Musings on Immigration

If you’re reading this, you may already know about the WashTech decision issued in August 2015 ( https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-43 ) and what it is about – an effort to prevent foreign students from being able to take advantage of the additional 17 month extension on their Optional Practical Training (“OPT”) if their field of study falls into the STEM category (science, technology, engineering, or math).   This extension was based on a rule issued by the Department of Homeland Security (“DHS”) in 2008 whereby it gave STEM students a maximum of 29 months of OPT after graduation.                 In summary, the Court invalidated DHS’ 2008 OPT rule based on a procedural flaw in their rulemaking – they failed to provide the public with notice and an opportunity to comment in advance of issuing the rule, to which DHS responded that it was necessary for the economy and to allow...

In a recent unpublished decision , the Board of Immigration Appeals (“BIA”) issued a rather devastating opinion on the subject of immigration status and adjusting to permanent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