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A Peruvian man came to America on a nonimmigrant work visa, but overstayed and subsequently engaged in unauthorized employment.  DHS later approved an I-140 on his behalf, but then issued him a Notice to Appear shortly after.  He argued before the Immigration Judges that based on his approved I-140, he should be eligible for adjustment of status under INA 245(i).  The Government argued that he is not eligible because of his period of unauthorized employment.  The Immigration Judge agreed with the Government and denied his application for Adjustment of Status.  On appeal, the alien argued that the unauthorized employment provisions of second 245(c) do not apply to adjustment of status under 245(i).  The Government rebutted this argument by asserting that, instead, section 245(k)’s unauthorized employment provision does.

The BIA looked at the plain language of the INA as a whole, and determined that the Attorney General does not regard unauthorized employment as a bar to adjustment of status, and instead, the Act means to specifically exempt aliens who would otherwise be barred from applying for adjustment of status because of unauthorized employment.

Thus, the Court held that an alien who is eligible for adjustment of status under 245(i) is not barred under 245(c) because of unauthorized employment and that the exception in 245(k) applies under 245(a).

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010).