Neufield Memo on 180-day Adjustment of Status Bar Exemption

Section 245(a) of the Immigration and Nationality Act (INA) allows for the adjustment of status (I-485) which so many of our clients and readers are well familiar.  Section 245(c) of the INA establishes eight (8) bars to adjustment of status.  However, adjustment of status based on employment-based immigrant visa are exempt from three of these bars, pursuant to Section 245(k).

In a July 14, 2008, Memorandum, Donald Neufeld seeks to explain the applicability of these exemptions and provide details and clarifications on the applicability of the exemptions and the adjudication procedures.

What is the Exemption.   The bars to admission which are inapplicable are as follows: for a period of 180 days since the petitioner’s last lawful admission in the U.S. your status, (1) failed to maintain your status, (2) engaged in unauthorized employment, and (3) otherwise violated the terms of his/her status or admission.

Who is Exempt.  The exemptions are applicable to employment-based adjustment of status applications in EB-1, EB-2, EB-3, or EB-4 categories.  The alien must be present in the U.S. pursuant to a lawful admission.  The exemptions are available to derivative petitioners as well.

Analysis.  Although this is not a new rule, the July 14, 2008, Neufield Memo seeks to provide clear guidance and explanation on the applicability of the 180-day exemptions.  It is important to understand that the three exemptions are only for employment-based adjustment of status petitions, and not for family-based.  Also, it is important to understand that the 180-day period is cumulative and includes all days, weekend and holidays.  Finally, the 180-day period counts the dates since the last lawful admission – leaving the U.S. and entering legally “clears” the count.