Skip to main content

When A Visa Extension Is NOT a Status Extension



In a recent unpublished decision, the Board of Immigration Appeals (“BIA”) issued a rather devastating opinion on the subject of immigration status and adjusting to permanent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!”        

Comments

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America.
The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds.
Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups:
Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans), we strongly rec…

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence.

The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's licens…
Si usted es inmigrante (incluso un ciudadano de los EE.UU.), aquí hay 9 cosas que usted debe saber.

¿Es usted un ciudadano estadounidense naturalizado, residente legal permanente, titular de una visa o inmigrante indocumentado? Le recomendamos que tome los siguientes pasos para protegerse de nuestra versión actual de América.
Las últimas semanas hemos recordado a los inmigrantes, incluso a los ciudadanos estadounidenses naturalizados, que no nacieron en los Estados Unidos. Nuestra oficina ha recibido innumerables llamadas telefónicas, mensajes de correo electrónico y mensajes de medios sociales de personas preocupadas por el futuro de su familia en los Estados Unidos.
La mayoría de gente quiere saber qué puede hacer ahora para protegerse de lo que promete ser una ola de actividad anti-inmigración por parte del gobierno federal. La orden ejecutiva de Trump sobre la aplicación de la ley interior tiene algunas disposiciones que deberían hacer temblar a la mayoría de los estadounidenses. …