Xiao Ma v. Jefferson Sessions, III

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO LU MA, No. 15-73520
Petitioner,
Agency No.
v. A088-601-792
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 11, 2018
San Francisco, California
Filed November 2, 2018
Before: Eugene E. Siler, * Richard A. Paez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Paez
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 MA V. SESSIONS
SUMMARY **
Immigration
The panel denied Xiao Lu Ma’s petition for review of a
decision of the Board of Immigration Appeals that found Ma
ineligible for status adjustment, holding that a grant of
regulatory employment authorization under 8 C.F.R.
§ 274a.12(b)(20) does not confer lawful immigration status
for purposes of establishing eligibility for status adjustment
under 8 U.S.C. § 1255(k)(2).
The governing statute, 8 U.S.C. § 1255(k) allows
petitioners to apply for adjustment of status as long as the
petitioners, among other requirements, “ha[ve] not, for an
aggregate period exceeding 180 days . . . failed to maintain,
continuously, a lawful status.” 8 U.S.C. § 1255(k)(2)(A).
Ma was the beneficiary of an H-1B specialty occupation
visa. His employer filed an extension of that visa, but it was
denied, and his employer failed to file an application for
status adjustment within 180 days of the expiration of his H-
1B visa. The United States Citizenship and Immigration
Services denied Ma’s application to adjust status,
concluding that Ma had engaged in unauthorized
employment for well over the 180 days permitted by
8 U.S.C. § 1255(k)(2)(A).
The Department of Homeland Security initiated removal
proceedings for having overstayed his visa, and Ma
requested adjustment of status. Counsel for Ma argued that
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MA V. SESSIONS 3
8 C.F.R. § 274a.12(b)(20), which authorizes petitioners to
“continue employment with the same employers for a period
not to exceed 240 days beginning on the date of the
expiration of the authorized period of stay” while a timely
application for an extension is pending, conferred lawful
status on Ma for the period between when his H-1B visa
expired, and when his application for a visa extension was
first denied. Under this theory, Ma would have been without
lawful status for only 174 days before he applied for
adjustment of status, which would fall within 8 U.S.C.
§ 1255(k)’s 180-day threshold. The immigration judge and
the BIA rejected this argument, concluding that employment
authorization under 8 C.F.R. § 274a.12(b)(20) does not
confer lawful status for purposes of adjustment of status. Ma
was ordered removed to the People’s Republic of China and
he timely petitioned for review.
As an initial matter, the panel concluded that Skidmore
v. Swift & Co., 323 U.S. 134 (1944) deference was not
warranted here because the BIA offered no explanation for
its conclusion and failed to cite any supporting authority.
Addressing what constitutes “lawful status” within the
meaning of 8 U.S.C. § 1255, the panel noted that the statute
was silent as to this issue, but that 8 C.F.R. § 1245.1(d)(1)
defines “lawful immigration status” in 8 U.S.C. § 1255(c)(2)
as including only six categories of individuals. The panel
held that 8 C.F.R. § 1245.1(d)(1) is entitled to deference
under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467
U.S. 837 (1984), explaining that the definition of lawful
status was a reasonable agency interpretation because it fits
within the statutory framework, which restricts the
availability of adjustment for those whose lawful status had
elapsed and provides a limited grace period through 8 U.S.C.
4 MA V. SESSIONS
§ 1255(k). The panel also noted that to hold otherwise
would render 8 U.S.C. § 1255(k) superfluous.
The panel further held that 8 C.F.R. § 274a.12(b)(20)’s
grant of employment authorization does not fall within one
of the six categories enumerated in 8 C.F.R. § 1245.1(d)(1).
The panel observed that, of the six categories, the only one
with any relevance to this case is 8 C.F.R. § 1245.1(d)(1)(ii),
which extends lawful status to persons admitted “in
nonimmigrant status as defined in [8 U.S.C. § 1101(a)(15)]
whose initial period of admission has not expired or whose
nonimmigrant status has been extended.” However, the
panel explained that it was undisputed that Ma’s application
to extend his visa was denied at all levels of review and that
his visa expired long before he applied for adjustment of
status. Moreover, the panel explained that 8 C.F.R.
§ 1245.1(d)(1)(ii) clearly limits its recognition of
employment authorization to visas (or visa extensions)
obtained under 8 U.S.C. § 1101(a)(15), which does not
include employment authorization under 8 C.F.R.
