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"Period of Authorized
Stay" Different from "Lawful Status"
Posted
Apr 25, 2003
In an April 2, 2003 memorandum, Thomas E. Cook, Acting Assistant
Commissioner, Office of Adjudications at the U.S. Department of Homeland
Security incorporates a memo of the Office of General Counsel that sets
forth important clarifications for those seeking to change or extend status.
The resultant Memo ("Cook Memo") clarifies the distinction between "period
of stay authorized by the Attorney General" and maintaining "lawful status"
and how to apply these for requests to change or extend nonimmigrant status.
This Memo provides us with some guidance on when it is no longer safe for a
person to file an extension of nonimmigrant status from one employer to
another in what sometimes is referred to as "serial porting" or otherwise to
file a change of status. The Memo clarifies that BCIS (Service) will not
issue a new I-94 card if the change or extension is filed after the person
is no longer in lawful status. The need to be in status at the time of
filing the request to extend nonimmigrant status is well established. What
the Memo clarifies is the situation in which a person files to extend or
change status in a timely manner and then files a second request through yet
another employer after the I-94 has expired but while the earlier case is
pending. The Memo states that the second filing will be regarded as untimely
if the first filing is denied. The first filing keeps the person lawfully
present in the U.S., but does not confer the needed status. Therefore, it
cannot be used as a "bridge" between the initial status, reflected in the
I-94, and the final filing.
The Memo concludes that a person cannot be considered in lawful status
merely by filing another petition or application after the initial period of
authorized stay has expired. This concept may be more clearly explained with
an example.
Case Scenario :
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In
January 2001, a person enters the U.S. on a B-2 Tourist Status.
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In March
2001, the person finds an employer and files for a Change of Status (COS) to
H1B.
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In July
2001, the person’s I-94 card with B-2 status expires.
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In
September 2001, the person receives a difficult RFE on the H1B case. So, the
person files an untimely B-2 extension of status.
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In
December 2001, BCIS denies the H1B petition. In January 2002, the same
employer files another H1B for the person.
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In
February 2002, the BCIS denies the extension of B-2 status for late filing.
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In
February 2002, the second H1B petition is approved but the COS is denied
since the person was out of status at the time of filing the second H1B
petition.
Person May be Lawfully Present but Not
Maintaining Lawful Status
In its analysis of this case scenario, it appeared to BCIS that some
attorneys assumed there was some sort of a "bridge" of continuous lawful
status stemming from the initially-filed COS application that enabled the
person to avoid becoming unlawfully present as long as there was a pending
EOS (extension of stay) or COS application with the Service. This assumption
is based on a misinterpretation of the concept that the "period of stay
authorized by the Attorney General" is equivalent to "maintaining lawful
status" in the U.S. The BCIS analyzed two earlier memos, the March 3, 2000,
Michael Pearson Memo ("Pearson Memo") and the unlawful presence memo of
Johnny Williams of June 12, 2002 ("Williams Memo"). The Pearson Memo
provides for the extension of the 120-day tolling period so that a person is
considered to be in a period of stay authorized by the Attorney General when
that person has filed either a COS or an EOS petition or application prior
to the expiration of lawful status.
Referring again to the case scenario used in the example above, the Cook
Memo concludes that, although a person is considered to be in a "period of
stay authorized by the Attorney General" until the date of the initial
denial of the original H1B petition (December 2001, in the example above),
from the date of the initial I-94 card expiration (July 2001, above) that
person would not be considered to be maintaining lawful status. Of course,
if the EOS or COS application or petition is ultimately granted, the person
again will be considered to be in legal status, since s/he would obtain an
extension of the I-94 card attached with the INS/BCIS approval notice. The
fact that there was also an untimely-filed EOS application for B-2 status
extension, which was pending at the time the first H1B petition was pending
with the Service, did not confer any continuing lawful status on the person.
While some attorneys were construing the Williams Memo to mean that serial
porting is permitted, the Cook Memo clarifies that it does not.
Regulations as Authority
The Cook Memo cited 8.C.F.R.214.1(c)(4) and 8.C.F.R.248.1 (b) as authority
for its conclusion in distinguishing the two concepts of (1) "period of
authorized stay" for unlawful presence and (2)"lawful status." These
regulations provide that the Service may not approve a change of status for
a person who has failed to maintain the previously accorded status or whose
status expired before the application or petition was filed. The Pearson
Memo recognizes that the Service takes much longer than the 120-day tolling
period to adjudicate many petitions or applications and recognizes that such
a person should not, and will not, accrue unlawful presence until a final
decision is made on the application or petition that was timely filed. On
the other hand, if an application or petition was untimely filed and
ultimately is denied, then unlawful presence begins accruing on the date
that the original I-94 card expired, regardless of the reason for the
denial. If the I-94 card eventually is extended based on the approval of the
COS or EOS, then the person is considered to be maintaining lawful status
throughout.
Conclusion
The Cook Memo provides guidance on an important policy matter that was the
source of much confusion regarding the application and consequences of the
differences between maintaining status and being in a period of stay
authorized by the Attorney General. Although the Memo is not as helpful as
we would have hoped, the fact that there has been some clarification issued
in this regard will help immigration lawyers to more accurately advise their
clients rather than be left with uncertainty and gray areas of law.
©
The
Law Office of Sheela Murthy, P.C.
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