Removal Order Upheld for H-1B Worker whose Employment-Based Application for Permanent Residence was Denied
The Ninth Circuit Court of Appeals issued a decision (Ma v. Sessions) earlier this month, upholding the removal order of an H-1B worker whose timely filed H-1B extension petition was denied and whose following application for permanent residence based on employment also was denied. The court reasoned that the H-1B worker was not eligible for permanent residence because he had more than 180 days of unlawful status by the time he had filed his application for permanent residence. The H-1B worker argued that he was in lawful status while his H-1B extension petition was pending because the regulations automatically extend work authorization during this time and that he only started accruing unlawful status once his extension petition was denied. The court disagreed. It held that such work authorization does not constitute “lawful status” and that the H-1B worker had ceased to be in lawful status once the underlying petition had expired. As such, the H-1B worker had well over 180 days of unlawful status at the time he applied for permanent residence and was not eligible for any relief.
The key issue in this case was when the 180-day clock for counting “unlawful status” started. The court’s reading of the statute and regulations on this very narrow issue is technically correct, but the result is so absurd that one has to ask what immigration enforcement policy has been achieved by removing a high-skilled worker from the United States? Mr. Ma is a Chinese national who worked lawfully in H-1B status, sought a timely extension of his initial H-1B approval, had an immigrant petition for alien worker on his behalf approved, obtained U.S. degrees while working in H-1B status, and supported his two parents who obtained asylum in the US. Beyond the absurdity of the result is our current political atmosphere in which asking the agency to fix the regulatory scheme that led to this outcome may be impossible.
As an immigration attorney who represents employers and their foreign national employees, I see three important takeaways from this decision.
Takeaway Number One: Extension petitions for H-1B status can be denied and we need to be ready with a backup strategy to minimize the amount of time the H-1B worker spends in the US unlawfully. Many practitioners assume (rationally) that extension petitions will be approved, especially where the same employer is the petitioner as was the case in Ma. But, in this case, the extension petition was denied for insufficient qualifying work.
Takeaway Number Two: The timely filing of an H-1B extension and the automatic extension of work authorization, under 8 C.F.R. sec. 274a.12(b)(20), while the petition is being processed after the underlying status expires do not constitute “lawful status” for purposes of adjustment of status to permanent resident. The court relied on the definition of “lawful status” under 8 C.F.R. sec. 245.1(d)(1), which was promulgated to fill the statutory gap of what constitutes “lawful status” for adjustment of status under INA sec. 245(c)(2). Under that regulation, nonimmigrants (such as Ma) are in lawful status only if their status has not expired. So, although Ma was authorized to continue working after his H-1B status expired because he had a timely filed H-1B extension petition pending, he was no longer in lawful status once his H-1B status expired. Note that unlawful status is different from unlawful presence, which would start counting the date his extension petition was denied.
Under INA sec. 245(k), the immigration statute forgives up to 180 days of unlawful status and/or unauthorized employment for individuals applying for adjustment of status based on employment. In Ma, the H-1B worker concurrently filed the Form I-140, Immigrant Petition for Alien Worker, and his Form I-485, Application to Adjust Status within 180 days of the H-1B extension petition’s denial. This turned out to be the wrong calculation. Ma v. Sessions clarifies that the 180-day clock starts ticking when the underlying immigration status expires, not when the petition to extend such status is denied. As such, Ma had accrued well over 180 days of unlawful status by the time he filed his employment-based application for permanent residence and therefore was ineligible for relief.
Takeaway Number Three: One way to minimize the amount of time in unlawful status for purposes of INA sec. 245(c)(2) is to argue that the time USCIS takes to adjudicate a petition amounts to “technical reasons” for failing to maintain lawful status. While individuals who fail to maintain their lawful status generally are not eligible for permanent residence, the statute explicitly provides an exception where the failure to maintain lawful status is “through no fault of his own or for technical reasons.” The regulations at 8 CFR sec. 245.1(d)(2)(ii) specifically say that the “inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request)” constitutes a technical violation. The court mentioned in a footnote that this argument had not been raised at any point during the proceedings. The decision puts us on notice to make this argument, which may be especially critical these days where extension petitions are taking well over 180 days to be adjudicated.
While we can be prepared and make the right arguments, the real solution is to revise the regulatory definition of “lawful immigration status” for purposes of adjustment under INA sec. 245(c)(2) to include nonimmigrants who have bona fide extension petitions of their nonimmigrant status pending. This would give employers and their foreign national workers clarity on their legal status and better preserve their options for permanent residence.
This alert is for informational purposes and does not constitute legal advice.Please contact us if you would like to discuss this development further.
 8 C.F.R. sec. 1245.1(d)(1)(ii).