§ 274a.12(b)(20).
Observing that the Immigration & Nationality Act’s
opaque and, at times, inflexible requirements inevitably
produce painful outcomes, the panel noted that Ma had had
every reason to believe he was in compliance with the law.
The panel also noted that Ma had excelled in his job, had
settled into the role of caring for his parents (both of whom
were forced to flee China), and that removal would bar Ma
from returning to this country for ten years. However, the
panel concluded that these considerations, as moving as they
may be, do not factor into the calculation for status
adjustment and that, in light of the law, the panel was left
with no choice but to deny Ma’s petition for review.
MA V. SESSIONS 5
COUNSEL
Jean Wang (argued), Wang Law Office PLLC, Flushing,
New York; Don P. Chairez, Law Offices of Don Chairez,
Long Beach, California; for Petitioner.
Robert Dale Tennyson Jr. (argued), Trial Attorney; Terri J.
Scadron and Carl McIntyre, Assistant Directors; Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
PAEZ, Circuit Judge:
Navigating the labyrinth that is the worker visa,
employment authorization, and status adjustment process
under the Immigration and Naturalization Act (“INA”) is not
for the faint of heart. So technical and so complex are the
INA’s requirements that unlucky petitioners may find
themselves in removal proceedings without ever realizing
that their status was in jeopardy to begin with. As a result,
avoiding removal often hinges on the skill and knowledge of
one’s employers and their lawyers, whose hands—like those
of Ariadne’s—may or may not hold the red thread out.
Xiao Ma, the beneficiary of an H-1B visa, petitions for
review of his final order of removal. Ma’s employer filed
for an extension of his H-1B visa, but it was denied, and his
employer failed to file an application for status adjustment
within 180 days of the expiration of his H-1B visa. Because
the application to extend the H-1B visa was denied, Ma was
without lawful status in this country for 331 days before he
6 MA V. SESSIONS
applied to adjust his status—well over the 180 days
permitted by 8 U.S.C. § 1255(k)(2)(A), which would have
otherwise protected him from removal. He was, however,
legally authorized to work in the country during the months
between the expiration of his H-1B visa and the denial of his
application for an H-1B extension pursuant to 8 C.F.R.
§ 274a.12(b)(20). Nonetheless, because 8 C.F.R.
§ 1245.1(d) does not recognize regulatory employment
authorization as conferring lawful immigration status for
purposes of status adjustment under 8 U.S.C.
§ 1255(k)(2)(A), the Board of Immigration Appeals (“BIA”)
correctly concluded that Ma is ineligible for status
adjustment. We therefore must deny Ma’s petition for
review.
I.
Nowhere is the complexity of the INA’s worker visa,
employment authorization, and status adjustment process
more evident than in the facts undergirding Ma’s removal
proceedings.
In 2003, Ma, a citizen of the People’s Republic of China
with a bachelor’s degree in computer science and
technology, accepted a job offer from the Law Offices of
Qiang Ma (“Ma Law”), a small law firm based in Alhambra,
California, for the position of computer analyst. Ma Law
successfully applied for an H-1B specialty occupation visa
on Ma’s behalf. The visa was valid from September 10,
2003 to August 4, 2006. At some point in July 2006, shortly
before the visa was set to expire, Ma Law applied for an
extension of Ma’s H-1B status by filing a form I-129,
Petition for a Nonimmigrant Worker. Half a year later, on
January 9, 2007, the Director of the California Service
Center of the United States Citizenship and Immigration
Services (“USCIS”) denied Ma Law’s I-129 petition,
MA V. SESSIONS 7
because Ma Law had failed to submit “suitable evidence to
justify that [Ma’s] continued duties would be in line with that
of a specialty occupation worker.” 1
Ma Law appealed the Director’s determination to the
Administrative Appeals Office (“AAO”) on February 2,
2007, a month after the Director denied his petition. While
that appeal was pending, Ma Law filed three concurrent
applications on Ma’s behalf on July 2, 2007: (1) an I-485
application for adjustment of status to permanent resident;
(2) an I-140 petition for an alien worker; and (3) an I-765
application for employment authorization with the Nebraska
Service Center. The USCIS approved the I-765 application
for employment authorization on September 26, 2007. By
this point, Ma had been working in the country without a
valid visa for 417 days.
