TN Visa Workers & Others: Work Authorization Based on Extension of Status Petitions May Not Provide Lawful Status

The U.S. Department of Homeland Security (DHS) has taken the bewildering position that individuals who have timely filed an I-129 petition for an Extension of Status (EOS), but whose status subsequently expires while the petition is pending, have failed to maintain lawful immigration status. DHS has asserted this position despite the employment authorization provided under 8 C.F.R. § 274a.12 (b) (20) to individuals who have filed EOS I-129 petitions prior to the expiration of their status (aka the “240 day rule”). Not only is DHS denying some benefit applications under this basis, but U.S. Immigration and Customs Enforcement (ICE) – the enforcement arm of DHS – is actually arresting and placing in removal proceedings individuals in this situation for failing to maintain status.

A recent federal appeals court decision has confirmed DHS’ position. In Bokhari v. Holder, the U.S. Court of Appeals for the Fifth Circuit confirmed the denial of Mr. Bokhari’s Adjustment of Status application because he failed to maintain his immigration status for more than 180 days after his L-1 status expired.* Mr. Bokhari argued that he filed an EOS petition before his L-1 status expired, and that his employment authorization under 8 C.F.R. § 274a.12 (b) (20) granted him lawful immigration status. DHS contended that although he had proper authorization to work under 8 C.F.R. § 274a.12 (b) (20), this work authorization did not provide him with lawful immigration status. The Court of Appeals agreed finding that employment authorization and lawful immigration status were two separate considerations. The Court held that the employment authorization provided under 8 C.F.R. § 274a.12 (b) (20) did not provide the applicant with lawful immigration status. As Mr. Bokhari failed to properly maintain his immigration status, the Court concluded he was ineligible for Adjustment of Status. See Bokhari v. Holder, 622 F.3d 357 (5th Cir. 2010).

The Fifth Circuit’s decision is in contrast to the U.S. District Court of Connecticut’s opinion in the case of El Badrawi v. DHS. In this case, Mr. El Badrawi, a former H-1B visa worker, sued the U.S. government for false arrest after ICE officials arrested him because his H-1B status expired and in despite of the employment authorization provided based on his timely filed EOS petition. The District Court rejected the government’s motion to dismiss Mr. El Badrawi's case, stating that DHS’ interpretation of 8 C.F.R. § 274a.12 (b) (20) “makes little sense.” The Court found that employment authorization under this provision “included the right to physically remain in the country” and that Mr. El Badrawi could continue with his lawsuit against the government for false arrest. See El Badrawi v. Dept. of Homeland Sec., 579 F. Supp. 2d 249 (D. Conn. 2008). Mr. El Badrawi’s lawsuit against the government is still pending.

Our office has received reports that ICE officers continue to arrest individuals based on the expiration of their immigration status despite possessing employment authorization under 8 C.F.R. § 274a.12 (b) (20). For example, an H-1B visa worker traveling by bus was arrested at an ICE checkpoint and placed in removal proceedings because the only evidence she had of immigration status was her expired H-1B status approval notice. The ICE officers disregarded the employment authorization she possessed based on her pending EOS petition. Our office’s litigation team is actively involved in attempting to resolve these types of cases with both ICE and U.S. immigration courts.

In light of the differing court opinions over the 240 day rule, and in an effort to avoid potential issues with EOS petitions, we are recommending that TN visa workers take the following protective measures: (1) file EOS petitions at least 6 months prior to expiration of your TN I-94; (2) alternatively, utilize USCIS’ premium processing service to expedite an EOS petition to receive a decision prior to expiration of your I-94; or (3) avoid the EOS petition process and obtain an “extension” of TN visa status by filing  an application at a U.S. port-of-entry (Canadian citizens) or U.S. consulate (Mexican citizens).

* Certain individuals may be excused from the requirement that Adjustment of Status applicants continuously maintain their immigration status provided they do not fail to maintain their immigration status for more than 180 days. See 8 U.S.C. § 1255 (k) (2) (a).