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In a recent unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of an immigrant’s application for adjustment of status on the basis that the immigrant failed to maintain lawful status for more than 180 days. The BIA confirmed that merely having a pending application for an H-1B extension does not confer lawful status under INA 245(k). Notably, the BIA held that the denial of a petition to extend nonimmigrant status establishes that the period of unlawful status commences at the time the nonimmigrant status expired—not at the time of denial of the petition.

In this recent decision, the individual entered the United States on an F-1 visa and changed status to an H-1B visa. The employer filed to extend the H-1B visa and received a Request for Evidence. While the H-1B extension was pending, the employer initiated the process of sponsoring the individual for an immigrant visa. The H-1B extension was subsequently denied. Then, they filed an Application to Register Permanent Residence or Adjust Status (Form I-485) which was denied on the basis that the individual had been out of status for more than 180 days and therefore had not continuously maintained lawful status in the United States. The Immigration Judge found that the individual’s period of lawful status terminated on the date his H-1B nonimmigrant status expired, and not on the date the H-1B extension was denied. The BIA confirmed that a pending application for extension of nonimmigrant status does not extend the individual’s status either upon the act of filing or forgive unlawful status through the date of adjudication, regardless of how long it takes the government to adjudicate the application.

The BIA’s decision further highlights the important concept of ‘maintenance of status.’ This underscores the difference between accruing ‘unlawful presence’ as a ground of inadmissibility under INA 212(a)(9)(B), and the statutory requirement to maintain lawful status under INA 245(c)(2) for eligibility purposes. The filing of an application for extension of status continues the individual’s period of authorized stay in the United States, allowing the individual to avoid accruing unlawful presence, however it does not extend the immigrant’s lawful status. It follows, that filing an application for extension of status does not excuse unlawful status through the date of adjudication. The adjudication of an application indicates the status to which an individual was entitled. Thus, an immigrant whose timely nonimmigrant extension application is denied, begins to accumulate time in unlawful status upon the expiration of status.

Employers are reminded of the need to file visa extensions as early as possible to avoid lapses in nonimmigrant status. Foreign nationals are reminded of the need to maintain continuous status while awaiting the processing of their immigrant visa petitions. Contact the Greenberg Traurig immigration team today to discuss.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies,

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.

Photo of Rebecca B. Schechter ‡ Rebecca B. Schechter ‡

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations midsized companies, and startups, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher…

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations midsized companies, and startups, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher petitions and labor certification applications. Rebecca regularly assists GT clients with global immigration matters, including business and work visas to countries in Europe, the Middle East, Asia, and Latin America. She also works on state and federal I-9 and E-Verify audits. Rebecca has a thorough understanding of third party contractor issues and experience handling complex naturalization, deportation defense, family and employment-based adjustment applications.

Admitted in Maryland and Connecticut. Not admitted in Virginia. Practice limited to federal immigration practice.