Noncitizens may be granted U.S. permanent resident status in one of two ways: (1) by applying for and receiving an immigrant visa, and then applying for and being granted admission to the United States as a lawful permanent resident (LPR), or (2) by invoking the privilege of applying within the United States through the more streamlined adjustment of status process. Unsurprisingly, for reasons of convenience, avoidance of international travel, the right to legal representation in the adjustment process, and a desire to avoid a largely unreviewable immigrant visa refusal by a U.S. consular officer, most noncitizens—if eligible—opt for the adjustment of status process, rather than pursue an immigrant visa abroad.1

The path from temporary nonimmigrant status to lawful permanent residence is fraught with challenges, delays, and uncertainty, and is arguably “nearly impossible.”2 The universe of potential impediments to the approval of an application to adjust status are legion. While many adjustment barriers center around a constellation of nonimmigrant status breaches, “violations of status,” or failures to “maintain status,” adjustment can also be refused on grounds that a noncitizen is inadmissible to the United States under a host of specific statutory provisions.3

These adjustment bars lurk in the dense thicket of Immigration and Nationality Act (INA) § 245(c), with its eight grounds and multiple sub-grounds war- ranting an immigration officer’s refusal of an adjustment application. But at least for failures to maintain nonimmigrant status, subsection (c)(2) contains a “parenthetical exculpatory clause”4 that excuses violations where the applicant was not at fault or “for technical reasons.”5 Hence, by statute, magnanimity for no-fault or technical status breaches is enshrined, and applications for adjustment of status are nonetheless approvable.

In a floundering rulemaking effort, however, as this article will show, the two forgiveness clauses were starkly reduced in scope by the legacy immigration-benefits agency, the Immigration and Naturalization Service (INS), such that they bear scant resemblance to the generous congressional text.6 Because the regulation has proven vulnerable to legal challenges, the successor to INS, U.S. Citizenship and Immigration Services (USCIS), should update its Policy Manual to mitigate the more debarring aspects of its application.

The Burgeoning of Stateside Green Cards

In fiscal year 2022, USCIS adjusted the status of more than 550,000 noncitizens to lawful permanent residence, approximately 221,000 of whom were employment-based applicants.7 By comparison, the Department of State consular processed 464,143 immigrant visas, 48,878 of which were in employment-based categories.8

Given these figures, it is difficult to imagine a cosmos without adjustment of status, a relatively recent phenomenon. Prior to the INA’s enactment in 1952, there existed only a “pre-examination” process by which a noncitizen in the United States could obtain permanent residence; that procedure, some- what analogous to the current provisional waiver process,9 entailed “an official determination” of eligibility in the United States, followed by a trip to Canada or another country for a prearranged visa appointment and a “prompt return and admission to the United States as a permanent resident.”10

The 1952 INA marked the first appearance of adjustment of status as a means of obtaining residence in the United States for a noncitizen “who was lawfully admitted to the United States as a bona fide nonimmigrant and who is continuing to maintain that status.”11 As earlier stated, it is often not inadmissibility that presents a barrier to an adjustment applicant (perhaps because clearly inadmissible noncitizens are reluctant to apply); rather, it is ineligibility for adjustment with its insistence on a largely unsullied applicant. What is the provenance of this clean-hands requirement for adjustment applicants?

“Double, Double Toil and Trouble”: Enter the § 245(c) Bars

Congress first enacted the INA § 245(c)(2) adjustment bars in the Immigration and Nationality Act Amendments of 1976.12 At the time, only three categories of noncitizens were barred: (1) crewmen; (2) those, other than immediate relatives of U.S. citizens, who “hereafter continue[ ] in or accept[ ] unauthorized employment prior to filing an application for adjustment of status”; or (3) any noncitizen admitted in transit without a visa. Unauthorized employment was therefore one of the original sins baked into the adjustment proscriptions.

A decade later, in the Immigration Reform and Control Act of 1986 (IRCA), Congress amended the 245(c)(2) bars, this time adding to the end of the “hereafter” clause, “or who is not in legal immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own for technical reasons) to maintain continuously a legal status since entry into the United States.”13 Importantly, though, the statute then read as a sort of unitary conception—“other than through no fault of his own for technical reasons”—thereby binding “no fault” to the prepositional phrase “for technical reasons.”14

Thus, mercy could be dispensed for status-maintenance breaches only if they occurred through no fault of the noncitizen for nonsubstantive (techni- cal) reasons. Based on the text of the statute, demonstrating an absence of fault on the part of the violator was not a sufficient basis for clemency; the violation also had to be a technical one. In the Immigration Technical Cor- rections Act of 1988, Congress added the conjunction “or” after the phrase “no fault of his own.”15

And to this day, the “parenthetical exculpatory clause”16 remains bifur- cated into the disjunctive, and reads as follows: “(other than through no fault of his own or for technical reasons).”17 The separation of the clause into two distinct provisions invited a broader interpretation, since a reprieve was now available for both faultless breaches as well as nonsubstantive violations. Then, as now, the statute did not define what was precisely meant by “no fault” or “for technical reasons.” That task would be left to implementing regulations.

“O, That Way Madness Lies”: INS’s Interpretation of the Exculpatory Clause Is the Result of Defective Rulemaking

On March 3, 1987, the INS published an interim rule with request for comments, implementing the IRCA-amended § 245(c), defining, inter alia, the original phrase “other than through no fault of his own for technical reasons.”18 The interim rule, of course, preceded the phrase’s bifurcation in the Immigration Technical Corrections Act of 1988; but setting aside this out- sized distinction, the language of subsections (d)(2)(i)-(iii), then designated as (c)(i)-(iii), remains largely unchanged in over three decades. More importantly, despite the generous language of the statutory provision—to say nothing of the later addition of the conjunction “or”—the regulation instinctively sought to narrowly cabin construction of the phrase.

