CASE: I-485 Adjustment of Status / 245(k)
APPLICANT: Brazilian Registered Nurse
LOCATION: Kaneohe, HI
Our client is a registered nurse from Brazil licensed in the state of Hawaii. She came to the United States and worked for the petitioner in the United States on her OPT. Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140).
Since she is a registered nurse, she is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.
Our client has a nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 4, 2019. We started with the Prevailing Wage Request.
We filed the I-140 application on October 1, 2019 via premium processing. We included the job offer letter, notice of filing, and other necessary supporting documents. The USCIS issued a Request for Evidence on October 9, 2019 and requested our client to submit the Petitioner’s financial record to show ability to pay. We filed the Response to RFE on December 11, 2019 and eventually, on December 21, 2019, the I-140 was approved.
As we quoted for the green card part of the case, apparently our client’s I-20 was not extended and she has thus overstayed her visa status. However, this was less than 180 days.
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).
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).
On December 13, 2019, 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 letter and we explained why our client was still eligible for adjustment of status through 245K despite her overstay. 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 October 27, 2020, our client was interviewed at the Honolulu, HI USCIS office. Though the interview was thoroughly held, the interview went well; her I-485 application was approved by the USCIS on the same day of the interview.