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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Never Say "i" (Unless You Must): Employment-Based Options for Adjustment of Status that Avoid INA 245(i) (Part II)
by Angelo A. Paparelli and John C. Valdez

Biography

THE KILLER (c)'s: 245(c)(2), 245(c)(7), AND 245(c)(8)

  • INA 245(c)(2)
Enacted on October 20, 1976, and made effective on January 1, 1977, 245(c)(2)8 bars a noncitizen from adjusting status to lawful permanent resident if, prior to filing an application for adjustment of status, the alien worked without authorization in the U.S. on or after January 1, 1977. A later amendment of this subsection9 also bars a noncitizen from adjustment of status if the alien has "failed (other than through no fault of his [or her] own or for technical reasons) to maintain continuously a lawful status since entry into the United States."10 An alien fails to maintain a lawful status continuously if he or she remains in the U.S. after the expiration date of the alien's period of authorized stay.11

In general, the INS has narrowly construed 245(c)(2) in a manner that ensnares more aliens and limits the availability of the forgiveness provisions (no-fault-of-alien or for technical reasons). For example, purely as a matter of textual analysis, the INS could have found that the language prohibiting adjustment of status for aliens who failed to maintain continuously a lawful status since entry applies only to one who fails to maintain continuously lawful status since his or her last entry. This interpretation of the subsection would be reasonable. Instead, the INS-in an informal letter to an immigration attorney-has interpreted the language to include a failure to maintain continuously a lawful status at any time after any prior entry.12

In addition, the INS has also promulgated regulations that narrowly construe the exception to the bar for failure to maintain continuously a lawful status. INS regulations provide that the parenthetical phrase, "other than through no fault of his own or for technical reasons," is limited to the following:

(1) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization as, for example, a case where a designated school official or exchange program sponsor fails to provide required notification to the Service of continuation of status, or fails to forward a request for continuation of status to the Service.

(2) A technical violation resulting from inaction of the Service, as for example the case where the applicant properly filed a timely request to maintain status but the Service has not acted on the request.

(3) A technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from the Service either in person or by mail, provided the applicant submits to the Service a letter from a hospital or physician which explains the circumstances involved.

(4) A technical violation resulting from the Service's application of the maximum five/six year period of stay for certain H-1 nurses only if the applicant was subsequently reinstated to H-1 status in accordance with the terms of Public Law 100-658 (Immigration Amendments of 1988).13

Although the INS maintains that the four regulatory exceptions to the grounds of ineligibility for adjustment of status found in INA 245(c)(2) are all-inclusive as written, Mart v. Beebe14 provides an argument that additional exceptions should be permitted. In Mart v. Beebe, the B-2 visa status of plaintiff Veronica Mart15 expired while her husband's application for asylum was pending with the INS. The District Court found that she never applied for an extension of status because she was unaware of the need to do so. Her husband's asylum application was eventually denied. Subsequently, Ms. Mart and her family received word from the Department of State that they had been selected to apply for a visa under the diversity immigrant visa program. She submitted an application to adjust status, but the INS denied her application under 245(c)(2) because she had failed to maintain continuously a lawful status after the expiration of her B-2 status. The court found that 8 CFR 245(d)(2) limited excusable unlawful status to four narrowly defined circumstances, none of which applied to Ms. Mart's case. The court agreed with the plaintiffs, however, that the cited regulation impermissibly limits the applicability of the words, "or for technical reasons," found in INA 245(c)(2).

The court also agreed with the plaintiffs' assertion that the regulation defied Congress' intent that individuals such as the plaintiffs, who have tried diligently to obey the law and have since their arrival contributed substantially to the U.S. (through their work and community involvement) ought not be precluded from adjustment because they were unaware of their duty to keep their nonimmigrant status current while awaiting the INS's decision on their request for asylum.

The INS may not acquiesce in the Mart decision, but the case should nevertheless be cited by adjustment applicants as persuasive authority for the proposition that the INS's regulatory exceptions to the 245(c)(2) adjustment bars are too narrowly drafted. Indeed, there are sound reasons to challenge these regulations. INA 245(c)(2) clearly states that its provisions barring adjustment of status for those who have failed to maintain continuously a lawful status since entry into the U.S. should not apply in two alternative situations. Thus, even if the alien is at "fault," the other saving grace (for "technical reasons") could conceivably apply.

