In a recent unpublished decision, the Board of Immigration Appeals (“BIA”) issued a rather devastating opinion on the subject of immigration status and adjusting to permanent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