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USCIS Improperly Blurs Distinction Between Violation of Status and Unlawful Presence for F, J and M Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo abruptly revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance is effective August 9, 2018, and after reading this blog, it is hoped that readers are sufficiently shocked and motivated to submit comments as the radical departure from previous policy will jeopardize the ability of many nonimmigrants, mainly foreign students, from returning to the United States for unwitting or inadvertent status violations.

There has always been a strict distinction between violating status and being unlawfully present in the United States. One can be in violation of status without being unlawfully present. Even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence. This is because an F, M and J nonimmigrant is usually admitted for a Duration of Status (D/S) rather than up to a certain date. An F, M or J can maintain status so long as they remain enrolled in the educational institution or participate in activities pursuant to that status, which is why they are admitted under D/S.  On the other hand, one who is the beneficiary of an approved H-1B or L nonimmigrant petition is admitted only up to the validity date of the petition. F, M and J nonimmigrants are not beneficiaries of prior approved petitions filed by sponsors.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios under the prior policy discussed below.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA 212(a)(9)(C)(i)(1).

The new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

By contrast, one admitted under an approved H-1B or L visa petition up to a certain date starts accruing unlawful presence after remaining beyond that date while a student who was admitted under D/S did not unless there was a violation of status finding by the USCIS or by an immigration judge. This holds true even with respect to a nonimmigrant admitted under a date certain visa. If the H-1B or L nonimmigrant violates status during the validity period of the admission, he or she will be in violation of status but will not accrue unlawful presence unless there is a formal finding by the USICS or an immigration judge.

The prior policy made more sense, and maintained the important distinction between maintenance of status and lawful or unlawful presence. The 3 and 10 year bars, or the permanent bar, are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under 212(a)(9)(B)(ii), which provides:

“….an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled

The new policy blurs the difference between being out of status and unlawfully present. Unlawful presence ought to only trigger when one goes beyond an expiration date and not when there is a contestable violation of status. If a student in F status is in violation of that status, he or she can be placed in removal proceeding and may contest the allegation in the proceeding. If the Immigration Judge orders the person removed based on the violation, then the unlawful presence period may commence upon the order. Similarly, when one who is in F status applies for a change of status, and the USCIS finds that the applicant violated status, which the applicant may have been able to contest,  unlawful presence may commence after such a finding.

Under the new policy, a nonimmigrant in F, J or M status may have unwittingly violated that status by not pursuing a full course of study or engaging in an unauthorized activity, and may never get notice of it until much later. Even F-1 students in post-completion practical training could potentially be deemed later to have engaged in unauthorized activity, such as not working in an area consistent with their field of study or a STEM trainee being placed at a third party client site, which USCIS has without notice abruptly disfavored,   or if a school’s curricular practical training does not meet the USCIS’s subjective interpretation of whether the school was in compliance when it authorized such training.   In the meantime, this person would have started accruing unlawful presence and triggered the 10 year bar to reentry upon departing the United States. The dependent spouse would also unfairly accrue unlawful presence as a result of a status violation by the principal spouse. This individual may never get a chance to contest the violation of status after the fact. Unlawful presence should only trigger when there is clear notice of remaining beyond an expiration date of authorized stay in the United States and not when there is a contestable allegation of violation of status. An F, J or M nonimmigrant is now in a worse off position than say an H-1B nonimmigrant admitted under a date certain validity period. A violation of status by the H-1B nonimmigrant during the period of authorized stay would not trigger unlawful presence.  Even after 9/11, when immigration policies concerning students were tightened, we did not see such a cynical change in policy for students as now under the Trump administration where they may not know in time of a status violation only to later realize they have unwittingly accrued unlawful presence triggering the 10 year bar.

This is my preliminary reaction to the new unlawful presence policy relating to F, M and J nonimmigrants. There will be many other good arguments that will be developed and interested persons, along with those who will be potentially affected by 3 and 10 year bars,  are strongly urged to send in comments before June 11, 2018. The memo will take effect on August 9, 2018, but the abrupt change in policy without any proper rationale or justification also potentially makes it ripe for litigation.

