Immigration — adjustment of status

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United States Court of Appeals For the Seventh Circuit

Civil

Immigration — adjustment of status

A pending adjustment application does not toll the accrual of days without “lawful status” for adjustment of status purposes.

“Chaudhry counters that there are equally serious problems on the other side: a narrower construction of ‘lawful status’ for § 1255(k) purposes, he argues, will place some nonimmigrants in a bind. During the pendency of an application for adjustment of status to lawful permanent resident, it may be difficult to extend nonimmigrant status, because the adjustment application is evidence of the petitioner’s intent to immigrate. See 8 U.S.C. § 1184(b) (requiring certain visa applicants to overcome presumption of immigrant intent in order to receive nonimmigrant status). That assumption about intent may be worth rethinking, to the extent that the presumption is not overridden by other provisions, like the one in 8 U.S.C. § 1184(h), which says that ‘the fact that an alien . . . has otherwise sought permanent residence . . . shall not constitute evidence of [immigrant intent] for purposes of . . . maintaining [L-1] status.’ Nothing in § 1184(b), however, alters the definition of ‘lawful immigration status’ set forth in 8 C.F.R. § 245.1(d)(1). We note as well that Chaudhry does not contend that he failed to maintain lawful status ‘for technical reasons,’ which would be a separate exception under § 1255(c).”

Petition Denied.

11-3350 Chaudhry v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.