Xiao Ma v. Sessions, No. 15-73520 (9th Cir. 2018)
Annotate this CaseA grant of regulatory employment authorization under 8 C.F.R. 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. 1255(k)(2). The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner, the beneficiary of an H-1B visa, ineligible for status adjustment. In this case, petitioner's employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Although petitioner was legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. 274a.12(b)(20), the BIA correctly concluded that petitioner was ineligible for status of adjustment.
Court Description: Immigration The panel denied Xiao Lu Ma’s petition for review of a decision of the Board of Immigration Appeals that found Ma ineligible for status adjustment, holding that a grant of regulatory employment authorization under 8 C.F.R. § 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. § 1255(k)(2). The governing statute, 8 U.S.C. § 1255(k) allows petitioners to apply for adjustment of status as long as the petitioners, among other requirements, “ha[ve] not, for an aggregate period exceeding 180 days . . . failed to maintain, continuously, a lawful status.” 8 U.S.C. § 1255(k)(2)(A). Ma was the beneficiary of an H-1B specialty occupation visa. His employer filed an extension of that visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H- 1B visa. The United States Citizenship and Immigration Services denied Ma’s application to adjust status, concluding that Ma had engaged in unauthorized employment for well over the 180 days permitted by 8 U.S.C. § 1255(k)(2)(A). The Department of Homeland Security initiated removal proceedings for having overstayed his visa, and Ma requested adjustment of status. Counsel for Ma argued that
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