The interim regulation opened with the admonition that the statutory parenthetical “shall be limited to” three instances: inaction by an individual or organization designated by regulation to act on behalf of the individual, technical violation “resulting from inaction of the Service [INS],” and technical violation “caused by physical inability of the applicant to request an extension of nonimmigrant stay.”19 But there is no compelling reason of law or language why the statute must be strictly limited to these narrowly crafted exceptions.This narrowness question was raised but largely left unanswered in Peters v. Barr, 20 a case addressing ineligibility for adjustment due to a lawyer’s failure to properly file an H-1B extension. “Peters contends,” the Ninth Circuit stated, “that the regulation is an impermissibly narrow interpretation of the statute.”21 The court did not reach this question, finding only that the regulation was invalid “to the extent it excludes reasonable reliance on the assistance of counsel from the circumstances covered by the statutory phrase ‘other than through no fault of his own’” and finding “it unnecessary to decide whether the regulation is invalid . . . in its entirety.”22

The interim rule opened by stating that IRCA amended the statute “to prohibit adjustment to lawful permanent resident status within the United States by two additional groups of individuals: those who have failed to maintain legal immigration status on the date their adjustment of status applications are filed, and those who have failed (other than through no fault of their own for technical reasons) to maintain continuously a legal status since entry into the United States.”23 The interim rule noted further that INS was “guided by Congressional intent as stated in the Report of the Committee on the Judiciary of the United States on S. 1200,” the original Senate bill that became IRCA, “to make adjustment of status a much less frequently used method of obtaining permanent resident status in the United States.”24 Nevertheless, the rulemaking made clear that the amendment did “not preclude these individuals from departing from the United States, obtaining immigrant visas at a United States embassy or consulate, and reentering the United States as immigrants.”25

Moreover, the exculpatory clause was a part of the statute intended as two alternative exceptions to the general prohibition; construing it more broadly would in no way undermine Congressional intent.In defining the phrase “other than through no fault of his own for technical reasons,” the interim rule artificially restricted its application only “to describe three types of situations.”26But why only this trinity? As for the first, “over which the applicant has no control,” currently designated as 8 C.F.R. § 245.1(d)(2)(i), the interim rule stated it “would not include situations such as an employer’s delay in completing required documents to give to the applicant for submission to the Service.”27 But this is hard to square with the statutory language itself, which did not contemplate any such artificial limitation and only required that the failure to maintain status be “through no fault of his [or her] own.” After all, by regulation, the corporate petitioner in a nonimmigrant work-visa context owns and controls that process,28 and other regulations make clear that the beneficiary is not an “affected party”29 with standing in these proceedings. The beneficiary/applicant cannot be fairly described as possessing meaningful control over that transaction.

The interim rule also said that an applicant “who fails to maintain status because he or she is awaiting a decision on a labor certification application from the Department of Labor or a visa petition from the INS before filing an application for adjustment has not failed to maintain ‘through no fault of his own for technical reasons’ and is ineligible to adjust.”30 At first blush, excluding the pendency of a labor certification as a proper basis to find an absence of fault has some superficial appeal; after all, the regulation refers only to the “Service,” and any INS regulation would not bind the Department of Labor. But there is no compelling reason to exclude the pendency of a labor certification or a visa petition from its textual gras. Not only is that an archetypal “technical reason,” it is also not attributable to the applicant.31

Indeed, the very thrust of this subsection is to disregard status breaches precipitated by means not attributable to the applicant and occurring due to “inaction of the Service.” And the included parenthetical examples are merely that: examples, nothing more, nothing less. The interim rule emphasizes this point, stating that the “examples given in the regulation are not intended to be all-inclusive.”32 This conclusion flows from the statutory language, which brooked no artificial limitation on the instances in which this exculpatory clause could be invoked and should inform its proper construction.

More than two years later, the final rule was published.33 In the present era where even the most anodyne rulemaking begets thousands of comments, it is shocking to learn that the INS received a scant “five comments to the interim rule published on March 3, 1987.”34 But more importantly, despite the amendment to the exculpatory phrase effected by the Immigration Technical Corrections Act of 1988, the final rule made no substantive changes to the interim regulation, a significant misstep on the part of INS given the change in the statutory language a year after the interim rule was published. To be sure, the final rule changed the language to comply with the technical corrections to IRCA, but it only did so in the final rule (therefore never soliciting comments on the revised language introducing the disjunctive) and it did not address the significance presented by the changed statutory language. In the Supplementary Information section, the Final Rule did explain that section 117 of IRCA—the section that amended INA § 245(c)(2) by introducing the exculpatory phrase—had been amended, but there was no discussion as to the substance of the change. As noted above, the statute was amended in 1988 to add the conjunction “or” to the exculpatory clause, broadening its applicability. Yet the rule made no effort to account for or grapple with this change; it simply pretended as if it had always included the additional conjunction.

