EMPLOYMENT IMMIGRATION
INA 245(k): Getting an Employment Green Card After Working Without Authorization
Most people who get a green card from inside the United States do it through "adjustment of status": Form I-485. There is a catch buried in the statute. Under section 245(c) of the Immigration and Nationality Act, an applicant is generally barred from adjusting if, since their last lawful entry, they have failed to maintain lawful status, engaged in unauthorized employment, or otherwise violated the terms of their status. For employment-based applicants, that bar would be brutal. A single lapse (a job started a few weeks early, an H-1B that expired while an extension was pending, a gap between statuses) could block the green card entirely.
The problem 245(k) was written to solve
Section 245(k) is the relief valve. It exists precisely because good cases have small, human gaps. For certain employment-based applicants, 245(k) forgives those violations, within limits, so a technical lapse does not cost you the green card you have otherwise earned. Understanding ina 245(k) is often the difference between filing an I-485 with confidence and being told you have to leave the country to process abroad.
What section 245(k) actually does
Section 245(k) lets a qualifying employment-based applicant adjust status even though they have, since their last lawful admission, done one or more of the following: failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of their nonimmigrant status, as long as the total time of those violations does not exceed 180 days. It waives the 245(c) bars that would otherwise apply to those specific problems.
Two features make it powerful. It covers unauthorized employment, which the parallel family-based rules treat far more harshly. And it applies to the principal applicant and the accompanying spouse and children, so a family is not broken apart by one member's paperwork gap.
The 180-day rule, counted correctly
The number everyone remembers is 180 days. What matters is what the clock counts and when it starts.
The count runs from your most recent lawful admission: the last time you were inspected and admitted or paroled into the United States. Days you spent out of status, working without authorization, or in violation of your status since that admission are added together. If the aggregate is 180 days or less, 245(k) can cover you. If it exceeds 180 days, 245(k) does not apply, and adjustment through this section is off the table.
There are important wrinkles that make this a lawyer's calculation, not a calendar exercise. Time spent in a period of authorized stay does not count against you the same way, and certain technical violations are treated differently than others. A departure and a fresh lawful admission can reset the count, which is one reason a client's full travel and status history matters so much. We map the entire timeline before we ever tell someone they are inside or outside the 180 days.
Who can use 245(k)
Section 245(k) is for employment-based cases. In practice it covers applicants in the EB-1, EB-2, and EB-3 preference categories, along with certain special immigrant religious workers. It does not help family-based applicants. That is a different part of the statute with different rules.
There is one gate that 245(k) does not open: you must have been inspected and admitted or paroled. Someone who entered without inspection cannot cure that through 245(k), because 245(k) forgives status and work violations after a lawful admission. It does not manufacture a lawful admission that never happened. This is the single most common reason we have to tell someone 245(k) is not their answer, and it is why the consultation starts with how you last entered the country.
What 245(k) does not fix
It is just as important to be clear about the limits.
Section 245(k) does not waive fraud or willful misrepresentation, and it does not cure most other grounds of inadmissibility. It does not forgive violations that add up to more than 180 days since your last admission. It does not apply to entries without inspection. And it does not do anything for family-based applicants. An immediate relative already enjoys certain 245(c) exemptions, but the broader family preference categories do not have a 245(k) of their own; some of those cases instead depend on 245(i), a separate and now largely closed provision tied to old filing deadlines.
If 245(k) is unavailable, adjustment inside the U.S. may not be the route at all. Consular processing abroad follows different rules, and unlawful presence can trigger the three- and ten-year bars when you leave. That trade-off, adjust here under 245(k) versus process abroad and risk a bar, is one of the most consequential decisions in an employment green card, and it is not one to make from a forum post.
Why this matters for real cases
The clients who need 245(k) rarely set out to break a rule. It is the researcher whose H-1B extension was filed a day late. The transferee whose employer folded and left a gap between jobs. The professional who started a role a bit too early on a pending petition. These are exactly the people the provision was written for, and they are exactly the people who assume, wrongly, that one lapse ended everything. Often, it did not. But whether 245(k) reaches your facts is a determination that turns on your admission history and a careful day count, and that is work we do case by case.
FAQ
Frequently asked questions
It is a section of immigration law that lets certain employment-based green card applicants adjust status inside the U.S. even if they had status violations or unauthorized employment, as long as the total of those violations since their last lawful admission is 180 days or less.
Yes, within the limit. Unauthorized employment is one of the violations 245(k) can forgive for employment-based applicants, provided the aggregate of all covered violations since the last lawful admission does not exceed 180 days.
No. Section 245(k) applies to employment-based cases (EB-1, EB-2, EB-3, and certain religious workers). Family-based applicants fall under different rules; immediate relatives have their own 245(c) exemptions, and some older cases relied on the separate 245(i) provision.
Then 245(k) does not apply, and adjustment through this section is unavailable. The alternative may be consular processing abroad, which raises separate issues like the three- and ten-year unlawful presence bars. This is a decision to make with an attorney.
No. Section 245(k) forgives certain violations that occur after a lawful admission. It cannot substitute for an inspection and admission or parole that never happened. How you last entered is the first thing we look at.
READY WHEN YOU ARE
A status gap doesn't have to end your green card.
Whether 245(k) reaches your case depends on how you entered and a careful count of every day. Our attorneys handle employment-based adjustment, including the hard, technical cases other firms decline. Schedule a consultation and we will map your admission history and tell you honestly whether 245(k) is your path.