Yet the INS regulations do not permit an exception for all technical reasons or for all status violations caused solely by entities or individuals other than the alien (i.e., where the alien is above reproach). For example, a nonimmigrant worker should not be ineligible for adjustment of status solely because a petitioning employer incorrectly completed or filed a Form I-129 petition for an extension of stay in H or L or some other nonimmigrant work visa status, even though there is no exception to this violation under 8 CFR 245.1(d)(2).16 The employer is required under penalty of perjury to state information correctly on this form.17 The nonimmigrant is not responsible for filling out the form or filing it.18 Therefore, in a given case, the employer may be solely at fault for a rejected petition or a denial based on incorrectly stated information or a faulty filing. If, because of this type of error, the nonimmigrant is found to have remained in the U.S. beyond the period of authorized stay, this overstay occurred through no fault of the alien. It also may have occurred because of a technical violation (such as the failure of an employer to sign a check to cover a filing fee). Therefore, the adjustment applicant can argue that these circumstances constitute an exception that excuses the status violation because it was caused through no fault of the alien or for technical reasons.

Adjustment applicants may also challenge 8 CFR 245.1(d)(2)(i) as an impermissible limitation on the statutory phrase, "through no fault of his own," found in 245(c)(2). This regulation excuses past unlawful status if it was caused by the inaction of another individual or organization designated by regulation to act on behalf of the alien, but only "if the inaction is acknowledged by that individual or organization." If the adjustment applicant can show that his or her failure to maintain continuously a lawful status was caused by the inaction of such an individual or organization, and not because of any action or inaction on the applicant's part, it should not be necessary to obtain an acknowledgement of fault from the responsible party.19 Indeed, in the right factual situation, the applicant could conceivably show, by submitting other evidence, that the status violation was caused through no fault of the alien.20 This showing satisfies the exception to ineligibility under the plain meaning of the statute.21

  • INA 245(c)(7)
> Section 245(c)(7) prevents an alien from adjusting status through an employment-based immigrant visa petition if he or she is not in a lawful nonimmigrant status.22 Thus, aliens in parolee or refugee status are ineligible to seek adjustment of status based on an employment-based petition approval. One exception to this rule is that aliens who submit an employment-based application for adjustment of status while in nonimmigrant status, but who later apply for admission to the U.S. as a parolee pursuant to an advance parole document, remain eligible to adjust status.23
  • INA 245(c)(8)
An alien is ineligible to adjust his or her status to that of a permanent resident if the individual was employed as "an unauthorized alien."24 An unauthorized alien is an alien who is employed at a time when he or she is neither a lawful permanent resident nor an alien authorized to be so employed under the INA or by the Attorney General.25 The language of 245(c)(8) does not explicitly provide a time frame for examination of when the alien was "so employed." The INS has determined, however, that this language refers to any time period before the actual adjudication of an application for adjustment of status. Thus, INS will find an alien ineligible to adjust status if the proscribed violation occurs anytime before or after the application to adjust status is submitted but before adjudication.26 INA 245(c)(8) also precludes adjustment of status if the alien violates the terms of a nonimmigrant visa. The Service has found that this bar to adjustment of status can be triggered by a violation committed after the filing of an adjustment of status application.27

While a violation of the terms of a nonimmigrant visa is normally a bar to adjustment of status, the INS has acknowledged exceptions to this bar in the following cases:

  1. The violation occurred through no fault of the applicant or for technical reasons. There are four circumstances the INS recognizes that will satisfy this exception.28
  2. The alien filed an untimely request for a change of nonimmigrant status that was excused and granted by the Service in its discretion.
  3. The alien filed an untimely request for an extension of nonimmigrant status that was excused and granted by the Service in its discretion.
  4. The alien filed a timely request for an extension of nonimmigrant status that was approved after the alien's authorized nonimmigrant status expired.
  5. The alien was granted reinstatement to student status on the basis of circumstances beyond the student's control.29
There may be instances where foreign workers are deemed to violate the terms of a nonimmigrant visa without any awareness of the violation. For example, a nonimmigrant employee may violate the terms of a nonimmigrant visa by remaining in the U.S. for a short time after suddenly and unexpectedly being terminated by an employer. If the employer agrees to provide the nonimmigrant with normal salary and benefits for one or two months after termination, the nonimmigrant might perceive that this severance period is a time in lawful status that may be used to find a new H-1B employer.

The INS, however, would likely not agree that the nonimmigrant worker is authorized to remain in the U.S. during this period. In a non-binding advisory letter, an INS official has stated that the agency would find a status violation in this circumstance. This advisory letter adds that as soon as the nonimmigrant's services for the H-1B employer have been terminated, the individual is no longer in valid nonimmigrant status.30 Thus, according to this advisory letter, if a nonimmigrant worker remains in the U.S for one day after his or her termination, the INS could find that the nonimmigrant worker violated the terms of a nonimmigrant visa and is no longer in valid nonimmigrant status.31