This failing suggests a violation of the notice provision of the Administrative Procedure Act (APA), specifically 5 U.S.C. § 553(b), providing that “notice of proposed rulemaking shall be published in the Final Register” and “shall include,” inter alia, “reference to the legal authority under which the rule is proposed” and “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” The March 3, 1987, interim rule announced it was implementing, among other provisions, section 117 of IRCA (Pub. L. No. 99-603), signed by President Ronald Reagan on November 6, 1986; but that version contained the shortened parenthetical “(other than through no fault of his own for technical reasons).”35

While INS issued a correction on April 27, 1987 (“[i]nterim rule with request for comments; correction”), it did so only to “correct[ ] a legal cita- tion contained in interim regulations implementing Cuban/Haitian adjustment provisions of Pub. L. 99-603.”36 And this was merely a month after the interim rule was published and prior to the amendments to IRCA in Pub. L. No. 100-525 (October 24, 1988). It is thus somewhat striking that the agency felt compelled to issue a correction to remedy a legal citation (from “243(h)” to “243(h)(2)”), yet it felt no similar need to publish a subsequent correction prior to issuing the final rule on July 12, 1989, in light of a change to the very statutory language it sought to implement in the inchoate rulemaking.

“To satisfy the APA’s notice requirement, the NPRM [notice of proposed rulemaking] and the final rule need not be identical,” but the final rule must qualify as “a ‘logical outgrowth’ of its notice.”37 It is difficult to accede to the final rule as a logical outgrowth of the proposed rule when the very congres- sional language it sought to implement was modified in a legally and grammatically consequential manner. Conjunctions, of course, act as connectors, conjoining words, phrases, clauses, or sentences; coordinating conjunctions like “and” and “or” impact meaning in different ways, sometimes excluding possibilities (e.g., “we can sue USCIS or we can wait for a decision”); and other times, suggesting an inclusive combination of alternatives (e.g., “we will forgive you for falling out of status if you were not at fault or if it was due to technical reasons”). The statute forgives status violations both when the applicant is not at fault and when the failure to maintain status is due to technical, nonsubstantive reasons.

As originally drafted, however, the statute forgave violations only when the applicant was not at fault for technical reasons (“other than through no fault of his own for technical reasons”). The prepositional phrase “for technical reasons” modified “no fault of his own”—it did not provide a separate avenue for obtaining relief from ineligibility. While the difference is subtle—the insertion of a single word (“or”)—the influence on meaning is not, as context and phrasing can significantly alter grammatical meaning.38 The dichotomization of the statute in effect created two adjudicative universes in which to resolve maintenance transgressions: one focused solely on the culpability or faultless- ness of the applicant and the extent to which, if at all, they were contributorily negligent or derelict; and the other spotlighted the machinations of the agency and its dense regulations and processes, including adjudications delays.

Yet, the trajectory from “no fault of his own for technical reasons”39 to “no fault of his own or for technical reasons”40 to “shall be limited [only] to” individual/organizational inaction, technical violation due to agency delay, and technical violation due to physical inability41 simply does not qualify as a logical outgrowth.42 The effect of this administrative maneuvering resonates to the present: in its Policy Manual, USCIS strictly construes the regulation and has all but read out the “no fault provision” of the compound clause.43

Discussing 8 C.F.R. § 245.1(d)(2)(i), where the “no fault” ground most naturally resides (because it begins with “inaction of another individual or organization designated by regulation to act on behalf of an individual”), USCIS states:

This exception generally does not apply to most claims that an applicant’s attorney or representative provided ineffective counsel or failed to file an application or other documents to USCIS on the applicant’s behalf. The applicant and the attorney or representative are both responsible for complying with all applicable USCIS filing requirements and official correspondence or requests for information, and the applicant has control over the actions of the representative.44

This puzzling proclamation does not follow from the statute’s “no fault of his own” language. An applicant has no more control over their attorney’s errors or omissions than those of a designated school official or exchange program sponsor. As the Ninth Circuit observed in Peters v. Barr

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. 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. . . . If the advice turns out to be erroneous and results in the applicant’s failure to maintain lawful status, no one using the term “fault” in its ordinary sense would say that the applicant herself was to blame. If blame were assigned it would be placed on the lawyer whose job it is to know the intricacies of immigration law.45

Moreover, given the absence of control, there is no indispensable rationale for requiring the inaction to be acknowledged, yet another needless obstacle straying from the charitable text.

USCIS treats this subsection as if it were exclusively limited to the parenthetical example (for designated school officials or exchange program sponsors), conveniently striking through the introductory clause “inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control.” In addition, it is not inaccurate to state that attorneys and organizations are designated by regulation, such as 8 C.F.R. § 292.1 through § 292.4, to act on behalf of noncitizens. And while the Policy Manual footnotes the possibility of an exception to the above-cited rule for ineffective assistance claims under Matter of Lozada,46 control notwithstanding, its attitude with respect to the regulation’s proper construction is unwarranted, thereby evading the spirit of the statute.

Get Out of Purgatory Free: Indulgences Under § 245(k), Fault or Not

Abstracting the process somewhat, INA § 245(a) allows discretionary adjustment of status for noncitizens who have been “inspected and admit- ted or paroled into the United States,” provided they are admissible and an immigrant visa is immediately available.47 Section 245(c) then excludes eight categories of noncitizens from the safe harbor of § 245(a), with the notable exception of self-petitioners under the Violence Against Women Act (VAWA) and immediate relatives of U.S. citizens. Striking a balance between § 245(a)’s permissiveness and § 245(c)’s prohibitions, Congress crafted an alternative remedial scheme in § 245(k), achieving some measure of détente between these hostile regimes. This provision is intimately tied to the no fault/technical reasons clause; section 245(c)(2)’s prefatory comment pointedly notes that its strictures are “subject to subsection (k).”48 Section 245(c)(2) addresses three types of status breaches: “hereafter continues in or accepts unauthorized employment prior to filing” for adjustment, “who is in an unlawful immigration status on the date of filing” for adjustment, or “who has failed . . . to maintain continuously a lawful status since entry into the United States.” The exculpatory clause is only applicable to failures to maintain status and does not extend to those who are in unlawful status or have worked without authorization. Given the nature of employment-based infractions, it does not go far enough to protect employment-based applicants.