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes be a Good Thing

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as manyAAOdecisionsstate, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisionsfrom 2012; 2010; February, March, Apriland June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from Januaryand Marchof 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11)applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

USCIS Issues Provisional Waiver Final Rule: Beginning in March, Some Waivers of the 3- or 10-Year Bars May Be Sought Before Departing the United States

One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States.  It has been a long wait for the final rule, as USCIS needed to allow time to receive public comments (one of which was submitted by our firm) and then took a substantial amount of time to analyze the comments and determine what changes to make to the proposal, but the wait is finally over.USCIS first announced the final ruleand made an advance copy available on January 2, 2013, and the final rule was officially published in the Federal Registeron January 3.  The rule will take effect on March 4, 2013, and sometime before then USCIS will publish the Form I-601A that is to be used to apply for a provisional waiver.

The provisional waiver rule does not change the substantive standard that one must satisfy in order to obtain a waiver of the 3- or 10-year bar that one incurs upon accruing more than 180 days or a year of unlawful presence respectively.  In order to obtain a waiver of the 3- or 10-year bars under section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA), it is always necessary to show that the waiver applicant’s spouse or parent, who is a U.S. citizen or Lawful Permanent Resident (LPR) of the United States, will suffer extreme hardship if the applicant is not permitted to remain in the United States.  However, under the new rule, certain applicants will be able to make this showing before they depart the United States to apply for a visa, which should dramatically shorten the amount of time that they need to spend abroad.  If an applicant is seeking a waiver of the 3- or 10-year bars based extreme hardship to a U.S. citizen qualifying relative (rather than an LPR), and has an approved petition as an “immediate relative” of a U.S. citizen – that is, as the U.S. citizen’s spouse, parent, or unmarried child (under the age of 21 while taking into account the Child Status Protection Act, although only applicants age 17 or older may seek provisional waivers and younger applicants would not need them because unlawful presence for these purposes does not accrue until age 18)– then the applicant may seek a provisional waiver before departing from the United States, and only go abroad to apply for an immigrant visa after the provisional waiver has already been issued.  This process is subject to various restrictions, some of which are discussed further below, but that is the basic idea.

By allowing some waiver applications to be adjudicated while the applicant remains within the United States, the provisional waiver process should significantly reduce the period of time when the U.S. citizen relative of a successful waiver applicant is subject to the cruel irony that inheres in the current process.  Under the current system, where the waiver application is filed while the applicant is abroad after an immigrant visa interview, and the applicant then remains abroad during the months it takes to adjudicate the waiver application, the qualifying relative must undergo months of the very same extreme hardship that the waiver is intended to avoid!  At least with regard to U.S. citizen qualifying relatives of applicants who are immediate relatives of U.S. citizens, and who face no other ground of inadmissibility besides unlawful presence, this new provisional waiver process should remove much of that cruel irony.  It should also encourage applications by some waiver applicants who were unwilling to travel outside the United States to apply for a waiver because of the risk of long-term separation if the waiver were denied.

One detail to keep in mind is that the U.S. citizen relative to whom extreme hardship is shown in a provisional waiver application need not necessarily be the same U.S. citizen relative who has petitioned for an applicant.  Indeed, the U.S. citizen petitioner need not even be a possible qualifying relative for the 212(a)(9)(B)(v) waiver.  A child is not a qualifying relative for purposes of obtaining a waiver of the 3- or 10-year bars, but an applicant who is sponsored by a U.S. citizen son or daughter over twenty-one years of age, and thus qualifies as an immediate relative, would be able to qualify for a provisional waiver if he or she could show extreme hardship to a U.S. citizen parent in the event that the applicant were not allowed to return to the United States– even though a U.S. citizen parent cannot sponsor an adult son or daughter as an immediate relative.  Or, an applicant with a U.S. citizen spouse, who cannot show that his or her spouse will suffer extreme hardship if the applicant is not allowed to return to the United States, could instead obtain a provisional waiver by showing that a U.S. citizen parent will suffer extreme hardship in the applicant’s absence.

