Adjustment of Status Granted Despite Gap In Lawful Status

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A foreign national with an approved employment-based immigrant petition whose priority date is current may apply for an immigrant visa through consular processing abroad or apply for adjustment of status if applicant is already in the U.S. Adjustment of status is the more preferred route because the applicant is eligible for work authorization and permission to travel while the application is pending.


To be eligible to adjust status, the applicant must meet the basic requirements, namely, physical presence in the U.S. at the time of filing, having lawfully entered the U.S. through inspection by a U.S. immigration officer or paroled into the U.S., and not being subject to any of the inadmissibility grounds.

Foreign nationals who have incurred “unlawful status” are generally not eligible to adjust status. However, certain employment-based adjustment applicants may still obtain approval of their I-485 adjustment of status applications despite gaps in lawful status. Under Section 245(k), they may adjust status if the total period of their unlawful status is not more than 180 days.

A recent case appealed to the Board of Immigration Appeals (BIA) involved Lorna Maynigo, a Filipino citizen, who entered the United States on June 24, 2001. She changed her status to H-1B which was valid until August 29, 2006. She timely filed a request for extension of her H-1B status on August 28, 2006.

The Citizenship and Immigration Services (CIS) denied Maynigo’s request for extension on March 7, 2007. She subsequently filed an application for adjustment of status on June 29, 2007 based on an approved I-140 employment-based visa petition. The priority date for the visa petition was current. The CIS denied her adjustment of status application and she was placed in removal proceedings before an immigration judge.

The immigration judge (IJ) disagreed with the CIS and found Maynigo to be eligible for adjustment of status under Section 245(k). The IJ clarified that under Section 245(k), an employment-based immigrant may adjust status if (1) the applicant is in the U.S. pursuant to a lawful admission and (2) after being admitted pursuant to a lawful admission, the applicant cannot have exceeded more than 180 days in the aggregate of any of these violations: (a) “failed to maintain continuously” a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of admission.

According to the CIS, Maynigo was “out of status” since the expiration of her H-1B on June 29, 2006. The IJ disagreed, saying that because Maynigo filed a timely application for extension of her H-1B status, she maintained lawful status under the terms of Section 245(k) while that extension application was pending. The IJ further stressed that the only period that Maynigo “failed to maintain” her status was the period between March 2007 when CIS denied the request for extension of her H-1B and June 2007, when she filed for adjustment of status. The period was approximately three-and-a-half months which was less than the 180 days allowed under Section 245(k).

The IJ also noted that if the court denies Maynigo’s adjustment application, she would be forced to apply for immigrant visa through consulate process. She would then be subject to the three or possibly ten-year bar for unlawful presence and would not qualify for waiver of that ground for inadmissibility.

The IJ found the consequences of a denial too harsh for an individual who has done everything in her power to maintain lawful status since coming to the U.S. and would unduly penalize her for the brief period she failed to maintain lawful status. For this reason, the IJ found that she deserved the court’s favorable exercise of discretion and granted her application for adjustment of status.


(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at or call (212) 695-5281.)