Seguritan US Immigration Articles

Adjustment of Status Granted Despite Gap In Lawful Status

A foreign national with an approved employment-based immigrant petition whose priority date is current may apply for an immigrant visa through consular processing abroad or apply for adjustment of status if applicant is already in the U.S. Adjustment of status is the more preferred route because the applicant is eligible for work authorization and permission to travel while the application is pending.

To be eligible to adjust status, the applicant must meet the basic requirements, namely, physical presence in the U.S. at the time of filing, having lawfully entered the U.S. through inspection by a U.S. immigration officer or paroled into the U.S., and not being subject to any of the inadmissibility grounds.

Foreign nationals who have incurred “unlawful status” are generally not eligible to adjust status. However, certain employment-based adjustment applicants may still obtain approval of their I-485 adjustment of status applications despite gaps in lawful status. Under Section 245(k), they may adjust status if the total period of their unlawful status is not more than 180 days.

A recent case appealed to the Board of Immigration Appeals (BIA) involved Lorna Maynigo, a Filipino citizen, who entered the United States on June 24, 2001. She changed her status to H-1B which was valid until August 29, 2006. She timely filed a request for extension of her H-1B status on August 28, 2006.

The Citizenship and Immigration Services (CIS) denied Maynigo’s request for extension on March 7, 2007. She subsequently filed an application for adjustment of status on June 29, 2007 based on an approved I-140 employment-based visa petition. The priority date for the visa petition was current. The CIS denied her adjustment of status application and she was placed in removal proceedings before an immigration judge.

The immigration judge (IJ) disagreed with the CIS and found Maynigo to be eligible for adjustment of status under Section 245(k). The IJ clarified that under Section 245(k), an employment-based immigrant may adjust status if (1) the applicant is in the U.S. pursuant to a lawful admission and (2) after being admitted pursuant to a lawful admission, the applicant cannot have exceeded more than 180 days in the aggregate of any of these violations: (a) “failed to maintain continuously” a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of admission.

According to the CIS, Maynigo was “out of status” since the expiration of her H-1B on June 29, 2006. The IJ disagreed, saying that because Maynigo filed a timely application for extension of her H-1B status, she maintained lawful status under the terms of Section 245(k) while that extension application was pending. The IJ further stressed that the only period that Maynigo “failed to maintain” her status was the period between March 2007 when CIS denied the request for extension of her H-1B and June 2007, when she filed for adjustment of status. The period was approximately three-and-a-half months which was less than the 180 days allowed under Section 245(k).

The IJ also noted that if the court denies Maynigo’s adjustment application, she would be forced to apply for immigrant visa through consulate process. She would then be subject to the three or possibly ten-year bar for unlawful presence and would not qualify for waiver of that ground for inadmissibility.

The IJ found the consequences of a denial too harsh for an individual who has done everything in her power to maintain lawful status since coming to the U.S. and would unduly penalize her for the brief period she failed to maintain lawful status. For this reason, the IJ found that she deserved the court’s favorable exercise of discretion and granted her application for adjustment of status.

Authorized to Work but Status is Unlawful

May an alien be considered to be in unlawful status even though he or she is authorized to work? In the recent case of Bokhari v. Holder, the Court of Appeals for the 5th Circuit said yes.

The decision has been criticized by some immigration lawyers as an “immigration absurdity” and one that “defies logic.”

In this case, Bokhari entered the United States on April 9, 2001 as a B-2 nonimmigrant. His B-2 status was extended through October 9, 2002. On June 11, 2002 his status changed to L-1A nonimmigrant worker (intracompany transferee).

His employer applied for an extension of his L-1A status on June 09, 2003, one day before its expiration. The application was denied on March 19, 2004. His employer appealed but the appeal was denied.

On June 8, 2004 his employer filed an I-140 (employment-based) visa petition on his behalf and simultaneously, Bokhari filed for adjustment of status. The I-140 petition was approved but the adjustment of status was denied. The denial was based on the ground that Bokhari had failed to maintain lawful immigration status for more than 180 days before filing the application. Section 245k of the Immigration and Nationality Act allows an alien who is out of status to file an adjustment application if his or her unlawful status lasted less than 180 days.

Because of the denial of his adjustment application, Bokhari was placed under deportation proceedings. During the hearing, Bokhari claimed that he was eligible for adjustment but the Immigration Judge ruled that he was not eligible because the application was filed more than 180 days after his L-1A status expired on June 10, 2003.

Bokhari appealed to the Board of Immigration Appeals. He argued that he was in lawful status until his extension application was denied on March 19, 2004. He asserted that he was in lawful status from the expiration of his L-1A on June 10, 2003 through March 19, 2004 because immigration regulations allowed him to work during that period. The regulation that he cited authorizes an alien to continue working for 240 days while the extension application is pending.

The Board of Immigration Appeals denied his appeal and stated that although he had been authorized to work, the work authorization did not provide him lawful immigration status.

In his appeal to the Court of Appeals he argued that the Board of Immigration Appeals misinterpreted the immigration regulation and the statute. He claimed that the automatic employment authorization provided by the regulation logically gave him lawful immigration status.

The Department of Homeland Security (DHS) on the other hand contended that employment authorization is not a grant of lawful immigration status. It said that they are two different issues and that the extension application did not confer lawful status.

The Court of Appeals agreed with the DHS. It held that the employment authorization provided to Bokhari under immigration regulations did not provide him with lawful status. The Court pointed out that the term “lawful immigration status,” is granted to nonimmigrants “whose initial period of admission has not expired or whose nonimmigrant status has been extended,” Bokhari, said the Court, was in unlawful status after June 10, 2003 and was thus ineligible to have his status adjusted to that of a permanent resident.

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