This is where § 245(k) alters the plot. Under its ameliorative provisions, most employment-based immigrants “may adjust pursuant to subsection [245](a) and notwithstanding subsection [245](c)(2), (c)(7), and (c)(8), if—” certain conditions are met: the noncitizen is present “pursuant to a lawful admission”; and subsequent to that admission, the noncitizen has not “for an aggregate period exceeding 180 days” either “(A) failed to maintain, continuously, a lawful status; (B) engaged in unauthorized employment; or (C) otherwise violated the terms and conditions of the [noncitizen]’s admission.”49

Congress enacted § 245(k) on November 26, 1997, as part of an appropriations bill for the Departments of Commerce, Justice, State, and the Judiciary for the fiscal year ending September 30, 1998.50 While eliminating adjustment under INA § 245(i),51 the bill also authorized adjustment under § 245(a) for certain employment-based applicants who had only violated status for an aggregate period not exceeding 180 days. Acting as a partial indulgence for a temporally limited category of infractions, § 245(k) provides absolution for a limited group of employment-based status offenders. Thus, acting in concert, § 245(k) and 8 C.F.R. § 245.1(d)(2) act as savings clauses for many employment-based status violations.

Notably, the § 245(c)(2) bars also contain variants of (c)(7) (“not in a lawful nonimmigrant status”) and (c)(8) (“employed while . . . an unauthorized [noncitizen], as defined in [8 U.S.C. §] 1324a(h)(3)” or “has otherwise violated the terms of a nonimmigrant visa”) violations.52 In this way, failures of employment-based nonimmigrants to maintain continuous lawful status can be forgiven in several ways: if they are effected through no fault of the applicant, or for technical reasons, or if they do not exceed 180 days, regardless of culpability for the transgression. Offenses related to employment authorization or lack of lawful nonimmigrant status at the time of filing for adjustment, on the other hand, can only be forgiven if they do not exceed 180 days; they are not subject to forgiveness through the no fault/technical reasons safety valve.53 As the Sixth Circuit observed, “[s]ubsection (k) makes no mention of an exception for technical reasons. . . . Presumably, if this language was intended to apply to subsection (k) it would have been included in the provision.”54

This article spotlights the no fault/technical reasons provision, but there are other dispensations of grace available to nonimmigrants in breach. For example, both the extension and change of status regulatory provisions expressly allow for clemency when the reason for the late filing is “extraordinary circumstances beyond the control of the applicant or petitioner,” where other criteria are also satisfied.55 This exception is broader than the “no fault” provision because it also considers factors particular to the petitioner.

Even broader still, there may also be challenges based on equitable tolling of time limitations that appeal to principles of justice, fairness, and equity. “It is true,” the Ninth Circuit has recognized, “that equitable tolling is available in INA cases, as there is ‘a presumption, read into every federal statute of limitation, that filing deadlines are subject to equitable tolling.’”56 Equitable tolling generally requires a party to satisfy two distinct elements: diligent pursuit of their rights and that some extraordinary circumstance beyond their control stood in the way, preventing timely filing.57

Sandboxing the Exculpatory Clause

Given the substance of the regulation, status complications most often manifest in the context of pending “timely request[s] to maintain status”58 and ineffective assistance of counsel claims. Subsection (ii) waives “technical violation[s] resulting from inaction of the Service.” As the text concedes, the regulation offers nothing more than a representative example, which, again, is simply one example and not any outer limit for relief: “as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request.”59 The limits are found in whatever is reasonably conveyed by the governing text, “no fault of his own or for technical reasons.” It is noteworthy, too, that the exculpatory phrase is embedded within a provision identifying exceptions to the general rule pronounced by § 245(a); as a provision in equity, it represents a dispensation from the otherwise punitive rigors of § 245(c).

The archetypal exemplar is when a noncitizen in, for example, B-2 status, files a timely extension or change of their nonimmigrant status and later files an adjustment of status application before the underlying nonimmigrant status expires and the change or extension application is adjudicated.60That, to be sure, would qualify as a “timely request to maintain status,” even if it is a different nonimmigrant classification. But what about the more common (and more fraught) scenarios where a noncitizen files an asylum application while still in valid nonimmigrant status and two, perhaps four, years later (in view of adjudications delays for asylum applications), files for adjustment of status? Would this timely but unadjudicated request qualify as a “technical violation resulting from inaction of the Service”?61

Reasonable minds may differ on the question of whether it qualifies as a request to “maintain” status. The DHS challenged this request as a putative “maintenance” of status in Matter of L–K–, arguing that “the request must relate to the particular status the applicant already possesses and wishes to ‘maintain,’” and further, “when a different status, such as asylum status, is requested, any lapse of the initial status is not one ‘resulting from’ the DHS’s action or inaction with regard to that other status.”62 The Board of Immigration Appeals (BIA) ultimately “express[ed] no opinion thereon.”63

But more recently, in Attias v. Crandall, the Ninth Circuit reached a deci- sion likely to generate discontent on all sides. In Attias, the petitioner was in valid nonimmigrant status through April 2, 2016, after an earlier B-2 to B-1 change of status.64 One day prior to its expiration, he filed for an extension. USCIS issued a Request for Evidence in July 2016, and subsequent to the petitioner’s response, denied the B-1 extension on July 25, 2017.65 However, prior to the denial, on January 26, 2017, Haim Attias filed an I-140 (Immigrant Petition for [Noncitizen] Worker) concurrent with an adjustment of status application. USCIS granted the visa petition but denied the adjustment of status, finding he had failed to maintain nonimmigrant status from April 3, 2016, to January 25, 2017, a period of 298 days; and since this exceeded 180 days, § 245(k) did not apply. Attias urged that his lapse in status was “through no fault of his own or for technical reasons” within the meaning of 8 C.F.R. § 245.1(d)(2)(ii). Attias then initiated an APA action, arguing that USCIS misread the statute and regulations. The district court granted summary judgment to USCIS and the petitioner appealed.

