With certain exceptions, an alien is barred from adjusting status if:

• He or she continues in or accepts unauthorized employment prior to filing an application for adjustment of status;^[1]or

• He or she has ever engaged in unauthorized employment, whether before or after filing an adjustment application.^[2]

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These bars apply not only to unauthorized employment since an applicant’s most recent entry but also to unauthorized employment during any previous periods of stay in the United States.^[3]

As previously discussed, the INA 245(c)(2) and INA 245(c)(8) bars to adjustment do not apply to:^[4]

• Immediate relatives;

• Violence Against Women Act (VAWA)-based applicants;

• Certain physicians and their accompanying spouse and children;^[5]

• Certain G-4 international organization employees, NATO-6 employees, and their family members;^[6]

• Special immigrant juveniles;^[7]or

• Certain members of the U.S. armed forces and their accompanying spouse and children.^[8]

Employment-based applicants also may be eligible for exemption from this bar under INA 245(k).^[9]

An applicant employed while his or her adjustment application is pending final adjudication must maintain USCIS employment authorization and comply with the terms and conditions of that authorization.^[10]The filing of an adjustment application itself does not authorize employment.

A. Definitions

1. Unauthorized Employment

Unauthorized employment is any service or labor performed for an employer within the United States by an alien who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the alien’s employment authorization.^[11]

In this example, the alien left his authorized H-1B employer in April 2006. The alien was not granted any H-1B status, EAD, or other USCIS employment authorization allowing him to work elsewhere until September 15, 2007. Therefore, the alien’s employment with the second employer was unauthorized from April 1, 2006, until September 15, 2007. The alien is barred from adjusting status based on INA 245(c)(2) and INA 245(c)(8) for the unauthorized employment violations.^[12]

2. Authorized Employment

For purposes of these bars, an applicant is authorized to work while a properly filed adjustment application is pending if:

• The applicant applied for and USCIS authorized employment;^[13]

• USCIS granted the applicant employment authorization prior to filing an adjustment application and the authorization does not expire while the adjustment application is pending; or

• The applicant did not need to apply for work authorization, because such authorization is incident to the applicant’s nonimmigrant status.^[14]

Certain categories of nonimmigrants are authorized to engage in employment as an incident of status, subject to any restrictions stated in the regulations.^[15]As long as the adjustment applicant complies with applicable terms and conditions of the nonimmigrant status, the applicant does not need to obtain an EAD to continue authorized employment during the time specified while the adjustment application is pending. These applicants, however, may apply for an EAD if they prefer.

In all other cases, an adjustment applicant must file an Application for Employment Authorization (Form I-765) concurrently with or subsequent to filing an Application to Register Permanent Residence or Adjust Status (Form I-485) and await USCIS issuance of the EAD before engaging in employment.^[16]This includes refraining from employment after the applicant’s work-authorized status or previously approved EAD expires until USCIS issues the new EAD.

Finally, in all cases, if USCIS denies the adjustment application, any EAD granted based on that adjustment application may be subject to termination.^[17]

B. Periods of Time to Consider and Effect of Departure

The INA 245(c)(2) bar applies to unauthorized employment prior to filing the adjustment application. The departure and subsequent reentry of an applicant who was employed without authorization in the United States prior to filing an adjustment application does not erase the this bar. Otherwise, an applicant who engaged in unauthorized employment could simply depart the United States, reenter immediately, and become eligible to file for adjustment of status.^[18]

The INA 245(c)(8) bar applies to any time engaged in unauthorized employment while physically present in the United States regardless of whether it occurred before or after submission of the adjustment application. USCIS places no time restrictions on when unauthorized employment must have occurred, because the INA does not state that the unauthorized employment must have occurred during any particular period of time.^[19]

An officer, therefore, should review an applicant’s entire employment history in the United States to determine whether the applicant has engaged in unauthorized employment. In addition to an applicant’s most recent entry and admission, an officer should examine all of the applicant’s previous entries and admissions into the United States. An officer should disregard how much time has passed since each entry and whether the applicant subsequently left the United States and returned lawfully.

C. Evidence to Consider

An officer may request, review, and consider the following documentation to determine whether the applicant may be barred from adjustment based on unauthorized employment under INA 245(c)(2) or INA 245(c)(8):

• Arrival/Departure Record (Form I-94);

• Notice of Action (Form I-797);

• Pay stubs;

• W-2 statements;

• Income tax records;

• Employment contracts; and

• Any additional documents, evidence, or testimony regarding the nature and scope of the applicant’s employment history in the United States.

