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.

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