By Attorney Farhad Sethna © 2014

In a recent decision, the Board of Immigration Appeals ruled that an alien who had applied for an extension of his nonimmigrant status retained that status until the time the USCIS issued its decision. [Dashnor Norra, BIA, March 21, 2014]

As background, the alien had entered the United States legally on a nonimmigrant B-1/B-2 (Business Visitor/Visitor for pleasure) visa.  The stay authorized under the provisions of that entry was limited to six months.  Prior to the expiration of the stay, the alien applied for an extension of his visa status in October 2005.  The extension was filed before the visa status expired.

The alien inquired through the USCIS online case status system (available through the USCIS website) as to the status of his pending application on at least three occasions.  On each occasion, the USCIS status indicated that the application had been received and was pending.  The USCIS claimed that it had sent a decision to the applicants in January 2006, but could produce no proof of such a decision. Nor could the USCIS explain why the online status still indicated “pending”. The USCIS finally issued a decision in March 2009, approving the extension through May 2006 (almost 3 years later!)

While the extension application was pending, the alien obtained employment-based immigrant visa status.  He and his spouse then applied for adjustment of status (green card) in June 2007, through the employment-based preference.  The USCIS denied their petitions, holding that the alien was out of status because his non-immigrant tourist visa had expired before he filed his application for adjustment of status.

[The general rule is that in order for an application for adjustment of status to be approved, the alien must have been in valid non-immigrant status at the time of the application for the “green card”.]

The Board of Immigration Appeals overruled the USCIS.  In doing so, the BIA reasoned that the alien remained in status upto the final decision on his B-1/B-2 extension of stay.  Consequently, the alien’s application for adjustment of status was filed while his application for extension of status was pending.   Therefore, since his status remained valid while the application was pending, the adjustment of status application was filed while he was in valid non-immigrant status.

The BIA cited both the statutes and the regulations as well as a prior USCIS policy memorandum on maintenance of status while an extension or other application was pending.

What lessons can be learned from this case?

It is instructive to note that the BIA referenced the fact that the alien’s attorney had checked the case status on at least three occasions.  Doubtless, that attorney also had the foresight to print out the case status update from the website, evidence of the date of the searches and the USCIS status.

The USCIS committed other errors too:  the USCIS could not prove it had issued a decision in January 2006, as it claimed.  The decision was finally issued over three years after the initial application for extension of status had been filed.  The Board noted the absence of any evidence of the USCIS’ decision prior to March 2009 and consequently found that the alien had diligently performed his duty, which was filing a timely application for extension of stay with the USCIS.

The lessons to be learned are that  – first – an application for any sort of status or extension should be filed while the applicant is still in some other underlying valid immigration status. Second, that it is necessary to follow up regularly with the USCIS by checking the case status on the website or making an inquiry through the 1-800 number.  As a further caveat, if making an inquiry through the 1-800 telephone number (1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired)), ask the operator to send a written confirmation of the call to the caller’s address. Keep documentary proof (a printout or some confirmation) of the status checks.

Conclusion:

It is clear that a non-immigrant retains his or her non-immigrant status during the pendency of an application for extension of status filed with the USCIS.  However, this pendency of status will not prevent the alien from accruing “unlawful presence” which could bar subsequent reentry to the United States should the alien depart the USA without the extension or change of status having been granted.  That discussion is beyond the scope of this article, and is covered elsewhere on this blog.

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Copyright, Farhad Sethna, Attorney, 2014

About the author: Attorney Farhad Sethna has practiced law for over 20 years.  Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases.  Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information.  Please consult a qualified immigration attorney for advice on your specific case.

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