On January 9, 2008, the AAO dismissed Ma Law’s
appeal of the Director’s decision to deny its application to
extend Ma’s H-1B visa. Citing that dismissal, the Director
of the Nebraska Service Center denied Ma Law’s I-485
application to adjust Ma’s status on September 25, 2009. 2
The Director concluded that because Ma had been “engaged
1
The USCIS specifically requested that Ma Law provide evidence
demonstrating that there would be sufficient qualifying work for Ma to
warrant extending his H-1B visa. When Ma Law failed to provide a
satisfactory response, the Director denied the I-129 petition.
2
The USCIS initially denied Ma Law’s I-485 application on
February 24, 2009, based on its denial of Ma Law’s I-140 Immigrant
Petition for Alien Worker six days before. The Director, however,
granted Ma Law’s request to reopen the adverse I-140 decision and
approved the petition on April 2, 2009. This necessitated reopening the
I-485 proceedings, which the Director did on April 10, 2009.
8 MA V. SESSIONS
in unauthorized employment” for 418 days 3—well over the
180 days permitted by 8 U.S.C. § 1255(k)(2)—he was
ineligible for status adjustment. The Director also concluded
that Ma was ineligible to be grandfathered in as the
beneficiary of an immigrant visa petition or labor
certification application filed on or before April 30, 2001,
because no one had filed a visa petition on his behalf on or
before April 30, 2001. Ma Law filed a motion to reopen the
decision on October 29, 2009, which the USCIS denied on
December 29, 2009. Ma Law’s appeal of the denial was
dismissed on January 29, 2010.
3
The Director relied on section 1255(k)(2)(B) (unauthorized
employment) to deny Ma Law’s application. In contrast, the IJ and the
BIA relied on section 1255(k)(2)(A) (failure to maintain lawful status)
to deny Ma’s request to adjust status during his removal proceedings.
The Director’s calculation of the dates, however, appears to be incorrect
in two ways. First, 8 C.F.R. § 274a.12(b)(20) authorizes H-1B visa
holders like Ma whose visas have expired but who have timely filed for
an extension to “continue employment with the same employer” for up
to 240 days or until a service center director denies the application for an
extension, whichever comes first. In which case, Ma worked without
valid employment authorization from January 9, 2007, the day his
application for an extension was denied, until September 26, 2007, the
day his I-765 application was approved—a period of 260 days. Second,
even if the Director correctly excluded section 274a.12(b)(20)’s period
of valid employment authorization from his calculation—which he did
not—Ma’s H-1B visa was valid up to and including August 4, 2006,
which meant that Ma was without status beginning August 5, 2006. This
results in a period of 417 days, not 418 days. These errors only highlight
the difficulties facing petitioners who wish to apply for status adjustment
and who are expected to track relevant dates as closely as Copernicus
once tracked the movements of the sun. See Nicolaus Copernicus, De
Revolutionibus Orbium Coelestium [On the Revolutions of the Heavenly
Spheres] (1543).
MA V. SESSIONS 9
The Department of Homeland Security (“DHS”)
initiated removal proceedings against Ma on May 3, 2010
for overstaying his H-1B visa. That year, Ma left Ma Law
and joined MGM Resorts Corporation as a senior business
analyst, having successfully earned his MBA at San Diego
State University two years prior. At his hearing on February
3, 2014, Ma denied that he had remained in the United States
past August 4, 2006 without authorization from the
Immigration and Naturalization Service (“INS”) or DHS. 4
He also requested adjustment of status as relief from
removal.
Counsel for Ma argued at the removal hearing that
8 C.F.R. § 274a.12(b)(20), which authorizes petitioners to
“continue employment with the same employers for a period
not to exceed 240 days beginning on the date of the
expiration of the authorized period of stay” while a timely
application for an extension is pending, conferred lawful
status on Ma for the period between August 4, 2006, when
his H-1B visa expired, and January 9, 2007, when the
Director first denied Ma’s I-129 application for an extension.
Under this theory, Ma would have been without lawful status
for only 174 days before he applied for adjustment of status,
which would fall within 8 U.S.C. § 1255(k)’s 180-day
threshold. The IJ rejected Ma’s argument. Relying on
Matter of Rotimi, 24 I. & N. Dec. 567 (BIA 2008), the IJ
concluded that employment authorization was not the same
as lawful status and that even though Ma had maintained
valid employment up to January 9, 2007, that did not mean
4
Ma admitted the other allegations contained in his Notice to
Appear, which were (1) he was not a citizen or national of the United
States; (2) he was a native and citizen of the People’s Republic of China;
and (3) he was admitted to the United States as an H-1B worker “for a
temporary period not to exceed August 4, 2006.”
