When leaving is the best way to stay

Mr. Ivanov comes to the United States on January 1, 2002 on an H-1B visa to work as a systems analyst for a small US tech firm. He proves to be a valuable employee and the firm decides to sponsor him for lawful permanent residence. The PERM application is approved and on December 1, 2007 the company files an I-140 petition on Mr. Ivanov's behalf. He concurrently files an an I-485 Application to Adjust Status. Things are going swimmingly. So confident is Mr. Ivanov that he will soon receive his green card that he decides to save the time and money of extending his H-1B visa after it expires on January 1, 2008. In August 2009 Mr. Ivanov's manager calls him in and drops the news that the firm's I-140 has been denied. On August 10, 2009 Mr. Ivanov receives a decision from the Texas Service Center denying his I-485. By this point he has been out of H-1B status for over 19 months.

What will become of Mr. Ivanov and his hopes for a green card? The answer is found in a whimsical USCIS memorandum issued in July 2008 interpreting the provisions of Section 245(k) of the Immigration and Nationality Act.

For the uninitiated, section 245(k) provides a "safe harbor" to many employment-based adjustment applicants by permitting an applicant to accrue up to 180 days of unlawful status without it resulting in the denial of his I-485. Without this provision, an alien who lets his nonimmigrant status lapse for even a day is ineligible for adjustment of status and must return home to apply for an immigrant visa and in so doing face the viscitudes of the US consulate.

In its July 2008 memo, USCIS adopts a generally restrictive approach to the facially forgiving language of 245(k). Of particular concern for Mr. Ivanov is the Service's interpretation of the phrase "failed to maintain lawful status" to include, retroactively, any period of time spent under a pending adjustment application where that application is ultimately denied and the applicant has failed to maintain valid nonimmigrant status during its pendency.

Under this interpretation, 181 days after his H-1B visa lapsed, Mr. Ivanov was no longer in the safe harbor of 245(k) and became ineligible for adjustment of status. Thus, even if his employer immediately filed a new I-140 and it was approved, Mr. Ivanov would not be eligible to adjust under a second I-485. The fact that USCIS granted him employment authorization and advance parole and otherwise allowed him to legally live and work in the US during this time has no bearing. One hand giveth, the other taketh away . . .

Applicants for adjustment of status routinely allow their nonimmigrant visas to lapse after the filing of the I-485, some from cost concerns, others, like our Mr. Ivanov, out of a false sense of security that the I-485 will be approved. USCIS routinely takes well over 180 days to adjudicate adjustment applications. For these reasons, applicants whose I-485s are denied are increasingly finding themselves in an unexpectedly dire situation.

Lest it be accused of lenity, USCIS has adopted the harsh practice of issuing a Notice to Appear (NTA) in removal proceedings to employment-based adjustment applicants whose I-485s are denied. Doctors, artists, and financial analysts are now routinely referred to the immigration court for removal proceedings. Worse still, many are finding that they cannot win these proceedings and are being ordered to depart the country.

Mr. Ivanov, who did his utmost to abide by US immigration law and had every expectation of soon becoming a lawful permanent resident, suddenly finds himself in the gallery of a courtroom with 50 other souls waiting for his deportation case to be heard by an immigration judge. Under the regulations, his employment authorization and advance parole are automatically terminated and cannot be renewed during the pendency of the removal proceedings and he will thus be unable to work legally.

Like most others, Mr. Ivanov has no viable claims for asylum, cancellation of removal or family-based adjustment. While an alien can renew a denied I-485 before the immigration judge, the judge, even if sympathetic, retains extremely limited power to reverse the USCIS denial. The result is likely to be a grant of voluntary departure allowing Mr. Ivanov up to 120 days to pack up and leave or face a removal order.

The most obvious way Mr. Ivanov could have avoided this situation was to have maintained his H-1B visa even though he had a pending I-485. Current regulations allow for nearly unlimited extensions of H-1B visas and most nonimmigrant visas now allow the holder to have "dual intent" so that he or she can pursue lawful permanent residence while simultaneously maintaining non-immigrant status. The cost of seemingly endless visa extensions may seem onerous, but they may prove to be far lower than the cost of not doing so.

Because USICS usually issues the Notice to Appear and I-485 denial simultaneously, it is too late to avoid the consequences once the denial is issued. But with careful planning and some tough decisionmaking, there may be another solution, albeit a drastic one.

Experience shows that in most problematic adjustments cases, USCIS issues a Request for Evidence (RFE) alerting the applicant to potential grounds for denial and affording him the opportunity to redress the issues. The same generally applies to I-140 petitions filed by employers. If an RFE is issued in connection with either, the applicant should immediately sit down with counsel and get a realistic assessment of the chances of approval versus denial. If the assessment is bleak, the applicant may be better off departing the country rather than wait for the denial and accompanying NTA to arrive in the mail.

The Board of Immigration Appeals has held that where an alien departs the United States prior to the issuance of the Notice to Appear, neither the Department of Homeland Security nor the immigration court have jurisdiction over the alien and as such any removal proceedings against him are moot. However, once the Notice to Appear is drafted, signed and dated, it is too late and the immigration judge can issue a removal order even if the alien departed the US after learning of the denial.

By preserving proof of the date and place of departure, the alien or her attorney can file a motion to terminate the removal proceedings. DHS district counsel will usually not oppose a well-documented motion to terminate based on lack of jurisdiction due to departure prior to the issuance of the Notice to Appear. If this motion is granted, the removal proceedings are deemed void ab initio.

In the event the alien departs after reviewing the RFE, but the I-485 is nevertheless approved, he should be able to return as a lawful permanent resident provided that the absence was not too extended.

In the confounding logic of USCIS, time Mr. Ivanov spent under his pending I-485 is considered time during which he "failed to maintain status," but not as "unlawful presence" for purposes of the 3 and 10 year bars for unlawful presence. Thus, had he departed at the time the I-140 RFE was issued, he would have been able to pursue an application for the green card at a US consulate. He would not be subject to the 3 or 10 year bar and would be able to truthfully answer no to any questions as to whether or not he had ever been in removal proceedings.

But for Mr. Ivanov hindsight is 20/20. Instead of returning home and waiting for approval of his employer's second I-140, he will wait months for a hearing before the court. Unlawful presence will begin to accrue. Should he somehow miss a court hearing, he will be unceremoniously ordered removed in his absence. He will not be permitted to work legally. If the judge grants him voluntary departure, the DHS may demand that he post a voluntary departure bond to ensure that he leaves on time. Once home, he will have to check in at the US consulate. The next time he applies for a visa he will face a suspicious consular officer who will take a keen interest in the fact he was in removal proceedings back in the States.

Of course, the facts of every case are unique and any decision to depart the country and potentially abandon an adjustment application should be an informed one made after consultation with an experienced attorney. But in some cases, leaving the country may be the best way to stay.