Christina J. Murdoch, Esq.

105 W. Madison Street, Suite 2200

Chicago, IL 60606-0000
Name: TRUPCEVIC, IVICA
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 I 07 Leebur Pik, Suite 2000
Fals Clurcl, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
A 096-155-870
Date of th is notice: 11 /7 /2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Pauley, Roger
Donovan, Teresa L.
Sincerely,
Dou c t
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of te Boad of Imigation Appeals
Falls Church Virginia 22041
File: A096 I 55 870 - Chicago, IL
In re: IVICA TRUPCEVIC
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Christina J. Murdoch, Esquire
ON BEHALF OF OHS:
CHARGE:
David M. Williams
Assistant Chief Counsel
Date:
Notice: Sec. 237(a)(I)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION: Adjustent of status; voluntary departure
NOV 0 7 2013
Te respondent, a native ad citizen of Croatia, timely appeals an Immigration Judge's
December 30, 2008, decision denying his application fr adjustment of status under section
245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a), and granting voluntary
depaure. The appeal will be dismissed. 1
We review an Immigation Judge's fctual determinations, including credibilit
deterinations, fr clear error. 8 C.F.R. 1003.l(d)(3)(i); United States v. National Ass 'n of
Real Estate Boards, 339 U.S. 485, 495 (1950) (a fctual fnding is not "clearly erroneous"
merely because there are two perissible views of the evidence). The Board reviews de novo
questions of law, discretion, judgent, and all other issues. 8 C.F .R. I 003 .1 ( d)(3)(ii);
Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
I. FACTUAL AND PROCEDURAL HISTORY
The relevant fcts are not in dispute. The respondent originally entered the United States as a
student on a F-1 visa and changed his status to that of an H-IB temporary worker
on February 8, 1999 (1.J. at 1; Exh. 3-1 ). The respondent bega working fr the
Methodist Hospitals of Indiana, where he wa employed at the time of the Immigation Judge's
1 On August 9, 2013, the respondent fled a motion requesting issuance of a decision based on
the conclusions of an Immigration Judge in a diferent proceeding, or in the alterative, to
schedule oral argument. In light of the conclusions reached in this decision, the motion is denied.
See 8 C.F.R. 1003.l(e)(7). We frher note that unpublished orders in diferent proceedings
have no precedential or binding efect.
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
A096 155 870
decision as a Nuclear Medicine Technologist (l.J. at 1; Tr. at 37-38; Exh. 2, Tab G). The
respondent was authorized to work as an H-1 B temporay worker until December 24, 2001
(l.J. at 1; Tr. at 32-33; Exhs. 3-1, 3-2). Four days befrehand on December 20, 2001, the
Methodist Hospitals fled a request with te frmer Immigration and Natalization Service
("INS") to extend te respondent's H-lB status (l.J. at 2; Exh. 3-3). 2 The IS issued a
Request fr Evidence on Februa 14, 2002, ad the Methodist Hospitals supplied additonal
evidence on May 9, 2002 (l.J. at 2). On July 23, 2002, 7 months aer the orgina fling, te INS
denied the extension request (1.J. at 2; Exh. 3-4).
Prior to the IS's decision on te H-lB extension request, the Methodist Hospitals fled a
Application fr Alien Employment Certifcation, For ETA 750 ("labor certifcation") on behalf
of te respondent with the Department of Labor on June 14, 2002 (1.J. at 2; Exh. 3-6). Te labor
certifcation was subsequently approved on September 19, 2002 (l.J. at 2; Exh. 3-6).
On November 20, 2002, te Metodist Hospitals ad the respondent fled a Immigrat Petition
fr Alien Worker (For I-140) and an Application to Register Permanent Residence to Adjust
Status (Form 1-485) with the INS (1.J. at 2; Exhs. 3-7, 3-8). United States Citizenship ad
Immigration Services ("USCIS") denied the request to adjust status, fnding that the respondent
had been out of status fr more ta 180 days and had not continuously mantained lawl stats
(l.J. at 2; Exh. 3-9).