Another important detail, which has been changed from the proposed rule, is that applicants in removal proceedings will be able to seek a provisional waiver iftheir proceedings are administratively closed and have not been recalendered.  Administrative closure, most recently addressed by the Board of Immigration Appeals (BIA) in Matter of Avetisyan, is a process in which a case is taken off the active calendar of an Immigration Court or the BIA without actually being terminated; one might compare it to an indefinite continuance of the case.  Traditionally, it has occurred with the consent of the Department of Homeland Security (DHS), although Avetisyan allows for it to be sought without DHS consent, a possibility which might prove useful in the provisional-waiver context.  Administrative closure has often occurred recently in the contextof the DHS exercise of prosecutorial discretion in favor of those who are lower priorities for removal so that DHS can focus its efforts on removing those who are its higher priorities for removal, such as those with serious criminal convictions—the process discussed in a June 17, 2011 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton.It is admirable that USCIS realized, upon reviewing comments on the proposed rule, that no purpose would be served by denying the opportunity to apply for a provisional waiver to those whom ICE is not actively seeking to remove in any event.

One interesting consequence of this new eligibility for those with administratively closed removal cases relates to the process created by the Court of Appeals for the Second Circuit in its October 16, 2012 opinion entitled In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit.  The Court of Appeals for the Second Circuit, in order to avoid having to spend court time unnecessarily reviewing a removal order in cases where ICE would anyway not seek to execute the order, has created an automatic 90-day waiting period during the processing of petitions for review (although one which can be ended early by either side) to allow for discussion of whether the exercise of prosecutorial discretion is appropriate.  In cases where the Office of Immigration Litigation that is representing the government on the petition for review determines in consultation with ICE that a case is low-priority and suitable for the exercise of prosecutorial discretion, the case will be remanded to the BIA for administrative closure.  Thus, at least in the Second Circuit, and perhaps in other Circuits which may come to follow the lead of the Second Circuit, some who have already received final orders of removal, but who would be eligible for a provisional waiver absent such final order and have petitioned for review of the order, should be able to return their case to an administratively closed state under the new process and then apply for a provisional waiver.

In another positive development, the final rule has retreated somewhat from the initial USCIS position that the provisional waiver process would only allow for what one might call a single bite at the apple, permitting neither appeal nor re-filing, so that an applicant who was denied a provisional waiver could only proceed with the process by departing from the United States and re-applying for a conventional waiver from abroad.  Although an administrative appeal is still not available, an applicant whose application for a provisional waiver is denied will be permitted under the final rule to file a new application (with the appropriate filing fee).

Not all the news from the final rule is good news, however.  Unfortunately, despite the urging of many commenters, the provisional waiver process will not be available to those who are currently in removal proceedings, unless their proceedings have been administratively closed and not recalendared.  It will also not be available to those who are currently subject to a final removal or deportation or exclusion order—even though those subject to such orders have long been able to file a stand-alone I-212 application for advance permission to reapply for admission prior to departure from the United States, under 8 C.F.R. § 212.2(j).  Unless those subject to a final order can get the case reopened and administratively closed (as for example could be possible on remand from a Court of Appeals), it appears they will need to follow the conventional waiver process from abroad, despite the resulting hardship to qualifying relatives.

The provisional waiver process also will not apply to those who are inadmissible for reasons other than the 3- or 10-year bar resulting from previous unlawful presence.  Although the above-mentioned previous post on this blog, and our official comment submitted to USCISalong the same lines, advocated that provisional waivers should be available in contexts such as alleged fraud for which a waiver is needed under INA section 212(i), USCIS chose not to accept that suggestion.  However, USCIS has held out the possibility of perhaps extending the provisional waiver process to other contexts once it has had a chance to observe how the initial, narrower version of the provisional waiver process works in practice.

