Maintaining lawful immigration status is essential for professionals working in the United States. Even minor lapses such as delayed filings, job changes, or employer errors can lead to serious immigration consequences. Fortunately, many status violations can be corrected if addressed promptly and strategically.

This guide explains the most effective legal remedies for fixing status violations in employment-based visas.

Understanding Status Violations

A status violation occurs when a non-immigrant fails to comply with the terms of their visa. Common examples include:

• Overstaying an authorized period
• Unauthorized employment
• Gaps between employers
• Working at an unapproved location
• Late extension filings
• Salary or role changes without amendment

If left unresolved, these violations may negatively affect future visa approvals, extensions, or eligibility for permanent residence.

Nunc Pro Tunc Relief for Late Filings or Technical Violations

Under 8 C.F.R. § 214.1(c)(4), USCIS has discretion to approve an extension or change of status request retroactively, commonly referred to as nunc pro tunc approval.

When It May Apply:

• Brief, unintentional status lapses
• Employer filing delays
• Missed deadlines due to extraordinary circumstances
• No pattern of repeated violations

To qualify for nunc pro tunc approval, the applicant must demonstrate that the failure to timely file resulted from extraordinary circumstances beyond their control and that the delay was reasonable under the circumstances. The applicant must also show that they have not otherwise violated the terms of their nonimmigrant status and that they continue to remain a bona fide nonimmigrant eligible for the requested classification.

Adjustment of Status Protection Under INA § 245(k)

Employment-based green card applicants may qualify for forgiveness of limited status violations under INA § 245(k). Section 245(k) applies to applicants seeking adjustment of status under the EB-1, EB-2, or EB-3 employment-based categories who may have engaged in unauthorized employment or otherwise failed to maintain lawful status. To qualify, the aggregate period of such violations must not exceed 180 days following the applicant’s most recent lawful admission to the United States. This provision forgives certain instances of unauthorized employment, limited failures to maintain status, and other technical violations, thereby permitting eligible individuals to proceed with filing or adjudication of Form I-485 despite these limited prior infractions.

Consular Processing and Unlawful Presence Bars

If a violation results in extended unlawful presence, in-country remedies may not be available.

Under INA § 212(a)(9)(B), the following bars may apply:

• 180+ days unlawful presence: 3-year bar
• 1+ year unlawful presence: 10 -year bar

In such circumstances, the individual may be required to depart the United States and apply for a new visa through consular processing at a U.S. embassy or consulate abroad. If the departure triggers a ground of inadmissibility, such as unlawful presence, the applicant may also need to file an appropriate waiver, if eligible, to seek forgiveness of that inadmissibility before being permitted to return to the United States. These cases carry significant risk and should be evaluated before departure.

Waivers of Inadmissibility (Form I-601/ I-601A)

Certain immigration violations may render an individual inadmissible to the United States, including prolonged unlawful presence, fraud or willful misrepresentation of a material fact, and unlawful reentry following removal or prior unlawful presence. In these circumstances, relief may be available through a waiver application, provided the applicant can demonstrate that denial of admission would result in extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent, as required under the applicable statutory provisions.

Remedies in Removal Proceedings

If a status violation leads to removal proceedings, jurisdiction shifts to the Immigration Court under the Executive Office for Immigration Review (EOIR).

Potential remedies may include:

• Motions to terminate or dismiss proceedings
• Requests for prosecutorial discretion
• Adjustment of status before the Immigration Judge (if eligible)
• Motions to reopen or reconsider
• Removal defense strategy must be coordinated carefully with any pending USCIS filings.

Key Takeaway

A status violation in an employment-based visa does not automatically foreclose future immigration options, but the appropriate remedy depends on the specific facts, timing, and immigration history involved. While certain technical or short-term violations may be corrected through strategic filings, more serious issues may require waivers or consular processing, each carrying significant legal implications. Because these determinations are highly fact-specific and discretionary, early legal evaluation is essential to protect continued visa eligibility and long-term permanent residence goals.

For individualized guidance and strategic case assessment, you may contact our office to discuss your specific situation.

Disclaimer: This article provides general information and is not legal advice. Immigration laws and requirements change frequently. Consult a qualified attorney for advice tailored to your circumstances.