BIA Holds Pending Extension of Non-Immigrant Status, Maintains Lawful Status


The Board of Immigration Appeals (BIA) issued a decision in Matter of Norra finding that applicants for adjustment of status maintained lawful status while their applications for extension of the non-immigrant visa were pending. This BIA decision is an important one. Although it is unpublished and, thus, does not serve as precedent, it can be used as persuasive authority in other cases where similar issues may arise.
In this case a foreign national couple entered the United States on a B-2 visitor visa, and was initially admitted to remain in the U.S. for six months.  They timely filed an application to extend their non-immigrant status, which was granted, extending their status for another six months.  Although the USCIS made the decision to extend their status within a couple of months of filing, the couple did not receive the actual approval notice for nearly three years.  During that time they filed an application to adjust their status to that of a lawful permanent resident.  The Immigration Service denied their application for adjustment due to their “unlawful presence” because the couple overstayed the granted extension of their visa, and they were consequently placed in removal proceedings.
The Immigration Judge denied the application for adjustment of status on the basis that the couple failed to maintain lawful status after the expiration of their extension, and they were out of status longer than 180 days prior to filing their adjustment of status application.  The couple filed an appeal to the Board, which disagreed with the Court, ruling that the couple was in lawful status when they filed the applications for adjustment of status. The case was remanded back to the Immigration Judge to adjudicate their applications for adjustment.
What helped this couple win their argument before the Board was the extensive evidence they provided, showing that the USCIS record indicated that their extension requests were still pending a year and a half after USCIS allegedly made the decision on the case. USCIS on the other hand was not able to provide evidence that the alleged approval notice was ever mailed out to the couple.  

If you have a case pending before USCIS and have concerns that its adjudication is taking a long time, you should periodically check the status of your case.  It is a good idea to keep a record of all your case status inquires as well as copies of filings, receipt notices, and all other correspondence with USCIS in case any similar issues come up.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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