INA 245(k): The 180-Day Grace That Won't Cover Visa Fraud

The general rule for adjustment of status is unforgiving: under INA § 245(c) — 8 U.S.C. § 1255(c) — an applicant is supposed to have maintained lawful status continuously, with no unauthorized work, right up to the day the green-card application is filed. Employment-based applicants get an escape hatch that family-based applicants do not, and it is one of the most misunderstood provisions in the code.

That hatch is INA § 245(k). Brian Burke, an attorney at Shihab Burke, LLC, in Dublin, Ohio, devoted a stretch of his June 2026 broadcast “Employment-Based Adjustment of Status: A Survival Guide” to what it does — and what it does not.

The statute caps that forgiveness at an aggregate of 180 days of having “failed to maintain, continuously, a lawful status,” “engaged in unauthorized employment,” or otherwise violated the terms of admission. The clock that matters runs from the applicant’s most recent lawful admission, which is why a minor lapse during an earlier stay can fall away entirely after a departure and clean re-entry. For someone in EB-1, EB-2, or EB-3 who picked up a short period of unauthorized work or a brief overstay, that window can be the difference between an approvable case and a barred one.

The trouble starts when people treat it as broader than it is.

The hard limit is fraud. INA 245(k) reaches lapses in status; it does nothing for misrepresentation. An applicant who leaves the country to “reset” a status problem and then is untruthful on a visa application to get back in has traded a forgivable 180-day problem for a permanent one — inadmissibility for fraud or willful misrepresentation under INA § 212(a)(6)(C) — 8 U.S.C. § 1182(a)(6)(C) — which 245(k) cannot touch.

That exposure is no longer theoretical, because the back half of the Form I-485 carries roughly five dozen questions about prior conduct — including whether the applicant has ever given fraudulent or misleading information to the government — and officers are increasingly checking those answers against the paper trail.

Burke described being at a USCIS interview that morning where his client was questioned about the DS-160 he had used to obtain a B visitor visa years earlier. The lesson is that a status lapse and a misrepresentation are graded on entirely different curves: one is curable inside a 180-day window, the other surfaces whenever an officer pulls the old application. Anyone counting on 245(k) should map every prior status problem against what was actually said on each visa form before filing, because the discretion regime gives officers more room than ever to act on what they find — which is also why practitioners now advise building the favorable record in advance rather than reacting to it at the window.