On November 2, 2018, the US Court of Appeals for the Ninth Circuit upheld the removal order of an H-1B Worker whose timely filed H-1B Extension petition was denied by USCIS (Ma v. Sessions). The Court found Ma ineligible for status adjustment, holding that a grant of regulatory employment authorization under 8 C.F.R. § 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. § 1255(k)(2). The Court cited 8 U.S.C. § 1255(k), which allows petitioners to apply for adjustment of status as long as the petitioners, among other requirements, “ha[ve] not, for an aggregate period exceeding 180 days . . . failed to maintain, continuously, a lawful status.” The Petitioner in the case was awaiting adjudication of his H-1B extension application while his adjustment of status application was pending. The Court held that employment authorization during this period does not constitute lawful status.
Individuals in similar situations need to be aware of the fact that H-1B extension petitions, even if filed by the same employer, can be denied. Continuous work authorization during the time that the extension petition is pending does not constitute lawful status. "Lawful status," for adjustment of status purposes, ends once the H-1B expires. Under INA sec. 245(k), up to 180 days of unlawful status are forgiven. 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.
This can be a daunting process for both, the petitioner and beneficiary. Please contact us for advice and guidance. This post is meant for informational purposes only.