Another restriction worth noting is that the provisional waiver will not be available to those who have already been scheduled for an immigrant visa interview as of January 3, 2013.  The key question is not when the interview was scheduled to take place, or whether the applicant attended the interview, but whether the Department of State’s National Visa Center (NVC) had already acted to schedule a consular interview by January 3.  If the NVC had scheduled a visa interview by January 3, the provisional waiver process will not be available.  If the NVC had not acted to schedule an interview by January 3, then the subsequent scheduling of an interview will not remove one’s eligibility for the provisional waiver, although in the interest of efficiency prospective waiver applicants with a case before the NVC are advised to notify the NVC of their intent to seek a provisional waiver before an interview is scheduled.  The NVC has already begun sending emails to some prospective visa applicants advising them that they must inform the NVC of their intent to seek a provisional waiver, by sending an email to NVCI601A@state.gov, and that failure to do so would delay the visa application.

For additional background on the final provisional waiver rule, interested readers may wish to review posts about it on the “AILA Leadership Blog” of the  American Immigration Lawyers’ Associationand the “Lifted Lamp” blog of Benach Ragland LLP.  The New York Times has also reported on the new provisional waiver rules.  Despite all of its imperfections, the final provisional waiver rule is a very positive development, an important step along the road of reducing unnecessary hardship to the qualifying relatives of waiver applicants.

Deferred Action: The Next Generation

By Gary Endelman and Cyrus D. Mehta

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to  allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”  But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matter of Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using  Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5).  For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.”  This would only be the case, however, where the adjustment applicant is  married to a US citizen, or is the minor child or parent of a US citizen,  and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status.   Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment.  We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b).  Still,  the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of  triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection.  But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted  nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently,  all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”

WHAT THE PROPOSED PROVISIONAL WAIVER RULE MEANS FOR THOSE FACING 3- OR 10-YEAR BARS

By Cyrus D. Mehta and David A. Isaacson

In the raging immigration debate concerning the millions of undocumented immigrants in the US, one important issue has received scant attention. We have yet to meet a person who has roots in the US who desires to choose to remain undocumented. Most are forced to remain undocumented even though they have a pathway to a green card due to a perverse Catch 22 effect in our immigration law as a result of the 3 and 10 year bars imposed under INA § 212(a)(9)(B).

Those who have remained unlawfully present in the US for 1 year or more face a 10 year bar to reentry if they depart the US. Similarly, those who have remained unlawfully present for more than 180 days face a 3 year bar to reentry if they depart the US. It should be noted that the term “unlawfully present” is a complex legal term and a discussion of this term is beyond the scope of this blog. These individuals, if they are the beneficiaries of an approved immigrant visa petition filed by a US citizen spouse or parent or a US citizen child (who is over 21), may often be unable to adjust their status in the US. Under INA § 245(a) one has to be inspected or paroled in order to qualify to adjust status to permanent residence in the US. Thus, a non-citizen spouse of a US citizen who previously surreptitiously crossed the border from Mexico into the US would be ineligible to adjust status because she was not inspected under § 245(a). Of course, there are exceptions to this rule too, which is beyond the scope of this blog and an article discussing these exceptions can be found here. This spouse would need to leave the US and apply for an immigrant visa at the US consulate in her home country. However, if she was unlawfully present in the US for 1 year or more, it would result in her triggering the 10 year bar to reentry. Although, under the current regime, she can apply for a waiver under INA § 212(a)(9)(B)(v), she can only do so after she has departed the US.