The Ninth Circuit focused on the “key textual phrase,” which it found to be “resulting from,” and concluded that a “technical violation occurs

only if the violation is a consequence or effect of USCIS’s inaction on a pending application. In other words, the [noncitizen]’s lapse in lawful status must be caused by bureaucratic delay. If the lapse is caused by anything within the [noncitizen]’s control, including a failure to anticipate his deadlines, this subsection of the regulations does not apply.66

Focusing on the language, the Ninth Circuit held that a “technical violation” therefore “occurs only if the [noncitizen]’s application to maintain lawful status is ultimately granted.”67 Looked at from another perspective, this means that USCIS will have to adjudicate any pending status-maintenance request, including an asylum application, before adjudicating the adjustment benefit—either good or bad, depending on the circumstances.

Referring back to the definition of “lawful immigration status,” which includes a noncitizen admitted in nonimmigrant status “whose initial period of admission has not expired or…has been extended,”68 the court provided an example of an extension that would not result in a “technical” violation, namely, if the extension request was “clearly frivolous.”69 While a timely but frivolous application for extension of status that USCIS does not act on for many months may result in a lapse in the noncitizen’s status, that lapse is not due to USCIS delay, but rather because it is frivolous. Under this rule, in the Ninth Circuit, a “technical violation” only occurs when the application to maintain status is ultimately granted. While this construction may hold some intuitive cosmetic appeal, it does not accord with the plain text of the regulation, which merely requires the filing of a “timely request” that USCIS “has not yet acted on.”70 So, if USCIS must approve of the request in order for the exception to apply, what is the point of mercy? And who is the real beneficiary of mercy—the applicant or USCIS? With the damage caused by the narrowing effect of the flawed rulemaking effort, further constricting the exculpatory phrase in this way is unwarranted.

In Somaysoy v. Ow, the district court applied this rationale to a pending asylum application (timely filed four days before the expiration of the applicant’s B-2 status with an adjustment filed over two years later), stating that in the Ninth Circuit, “what matters for determining ‘technical reasons’ was not whether DHS has taken some action (as in Matter of L–K–), but rather the ultimate outcome of the asylum application.”71 “In other words,” the court continued, “if the application is ultimately unsuccessful, then the applicant’s lapse in status results from his ineligibility for asylum, not from USCIS’s delay.”72 That is only partially true.

The Somaysoy decision found that Attias “control[led] th[e] Court’s application of 8 C.F.R. § 245.1(d)(2)(ii) to Somaysoy’s case” and asked the ever-important question, “[w]hat does this mean in practice?”73 It answered as follows: USCIS was “incorrect as a matter of law” to conclude that Gorkem Somaysoy had failed to maintain lawful status and it could not make the threshold determination of status maintenance “until USCIS adjudicates his asylum application.”74 The court noted the upshot of this legal conclusion was that it would “slow down the visa approval process or cause inexperienced workers to make rushed decisions about asylum applications”; on the other hand, it could also “hasten” USCIS’s adjudication of the asylum application. Whatever “policy adjustments” USCIS needed to make “in the wake of Attias” were just not the court’s problem.

At least in the Ninth Circuit, then, an adjustment applicant with a pending asylum application filed prior to the expiration of underlying nonimmigrant status would remain adjustment eligible at least until USCIS adjudicates the asylum application. As the Somaysoy court explained, the applicant’s only hope will be that USCIS expedites the adjudication of the asylum claim, or to pursue a mandamus action.75 Given this framework, adjustment-eligible asylum applicants (at least those who filed their asylum applications while still in valid nonimmigrant status) have nothing to lose by pursuing adjustment.

Ineffective Assistance of Legal Representative

Ineffective assistance of counsel or legal representative, too, remains a viable means of establishing absence of fault and overcoming inadvertent status breaches. In Peters v. Barr, the Ninth Circuit confronted the case of a noncitizen whose H-1B status lapsed due to attorney error: while a timely H-1B extension had been filed, Patricia Peters’s counsel neglected to include two supplemental forms, resulting in its rejection.76 Although counsel claimed to have immediately refiled the petition, USCIS stated it had never received the corrected petition and therefore never granted the extension. Peters then filed an adjustment of status application, nearly a year after her underlying status had expired, which was predictably denied. A federal district court action was later filed and dismissed as moot, after DHS placed her in removal proceedings.

Peters argued that her failure to maintain status was through no fault of her own within the meaning of the parenthetical exception in § 245(c)(2), either because her counsel had filed it and USCIS misplaced it; or because he did not file it at all, despite his assurances, and thus it was not her fault.77 The immigration judge found that as a factual matter, her attorney never filed the corrected I-129 petition, so there was no “timely request to maintain status [that] the Service ha[d] not yet acted on,” and consequently, 8 C.F.R. § 245.1(d)(2)(ii) did not apply.78 The immigration judge also found that Peters did not qualify for relief under 8 C.F.R. § 245.1(d)(2)(i) because he found her counsel “was not an individual ‘designated by regulation to act’ on her behalf, and because he had not ‘acknowledged’ his failure to file the corrected I-129 petition.”79 On appeal, the BIA affirmed the immigration judge’s ruling.

