Pending H-1B Extension Does Not Grant Lawful Status
On November 7, 2013, the Board of Immigration Appeals (BIA) issued a decision that underscores the distinction between “period of authorized stay” and “status”. We are providing a summary of the decision for the benefit of our readers.
In Matter of Ivica Trupcevic, a foreign national (beneficiary) originally entered the United States on an F-1 visa and subsequently changed his status to H-1B that was set to expire on December 24, 2001. On December 20, 2001, four day beforehand, beneficiary’s employer (petitioner) filed an H-1B extension with the USCIS (formerly INS) requesting it to extend beneficiary’s status. The USICS issued a request for additional evidence and subsequently on July 23, 2002, seven months after the original filing date of December 20, 2001, denied the H-1B petition.
Prior of the USCIS decision denying the pending H-1B, a Labor Certification (PERM) was filed on behalf of the beneficiary, which was approved by the DOL on September 19, 2002, approximately two months after H-1B extension denial. The employer and the beneficiary thereby filed an Immigrant Petition (Form I-140) and Application for Adjustment of Status (I-485), respectively, with the USCIS. USCIS denied the beneficiary’s application to adjust status, citing beneficiary’s failure to maintain status continuously for more than 180 days.
In order for a foreign national to adjust status, s/he has to demonstrate that s/he: (1) entered the U.S. legally, and (2) maintained lawful status (other than through no fault of his own or for technical reasons). The exception to this rule under Section 245(k) of the Immigration and Nationality Act, however, allows an employment-based applicant to adjust status as long as s/he have failed to maintain lawful status for a period of no more than 180 days.
The beneficiary in Matter of Ivica Trupcevic argued that since a petition for extension of his H-1B was filed before his H-1B expired, the duration for which the petition was pending with the USCIS should not be counted towards the 180-day period i.e. his unlawful status should accrue from the date his H-1B was denied i.e., July 23, 2002. The USCIS and Immigration Judge, on the other hand, reasoned that the beneficiary failed to maintain his status once his H-1B expired on December 24, 2001 and the filing of H-1B extension by his employer on December 20, 2001 did not confer lawful status to the beneficiary as the petition was ultimately denied on July 23, 2002 i.e. at the time of filing his application for adjustment of status, the beneficiary was out of status for more than 180 days.
We would like to remind our readers the importance of filing extension petitions as early as statutorily permissible. This is all the more important when the USCIS processing times for some petitions have gone up and cases are being transferred to the other services centers to balance the workload. Also, we would like to add that the result in Matter of Ivica Trupcevic would have been different if the H-1B petition filed on behalf of the beneficiary would ultimately have been approved. Under the 240-day rule, a beneficiary of a timely filed extension of stay petition can continue to work for 240 days beyond the expiration of the prior period of authorized stay. The approval of the pending petition always relates back to the date the Form I-94 expires and the status during the pendency of the application will then be considered to have been lawful.