Ninth Circuit Expands Exception For Unlawful Status

By: Michael Bhotiwihok

Last week the United States Court of Appeals for the 9th Circuit, which governs California and other parts of the west coast, carved out a new exception for unlawful status when a non-citizen falls out-of-status due to no fault of their own. The court found that the existing exceptions benefitting non-citizens whose lawful status lapsed through no fault of their own were too narrow.

Generally, non-citizens are barred from adjusting their status to becoming a lawful permanent resident if he or she “has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.”

In Peters v. Barr, an attorney assured his non-citizen client that he had properly filed an H1-B extension with the U.S. Citizenship and Immigration Services. Sadly, her attorney did not properly file her request for an extension of her H1-B visa. However, relying on her attorney’s assurance that he had filed her H1-B extension, the non-citizen thought that she had maintained lawful status, which would therefore allow her to apply for her green card.

Unfortunately, her green card application was denied because she failed to maintain her immigration status since her H1-B had been expired for more than 180 days. More specifically, she failed to maintain her lawful status when her attorney did not properly file her H1-B extension. Her appeal to the Board of Immigration Appeals was also denied based on her failing to maintain lawful immigration status when she filed her green card application. She later filed an action in federal district court, which was dismissed when removal proceedings were commenced.

In removal proceedings, the non-citizen applied for her green card again before an immigration judge. The immigration judge denied her green card application based on the same reasoning given by the USCIS – that she had failed to maintain her lawful immigration status. The BIA agreed with the immigration judge’s decision and denied her appeal. With little to no options left, she filed a Petition for Review with the United States Court of Appeals for the 9th Circuit. Fortunately, she received a well-deserved reprieve with a favorable decision from the 9th Circuit.

The 9th Circuit found that the non-citizen remained eligible for adjustment of status because she reasonably relied on her attorney’s assurances that he had filed the petition necessary to maintain her lawful status, and therefore, her failure to maintain lawful status was through no fault of her own.

Most notably, the court held that “an applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part.” The 9th Circuit further found that “an applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer.”

While an exception in the law already existed for an applicant’s failure to maintain lawful status if that failure occurred “through no fault of his on or for technical reasons,” the 9th Circuit’s new expansion of the exception for unlawful status greatly helps many non-citizens in the same or similar situation.

Non-citizens with potential maintenance of lawful immigration status issues, especially nonimmigrant skilled workers, should consult with an experienced and knowledgeable immigration attorney to gain a full perspective of their immigration case.