Process and timing

INA 245(k)

Also called 245(k), INA 245(k) exemption, 8 U.S.C. 1255(k).

INA 245(k) is the exemption that lets an employment-based adjustment applicant, including an EB-5 investor since the Reform and Integrity Act of 2022, file Form I-485 despite up to 180 days in aggregate of failing to maintain lawful status, unauthorized employment, or otherwise violating the terms of admission.

What it decides

The exemption lifts three adjustment bars and no others: 245(c)(2), (c)(7) and (c)(8). Two conditions bind. The applicant must be present in the United States pursuant to a lawful admission on the date the I-485 is filed, and the violations must not exceed 180 days in aggregate since that admission. USCIS counts only what happened after the most recent lawful admission, so a departure and a lawful re-entry reset the count to zero however long the earlier violations ran, and dependants qualify in their own right where each of them meets the test. Fifth preference was written in by RIA section 102(d)(1), which struck the words or (3) and inserted (3), or (5); section 102(d)(2) of the same section added the concurrent filing rule at 8 U.S.C. 1255(n), and section 102(e) made both effective on enactment, 15 March 2022, rather than 60 days later like the regional center provisions. It rescues nobody who entered without inspection, because 245(a) independently requires inspection and admission or parole, and it cures no ground of inadmissibility.

Governed by 8 U.S.C. 1255(k), as amended by the EB-5 Reform and Integrity Act of 2022, Pub. L. 117-103, div. BB, sec. 102(d)(1), 15 March 2022, 136 Stat. 1075, with the effective date at sec. 102(e); USCIS Policy Manual, Volume 7, Part B, Chapter 8, Section E, which lists qualified immigrant investors (fifth preference, EB-5) among the covered categories, states that only violations after the most recent lawful admission count, and extends the exemption to eligible dependants in their own right. The U.S. Code page carries the operative text and the amendment note but says nothing about USCIS counting practice; the Policy Manual chapter carries the practice but gives no effective date, which comes from the public law text on govinfo. Policy Manual chapter pages print no last-updated date; read 5 August 2026.

Related terms

Adjustment of statusAdjustment of status is the process under 8 U.S.C. 1255 by which someone already in the United States becomes a permanent resident without leaving, on Form I-485, instead of collecting an immigrant visa at a consulate abroad. An EB-5 investor who adjusts is granted conditional permanent residence for two years, the same status a consular applicant receives on admission.
Concurrent filingConcurrent filing is submitting Form I-485 together with Form I-526 or I-526E, or while the petition is still pending, instead of waiting for the petition to be approved. 8 U.S.C. 1255(n) permits it whenever approval of the petition would make a visa immediately available to the investor.
Form I-485Form I-485, Application to Register Permanent Residence or Adjust Status, is the application by which someone already inside the United States becomes a permanent resident without going abroad for a consular interview; an EB-5 investor who files it receives the same two year conditional residence a consular applicant gets on admission.
EB-5 Reform and Integrity Act of 2022The EB-5 Reform and Integrity Act of 2022 is Division BB of the Consolidated Appropriations Act, 2022, Public Law 117-103, approved on 15 March 2022, and it rewrote the EB-5 category in the Immigration and Nationality Act.

Checked against primary sources on 10 August 2026. Back to the glossary