The Immigration Judge deterined that the respondent was statutorily ineligible fr
adjustent of status fr failure to maintain continuous lawfl status as required by section
245( c )(2) of the Act, ad tat he could not beneft fom the exemption in section 245(k) of te
Act because he was out of status fr more ta 180 days (1.J. at 5). More precisely, the
Immigation Judge fund that the respondent's period of lawfl status terminated on te date his
nonimmigrant status expired (December 24, 2001) and the "no fult of his own or fr techical
reasons" paenthetical in section 245( c )(2) of the Act did not excuse the lapsed lawfl status
(l.J. at 5-6). The Immigation Judge based this conclusion on his deterination that the
regulatory defnition of technical reasons did not include the back-and-frh process between the
frmer INS and the respondent's employer to obtin additional evidence (I.J. at 5-6 (citing
Mater of L-K-, 23 l&N Dec. 677 (BIA 2004))). The Immigration Judge also underscored the
diference between accruing "unlawfl presence" as a ground of inadmissibility under section
212(a)(9)(B) of the Act, 8 U.S.C. 1182(a)(9)(B), ad the stattory requirement in section
245(c)(2) of te Act to maintain lawfl status (1.J. at 3, 4 n.4, 6).
3
2 On Mach 1, 2003, the fnctions of the INS were trasfred to the Depament of Homelad
Security ("DHS") pursuat to the Homelad Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135. See Mater of D-J-, 23 I&N Dec. 572, 573 n.1 (A.G. 2003).
3
The Immigration Judge believed that the respondent improperly confated unlawl
presence fr inadmissibility puroses under section 212(a)(9)(B) of te Act wt the
continuous lawfl status requirement fr eligibility purposes under section 245( c )(2) of te Act.
On appeal, the respondent does not ague that the stadads fr assessing unlawl presence ae
the same as fr assessing mantenance of continuous lawfl status. In this respect, we, too,
uderstand that the two concepts difer. Because the two provisions have diferent puroses,
diferent rles ca apply despite appaent superfcial similarities between the two concepts. See,
( ... continued)
2
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
W
A096 155 870
II. STATUTORY AND REGULATORY CONTEXT
It is the respondent's burden to establish eligibility fr relief. See 8 C.F.R. 1240.8(d). The
respondent seeks adjustent of status under section 245(a) of the Act as an employent-based
applicant.4 It is udisputed tat he satsfes section 2i?Ca)'s theshold requirements.
Te respondent must fer demonstrate the iJplicability of the statutory bas at section
245( c) of the Act, three of which ae particular to employment-based adjustent applicats:
sections 245(c)(2), (7), and (8). See also 8 C.F.R. 1245.l
(b)(2), (5), (6), (9), ad (10).
5
The
limitation at issue provides in relevat pa:
[S]ubsection (a) shall not be applicable to . . . (2) subject to subsecton (k), an
alien (other tha an imediate relative as defned in section 201(b) or a special
immigat described in section 101(a)(27)(H), (I), (J), or ()) who hereafer
continues in or accepts unautorized employment prior to fling a application fr
adjustent of status or who is in uawl immigration status on the date of fling
the applicaton fr adjustment of status or who has failed (other ta through no
fult of his own or fr technical reasons) to maintain continuously a lawfl status
since ent into te Unted States.
e.g., Memorandum fom Donald Neufld, Acting Assoc. Dir., Domestic Operations Directorate,
et al., U.S. Citizenship ad Immigration Services, Dep't of Homeland Secuity, to Field
Leadership (May 6, 2009), Consolidation of Guidance Concerning Unlawful Presence for
Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C}(i)(I), at 9-11 (HQDOMO 70/21.1) (noting
te relationshp between the two sepaate concepts, in that an aien must be present in unlawfl
status in order to accrue unlawfl presence, and the distnction that a aien protected fom
accruing unlawfl presence may nonetheless not be present lawflly); see also Memoradum
fom Jaice Podolny, Chef, Inspections Law Div., Ofce of Gen. Counsel, Immigration and
Natuaizaton Serv., to Thomas E. Cook, Acting Assistt Comm'r, Ofce of Adjudications
(Mach 27, 2003), Interpretations of 'Period of Sta Authorized by the Atorney General' in
Determining 'Unlawfl Presence' under INA Section 212(a)(9)(B)(ii), at 2 (HQCOU 90/15)
("Te period during which a timely fled [extension of stay] or [chage of status] application is
pending continues the alien's period of authorized stay in the United States (allowing te alien to
avoid accruing ulawfl presence), but does not extend the alien's period of 'autorized
stats."').
