CASE: I-485 Adjustment of Status / 245(k)
APPLICANT: Filipina Speech Language Pathologist
LOCATION: North Dakota
Our client has a current employer that was willing to petition her for a second-preference petition (I-140). Our client has a master’s degree in speech language pathology, a valid North Dakota speech language pathologist license, and has worked for her current employer since March 2014. Based on our client’s education and work background, our office determined that she is eligible for EB-2 classification for her I-140 petition.
Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed. After we obtained the PW determination, our office filed the job order. On January 29, 2019, we promptly filed PERM. Eventually, on April 26, 2019, the PERM Labor Certification was approved – an EB2 position for the Filipina beneficiary.
We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s most recent W-2 record, and other necessary supporting documents.
The I-140 Petition was filed on May 28, 2019 via regular processing service. Eventually, on August 22, 2019, the I-140 EB2 Petition for our Filipina client was approved without any Request for Evidence (RFE). We filed her I-140 petition and I-485 adjustment of status application concurrently.
However, our office was informed that our client’s DS-2019 was not extended by her employer and she has continuously worked for her employer without the DHS’ authorization. Thus, she worked without authorization and overstayed her visa status.
Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days:
- Failed to maintain, continuously, a lawful status;
- Engaged in unauthorized employment; or
- Otherwise violated the terms and conditions of his or her admission
INA §245(k).
An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.
(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a).
At least, our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).
As mentioned above, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed cover brief and explained why our client is still eligible for the adjustment of status through 245K subsection despite her overstay and unauthorized employment. Everything went smoothly and the receipt notices and fingerprint appointment came on time.
Prior to the interview, we thoroughly prepared our client via conference calls as well. On January 6, 2020, our client was interviewed at Minneapolis, Minnesota USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Though interview was thoroughly held, on the same day of the interview, their I-485 applications were approved by the USCIS.