Footnotes

[^ 1] See INA 245(c)(2).

[^ 2] See INA 245(c)(8).

[^ 3] See Section B, Periods of Time to Consider and Effect of Departure [7 USCIS-PM B.6(B)].

[^ 4] Both INA 245(c)(2) and INA 245(c)(8) bar applicants from adjusting if they have engaged in unauthorized employment. However, the language of INA 245(c)(2) includes a specific exclusion for immediate relatives and certain special immigrants that is missing from the language of INA 245(c)(8). Applying traditional concepts of statutory construction, USCIS interprets the exemptions in INA 245(c)(2) to apply to INA 245(c)(8) as well. See 62 FR 39417 (PDF), 39422 (Jul. 23, 1997). See 8 CFR 245.1(b)(10).

[^ 5] See INA 101(a)(27)(H).

[^ 6] See INA 101(a)(27)(I). This group is exempt from INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8).

[^ 7] See INA 101(a)(27)(J).

[^ 8] See INA 101(a)(27)(K).

[^ 9] See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

[^ 10] See INA 274A, 8 CFR 274a, and 62 FR 39417 (PDF) (Jul. 23, 1997).

[^ 11] See 8 CFR 274a.12(a)-(c) for examples of authorized employment.

[^ 12] While there is an exemption under INA 245(k) for employment-based applicants who have worked without authorization, the applicant is not eligible to claim that exemption because “the applicant’s unauthorized employment exceeded the 180-day limitation. INA 245(k) only applies to certain applicants whose immigration violations, if any, do not exceed the 180-day limit.

[^ 13] See 8 CFR 274a.12, which indicates classes of aliens that must apply for work authorization.

[^ 14] See 62 FR 39417, 39421 (PDF) (Jul. 23, 1997).

[^ 15] Examples of nonimmigrants authorized to work incident to status include E-1, E-2, E-3, H-1B, H-3, L-1, O-1, P-1, and R-1, among others.

[^ 16] See 8 CFR 274a.12(c)(9).

[^ 17] See 8 CFR 274a.14(b).

[^ 18] See 52 FR 6320, 6320-21 (PDF) (Mar. 3, 1987). See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].

[^ 19] See 8 CFR 245.1(b)(10). See 62 FR 39417, 39421 (PDF) (Jul. 23, 1997).

Resources

INA 245(k) - Inapplicability of certain provisions for certain employment-based immigrants

Appendices

Updates

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 327.05 KB) between the AFM and the Policy Manual.

Chapter 6: Genes And Dna Assessment

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A).

Wormwood Chapter 6: Remember Me

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA).

Summary

Ponyboy and Johnny react with surprise to the fact that Cherry Valance has been acting as a spy for the Greasers. Dally explains that Cherry approached the Greasers in the vacant lot and said that she felt guilty for the whole mess, and that she 'would testify that the Socs were drunk and looking for a fight and that you fought back in self-defense.' He says that it's pretty apparent Cherry hates him, but Ponyboy knows it's because she's afraid of falling for him that she acts so cold.

After they chat a little bit about the church and the country, Johnny announces that they are turning themselves in. He explains that he has no record, so he has a good chance of 'bein' let off easy,' and that he won't say Dally helped them at all. He thinks it's unfair for Ponyboy to have to hide away with him. Then he asks Dally, 'I don't guess my parents are worried about me or anything?' Dally replies that they haven't asked about him, and it is clear this news depresses Johnny, even though he doesn't say anything. As they drive back to the church, Ponyboy thinks about how even though the gang is very close, it can't take the place of parents or real family.

Dally seems angry as they drive back, and Johnny and Ponyboy think it's because he is annoyed they didn't turn themselves in earlier, if at all, to save him trouble. But he explains 'in a pleading, high voice' that he just doesn't want Johnny to get hardened in jail. Ponyboy realizes how tenderly Dally feels for Johnny, and thinks about what Dally might have been like before he was toughened on the streets and in jail.

Gemusetto Machu Picchu Chapter 6: Match Point

When the arrive at the church, they see it is on fire. Ponyboy hops out of the car right away, although Dally wants him to get back in so they can leave. They approach a man who turns out to be Jerry Wood, a teacher who was having a picnic with schoolchildren when the church caught on fire. Ponyboy and Johnny assume they started the fire with a cigarette accidentally. Then Mrs. O'Brient, another schoolteacher, runs up and says that some of the children are missing. They all hear yelling from inside the church, and realize that some of the children must be trapped.

