In a recent unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of an immigrant’s application for adjustment of status on the basis that the immigrant failed to maintain lawful status for more than 180 days. The BIA confirmed that merely having a pending application for an H-1B extension does not confer lawful status under INA 245(k). Notably, the BIA held that the denial of a petition to extend nonimmigrant status establishes that the period of unlawful status commences at the time the nonimmigrant status expired—not at the time of denial of the petition.

In this recent decision, the individual entered the United States on an F-1 visa and changed status to an H-1B visa. The employer filed to extend the H-1B visa and received a Request for Evidence. While the H-1B extension was pending, the employer initiated the process of sponsoring the individual for an immigrant visa. The H-1B extension was subsequently denied. Then, they filed an Application to Register Permanent Residence or Adjust Status (Form I-485) which was denied on the basis that the individual had been out of status for more than 180 days and therefore had not continuously maintained lawful status in the United States. The Immigration Judge found that the individual’s period of lawful status terminated on the date his H-1B nonimmigrant status expired, and not on the date the H-1B extension was denied. The BIA confirmed that a pending application for extension of nonimmigrant status does not extend the individual’s status either upon the act of filing or forgive unlawful status through the date of adjudication, regardless of how long it takes the government to adjudicate the application.

The BIA’s decision further highlights the important concept of ‘maintenance of status.’ This underscores the difference between accruing ‘unlawful presence’ as a ground of inadmissibility under INA 212(a)(9)(B), and the statutory requirement to maintain lawful status under INA 245(c)(2) for eligibility purposes. The filing of an application for extension of status continues the individual’s period of authorized stay in the United States, allowing the individual to avoid accruing unlawful presence, however it does not extend the immigrant’s lawful status. It follows, that filing an application for extension of status does not excuse unlawful status through the date of adjudication. The adjudication of an application indicates the status to which an individual was entitled. Thus, an immigrant whose timely nonimmigrant extension application is denied, begins to accumulate time in unlawful status upon the expiration of status.

Employers are reminded of the need to file visa extensions as early as possible to avoid lapses in nonimmigrant status. Foreign nationals are reminded of the need to maintain continuous status while awaiting the processing of their immigrant visa petitions.