10 MA V. SESSIONS
that Ma had “maintained a lawful nonimmigrant status while
the request for employment authorization was pending.” By
the IJ’s calculations, Ma had been living in the United States
without lawful status from August 5, 2006, when his H-1B
visa expired, to July 2, 2007, when he filed his application
for status adjustment with the USCIS—a period of
331 days. 5 As a result, the IJ denied Ma’s application for
adjustment of status.
The IJ further concluded that although Ma’s parents were
granted political asylum in 2012 for dissident activity, Ma
was over 21 years old at the time his parents’ asylum
applications were filed. As a result, Ma was ineligible for
asylum as a dependent. Lastly, the IJ concluded that Ma was
ineligible to be grandfathered in as the beneficiary of an
immigrant visa petition or labor certification application
filed on or before April 30, 2001.
The removal hearing revealed that Ma was an exemplary
employee at MGM resorts and had recently been voted
employee of the year for his work as a senior business
analyst. Moreover, as the only child in his family, Ma had
been the sole source of support for his parents—neither of
whom speak English—ever since they were granted asylum
in the United States. Removal would bar Ma from returning
to this country to reunite with his parents for at least a
decade. See 8 U.S.C. § 1182(a)(9)(B). Recognizing the
“sympathetic” facts in Ma’s case, the IJ nonetheless
concluded that his hands were tied by the “frustrations and
5
Both the IJ and the BIA correctly used July 2, 2007 as the end date
when calculating the time Ma was without lawful status. See Gazeli v.
Session, 856 F.3d 1101, 1105 (6th Cir. 2017) (“Section 1255(k) permits
the beneficiary of an approved work-visa petition to adjust his status if
he has not accrued more than 180 days out of ‘lawful status’ prior to
applying for adjustment.”).
MA V. SESSIONS 11
technicalities concerning the very technical requirements for
applying for adjustment of status.” Thus, even though there
was evidence that Ma was the recipient of “numerous
approvals of requests for employment authorization from
USCIS continuing to [the date of the removal hearing],” the
IJ ordered Ma removed to the People’s Republic of China
because 8 C.F.R. § 274a.12(b)(20)’s grant of employment
authorization did not confer lawful status for purposes of
status adjustment under 8 U.S.C. § 1255(k)(2)(A).
The BIA dismissed Ma’s appeal from the IJ’s order. The
BIA agreed with the IJ that employment authorization under
8 C.F.R. § 274a.12(b)(20) does not confer lawful
nonimmigrant status for purposes of status adjustment.
Accordingly, the BIA concluded that Ma was without lawful
status from August 5, 2006 to July 2, 2007, a period of over
180 days, which precluded Ma from establishing his
eligibility for adjustment of status.
Ma timely petitioned for review.
II.
We have jurisdiction under 8 U.S.C. § 1252 to review the
BIA’s final order of removal. “We review the BIA’s
determination of issues of law de novo, deferring to the
BIA’s interpretation of an immigration statute where that
interpretation is ‘based on a permissible construction of the
statute.’” Rebilas v. Mukasey, 527 F.3d 783, 785 (9th Cir.
2008) (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1041
(9th Cir. 2005)).
III.
The governing statute, 8 U.S.C. § 1255(k) allows
petitioners to apply for adjustment of status under section
12 MA V. SESSIONS
1255(a) as long as the petitioners, among other requirements,
“ha[ve] not, for an aggregate period exceeding 180 days—
(A) failed to maintain, continuously, a lawful status.” The
question presented on this appeal is a narrow one: does
8 C.F.R. § 274a.12(b)(20)’s grant of employment
authorization confer lawful nonimmigrant status on
petitioners for purposes of status adjustment under 8 U.S.C.
§ 1255(k)(2)? We hold it does not.
A.
