In a recent unpublished
decision, the Board of Immigration Appeals (“BIA”) issued a rather
devastating opinion on the subject of immigration status and adjusting to
permanent residence. The BIA held that
the foreign national accrued “unlawful status” (but not “unlawful presence)
during the pendency of his ultimately denied H-1B extension of status petition
and after the initial H-1B had expired.
As a result, the foreign national was subject to the provisions in INA
Section 245(k) barring him from eligibility for adjustment of status because he
had accrued more than 180 days of unlawful status. . In yet another weird twist of the complexity
of immigration law, the foreign national was” lawfully present” and authorized
to work during the period of the pending H-1B extension (up to 240 days), but,
because his petition was ultimately denied, all of that time was NOT held to be
“lawful status.” The BIA held that upon
the denial of the extension of status, the foreign national immediately accrued
unlawful status from the date of the original expiration. This is a very bad (but not unexpected) decision and should serve
as a precautionary lesson for those currently in this position.
In light of this decision, it is
imperative to take great precaution when in H-1B, or any other nonimmigrant status,
and needing to extend your status. Make
sure to speak with your employer and attorney at least 6 months before the
expiration of your status to ensure that they are aware of current processing
times. File that H-1B or other visa extension
in enough time so that a decision is issued before the expiration of
your current H-1B, rather than filing it only days before the expiration like
in this BIA decision.
Similarly, it is also very
important that if you are going through the permanent residence process, to
never assume that the pending adjustment application governs your lawful status
in the U.S. Many people wrongly assume
that once the adjustment of status application is filed on their behalf, that
they no longer have a need to renew the H-1B petition. For the very same reason as in this decision,
if your adjustment is denied and you had previously allowed your underlying
nonimmigrant status to expire, you will be faced with the same issue regarding
the immediate accumulation of unlawful status and a bar for adjustment in the
future. It is imperative that you always
continue to extend your underlying nonimmigrant status until such time that
your adjustment of status application is approved.
These are very important things to
keep in mind because often times when someone finds themselves in this
position, they have no other protections under the law to escape the bar under
245(k). This case is a very important
lesson to make sure that you are carefully monitoring your status to ensure the
timely filing of extensions so that you do not fall “out of status!”
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