Obtaining the waiver is no small matter because she has to demonstrate extreme hardship to the US citizen spouse if the waiver is denied. The emotional angst resulting from the separation of two spouses is not enough. She will need to demonstrate, in addition to the emotional issue, financial, cultural, political and health conditions, among many others, as well as the balancing of ties within and outside the US. See Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). Thus, this spouse will be rolling the dice if she departs the US to chance winning the waiver while outside the US. If the waiver is denied, she will be stuck outside the US and will be separated from her loved ones. Moreover, she can only demonstrate extreme hardship to a limited universe of qualifying relatives, which include a spouse or a parent. If she has US citizen children, under INA § 212(a)(9)(B)(v), she cannot demonstrate extreme hardship to them if she is separated.

It is not hard to see why there has been such a huge build up of the undocumented population in the US. Even while people may be eligible for permanent residence, they are unwilling to leave and chance a waiver from outside the US. While Congress enacted INA § 212(a)(9)(B) to deter overstays, it has had the exact opposite effect. People overstay, despite being approved for a green card, because of fear of facing the 3 or 10 year bars.

It is thus heartening that the Obama administration has proposed a rule that will be published in the Federal Register on January 9, 2012 in the form of a Notice of Intent to publish such a rule, which will permit intending immigrants to apply for a provisional waiver in the US prior to their departure from the US. This rule, if published, will remove the uncertainty in leaving the US and being barred for 3 or 10 years if the waiver application is denied. Under the proposed rule, the waiver can be applied for while in the US. With the waiver in hand, the individual departing the US can more readily hope to reenter the US without facing the 10 year bar. This move has received thunderous applause from the immigration advocacy community and rightly so. In a time when Congress is virtually paralyzed and cannot even make small tweaks to improve the immigration system, the proposing of a smart administrative rule such as this one is consistent with the intent of the law. People subject to the 3 or 10 year bars still need to apply for the waiver and meet the rigorous “extreme hardship” standard, except that they can apply for it in the US prior to their departure. If they obtain the waiver, they can at least be assured of not triggering the 3 or 10 year bars upon their departure.

Apparently, if and when the rule takes effect, which under the formal rule making process may take some time, it will be limited to immediate relatives of US citizens who are seeking a § 212(a)(9)(B)(v) waiver of unlawful presence based on hardship to a US citizen, although the petitioning US citizen and the one to whom extreme hardship exists need not be the same (so that, for example, it appears that the parent of a 21-year-old US citizen petitioned for by that son or daughter would qualify if seeking a waiver based on extreme hardship to a US citizen parent, the grandparent of the petitioning relative). It appears that the rule will not cover people who are not immediate relatives of a US citizen (such as the over-21-year-old son or daughter of a US citizen who is petitioned for by their parent and not protected by the Child Status Protection Act), or whose qualifying relative for the waiver is a lawful permanent resident. It also will not cover people who need some other sort of waiver in addition, such as a waiver under INA § 212(i) for fraud. It is not entirely clear whether the proposed rule would cover people who in addition to a waiver under § 212(a)(9)(B)(v) need to obtain permission to reapply for admission because their departure will execute an order of removal and create inadmissibility under INA § 212(a)(9)(A), but it would seem that it should, since such applications for permission to reapply can already be filed in advance under existing regulations– the actual proposed rule may clarify this when it comes out. We do urge the USCIS to at least include sons and daughters of US citizens who do not qualify as immediate relatives. A child who has turned 21, and who may not be protected under the Child Status Protection Act, still remains very much part of the nuclear family especially in hard economic times when their parents are still the lifeline. These adult children, technically referred to as sons and daughters, would otherwise qualify under DREAM Act legislation, and may at least be able to take advantage of this provisional waiver if the proposed rule is adjusted to allow them to do so.