As an initial matter, we conclude that Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944) deference—which we
ordinarily afford the BIA’s unpublished decisions—is not
warranted here. See Saldivar v. Sessions, 877 F.3d 812, 815
n.3 (9th Cir. 2017). “Under Skidmore, the measure of
deference afforded to the agency ‘depends upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power
to persuade, if lacking power to control.’” Uppal v. Holder,
605 F.3d 712, 715 (9th Cir. 2010) (quoting Skidmore,
323 U.S. at 140). Although the BIA concluded that
employment authorization under 8 C.F.R. § 274.12(b)(20) is
not commensurate with “lawful nonimmigrant status” for
status adjustment under 8 U.S.C. § 1255(k), it offered no
explanation for its conclusion and failed to cite to any
supporting authority. Cursory conclusions are neither
persuasive nor entitled to deference. See Dir., OWCP v.
Greenwich Collieries, 512 U.S. 267, 277 (1994) (concluding
that the Court’s “cursory conclusion” in a different case
“does not warrant the same level of deference we typically
give our precedents”). We therefore decline to defer to the
BIA’s interpretation of 8 U.S.C. § 1255, and address for the
MA V. SESSIONS 13
first time whether 8 C.F.R. § 274.12(b)(20) confers lawful
status on petitioners seeking adjustment of status. 6
B.
Petitioners seeking to adjust their status in this country
must first understand the general framework of 8 U.S.C.
§ 1255. Generally speaking, the Attorney General of the
United States has the discretionary authority to adjust a
petitioner’s status to lawful permanent resident provided that
“(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the
6
To the extent the BIA intended to rely on the IJ’s opinion “as a
statement of reasons, we look to the IJ’s oral decision as a guide to what
lay behind the BIA’s conclusion.” Kozulin v. I.N.S., 218 F.3d 1112, 1115
(9th Cir. 2000). But the IJ’s decision here is similarly unpersuasive.
Citing only Matter of Rotimi, 24 I. & N. Dec. 567 (BIA 2008), the IJ
concluded that work authorization could not be equivalent to lawful
status. Matter of Rotimi, however, addressed only the meaning of
“lawfully resided continuously” in the context of waiver of
inadmissibility under section 212(h) of the INA, 8 U.S.C. § 1182(h).
24 I. & N. Dec. at 568 (emphasis added). Although Rotimi stated in dicta
that “work authorization is not equivalent to a lawful status; nor is it
necessarily reflective of a right to lawfully be or remain in this country,”
id. at 578, the BIA explicitly limited its holding in Rotimi to “whether an
applicant for privileges or benefits is deemed to have ‘lawfully resided’
here for purposes of [waiver of inadmissibility].” Id. at 577. Rotimi thus
has little bearing on this case, which revolves around whether
employment authorization under a specific regulation confers lawful
status (not lawful residence) on petitioners who have overstayed their
valid H-1B visas for purposes of status adjustment. See El Badrawi v.
United States, 787 F. Supp. 2d 204, 227–28 (D. Conn. 2011) (concluding
that Rotimi was inapplicable because it “did not involve a removal
proceeding; it did not involve an H-1B visa holder; and, it did not involve
the regulation at issue here”).
14 MA V. SESSIONS
time his application is filed.” 8 U.S.C. § 1255(a). Certain
classes of petitioners, however, are ineligible for status
adjustment. See id. § 1255(c). These include petitioners
who are “in unlawful immigration status on the date of filing
the application for adjustment of status or who ha[ve] failed
(other than through no fault of [their] own or for technical
reasons) to maintain continuously a lawful status since entry
into the United States.” Id. § 1255(c)(2).
To the extent that section 1255(c) acts as an exception to
the general rule laid out in section 1255(a), section 1255(k)
acts as an exception to section 1255(c)’s continuous lawful
status requirement. Under section 1255(k), beneficiaries of
“an approved work-visa petition,” such as an H-1B visa, may
adjust their status even if they have failed to maintain
continuous lawful status as long as they have “not accrued
more than 180 days out of ‘lawful status’ prior to applying
for adjustment.” Gazeli v. Session, 856 F.3d 1101, 1105 (6th
Cir. 2017) (quoting 8 U.S.C. § 1255(k)); see also Yong Dong
Kim v. Holder, 737 F.3d 1181, 1186 (7th Cir. 2013) (“For
immigrants seeking an employment-based adjustment of
status, as Kim was seeking here, the statute provides an
exception to the requirement of continuous lawful status.”