4 The respondent does not claim that he qualifes under the more generous provisions of section
245(i) of te Act.
5
On appeal, the respondent refrences the reglatory provisions pertaining to te DHS. We cite
to the Regulations applicable to the Executive Offce fr Immigration Review, located in
Chapter V of Title 8.
3
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
A096 155 870
.
.
Section 245( c )(2) of te Act (emphasis added). 6 The regulations defne the phrase "other than
though no fult of his or her own or fr technical reasons," explicitly limiting the meaning of
that phrase to fur scenarios. 8 C.F.R. 1245.l(d)(2). The respondent relies on the defnition:
"[a] technical violation resulting fom inaction of the Serice (a fr exaple, where an applicant
establishes that he or she properly fled a timely request to maintain stats and the Service has
not yet acted on that request)." 8 C.F.R. 1245. l(d)(2)(ii).
Section 245(k) of the Act permits certain employment-based adjustment applicants to adjust
although otherwise barred fom adjustment of status under sections 245( c )(2), (7), and (8). The
statute provides in perinent part:
A alien who is eligible to receive an immigrat visa under paragraph (1), (2), or
(3) of section 203(b) (or, in the case of a alien who is an immigrant described in
section 10l(a)(27)(C), under section 203(b)(4)) may adjust stats pursut to
subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if . . . (2)
the alien, subsequent to such lawfl admission has not, fr an aggregate period
exceeding 180 days-(A) failed to maintain, continuously, a lawful status ...
Section 245(k) of the Act (emphasis added).
III. ARGUMENTS
The respondent arges that he accrued no "unlawful immigation status" during the pendency
of his application fr a extension of H-IB status because the INS's delay in adjudication
occured though "no fult of his own or fr technical reasons" (Respondent's Brief at 4 n.l, 5-6;
Tr. at 13-15, 39, 48-50). See section 245(c)(2) of the Act; 8 C.F.R. 1245.l(d)(2)(ii).
Specifcally, the respondent asserts that the period between the expiration of his H-lB visa on
December 24, 2001, and the denial of his extension request on July 23, 2002, was a break in
stats fr "techical reasons" (Respondent's Brief at 5). See 8 C.F.R. 1245.l(d)(2)(ii). Under
this reasoning, the respondent would only be considered out of status fom July 23, 2002, to
November 20, 2002, enabling him to beneft fom the 180-day exemption in section 245(k) of
the Act (Respondent's Brief at 6-7). 7
6 There may be an issue as to whether the respondent meets the additional requirement under
section 245( c )(2) of the Act that an alien not be "in unlawfl immigration status on the date of
fling the application fr adjustment of status." Te respondent also may not satisf section
245(c)(7) of the Act, which provides tat section 245(a) adjustment is unavailable to a applicat
who "is not in a lawfl nonimmigrant status." However, we need not reach these questions in
this case.
7 The respondent also contends that 8 C..R. 1245.l(d)(2) is a impermissibly naow
interpretation of section 245(c)(2) of the Act. See Respondent's Brief at 10-14. However, the
Boad lacks authority to consider challenges to regulations implemented by the Attorey General.
See Matter of Fede, 20 I&N Dec. 35, 36 (BIA 1989).
4
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
A096 155 870
On te other had, the DHS agues that the respondent accred too much time out of stats to
beneft fom section 245{k)'s 180-day exemption. In paicula, the DHS contends tat fling an
extension of stay 4 days prior to te expiration of one's authorzed status does not extend
lawl status (DHS's Brief at 3; Tr. at 12, 44). Therefre, the DHS agues that the
Immigation Judge properly fund the respondent ineligible to adjust stats because he was out
of lawfl stats fr more tha 180 days (DHS's Brief at 3). As we understand te DHS's
agument, only actual goverent approval of the request extends lawfl statu, whereas
goverent denial of the extension reuest causes the original expiration of stat to stad ad
renders the subsequent status unlawfl.