Although this new proposed rule may be portrayed as some sort of radical innovation by immigration restrictionists, it is actually nothing of the sort. The governing regulations, specifically 8 C.F.R. § 212.2(j), have long provided that one who is consular processing an immigrant visa, and will need permission to reapply for admission because his or her departure will execute an order of deportation or removal and create inadmissibility under INA § 212(a)(9)(A), can file the Form I-212 application for permission to reapply in advance of departing from the United States, and “shall receive a conditional approval depending on his or her satisfactory departure.” That is, people who will be subject to the 5- and 10-year bars based on executed removal and deportation orders (the length of the bar can vary depending on the circumstances of a removal order) have long been able to apply for advance waivers of those bars before they leave the US to consular-process an immigrant visa. This new proposed rule would simply update the regulations to create a similar procedure for the parallel 3- and 10-year bars created by IIRIRA (the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”), for people who remove themselves from the United States after being unlawfully present even though there may have been no removal proceedings against them. It can therefore be seen as a long overdue technical fix. However, it remains to be seen how long the rule making process will take, which includes notice and comment. There is also bound to be opposition to the rule. The USCIS still has to publish rules from the enactment of IIRIRA provisions in 1996! Hopefully, the Obama administration will give this high priority as the promulgation of such a rule may even reduce the undocumented population in the US.

This technical fix could also reduce inefficiency in the era of Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), especially if accompanied by an additional change in the proposal relating to potential issues of fraud. Under Quilantan, entering the United States at a port of entry with the permission of an immigration officer is sufficient to create eligibility for adjustment of status as an immediate relative of a U.S. citizen, regardless of whether one’s entry was procedurally proper, as long as the entry did not involve a knowing false claim to U.S. citizenship. Many people who were waved through the border as passengers in a car or the like have little corroborating evidence of their manner of entry. Absent this regulation, if such a Quilantan entrant is married to a U.S. citizen and is denied adjustment because USCIS rejects their testimony regarding manner of entry, they will effectively be forced to request that removal proceedings be commenced against them so that they may testify before an Immigration Judge and seek to establish their manner of entry by credible testimony as Ms. Quilantan did in her case. Under the new procedure, some such Quilantan entrants may decide that it is simpler to seek an advance waiver of inadmissibility, as long as their qualifying relative’s particular form of extreme hardship is such that a brief trip abroad to pick up an immigrant visa will not be intolerable. If the advance waiver is approved, the already overcrowded immigration court system would then be spared the necessity of hearing testimony regarding the applicant’s manner of entry. One caveat, however, is that the current version of the proposal, which excludes waivers of fraud-related inadmissibility under INA § 212(i), could lead potential applicants and their attorneys to fear a potential finding of fraud inadmissibility by a consulate where the circumstances of the applicant’s prior entry into the United States are murky and difficult to prove (making it hard to refute an inaccurate consular suspicion that some fraud may have been committed). The potential efficiency would be much greater if the USCIS proposal were modified to allow either advance waivers under INA § 212(i), or at least an advance finding that no fraud was committed by an applicant. Otherwise, Quilantan­ entrants within the U.S. may be reluctant to give up their right to have an Immigration Judge (and if necessary the BIA) adjudicate their contention that they did not commit fraud in their entry, and to instead be at the mercy of an effectively unreviewable determination by a consular officer.

THE ENIGMA OF BOKHARI V. HOLDER: WORK AUTHORIZATION IS NOT LAWFUL STATUS

By Gary Endelman and Cyrus D. Mehta
It has always been known that being authorized to work in the US is not the same thing as being in a lawful status. The Fifth Circuit Court of Appeals recently issued a decision in Bokhari v. Holder, No. 09-60538, September 29, 2010,  confirming this enigma. Simply stated, the fact that Mr. Bokhari timely filed an L-1A extension, which allowed him to continue working in the United States, was not sufficient for him to establish lawful immigration status that would have permitted him to file an application to adjustment status to lawful permanent residence. While this decision defies logic and has raised the hackles of many in the immigration bar, it does not break new ground and has been consistent with USCIS’s prior policy. The question is whether we should be affirming the status quo or continuing to litigate so that we can correct this contradiction. Read on.

