You can file I-485 after out of status within 180 days
USCIS issued a "180 day rule" to allow people to file I-485 within 180 days out of status or illegal employment on Feb 22, 2005. I think you should be OK only if the time of your out of status is less than 180 days. This rule is called 245K. Here is the detailed informations. Good luck!!!!!!!!!!!!
Feb. 20, 2005 245(k) "180 Day Rule" Allowing Adjustment Applications
Unlawful presence in the United States can affect an applicant in many different ways.* The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created the "3/10- year inadmissibility" bars for individuals who are unlawfully present in the United States.* The overall consequence of being "unlawfully present" are:
1.* If in the U.S., and applying for a nonimmigrant visa, prohibit an applicant from changing and/or extending status in the United States.
2.* If outside the U.S., prohibit an applicant from obtaining a visa (nonimmigrant OR immigrant) at the U.S. Consulate/Embassy.
3.* If in the U.S., and applying for an immigrant visa "green card," prohibit an applicant from adjusting status (I-485) in the United States ("bar to adjustment").
Certain individuals in the U.S., although unlawfully present, can still file an I-485 adjustment of status application, in the United States, by using 245(k) (these individuals are technically considered to be "lawfully present" in the United States for the purposes of filing an I-485 adjustment of status application.* 245(k) states that a foreign national can file an I-485 adjustment of status application IF:
(1) the foreign national, on the date of filing an application for adjustment is present in the United States pursuant to a lawful admission;
(2) the foreign national, 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.”
This "180 day" rule does not include any violations or unauthorized employment accrued after the filing of the adjustment application (meaning, if any violations after 180 days, it is not counted).* Violations of unauthorized employment can occur sometimes because of the lengthy processing time by the US CIS in issuing EAD/work authorization documents.* However, in October of 2004, an unofficial statement by the US CIS indicates that any violations, including unauthorized employment, after the submission of the adjustment of application within 180 days, can be counted -- and thereby result in the denial of the adjustment application:* US CIS advises that its interpretation is that the 180 day count as to unlawful presence is stopped by the filing of an adjustment of status application, but periods of unauthorized employment post filing (such as a gap in EAD/workauthorization) also would count toward the 180 days.* Therefore, if 180 days of violation is accrued (in the aggregate, before and after filing the adjustment application), it is possible for the foreign national to be denied approval of the adjustment application based on the 3/10-year bar.
i8Details: Entry/Admission & Inadmissibility Penalties
i8Details: U.S. Entry Violations & Unlawful Presence (Inadmissibility Section)
i8Details: Considered to be Lawfully Present/Not Subject to Bar (Inadmissibility Section)
------------------------------------------------------------------------
