In a recent unpublished decision, the Board of Immigration Appeals (BIA) denied an applicant’s adjustment of status to that of a lawful permanent resident because the applicant engaged in more than 180 days of unauthorized employment as an F-1 student.

The applicant was attempting to invoke Section 245(k) of the Immigration and Nationality Act (INA). That section can render the normal bars to adjustment (i.e. falling outside legal status, accepting unauthorized employment etc.) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States, have not engaged in prohibited activity for an aggregate period of more than 180 days. The BIA decision rejected the applicant’s rationale that an entry on advanced parole into the U.S. restarted the 180-day clock on the period of unauthorized employment.In support of the decision, the BIA cited a United States Citizenship and Immigration Services (USCIS) memo that states that an alien’s entry on parole is not counted as a “lawful admission” for purposes of this section 245(k).

For full text of the BIA decision, go here.