Question:
The President has announced a crackdown on visa violators. My clients are largely nonimmigrant workers who have tried to abide by the law, but not all of them have consistently succeeded. I am concerned about not merely their current periods of authorized stay and maintenance of status, but also about any past history of immigration infractions. These clients are typically H-1Bs who have bounced from employer to employer before and after AC21 introduced the concept of portability. Virtually all of these clients would like to adjust status to lawful permanent resident. They want the green card, of course, but they also like the other AOS benefits (possible extensions beyond the 6-year maximum stay for H-1B workers and AOS portability). Although some clients may benefit from INA section 245(i), others will not qualify for that benefit. Still others may qualify under section 245(i), but are reluctant to apply under that section because it requires them to acknowledge that they violated immigration law in the past, and thus do not want to so attest on the I-485 Supplement form. What guidance can you offer as they seek to remain in the United States and pursue adjustment of status?

Answer by Angelo Paparelli:
The following answer is not legal advice (and should not be relied upon as such), and it does not establish an attorney/client relationship. The fact patterns you present tend to display many variations on a theme. Each can be complex. Answers will therefore vary with the circumstances.

But for what it's worth, I suggest that you consider as one possible alternative whether your clients can qualify for employment-based adjustment of status under INA section 245(k). This provision offers certain nonimmigrant workers seeking to adjust status a generous forgiveness for a variety of past infractions, as long as the particular requirements of 245(k) can be satisfied. To qualify under 245(k), the applicant on the date of filing for AOS must be present in the U.S. pursuant to a lawful admission, and must not thereafter, for a period exceeding 180 days, have (a) failed to maintain continuously a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of the applicant's admission.

Because the provision looks only to conduct occurring after the last lawful admission, prior violations of status or prior periods of unauthorized employment that occurred during previous entries to the U.S. may not be considered by the INS as a basis for ineligibility to adjust status. 245(k) is also helpful because by the express terms of the statute, this provision, when applicable, overrides other grounds of ineligibility to adjust status under INA sections 245(c)(2), (c)(7) and (c)(8). Thus, if your H-1B clients - even though having failed to maintain lawful status - are not overstays, they can depart the U.S. (without triggering the unlawful-presence penalties of INA sections 212(a)(9) and 222(g)) and reenter to resume lawful H-1B employment. Assuming that thereafter they remain in lawful status, they would seem to qualify for AOS under 245(k). For more on 245(k), see A. Paparelli and J. Valdez, Never Say i (Unless You Must): Employment-based Options for Adjustment of Status that Avoid INA § 245(i), which can be found at: http://www.entertheusa.com/publications.htm

Bear in mind, however, that not all immigration "sins" can be purged in this fashion. 245(k) will not forgive willful and material misrepresentations made to procure an immigration benefit or any of the many other grounds of inadmissibility under the INA. Also be aware that when documents or forms are submitted in connection with an immigration benefit, the document fraud provisions of INA 274C must be considered. Section 274C(f) broadly defines a falsely-made document to include the preparation or presentation of an application or document, with knowledge or in reckless disregard, that the application or document contains a false, fraudulent or fictitious statement, or material representation, or "has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it is submitted." Thus, your clients must take care, as should the attorney, that all material facts are affirmatively disclosed whenever writings are submitted to the government for the purpose of gaining an immigration benefit. In other words, even though 245(k) may apply to forgive past infractions, material facts should nevertheless be disclosed. I'll leave it to you to consider what facts are material and what your obligations of protecting client confidences may be under your state's ethics code.

Paparelli & Partners LLP:
http://entertheusa.com/publications.htm

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Disclaimer: The foregoing is general information provided to the public on a subject of great interest to U.S. employers and H-1B workers. It is intended merely as a general review of a complex and confusing subject for which there are very few clear and reliable answers. The information is not intended as legal advice and may not be relied on as such. By providing to the public the general information below, no attorney-client relationship is created. The legal outcome in a given case will completely depend on all of the relevant facts in a given case and thus will vary from case to case. For legal advice and representation, the readers are cautioned to consult a qualified attorney who practices immigration law.

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