I. ANALYSIS .
The United States Cou of Appeals fr te Seventh Circuit, in whose jurisdicton
these proceedings aise, recently addressed the requirement under section 245( c) of the Act
that a alien "maintan continuously a lawfl status." See Chaudhry v. Holder, 705 F.3d 289
(7t Cir. 2013). Chaudhry, his wif, ad their two minor children lawflly entered the
United States on Jue 4, 2003, pursuant to Chaudh's B-1 visitor visa. Id at 290. Befre this
status expired, Chaud's employer At Incorporated applied to change his status to L-1
(skilled worker). Id USCIS approved tat petition on Jaua 21, 2004, extending Chaudhy's
lawl nonimmigrant status through January 21, 2005. Id. Meawhile, on Januay 14, 2004,
Chaudy had fled a Form I-485 adjustment of status application with USCIS contemporaeous
wit Amtal's fling of a Form 1-140 visa petition on his behalf. Id. For reasons unknown,
8 Ou understading of the DHS interpretation of these regulations with regard to approved
applications is refected in its Adudicator's Field Manual, which states that when ay extension
of status request is "ultimately approved, the period during whch the [extension request] had
been pending would be considered, i retrospect, a perod in which the alien was in a lawl
nonmmigant stats .. . . " U.S. Citizenship and Immigation, Adudicator's Field Manual, at
Chapt. 23.5(d)(4)(C)(ii), available at htt://w .uscis.gov (June 22, 2012) (silent wit regard to
denied applications); see also Memoradum fom Donald Neufeld, Acting Assoc. Dir.,
Domestic Operations, U.S. Citizenship ad Immigration Services, Dep't of Homelad Security,
to Field Leadership (July 14, 2008), Applicabilit of Section 245() to Certain Employment
Based Adustment of Status Applications fled under Section 245(a) of the Immigration and
Nationalit Act, at 6 (HQDOMO 70/23.1-P) ("USCIS 245(k) Memo") (presentng the above
cited revisions to Chapter 23.5 of the Adjudicator's Field Manual).
The respondent contends that the USCIS 245(k) Memo supports his argument tat te IS's
adjudication time should not accumulate against his 180-day period of non-status (Respondent's
Brief at 6-7). We disaree. First, the USCIS memorandum is not binding on ths agency ad
thus only inforative in nature. See, e.g., Matter of L-K-, supra, at 681. Moreover, the
memorandum states tat the period of a pending extension request "does not constitute, in ad of
itself, a period in whch te alien is in lawfl 'status."' See USCIS 245(k) Memo at 6. The
memorandum requires that the extension request be "ultimately approved" befre the time durg
which the request had been pending may "be considered, in retospect, a period in which the
alien was i lawl nonimmigat status. . . . " Id. A policy that requires explicit approval of a
request does not, by extension, include those requests that are ultimately denied.
5
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
A096 155 870
Chaudhry and Amtal re-fled the sae frs in Jue of 2005. Id. USCIS rejected bot
adjustment applications on December 13, 2005, because Chaudhry had lef Amtal and begu
working fr Sas Oil. Id Chaudhry submitted a thrd Form 1-485 on May 25, 2006, supported
by a visa petiton fled on his behalf by Sas. Id. USCIS approved Sas's For I-140 in 2007,
but subsequently denied Chaudhry's Form 1-485 under sections 245(c) and 245(k) of the Act
because more than 180 days had elapsed between the expiration of his lawf nonimmigt
status on Jauary 21, 2005, ad the fling of his third ad fnal Form I-485 on May 25, 2006. Id.
In rejecting Chaudhy's argument tat he maintained "lawfl status" throughout the
pendency of his frst two adjustment applications, the Seventh Circuit cited Mater of L-K-,
supra, to illustrate that aliens ca be "lawflly present" in the United States (i.e., in a "period of
stay authorized by the Attorey General") even though their "lawfl status" has expired. Id at
291-92. The court defred to the defnition of "lawfl immigration status" in 8 C.F.R.
