagement in unauthorized employment depends upon the existence of the individual's employment or employer-employee relationship rather than simply the number of days he or she actually works or claims to have worked. Each day an individual is engaged in unauthorized employment must be counted against the 180-day period, regardless of whether or not the individual unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. For example, if an individual worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment. For periods in which it appears that the applicant has engaged in unauthorized employment, the applicant bears the burden of establishing that any such periods were authorized or that he or she did not engage in unauthorized employment. In addition, an applicant who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document.

 

An applicant is not considered to be engaged in unauthorized employment while his or her properly filed adjustment of status application is pending final adjudication and the applicant has obtained permission from USCIS to engage in employment based on his or her pending adjustment of status application and this authorization remains valid. Further, if the applicant had been granted employment authorization prior to the filing of the adjustment of status application and this authorization does not expire while the adjustment of status application is still pending, he or she is not considered to be engaged in unauthorized employment.

 

If you would like your case reviewed to see if you qualify for 245(k), please give us a call to schedule a consultation at (847) 763-8500.

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