The Ninth Circuit had “little difficulty concluding that the BIA’s decision must be reversed,” finding uncontroversially that her attorney’s failure to file the corrected I-129 caused her to fall out of status for more than 180 days and that this occurred “through no fault of [her] own” within the meaning of 8 U.S.C. § 1255(c)(2). The court observed that “the pairing of ‘fault’ with the phrase ‘of his own’ makes evident that Congress intended the parenthetical exception to apply when an applicant is not personally to blame for her failure to maintain lawful status,” a policy choice the court found “eminently sensible given the complexity of the laws governing maintenance of lawful immigration status and the ease with which an individual who is diligently trying to maintain such status can inadvertently fail to do so.”80

Referring to the parallel Executive Office for Immigration Review (EOIR) regulation, 8 C.F.R. § 1245.1(d)(2)(i), the court stated,

The key consideration is whether the non-citizen’s reliance on her lawyer’s assistance was reasonable under the circumstances—not whether the lawyer was “designated by regulation to act on [her] behalf,” or whether the lawyer is someone “over whose actions the [non-citizen] has no control,” or whether the lawyer has ‘acknowledged’ his inaction.81

The court found each of these limitations in the regulation were plainly “inconsistent with the statute when applied in the context” of a failure to maintain status due to “reasonable reliance on the assistance of counsel.”82 On the question of Chevron deference to the Board of Immigration Appeals’ interpretation,83 the court observed that if the regulation were construed to exclude reasonable reliance on counsel, it would conflict with the “unambiguously expressed intent of Congress” in § 245(c)(2)’s exculpatory clause; if, on the other hand, the exculpatory clause is itself ambiguous, the regulation would be invalid as “an impermissibly narrow construction of the statute.”84 Following Peters v. Barr, the Ninth Circuit in an unpublished decision extended this rationale further to cover reasonable reliance on non-attorney immigration consultants.85

Challenging the Agency’s Flawed Rulemaking

As the torturous rulemaking history reveals, USCIS’s predecessor agency did not comply with the APA in finalizing its regulation to implement § 245(c)(2)’s exculpatory clause. The INS construed the statutory phrase too narrowly by limiting it to three instances without any meaningful explanation for its elected course. More importantly, though, the agency never issued a correction seeking additional comments after Congress amended the statutory language by adding the disjunctive “or” (leaving aside the inscrutable fact that the regulation garnered five comments over the course of two years). With this in mind, USCIS should amend its Policy Manual to make clear—as did the 1987 interim rule despite its flaws—that the regulatory examples “are not intended to be all-inclusive,” and make clear, too, that ineffective assistance of legal representative claims may satisfy 8 C.F.R. § 1245.1(d)(2)(i), rather than the current negative statement in the Policy Manual.86 At least in the Ninth Circuit, this is the direction ahead. Given the many obstacles already faced by nonimmigrants endeavoring to maintain status, these measures would be a step toward remediating the rulemaking misfeasance that undergirds the entirety of the regulation.

Reprinted with permission from the AILA Law Journal, Vol. 5, No. 2, Oct. 2023 (copyright American Immigration Lawyers Association)


1. For the purpose of adjustment of status, see USCIS Policy Manual, vol. 7, pt. A, ch. 1.A.

2. David J. Bier, Why Legal Immigration Is Nearly Impossible: U.S. Legal Immigration Rules Explained, Cato Institute Policy Analysis No. 950 (June 13, 2023, https://

3. See, e.g., 8U.S.C.§1182(a)(1)-(10) (to name only several, the grounds include criminal, health-related, security/terrorism, membership in totalitarian/communist parties, public charge, misrepresentation, and practicing polygamy).

4. Attias v. Crandall, 968 F.3d 931, 937 (9th Cir. 2020).

5. 8 U.S.C. § 1255(c)(2).

6. In fact, several district courts have either discussed or expressly found that theregulation impermissibly narrows the statutory phrase. See, e.g., McGuire v. Nielsen, 448 F. Supp. 3d 1213, 1255-56 (D.N.M. 2020) (“The Court concludes that 8 C.F.R. § 245.1(d)(2)(i) is an impermissibly narrow interpretation of 8 U.S.C. § 1255(c)(2).”); Wong v. Napolitano, No. CV-08-937-ST, at 27 (D. Or. Mar. 10, 2010) (“The agency’s construction improperly narrows the category of what may be considered no fault or a technical violation by excluding other potential bases.”); Metwaly v. Barr, No. 1:20-cv- 1289-MLB, n.11 (N.D. Ga. 2021) (“Plaintiffs specifically contend that, to the extent that USCIS’s decision relied on 8 C.F.R. § 245.1(d)(2) without considering the statutory language itself, its decision was arbitrary and capricious and in violation of law as the regulation narrows the status and is ultra vires.”); Alimoradi v. USCIS, No. 2:08-cv- 02529-DDP-JC, at 8 (C.D. Cal. Feb. 10, 2009) (finding the “no fault/technical reasons” exception satisfied where the applicant received poor legal advice from corporate counsel and noting that the implementing regulations were “manifestly contrary to the plain language of the statute” and “arbitrary and capricious” as applied to the applicant).

7. Department of Homeland Security, Legal Immigration and Adjustment of Status Report Fiscal Year 2022, Quarter 4,

8. Id.

9. See USCIS, Provisional Unlawful Presence Waivers, (“The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees) [and] who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview…. This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.”).