The INS has hinted that it will use its discretion32 somewhat generously in deciding whether to forgive a status violation that occurs when a nonimmigrant worker remains in the U.S. for a short period of time after a sudden termination.33 There is no official grace period, however, in these circumstances. The INS reportedly has been known to grant a change of employer/extension of status petition when the nonimmigrant is able to file a new petition within a short time after the termination,34 and the agency has acknowledged its authority to do so when adjudicating untimely filed requests for change or extension of status that invoke H-1B portability.35

Aside from a positive exercise of discretion by the INS, possible solutions to the hypothetical situation exist. Under INA 245(k), described below, a trip outside the U.S. after the status violation, with a subsequent lawful admission, could eliminate the negative consequences of the status violation.36 If departing and re-entering the U.S. is not a practical solution, the adjustment applicant should carefully consider the statutory exceptions that would forgive the status violation and allow adjustment of status. As discussed above, the individual may be eligible for adjustment of status based on an assertion that the violation occurred through no fault of his or her own or for technical reasons. The circumstances of this situation do not appear to meet the four narrow circumstances in 8 CFR 245.1(d)(2). If, however, the alien was genuinely unaware of the obligation to take affirmative steps to maintain his or her nonimmigrant visa status upon termination, perhaps the argument can be made that lapse of lawful status was excusable as a mere technicality under the reasoning in Mart. Another possible argument is that the alien has not committed a status violation because the overstay was not caused by his or her own conduct.37

For Part I click here.


Copyright 2001 Paparelli & Partners LLP. Published with permission. An earlier version of this article appeared in the American Immigration Lawyers Association's (AILA)'s California Chapters Conference Handbook (2001), and in the November 12, 2001, issue of Interpreter Releases.