Here are the facts in Bokhari v. Holder. On June 9, 2003, one day before his prior L-1A nonimmigrant visa status was due to expire, Mr. Bokhari’s employer filed form I-129 to extend his L-1A status. Unfortunately, the USCIS denied the I-129 petition on March 19, 2004. Mr. Bokhari diligently filed an appeal on April 19, 2004 which too got denied on September 2, 2005. While Mr. Bokhari was unsuccessfully attempting to extend L-1A status, he took another stab by filing an I-140 petition for permanent residence under the multinational manager category on June 8, 2004, and simultaneously filed an I-485 application to adjust his status even while he was not in lawful status. We know that Mr. Bokhari filed the I-485 late – long after his L-1A status expired – but he claimed the protection of INA § 245(k). This provision allows an applicant who has failed to maintain status for less than 180 days to still file for adjustment of status. Mr. Bokhara’s I-140 petition got approved on July 11, 2005, but his I-485 application got denied on September 20, 2005 and DHS commenced removal proceedings against Mr. Bokhari.

The sole issue in the case was whether Mr. Bokhari was in unlawful immigration status for more than 180 days and was thus ineligible to adjust status. Mr. Bokhari argued that while his request to extend L-1A status was pending, he was in lawful status. He actually had a solid argument since 8 C.F.R. § 274a.12(b)(20) authorizes an alien to continue working while the extension request for a nonimmigrant work visa status remains pending for 240 days. Thus, even though his original L-1 status expired on June 10, 2003, Mr. Bokhari asserted that he continued to remain in lawful status until March 29, 2004, when DHS denied the I-129 extension request. As he filed his I-485 application on June 4, 2004, he claimed that he had not been in unlawful status for more than 180 days. DHS disagreed and argued that he failed to maintain lawful status from June 10, 2003, and even though he was authorized to continue working, such a grant of authorization under 8 CFR §274a.12(b)(20) was not tantamount to lawful immigration status.

The Fifth Circuit agreed with DHS. It relied on another regulation, 8 CFR § 245.1(d)(1)(ii), which defines “lawful immigration status” with regard to a nonimmigrant, as one “whose initial period of admission has not expired or whose nonimmigrant status has been extended.” Hence, one whose status had not been extended, such as Mr. Bokhari’s, was not in lawful immigration status. The Court pointed to other similar paradoxical situations where an alien may be granted stay of removal and be granted employment authorization, but still be considered illegal, see United States v. Flores, 404 F.3d 320 (5th Cir. 2005), and also relied on an old administrative decision, see In re Teberen, 15 I.&N. Dec. 689 (BIA 1976), which made clear that an extension application in itself did not confer lawful status, and thus an alien could still be found deportable during this period.

The USCIS has also long drawn a distinction between maintaining lawful status and being lawfully present in the United States, See Unlawful Presence v. Out of Status, http://bit.ly/ahjXpj. Even though someone may be thoroughly out of status, such as an F-1 visa student no longer enrolled in school, this student is not accruing unlawful presence for purposes of the 3 and 10 year bars pursuant to INA § 212(a)(9)(B), which triggers after one departs the US and only after accruing more than 180 days of unlawful presence. Similarly, an applicant for adjustment of status, whose underlying nonimmigrant L or H status has expired, will not be considered unlawfully present for purposes of triggering the 3 and 10 year bars but will still not be considered to be in lawful status. This unfortunate individual might even be amenable to removal as a deportable alien pursuant to INA §237(a)(1)(C), see USCIS Consolidated Guidance on Unlawful Presence, http://bit.ly/c9xHs9.