10. USCIS Policy Manual, vol. 7, pt. A, ch. 1.B.1; see also Jain v. INS, 612 F.2d 683, 686 (2d Cir. 1979), citing 2 Charles Gordon & Harry Rosenfield, Immigration Law and Procedure § 7.3a (“To ameliorate th[e] hardship [of leaving the country], the Immigration and Naturalization Service devised an administrative procedure, known as pre-examination, under which nonimmigrant aliens were examined by immigration officials in the United States and were issued an immigrant visa by the consular office in Canada if their admissibility as immigrants was established…. This procedure was used extensively for many years.”).

11. Immigration and Nationality Act, Pub. L. No. 82-414, § 245(a), 66 Stat. 163, 217 (1952).

12. Pub. L. No. 94-571, § 6, 90 Stat. 2703, 2705-06.

13. Pub. L. No. 99-603, § 117, 100 Stat. 3359, 3384.

14. In Matter of L–K–, 23 I&N Dec. 677, 679 n.5 (B.I.A. 2004), the Board of Immigration Appeals rejected an argument that the respondent’s failure to maintain status was for “technical reasons” within the meaning of the parallel EOIR regulation, 8 C.F.R. § 1245.1(d)(2)(ii), where the applicant filed an asylum application while in lawful nonimmigrant status that had been referred to the immigration court. In a footnote, the Board stated without support that the regulations “do not distinguish between the terms ‘no fault’ and ‘technical reasons’ but, instead, treat them as a unitary concept.” This statement disregards the 1988 amendment to the earlier unitary expression of the phrase.

15. Pub. L. No. 100-525, § 2(f )(1)(B), 102 Stat. 2609, 2611 (“Section 245(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1255(c)(2)), as amended by section 117 of IRCA, is amended—by inserting ‘or’ after ‘no fault of his own’ . . .”).

16. Attias v. Crandall, 968 F.3d 931, 937 (9th Cir. 2020).

17. 8 U.S.C. § 1255(c)(2) (emphasis added).

18. Adjustment of Status to That of Persons Admitted for Permanent Residence; Creation of Records of Lawful Admission for Permanent Residence, 52 Fed. Reg. 6320 (Mar. 3, 1987).

19. Id. at 6321-22.

20. 954 F.3d 1238 (9th Cir. 2020).

21. Id. at 1244.

22. Id.

23. 52 Fed. Reg. 6320.

24. Id.

25. Id.

26. Id.

27. Id.

28. 8 C.F.R. § 214.2(h)(1)(i) (“may be authorized to come to the United States temporarily to perform services or labor for … an employer, if petitioned for by that employer”), (2)(i)(A) (“A United States employer seeking to classify a[ ] [noncitizen] as an H-1B, H-2A, H-2B, or H-3 … must file a petition on the form prescribed by USCIS in accordance with the form instructions.”).

29. 8 C.F.R. § 103.3(a)(iii)(B) (“[A]ffected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition.”).

30. 52 Fed. Reg. 6320. This language is reiterated in the USCIS Policy Manual, vol. 7, pt. B, ch. 4.E(2).

31. Cf.8C.F.R.§214.2(h)(13)(iii)(D)(1)(exempting H-1B non-immigrants from the six-year limitation at § 214(g)(4) when “at least 365 days have elapsed since” the filing of either a “labor certification with the Department of Labor” or the “filing of an immigrant visa petition with USCIS”).

32. 52 Fed. Reg. 6320.

33. Adjustment of Status to That of Person Admitted for Permanent Residence, 54 Fed. Reg. 29440 (July 12, 1989).

34. Id.

35. Pub. L. No. 99-603, § 117, 100 Stat. 3359, 3384.

36. Adjustment of Status to That of Persons Admitted for Lawful Permanent Residence, 52 Fed. Reg. 13827 (Apr. 27, 1987).

37. CSX Transp., Inc. v. Surface Transp. Bd., 584F.3d1076,1079 (D.C.Cir.2009) (quoting Covad Communications Co. v. F.C.C., 450 F.3d 528, 548 (D.C. Cir. 2006)).

38. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012) (“The conjunctions and and or are two of the elemental words in the English language. Under the conjunctive/disjunctive canon, and combines itemswhile or creates alternatives.”).

39. Pub. L. No. 99-603, § 117.

40. 8 U.S.C. § 1255(c)(2).

41. 8 C.F.R. § 245.1(d)(2)(i)-(iii).

42. Deliberately excluded is § 245.1(d)(2)(iv) (technical violation “resulting fromthe Service’s application of the maximum five/six year period of stay for certain H-1 nurses”). As USCIS observes in its Policy Manual, this exception only covers a time period through December 31, 1989; it is therefore unlikely that it will ever be invoked “due to passage of time.” USCIS Policy Manual, vol. 7, pt. B, ch. 4.E.2.

43. Id.

44. Id.

45. 954 F.3d 1238, 1242-43 (9th Cir. 2020).

46. 19 I&N Dec. 637 (B.I.A. 1988).

47. 8 U.S.C. § 1255(a).

48. 8 U.S.C. § 1255(c)(2).

49. 8 U.S.C. § 1255(k).

50. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2440, 2458-59 (1997).

51. 8 U.S.C. § 1255(i) enables applicants normally ineligible for adjustment to apply for green cards in the United States if certain conditions are met, including being the beneficiary of an immigrant visa petition filed on or before April 30, 2001. USCIS, Green Card Through INA 245(i) Adjustment,

52. With the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress added the (c)(7) and (c)(8) bars to eligibility for adjustment of status. Pub. L. No. 104-208, § 375, 110 Stat. 3009, 3009-648.

53. See, e.g., Mosanya v. Holder, No. 13-60863 (5th Cir. 2014) (unpublished memorandum). The petitioner argued his failure to renew his nonimmigrant status was “through no fault of his own” because he had been given “incorrect information” from a USCIS officer. However, “[b]ecause the BIA determined that Mosanya was ineligible to adjust his status under § 1255(c)(8) [because he had engaged in unauthorized employ- ment], the [no fault] exception in § 1255(c)(2) d[id] not apply.”