8Pub. L. 94-571, 90 Stat. 2703, 6.
9Pub. L. 99-603, 100 Stat. 3359, 117.
10INA 245(c)(2) makes ineligible for adjustment of status, "subject to subsection (k) of this section, an alien (other than an immediate relative as defined in [8 USC] section 1151(b) of this title or a special immigrant described in [8 USC] section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States." The bar to adjustment of status for aliens who have failed to maintain continuously a lawful status is limited to aliens who submit an application for adjustment of status on or after November 6, 1986. 8 CFR 245.1(b)(6).
118 CFR 245.1(d)(1) provides: "For purposes of section 245(c)(2) of the Act, the term 'lawful immigration status' will only describe the immigration status of an individual who is: (i) In lawful permanent resident status; (ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter; (iii) In refugee status under section 207 of the Act, such status not having been revoked; (iv) In asylee status under section 208 of the Act, such status not having been revoked; (v) In parole status which has not expired, been revoked or terminated; or (vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991."
12Letter, Miller, Deputy Asst. Comm'r, Adjudications, CO 245-C (Jan. 8, 1990), reprinted in 67 Interpreter Releases 120, 151 (Feb. 5, 1990).
138 CFR 245.1(d)(2). See 65 Interpreter Releases 1091 (Oct. 24, 1988).
14Mart v. Beebe, No. Civ. 99-1391-JO, 2001 WL 13624 (D. Or. Jan. 5, 2001).
15Ms. Mart's husband and two children were also plaintiffs.
16The alien beneficiary's signature is not required on a Form I-129.
17See Form I-129, Part 6.
18Indeed, if the petition is denied, the alien (although clearly a party in interest) is not allowed legal standing to appeal the denial. See 8 CFR 103.3(a)(1)(iii)(B) (" '[a]ffected party' (in addition to the [INS]) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition").
19The litigious society that is America in the second millennium produces few individuals willing to express regret or fault, and thus face the foreseeable outcome of a tort lawsuit with an easily proven admission against interest. The INS's insistence on acknowledgment of fault is thus unreasonable and more exacting than the statute requires. Perhaps, the INS-taking a nod from certain state legislatures who now appear more inclined to allow drivers and doctors to express regret without fear of tort suit-would accept merely an "I'm sorry" rather than an "I'm responsible" from the culpable party. See, e.g., Prager, "New Laws Let Doctors Say 'I'm Sorry' for Medical Mistakes," reported in AmNews, Vol. 43, No. 31 (Aug. 21, 2000), http://www.ama-assn.org/sci-pubs/amnews/pick_00/prsa0821.htm; see also, e.g., AB 957 (pending legislation in California that would make inadmissible in court apologies from motorists involving automobile accidents).
20One example of this circumstance might be a case where an attorney, designated to act on behalf of a nonimmigrant worker based on a properly executed Form G-28, refuses to acknowledge in writing his or her legal error in filing an application on behalf of an alien.
21Courts have found that, while an administrative agency is usually entitled to deference in promulgating or interpreting its own regulations, see Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984), or respect according to its persuasiveness, see United States v. Mead Corp., 121 S. Ct. 2164 (2001), the agency's interpretation is not controlling if it is plainly erroneous. See, e.g., Tapis International v. INS, CV No. 98-11807-JLT, 2000 WL 620180 (D. Mass. Apr. 24, 2000).
22This subsection prohibits adjustment of status for the following individuals: "[A]ny alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status."
23See 8 CFR 245.1(b)(9), which provides that an employment-based applicant for adjustment of status is ineligible for adjustment of status if the alien is not maintaining a lawful nonimmigrant status "at the time he or she files an application for adjustment of status." (Emphasis added.) Thus, this subsection of the regulation does not require the applicant to maintain nonimmigrant status after submission of an application for adjustment of status.
24INA 245(c)(8).
258 CFR 274a.1(a).
268 CFR 245.1(b)(10) (alien is ineligible for adjustment of status if he or she "was ever" employed in U.S. without the authorization of the Service).
278 CFR 245.1(b)(10) (alien is ineligible for adjustment of status if "at any time" he or she violated the terms of his or her admission to the U.S.).
28See 8 CFR 245.1(d)(2) for a list of these exceptions.
29Memo, Crocetti, Assoc. Comm'r, INS, HQ 50/5.12, 96 Act. 034 (May 1, 1997), reprinted in 74 Interpreter Releases 781, 791 (May 12, 1997).
30See letter from Thomas W. Simmons, Chief, INS Business and Trade Services Branch, to Harry Joe (undated), reproduced in 76 Interpreter Releases 378, 386 (Mar. 8, 1999), which states that the sole purpose of admission of a nonimmigrant H-1B worker is for the worker to provide services to the petitioning employer; thus, when the services cease to be rendered, the purpose of the admission is over, and H-1B status is terminated.
31The adjustment applicant may be able to argue that such a violation would not necessarily result in a failure to maintain continuously a lawful status for purposes of 245(c)(2). In regard to 245(c)(2), an alien fails to maintain lawful status only if the alien remains in the U.S. after the expiration date of his or her period of authorized stay. 8 CFR 245.1(d)(1). Thus, as long as the alien's period of authorized stay, stated on the Form I-94, has not expired, the adjustment applicant may argue that the bar to adjustment of status in INA 245(c)(2) is not triggered.
32Pursuant to 8 CFR 214.1(c)(4), the INS has discretion to approve an untimely application for an extension of status if, at the time of filing: (1) the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner; (2) the alien has not otherwise violated his or her nonimmigrant status; (3) the alien is a bona fide nonimmigrant; and (4) the alien is not the subject of deportation or removal proceedings.
33Memorandum from Michael D. Cronin, Acting Exec. Assoc. Comm'r, Office of Programs, "Initial Guidance for Processing H-1B Petitions as Affected by the 'American Competitiveness in the Twenty-First Century Act' (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)," File No. HQ 70/6.2.8 (June 19, 2001) [hereinafter Cronin Memo]. Though this memorandum affirms there is no official grace period, it expresses the INS's willingness to explore implementation of a regulation that would grant H-1B employees a reasonable period of time, such as 60 days, in which to begin work with an employer after leaving the initial H-1B employer. See 78 Interpreter Releases 1069 (July 2, 2001).
34See e.g., Paparelli et al., "It Ain't Over Till It's Over," Immigration Strategies in Mergers, Acquisitions and Other Corporate Changes," 5 Bender's Immigration Bulletin 849, 860 (Oct. 15, 2000).
35Cronin Memo, supra note 33.
36Under 245(k), as long as the alien, subsequent to the last lawful entry, has not, for an aggregate period of time exceeding 180 days, failed to maintain, continuously, a lawful status, engaged in unauthorized employment, or otherwise violated the terms and condition of the alien's admission, the alien is eligible to adjust status notwithstanding INA 245(c)(2), (c)(7), and (c)(8). INA 245(k).
37See Matter of Siffre, 14 I&N Dec. 444 (BIA 1973) (when an alien is admitted to U.S. for fixed period of stay, "within that period his stay is not unlawful unless by his own conduct he violates one of the conditions of his admission" [italics added]).


About The Author

Angelo A. Paparelli (aap@entertheusa.com) is the managing partner of Paparelli & Partners LLP (http://www.entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, he has been practicing business-sponsored immigration law for over 20 years. Mr. Paparelli is a nationally recognized expert on business immigration issues. He is named in the 1990-2001 editions of Best Lawyers in America under "Immigration Law."

John C. Valdez (jcv@entertheusa.com) is an associate at Paparelli & Partners LLP. Mr. Valdez is admitted to practice law in California and has been practicing immigration law since 1996. His areas of focus include nonimmigrant employment visas and employment-based adjustment of status. He graduated from UCLA School of Law in 1995.

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