New hope for maintaining status when attorney messed up

ON April 2, 2020, the Ninth Circuit Court of Appeals ruled that if an alien failed to maintain lawful status (or went out of status) as a result of his or her attorney messing up and missing a filing deadline or providing wrong advice, there could still be hope or relief for that alien:

“When a non-citizen’s failure to maintain lawful status results from her reasonable reliance on the assistance of counsel, nothing more is needed to show that the failure [to maintain lawful status] has occurred “through no fault of [her] own.”

In that particular case, an alien’s attorney had failed to properly file the paperwork necessary to obtain an extension of her lawful H-1B immigration status. As a result, the alien became “out of status.” When she later applied for a green card and adjustment of status, her adjustment application was denied because she had been out of status for more than 180 days when she filed her adjustment application. She tried to argue that she was entitled to relief because the statute provides that a person could still be eligible for adjustment if the failure to maintain status was “through no fault of his own or for technical reasons.” In her case, it was not her fault that her attorney missed a filing deadline and/or did not properly file the extension.
She was placed in removal/deportation proceedings, and both the immigration judge and BIA upheld the USCIS’s denial of her adjustment application, concluding that her attorney missing a deadline did not excuse her going out of status.

The Ninth Circuit reversed, concluding that an attorney missing a deadline, or failing to properly file an extension or other application, resulting in the alien going out of status, definitely constitutes the person going out of status “through no fault of her own.” As a result, she was eligible to adjust status.

I know there are many people who desperately tried to maintain status, but a previous attorney messed up, and either did not file an extension, petition, or application on time, or they filed the paperwork and it was rejected after the deadline because they did not include all the necessary forms. As a result of the attorney’s acts or omissions, the alien fell out of status.

My office has handled several similar cases in the past, which were fortunately approved. In one case, an attorney was supposed to file an extension for an H-1B visa holder, along with his H-4 wife. The attorney filed an extension only for the H-1B visa holder and forgot about the wife. Therefore, she went out of status. We were able to get her extension granted, showing her failure to maintain status was “through no fault of her own.”

In a different case, an attorney’s incorrect advice resulted in the client going out of status, and his adjustment was denied. Again, we sought reconsideration, arguing that it was through no fault of the alien that he went out of status, and were able to get the case approved. Looking back, we were able to accomplish this without the alien being put in removal, BIA appeals, or 9th Circuit petitions, as happened in this published opinion.

While I am not “guaranteeing” success or results in your case, this Ninth Circuit decision clearly and indisputably establishes there could be hope for a person who went out of status because their prior attorney messed up. If that’s the case, you may want to consult with a different attorney, who can evaluate your situation, and see if you meet the requirements for relief, by demonstrating your failure to maintain status was through no fault of your own.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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