54. Kukalo v. Holder, 744 F.3d 395, 405 (6th Cir. 2011).

55. See 8 C.F.R. § 248.1(b) (changes of nonimmigrant status) and 8 C.F.R. § 214.1(c)(4) (extensions of nonimmigrant status) (allowing for the approval of a late-filed change or extension of status, respectively, where the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, the delay is “commensurate with the circumstances,” the noncitizen has “not otherwise violated” their status, they remain a bona fide nonimmigrant, and they are not the subject of removal or deportation proceedings).

56. Munozv.Ashcroft, 339F.3d950,956 (9th Cir. 2003) (quoting Socop-Gonzalez v. INS, 272 F.3d 1176, 1188 (9th Cir. 2001)).

57. See,e.g., Menominee Indian Tribe of Wisconsin v. UnitedStates, 577 U.S.250,257 (2016) (“[T]he diligence prong already covers those affairs within the litigant’s control; the extraordinary circumstances prong, by contrast, is meant to cover matters outside its control. We therefore reaffirm that the second prong of the equitable tolling test is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.”).

58. 8 C.F.R. § 245.1(d)(2)(ii).

59. Id.

60. Note, however, that under 8 C.F.R. § 214.1(b)(1), a B-1/B-2 visitor “may be granted extensions of temporary stay in increments of not more than six months each.” Therefore, multiple extensions or so-called “bridge filings” may be necessary to avoid accrual of unlawful presence. The retired USCIS Adjudicators Field Manual (AFM) states, “[I]f an individual has filed an initial application for [extension of status (EOS)] or [change of status (COS)] and subsequently files additional (untimely) requests for EOS or COS, the subsequently filed request will not stop the individual from accruing unlawful presence, if the initial request is denied.” USCIS, AFM ch. 40.9.2(b)(3)(D)(vii); see also Attias v. Crandall, 968 F.3d 931, 939 (9th Cir. 2020) (“By ultimately denying Attias’s Form I-539, USCIS found that Attias failed to demonstrate his entitlement to an extension of B-1 status. . . . Accordingly, Attias’s lapse in lawful status did not occur ‘through no fault of his own or for technical reasons,’ so the lapse is unexcused.”).

61. Granting judgment in favor of the plaintiffs, the Western District of Texas observed, “It seems to the court that the ultimate ‘technicality’ is to be physically present in the United States with permission of USCIS while pursuing the significant goal of asylum, but because of the expiration of permission to be present in the United States pursuant to a relatively low-level permission to visit, the one who is legally physically present is also in an unlawful status in the eyes of the same USCIS.” Sayin v. United States, No. 1:18-CV-643-LY (W.D. Tex. 2018), at 8.

62. 23 I&N Dec. 677, 679 (B.I.A. 2004).

63. Id.

64. 968 F.3d at 935.

65. Id.66. Id. at 937.

67. Id. at 938.

68. Id. (citing 8 C.F.R. § 245.1(d)(1)(ii)).

69. Id. The court specifically referred to the USCIS Policy Manual, which further requires that a pending extension must be “meritorious in fact, not frivolous or fraudulent, or otherwise designed to delay removal or departure from the United States.” USCIS Policy Manual, vol. 7, pt. B, ch. 4.E.2. This stems from the requirement for late-filed extensions of stay found at 8 C.F.R. § 214.1(c)(4)(i)-(iv). See also 8 C.F.R. § 248.1(b) (1)-(4) (same requirements for a late-filed change of status).

70. 8 C.F.R. § 245.1(d)(2)(ii).

71. Somaysoy v. Ow, 536 F. Supp. 3d 634, 639 (C.D. Cal. 2021).

72. Id.

73. Order Granting in Part and Denying in Part Plaintiff’s Motion for SummaryJudgment and Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment, at 11, Somaysoy v. Ow, No. 8:20-cv-01609-JWH-ADS (C.D. Cal. Jan. 26, 2022).

74. Id. at 11-12.

75. Id. at 12.

76. 954 F.3d 1238, 1239 (9th Cir. 2020).

77. Id. at 1241.

78. Id.

79. Id. Peters’s attorney, David Richmond, evidently passed away during the pendency of the proceedings and maintained until his death that he had in fact filed the corrected petition.

80. Id. at 1242.

81. Id. at 1244.

82. Id.

83. Named after the canonical 1984 Supreme Court opinion Chevron U.S.A., Inc.v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Chevron deference is the administrative law principle requiring courts to defer to interpretations of statutes made by government agencies charged with enforcing them, unless those interpretations are unreasonable.

84. Id. (quoting Chevron U.S.A., Inc. v. NRDC).

85. Hovhannisyan v. Barr, No. 15-70816 (9th Cir. 2020) (unpublished memorandum), at 3-4 (“We think the same reasoning extends to an applicant’s reasonable reliance on the assistance of a non-attorney immigration consultant. It is a well-known fact that many non-citizens lack the means to hire licensed attorneys and are therefore forced to rely on the less-expensive services of non-attorney immigration consultants, who often hold themselves out as possessing sufficient expertise to assist applicants in navigating through the complexities of the immigration system. Provided that an applicant’s reliance on the assistance of a non-attorney immigration consultant is reasonable under the circumstances, the applicant’s failure to maintain lawful status cannot be deemed her ‘fault’ if it occurs because of a mistake made by the consultant.”).

86. See USCIS Policy Manual, vol. 7, pt. B, ch. 4.E.2.