Border Entry Blog Series: Part 4 - CBP's Creative Interpretation of Status Violations


In the CBP/AILA liaison meeting, the minutes of which were published this week (see previous posts for more info), we note another (and even more) disturbing interpretation of immigration law by CBP that could take people by surprise.

When a person is in the U.S. in a non-immigrant status, she can file for an extension of that status or a change to another status without leaving the U.S. Additionally, if the person qualifies for immigration (permanent residence) while physically present in the U.S. in a non-immigrant status, she can file for “adjustment of status” to obtain her “green card” here rather than through the U.S. consulate in her home country.

Pursuant to USCIS rules, if the extension, change or adjustment of status is filed while the person is still in a valid status, she may remain in the U.S. during the processing of that request, whether or not the initial status expires after the filing.

USCIS does not treat these applicants as being out of status during processing. Work is also authorized in many cases if the person was in a work-authorized status and is extending that status.

But the recent liaison minutes revealed a trend of CBP putting such persons in removal proceedings when they attempt to re-enter the U.S. CBP is interpreting continued stay or work in the U.S. after such filings as a “violation of status” and believes that person’s should be “processed accordingly”.

Our office has not had an instance of this happening, but it does reinforce two pieces of advice we give our clients regularly:

  1. File your extensions and change of status sooner rather than later, unless otherwise indicated for strategy reasons
  2. Consult with your immigration attorney well before travel outside the U.S.

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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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