245(k) memo great benefit to employment based adjustment applicants

CIS issued a memorandum that greatly benefits employment based aliens with status violations or expired status. The usual rule that an employment based alien must be in legal status to qualify for adjustment of status to permanent residence in the U.S. doesn't entirely apply to employment based aliens. Aliens with fewer than 180 days in an expired status and/or status violations since their last entry are still able to adjust. So, if you are on a nonimmigrant working status and worked for an employer who is not your petitioner or your status expires, you are still eligible to adjust status to permanent residence with a labor certification and/or and i-140 petition, as long as those violations do not exceed a total of 180 days. This is of great benefit, particularly to H-1 aliens, who must file a labor certification before the start of their sixth year to extend their H-1 while the labor certification is pending but for whatever reason their labor certification is not pending for at least 365 days prior to the six year expiration of their H-1. Unless a labor certification is filed before the start of the sixth year in H-1 status, an H-1 is ineligible to extend their status. Such person can still adjust status, even though they don't qualify to extend their H-1, as long as they are able to file their adjustment of status application within the 180 days of their H-1 expiry. Such person would be out of status until the adjustment of status application is filed, but is forgiven as long as they can file their adjustment of status application within the 180 days of their H-1 expiry. This assumes that the alien has no other status violations during any other time frame after their last entry and that their priority date is current (i.e., no backlog due to quota) at the time they must filed the adjustment of status application.