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Thread: Article: When A Visa Extension Is NOT a Status Extension by Danielle Conley

  1. #1

    Article: When A Visa Extension Is NOT a Status Extension by Danielle Conley




    When A Visa Extension Is NOT a Status Extension


    by


    Danielle Conley








    In a recent unpublished
    decision
    , the Board of Immigration Appeals (“BIA”) issued a rather
    devastating opinion on the subject of immigration status and adjusting to
    permanent residence.  The BIA held that
    the foreign national accrued “unlawful status” (but not “unlawful presence)
    during the pendency of his ultimately denied H-1B extension of status petition
    and after the initial H-1B had expired. 
    As a result, the foreign national was subject to the provisions in INA
    Section 245(k) barring him from eligibility for adjustment of status because he
    had accrued more than 180 days of unlawful status. .  In yet another weird twist of the complexity
    of immigration law, the foreign national was” lawfully present” and authorized
    to work during the period of the pending H-1B extension (up to 240 days), but,
    because his petition was ultimately denied, all of that time was NOT held to be
    “lawful status.”  The BIA held that upon
    the denial of the extension of status, the foreign national immediately accrued
    unlawful status from the date of the original expiration.  This is a very bad  (but not unexpected) decision and should serve
    as a precautionary lesson for those currently in this position.


    In light of this decision, it is
    imperative to take great precaution when in H-1B, or any other nonimmigrant status,
    and needing to extend your status.  Make
    sure to speak with your employer and attorney at least 6 months before the
    expiration of your status to ensure that they are aware of current processing
    times.  File that H-1B or other visa extension
    in enough time so that a decision is issued before the expiration of
    your current H-1B, rather than filing it only days before the expiration like
    in this BIA decision.


    Similarly, it is also very
    important that if you are going through the permanent residence process, to
    never assume that the pending adjustment application governs your lawful status
    in the U.S.  Many people wrongly assume
    that once the adjustment of status application is filed on their behalf, that
    they no longer have a need to renew the H-1B petition.  For the very same reason as in this decision,
    if your adjustment is denied and you had previously allowed your underlying
    nonimmigrant status to expire, you will be faced with the same issue regarding
    the immediate accumulation of unlawful status and a bar for adjustment in the
    future.  It is imperative that you always
    continue to extend your underlying nonimmigrant status until such time that
    your adjustment of status application is approved.


    These are very important things to
    keep in mind because often times when someone finds themselves in this
    position, they have no other protections under the law to escape the bar under
    245(k).  This case is a very important
    lesson to make sure that you are carefully monitoring your status to ensure the
    timely filing of extensions so that you do not fall “out of status!”

    Originally appeared on Musings on Immigration: An Immigration Attorneys Perspective on Life, Liberty, and Happiness. Reprinted with permission.






    About The Author





    Danielle Conley received her Bachelor of Arts degree from the University of Georgia in 2001. She earned her Juris Doctor from Florida Coastal School of Law in Jacksonville, Florida, in 2006. Ms. Conley is a Partner with Kuck Immigration Partners LLC, where she practices in all areas of U.S. immigration and nationality law. Ms. Conley has more than five years’ experience working with clients in a variety of immigration contexts, including removal defense, the immigration impact of criminal convictions, asylum applications (both affirmative and defensive), and a variety of nonimmigrant visas related to employment-based petitions. In the context of immigration removal proceedings, she represents clients in seeking adjustment of status for non-lawful permanent residents, as well as cancellation of removal for lawful permanent residents of the United States. Ms. Conley also routinely processes other types of visa applications, such as T, U, and VAWA Petitions. Additionally, Ms. Conley processes naturalization applications and files actions with federal courts around the country, including mandamus, declaratory judgments, habeas corpus petitions, and petitions for hearing on naturalization. Finally, Ms. Conley also works with clients on a daily basis to process family-based applications and petitions (both inside and outside of the U.S. at consulates abroad), as well as representing those individuals at their interviews with U.S. Citizenship and Immigration Services. Danielle is a member in good standing of the Georgia State Bar.








    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

  2. #2
    Make sure to speak with your employer and attorney at least 6 months before the expiration of your status to ensure that they are aware of current processing times. File that H-1B or other visa extension in enough time so that a decision is issued before the expiration of your current H-1B, rather than filing it only days before the expiration like in this BIA decision.In light of this decision, it is imperative to take great precaution when in H-1B, or any other nonimmigrant status, and needing to extend your status. Make sure to speak with your employer and attorney at least 6 months before the expiration of your status to ensure that they are aware of current processing times. File that H-1B or other visa extension in enough time so that a decision is issued before the expiration of your current H-1B, rather than filing it only days before the expiration like in this BIA decision.

    The above recommendation is all well and good. However, it may not be enough, for which there is probably little that can be done(?). As an example, for my recent H-1B visa extension petition filing I proactively worked with my employer's immigration attorney to have the petition filed at the allowable 6 months before expiration of the current H-1B visa and I-94 card. Even with doing this, it still took almost 8 months for the Vermont Service Center (VSC) to process the I-129, Petition for A Nonimmigrant Worker, H-1B - Specialty occupation - Extension of stay in the U.S. The petition for my H-1B visa extension was approved with no RFE or other issues.

    The takeaway is that per this article even though the USCIS took longer than 6 months for processing a petition filing, it could still cause an "out of status" issue.

    (I heard rumors that due to the flood of petitions filed in April from the FY2103 H-1B quota the VSC was prioritizing new H-1B visa petitions so they were approved prior to October 1 over extensions because they were allowed a 240 day period of authorized work and "lawful stay" past expiration of their current H-1B visa.)

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