Petitioning my father who is in US But working visa has expired

[JimVaPhuong 4,863]

So my questions about this INA Act 245 are these:

What is the background of this Act?

Do you know of any precedent decisions or anybody who has used the contents of this Act in their request for pardon maybe?

The background is that it is the Immigration and Nationality Act - the basis of all immigration law in the United States. It was originally passed in 1965, but has been amended numerous times since then.

The law is codified in the form of the United States Code of Federal Regulations. Title 8 of the US Code (often referred to as 8 CFR) contains most of the immigration related regulations. Title 8, section 245.1, paragraph (b) states:

(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and § 245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 245.1(c

), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status:

... (irrelevant excerpts omitted)

(4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status.

This restriction shall not apply to an alien who is:

(i)

An immediate relative as defined in section 201(b) of the Act;

No pardon is necessary. The USCIS immigration officer can't even consider it as a matter of discretion. The law makes it irrelevant.

here is a good read op..

http://immigrationissues.wordpress.com/2010/06/18/can-i-work-while-my-green-card-application-is-pending/

Nowhere in this article does it mention that working without authorization will be a problem for an immediate relative of a US citizen adjusting status. The blog entry is merely an overview of the I-765 process for obtaining an EAD. Further, the person who posted the blog entry is not an attorney (try clicking on the "About" link), and merely copied the article from somewhere else on the internet. However, since you have an interest in the opinions of immigration lawyers:

http://www.klaskolaw.com/articles.php?action=view&id=118

Applicants for adjustment of status as "immediate relatives"(spouses, children and parents of U.S. citizens) are relieved of most of the common bars to adjustment of INA §245(c )

, but not the threshold requirements of INA §245(a) that they be inspected and admitted or paroled.

...

INA §245(c )(2) makes ineligible for adjustment any alien who has ever worked without authorization prior to filing the application, and INA §245(c )(8) makes ineligible for adjustment any alien who has worked without authorization.[12] The language of paragraph (c )(8) does not specify the time frame during which unauthorized employment is prohibited. The INS has determined that this language refers to any time period before the adjustment of status application is granted.[13] Even one day of unauthorized employment may render an applicant ineligible to adjust under these provisions— including unauthorized employment after filing for adjustment of status application.[14]

As noted above, a foreign national who qualifies for immediate relative status under INA §201(b) is exempt from this ground of ineligibility.

[15]

Here's a lawyer Q&A where someone asks this precise question, though the alien is the spouse rather than the parent of a US citizen. You'll see the responses from more than a dozen attorneys.

http://www.lawqa.com/qa/should-i-go-to-an-i485-interview-if-ive-been-working-wihtuot-authorization

The consensus from the majority of them conforms with INA 245. There are, of course, always a handful of attorneys who will ALWAYS tell someone that the sky is falling and that they MUST hire an attorney or the world will come to an end.