Originally posted by tammy2
245(K) will come into picture when you over stayed your I-94. She was not illigal here. There was no over stay.
Do not go the posts here Consult lawyer. We are just people like you gathered knowledge by visiting these sites.
I respectfully beg to disagree. 245(K) does not help you when you have accumulated unlawful presence (eg: overstays, entering US without proper inspection, etc). This is what I read from ilw website:
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But for what it's worth, I suggest that you consider as one possible alternative whether your clients can qualify for employment-based adjustment of status under INA section 245(k). This provision offers certain nonimmigrant workers seeking to adjust status a generous forgiveness for a variety of past infractions, as long as the particular requirements of 245(k) can be satisfied. To qualify under 245(k), the applicant on the date of filing for AOS must be present in the U.S. pursuant to a lawful admission, and must not thereafter, for a period exceeding 180 days, have (a) failed to maintain continuously a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of the applicant's admission.
Because the provision looks only to conduct occurring after the last lawful admission, prior violations of status or prior periods of unauthorized employment that occurred during previous entries to the U.S. may not be considered by the INS as a basis for ineligibility to adjust status. 245(k) is also helpful because by the express terms of the statute, this provision, when applicable, overrides other grounds of ineligibility to adjust status under INA sections 245(c)(2), (c)(7) and (c)(8). Thus, if your H-1B clients - even though having failed to maintain lawful status - are not overstays, they can depart the U.S. (without triggering the unlawful-presence penalties of INA sections 212(a)(9) and 222(g)) and reenter to resume lawful H-1B employment. Assuming that thereafter they remain in lawful status, they would seem to qualify for AOS under 245(k).
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Please note that it cannot override the unlawful penalties under INA sections 212(a)(9) and 222(g). It can only override 245(c)(2), 245(c)(7) and 245(c)(8). The following defination of these codes describes them:
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The following categories of persons are ineligible to adjust their
status under INA § 245(c):
aliens who continue in or accept unauthorized employment prior to filing an application for adjustment of status or who have failed to maintain a lawful status since entry into the United States (other than immediate relatives or special immigrants) (INA § 245(c)(2));
aliens seeking adjustment in employment based categories who are not in lawful nonimmigrant status (INA § 245(c)(7));
any alien who was employed while the alien was an unauthorized alien, as defined in section 274(h)(3), or who has otherwise violated the terms of a nonimmigrant visa (INA § 245(c)(8)).
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Note sections 212(a)(9) deals with aliens who have been previously deported or unlawfully present. Section 222(g) defined is : An alien who was admitted to the United States on a nonimmigrant visa and who remained beyond the period of stay authorized by the Attorney General is subject to section 222(g) of the Act. So unless you have been just out of status without accumulating unlawful presence, you can ajust under 245(K) if you depart and reenter using a valid visa and not be out of status for more than 180 days following the last entry. But you are toast if you have overstays. You cannot do AOS (atleast under 245(k)). Also statutory bars of 3/10 years might apply.
Sorry for the long post. I thought this issue needed more clarifications.
