The immigration laws contain a provision, INA § 245(k), which can be quite helpful to foreign nationals who have filed certain employment-based adjustment of status applications.* What § 245(k) does, in essence, is forgive certain violations of status, but only for a period of up to 180 days. The violations include failure to maintain a lawful status (e.g., overstay the period of admission); engaging in unauthorized employment; or otherwise violating the terms and conditions of admission.

The new USCIS guidance confirms that the 180-day period begins to accrue from the foreign national’s last lawful admission into the United States, and does not include violations that occurred before then. For example, let’s say that an H-1B nonimmigrant took a short-term “moonlighting” job, not realizing that he needed an additional H-1B approval to do so. He worked in that job for 180 days, left the United States for a few weeks, and returned to resume employment with his H-1B employer, but not the moonlighting employer. When he later files his application for adjustment of status, those 180 days of unauthorized employment in the moonlighting job will not count against him because the new admission wiped the slate clean.

On the other hand, the agency pointed out that if a foreign national enters the United States using an advance parole document, he is not, according to the law, “admitted,” since a “parole” is not an “admission.” Hence, the return on a parole does not stop the 180-day clock from running. And, backing away from an earlier interpretation of the law, the USCIS now says that the filing of an adjustment of status application also does not stop the clock from running. Under its new guidance, the agency says that the submission of an adjustment application does not excuse unauthorized employment that continues after the date of filing.

The USCIS also explains in its recent guidance that each day a foreign national engages in unauthorized employment must be counted against the 180-day limit, whether that employment be full-time or part-time. It provided this example: If a person worked without authorization for four hours a day from Monday through Friday throughout the month of April, all 30 days for that month will be counted as unauthorized employment, even though the person did not work on weekends.