(citing 8 U.S.C. § 1255(k))). Put simply, qualifying
applicants like Ma are not barred by § 1255(c) from applying
to adjust their status under § 1255(a) as long as they meet the
criteria of § 1255(k), including not staying in this country for
over 180 days without some type of lawful status. See
8 U.S.C. § 1255(k)(2)(A).
The question, then, is what constitutes “lawful status”
within the meaning of 8 U.S.C. § 1255. As to this, the statute
is silent. Neither section 1255(k)(2)(A) nor section 1255(c)
defines “lawful status.” In response to this gap, the INS
MA V. SESSIONS 15
promulgated a regulation, 8 C.F.R. § 1245.1(d)(1), 7 which
defines “lawful immigration status” 8 in 8 U.S.C.
§ 1255(c)(2) as including only six categories of individuals. 9
Because Congress did not define “lawful immigration
status,” the agency’s promulgated interpretation of the term
is entitled to deference under Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, 467 U.S. 837 (1984), unless the
7
This regulation is identical to 8 C.F.R. § 245.1(d)(1). While
section 1245.1(d)(1) applies to the Executive Office for Immigration
Review in the Department of Justice, section 245.1(d)(1) applies to the
immigration agencies in the DHS. They provide the same guidance to
different agencies as to the definition of “lawful immigration status” for
the “purposes of [INA] section 245(c)(2) [or 8 U.S.C. § 1225(c)(2)].”
Compare 8 C.F.R. 1245.1(d)(1) with 8 C.F.R. § 245.1(d)(1); see also
Scheerer v. U.S. Att’y. Gen., 445 F.3d 1311, 1319 n.13 (11th Cir. 2006)
(explaining regulatory history).
8
Although 8 U.S.C. § 1255 does not use the term “lawful
immigration status,” the “plain inference is that the regulatory definition
applies to all of these interchangeable formulations”—“unlawful
immigration status,” “lawful status,” and “lawful nonimmigrant status.”
Chaudhry v. Holder, 705 F.3d 289, 293 (7th Cir. 2013). We decline to
read section 1245.1(d)(1) to “define nothing at all.” Id. Furthermore,
although the regulation only mentions 8 U.S.C. § 1255(c)(2) and not 8
U.S.C. § 1255(k), we agree with the Seventh Circuit that “it is most
natural to conclude that the ‘lawful status’ contemplated in the latter
subsection is the same ‘lawful status’ discussed in the former.” Id.
9
The six categories are (1) lawful permanent residents;
(2) nonimmigrants admitted under 8 U.S.C. § 1101(a)(15) whose
statuses either have been extended or have not expired; (3) refugees
whose statuses have not been revoked; (4) asylees whose statuses have
not been revoked; (5) parolees whose statuses have not expired, been
revoked, or been terminated; and (6) persons who fall within the purview
of the Immigration Nursing Relief Act of 1989 and who have filed their
applications for adjustment of status on or before October 17, 1991.
8 C.F.R. § 1245.1(d)(1).
16 MA V. SESSIONS
interpretation is “arbitrary, capricious, or manifestly
contrary to the statute.” Id. at 844.
The parties did not initially address whether this
regulation is entitled to Chevron deference. After the case
was submitted for a decision, we directed the parties to file
supplemental briefs addressing whether section 1245.1(d)(1)
is entitled to Chevron deference. The government presented
compelling arguments based on the statutory framework and
regulatory history. 10 Congress authorized the Attorney
General to prescribe regulations to govern the grant of status
adjustments, 8 U.S.C. § 1255(a), and the Attorney General’s
definition restricts lawful status, for the purpose of
adjustment, to six categories. 8 C.F.R. § 1245.1(d)(1). This
is a reasonable agency interpretation because it fits within
the framework, which restricts the availability of adjustment
for those whose lawful status had elapsed and provides a
limited grace period through section 1255(k). To hold
otherwise would render section 1255(k) superfluous.
Accordingly, we hold that section 1245.1(d)(1) is entitled to
Chevron deference and controls. 11 We next address whether
section 274a.12(b)(20)’s grant of employment authorization
10
Ma’s supplemental brief confuses the issue and argues instead that
8 C.F.R. § 1245.1(d)(1) is irrelevant to the analysis. To the extent Ma
argues that the regulation 8 C.F.R. § 274a.12(b) is entitled to deference
under Auer v. Robbins, the argument is off point and is not persuasive.