Let us first consider the merits of the government’s position. While an adjustment applicant is not in a lawful status, or for that matter, one whom like Mr. Bokhari has applied for an extension of nonimmigrant status, he or she is still in a period of stay authorized by the Attorney General. The whole notion of a “period of stay authorized by the Attorney General” was created by USCIS to cover the twilight period between the expiration of status and its renewal. The two ideas do not mean the same thing as one falls away when the other arrives, such as adjustment of status giving way to lawful permanent resident status or an L-1 extension giving way to L-1 status once the extension request is granted. If the two concepts mean the same thing, then we would not have need for these “periods of stay.” Why do we have 8 C.F.R. §274a.12(b)(20)? It is to provide continued work authorization incident to previously approved status pending renewal of such status. In other words, allowing for continued work authorization is an interim relief measure until the status can be renewed. Once the extension is approved and the status is renewed, the need for such temporary measures drops away.

On the other hand, such a person who is in a “period of stay authorized by the Attorney General” is also vulnerable to removal. It makes no sense to allow one to stay and work in the United States under 8 C.F.R. §274a.12(b)(20) and then put him or her into removal proceeding. Moreover, those who are more susceptible to deportation in a post 9-11 world through illegal racial profiling, are likely to get snared if they have pending applications at the time of apprehension. This is what happened to the plaintiff, an Egyptian national, in El Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008), http://www.bibdaily.com/pdfs/El%20Badrawi%209-22-08.pdf, who claimed he was falsely arrested while his employer, University of Connecticut, filed an extension to extend H-1B status. The court in El Badrawi v. DHS found the government’s position “bewildering” that Mr. El Badrawi was entitled to work in the United States but not entitled to be physically present in the United States. Even though Mr. Bokhari relied heavily on El Badrawi v. DHS, the Fifth Circuit gave short shrift to this decision. While Mr. El Badrawi was not claiming any entitlement to adjust status, his claim to be lawfully in the US and not be susceptible to arrest and deportation while his H-1B extension was pending was a legitimate one.

It is worth remembering that the INA never defines “status”. For this reason, consider the possibility that 8 CFR § §245.1(d)(1)(ii) may not be faithfully interpreting the statute. INA § 245(c)(2) only refers to an applicant not being eligible for adjustment of status because he or she is in “unlawful immigration status.” The authors credit the insight of David Isaacson who suggests that there must be a difference between “lawful immigration status” and “lawful nonimmigrant status, ” which is a separate bar to adjustment under INA § 245(c)(7), so that an extension can be viewed as a lawful status for the purpose of preserving § 245 eligibility. After all, pursuant to 8 CFR 245.1 (d)(1)(ii), extension of nonimmigrant status would qualify as a lawful immigration status. When the extension is still pending, such lawful status can be viewed as remaining valid in a provisional sense pending final adjudication of the extension request; in the interlude between expiration and renewal, the extension keeps the nonimmigrant status alive, looking back at the past yet open to the future.

This interpretation provides non-resident aliens with a more realistic assurance of being able to stay lawfully in the United States while their extension applications remain pending under §274a.12(b)(2). Those who are specifically granted work authorization while they file extension applications, or who file I-485 applications, should be less susceptible to removal that the student who had dropped out of school. It is neither legally sound nor logically persuasive to place non-citizens, and their derivative family members in removal, if they have pending applications for extensions or adjustment applications. They should also be considered to be maintaining a lawful immigration status while their requests for an extension are pending. Nobody would like to constantly live in fear, especially if they were in the EB-3 preference, and applying for yet another extension beyond the 6th year H-1B limitation, to imagine that ICE could issue a Notice to Appear for a removal proceeding when a timely non-frivolous H-1B extension along with H-4 extensions of family members were in process.

Whether USCIS has a regulation or not granting work status, it is not good policy to render nonimmigrants who file timely applications be susceptible to removal from the US. However, not all such twilight statuses need to be deserving of such immunity, such as an F-1 student who has dropped out of school, and who may not be accruing unlawful presence for purposes of the 3 and 10 year bar, but can still be put into removal. As opposed to such a student who has dropped out of school and not reinstated status, it would be wrong to deport a nonimmigrant who has been lawfully in the US and who has applied for a timely extension of status. It is hoped that in the future we will see more decisions that follow El Badrawi v. DHS rather than Bokhari v. Holder.