Ponyboy runs toward the church, throws a rock through a window, and pulls himself inside. He realizes that Johnny has followed him, but that Jerry Wood was too fat to get through the window. They run to the back of the church, and find a group of children 'about eight years old or younger, huddled in a corner.' Johnny takes charge and starts tossing the kids out the nearest window. Ponyboy starts to help. As the roof starts to crumble, Johnny shoves Ponyboy out of the window ahead of himself. Ponyboy hears Johnny scream, and then Dally whacks him on the back and he 'went down into a peaceful darkness.'

Ponyboy wakes up in an ambulance, bewildered. Jerry Wood is with him, and explains that Dally hit him so hard because the back of his jacket was on fire. When Ponyboy asks him about Dally and Johnny, Jerry says that Dally has burned one of his arms badly, but that he will be all right, but he is unsure about Johnny, since he might have a broken back from the collapsing roof. He asks if they were 'sent straight from Heaven,' and Ponyboy explains that they are 'Greasers. You know, like hoods, JD's.' Jerry is shocked when Ponyboy tells him Johnny is wanted for murder, but says they are going to the hospital, not the police station.

Chapter 6: Couples Therapy Syleena Johnson

In the waiting room, Ponyboy smokes a cigarette and Jerry reprimands him for being too young to smoke. Soda and Darry come to see him; Soda bemoans the loss of his 'tuff, tuff hair,' but Darry looks at him with 'pleading' eyes. Ponyboy realizes he is crying, and that he hasn't seen him cry in years. Ponyboy understands how much Darry cares about him, and that maybe the reason he is so strict is because he wants to keep him safe.

The Mandalorian Chapter 6: The Prisoner

Analysis

Cherry Valance helps the Greasers, and thereby creates a bridge of non-violence between the two rival gangs. Ponyboy recognizes that 'it wasn't Cherry the Soc who was helping us, it was Cherry the dreamer who watched sunsets and couldn't stand fights.' Ponyboy begins to understand that Cherry and he have something in common outside their respective social statuses.

Our understanding of Johnny's character is deepened by his conversation with Dally, in which he asks, trying not to appear eager, 'I don't guess my parents are worried about me or anything?' Dally has to answer that his parents haven't asked about him. That his parents don't care about him even when he is wanted for murder and has disappeared explains Johnny's outward meekness -- but it also hints at his inner strength and independence. He is cut off.

The relationship between Dally and Johnny grows stronger in this chapter, and it becomes clear that, while Johnny feels hero-worship toward Dally, Dally wants to protect Johnny and keep him from turning out the way he himself has. As they drive back to the church, he explains, 'You get hardened in jail. I don't want that to happen to you. Like it happened to me...' His emotional outburst makes Ponyboy think of him before he was hardened and tough, and reflect on how he came to be that way.

The Oa Chapter 6: Mirror Mirror

As Ponyboy charges into the school, he 'remembered wondering what it was like in a burning ember, and I thought: Now I know, it's a red hell.' The burning of the church has of course been foreshadowed (when the boys lay in the vacant lot watching the stars and Ponyboy looked at Johnny's cigarette end, wondering what it was like inside a burning ember.)

Johnny's eyes, a running theme throughout the novel, change dramatically in this chapter as he acts heroically. Ponyboy notes that 'that was the only time I can think of when I saw him without that defeated, suspicious look in his eyes.' Even at the beginning of the chapter, 'his big black eyes grew bigger than ever' at the thought of going to jail, since he was afraid of the police; now, he is confident and acting like a hero, and the change is reflected in his eyes. Once again, Hinton uses concrete physical details and splashes of corporeality to suggest the inner workings of her characters; it's a kind of skin-level expressionism at play, reflecting as it does an adolescent's dawning awareness of the world around him - a world in which eyes are windows to the soul, haircuts and dress styles determine a boy's place in society, and entire relationships are refracted through lingo.

Chapter 6: The Prisoner

At the end of the chapter, when Soda and Darry come to the hospital, Ponyboy has a revelation about his relationship with Darry. He sees his oldest brother cry for the first time in years. It occurs to him that 'Darry did care about me, maybe as much as he cared about Soda, and because he cared he was trying too hard to make something of me.' Darry is terrified of losing another person he loves, and Ponyboy wonders 'how I could ever have thought him hard and unfeeling.'