519 U.S. 452 (1997).
11
In doing so, we join at least two of our sister circuits who have
also held that 8 C.F.R. § 1245.1(d)(1) or 8 C.F.R. § 245.1(d)(1) is
entitled to Chevron deference. See Gazeli v. Sessions, 856 F.3d 1101
(6th Cir. 2017); Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013); see
also Dhuka v. Holder, 716 F.3d 149, 158–59 (5th Cir. 2013).
MA V. SESSIONS 17
falls within one of the six enumerated categories. 12 We
conclude it does not.
Of the six categories, only the second has any relevance
to this case. Section 1245.1(d)(1)(ii) clearly extends lawful
status to persons admitted “in nonimmigrant status as
defined in section 101(a)(15) of the [INA] whose initial
period of admission has not expired or whose nonimmigrant
status has been extended.” 13 It is undisputed, however, that
Ma Law’s application to extend Ma’s H-1B visa was
ultimately denied at all levels of review. It is also undisputed
that Ma’s H-1B visa expired long before he applied for
adjustment of status. Moreover, section 1245.1(d)(1)(ii)
clearly limits its recognition of employment authorization to
visas (or visa extensions) obtained under 8 U.S.C.
§ 1101(a)(15), which does not include employment
authorization under 8 C.F.R. § 274a.12(b)(20).
The law, then, is clear: While nonimmigrant workers like
Ma may legally continue working in this country for up to
240 days while they wait to hear back from the USCIS on
their extension applications, they do not have lawful status
during this period of time for purposes of status
12
Section 1245.1(d)(1)’s six categories are clearly exclusive and not
illustrative. See 8 C.F.R. § 1245.1(d)(1) (explaining that “[f]or purposes
of section 245(c)(2) of the [INA], the term ‘lawful immigration status’
will only describe the immigration status of an individual who” falls
within the six following categories (emphasis added)).
13
Section 101(a)(15) of the INA, or 8 U.S.C. § 1101(a)(15),
recognizes H-1B visa holders like Ma as one of the “classes of
nonimmigrant aliens.” 8 U.S.C. § 1101(a)(15)(H).
18 MA V. SESSIONS
adjustment. 14 The margin for error under 8 U.S.C. § 1255(k)
is very slim. Had Ma’s employer filed the I-485 application
for status adjustment shortly after the I-129 petition was
denied instead of waiting for over five months, Ma would
likely be within the 180-day grace period. Alternatively, if
Ma’s employer had filed the I-129 petition for an extension
months before his H-1B visa was set to expire, rather than
weeks before, fewer days would have elapsed between the
denial of the I-129 petition and the expiration of his H-1B
visa, which would have saved Ma precious days from
counting towards the 180-day threshold. Instead, the delays
in filing mean that Ma was in this country for well over
180 days without lawful status before Ma Law applied for
status adjustment on his behalf.
IV.
The INA’s opaque and, at times, inflexible requirements
inevitably produce painful outcomes. Ma had every reason
to believe that he was in compliance with the law. No doubt,
he expected that his employer’s application to extend his H-
1B visa would be granted, and when it was not, he likely
thought his appeal would be successful. When his separate
application for employment authorization was later granted
in 2007, there was even less reason to think that he would be
at risk of removal. In the decade since, Ma has excelled at
his job and settled into the role of caring for his parents, both
of whom were forced to flee China in 2012. Removal would
14
One exception to this, which Ma never raised before the agency,
is 8 C.F.R. § 1245.1(d)(2)(ii)’s “technical violation” exception to the
180-day threshold. Section 1245.1(d)(2)(ii) provides that petitioners
may nonetheless satisfy the continuous lawful presence requirement for
status adjustment if their failure to meet the 180-day grace period is the
result of a “technical violation” for which they are not responsible.
MA V. SESSIONS 19
bar Ma from returning to this country—and his parents—for
ten years.
But these considerations, as moving as they may be, do
not factor into the calculation for status adjustment. In light
of the law, we are left with no choice but to deny Ma’s
petition for review. 15
PETITION DENIED.
15
As discussed before the IJ, however, Ma may be eligible for an
unlawful presence waiver (Form I-601A) based on hardship to his
parents. The government indicated before the IJ that it was open to the
possibility of an I-601A waiver, because Ma has a valid I-140 and a
willing employer to serve as his sponsor.