CASE: I-485 Adjustment of Status / 245(k)
APPLICANT: Filipina High School Math Teacher
LOCATION: Holyoke, CO
Our client has a current employer that was willing to petition her for a third-preference petition (I-140). Our client has a Bachelor’s degree in Mathematics, a valid Colorado Teaching license, and has worked for her current employer since November 2014. Based on our client’s education and workg background, our office determined that she is eligible for EB-3 classification for her I-140 petition. Our client eventually retained us in April 2018.
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 August 14, 2018. On December 13, 2018, we filed PERM.
On April 19, 2019, the Department of Labor issued an audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on April 24, 2019.
Eventually, on July 15, 2019, the PERM Labor Certification was approved – an EB3 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 July 30, 2019 via regular processing. Eventually, on September 12, 2019, the I-140 EB3 Petition for our Filipina client was approved.
We filed her I-140 petition and I-485 adjustment of status application concurrently.
Our client’s DS-2019 was not extended by her employer. Thus, she overstayed and had violated her status for less than 180 days prior to filing the I-485 application.
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).
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 brief and explained why our client is still eligible for adjustment of status through 245K 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 March 16, 2020, our client was interviewed at the Centennial, CO USCIS office. The interview went well; however, at that time, the priority date for the Eb-3 category – Philippines was backlogged. Our client had to wait until the priority date became current. In August 2020, her priority date became current. Eventually, her I-485 application was approved by the USCIS on August 27, 2020.