1245.l(d)(l) and fund this regulation to freclose the argument that a "period of stay
authorized by the Attorey General" might also constitute "lawfl status" fr purposes of section
245(c) of te Act. Chaudhry, supra, at 292. The court added that were it to adopt Chaud's
interretation, "a nonimmigant could indefnitely extend her eligibility fr adjustment of status,
despite the expiration of her lawfl nonimmigant status, simply by fling successive
applications." Id. Therefre, the Seventh Circuit upheld the Board's conclusion that te
pendency of Chaudhry's adjustment applications had no beaing on his nonimmgrant status afer
it expired on Januay 21, 2005. Id at 291.
Subsequently, the United States Court of Appeals fr the Fifh Circuit issued a simlar
decision that frther addressed the exception in section 245( c) covering aliens who filed to
maintain continuously a lawfl status due to "techical reasons." See Dhuk v. Holder,
716 F.3d 149 (5th Cir. 2013). Dhuka, his wif, and his son were admited to te United Sttes as
nonmigrant visitors on November 5, 2000, with authorization to remain util May 4, 2001. Id
at 151. On August 3, 2001, Dhuka was approved as the benefcia of a nonimgat
multinational maager visa (L-lA), permitting him ad his family to remain in the United States
until August 2, 2004. Id On November 28, 2003, Dhuka and his family applied fr adjustent
of status based on a visa petition fled by a relative. Id USCIS denied the visa petition and
adjustment applications on September 2, 2005, and denied a motion to reopen ad reconsider on
October 17, 2005. Id I March of 2006, Dhuka ad his faily once agan applied fr
adjustment of stats, tis tme based on an employment-based visa petition fled on te wif's
behalf. Id. On December 19, 2007, USCIS denied the applications, concluding that Dhuka ad
his faily had, fr longer tha 180 days, filed to maintain continuous lawl status since
entering the Unted States. Id at 152.
Like the Seventh Circuit in Chaudhr, the Dhuk court defrred to the defnition of "lawl
immigration status" in 8 C.F.R. 1245. l(d)(l), which does not include ay period during whch
a adjustent application is pending. Id at 156-59. The court also agreed wth te Board tat
"lawfl imigration status" must not be consted to be "so broad as to include all individuals
with some fr of permission to remain in the United States and authorization to work in ts
cout." Id at 157 (interal quotation omitted). The Fifh Circuit thus a ed the Boad's
holding tat when USCIS denies a application fr extension, chage, or adjustment of status, a
alien can no longer be deemed to have maintained lawfl status fr purposes of sections 245(c)
ad 245(k) of the Act dung ay period in which only the application was pending and the alien
6
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
A096155 870
did not possess some oter status. Id at 158-59 (citing Matter of L-K-, supra, at 680)). The
cou also fund the Boad's interretation reasonable because under Dhuka's proposed
interretation, an alien could indefnitely extend the 180-day grace period in section 245(k) of
the Act by fling applications. Id at 159. Therefre, the court upheld the deterination that
Dhuka ad his family had been out of status longer ta 180 days when their nonimmigant
status expired on August 2, 2004, making them ineligible fr adjustment of status. We conclude
that the respondent's cae is not distinguishable fom Chaudhry or Dhuk.
Fuerore, although opinion letters and decisions by the DHS again do not constitute
binding precedent fr the Boad, see Mater of L-K-, supra, at 681, we note that it h been.
consistent policy of the DHS ad frmer INS tat actual approval of a application confrs te
beneft. See, e.g., Matter of Al Wazzan, 25 l&N Dec. 359, 367 (AAO 2010) (holding that the
mere fct of fling an 1-140 petition does not render the petition "valid" fr puroses of section
2040) of the Act, 8 U.S.C. 1154(); rather, the petition must have been fled fr a alien who is
"entitled" to the requested classifcation ad that petition must have been "apprved" by a
USCIS ofcer). For example, a 1988 leter fom the frer INS reiterates its policy that
employment autorization icident to status ends when the status expires, unless the Serice has
grated an extension or idependently grated employment authorization. See letter fom
Rchad E. Noron, INS Assoc. Comm'r fr Examinations, Immigation and Nationality Ser., to
Lawence P. Lataif, Esq. (Oct. 28, 1988), reprinted in 65 Interpreter Releases, No. 47, Dec. 12,
1988, at 1292, 1308-09 (Appendix N).
Te fregoing authority demonstates that a application fr extension of status does not
extend a alien's lawl status upon fling or permanently excuse unlawfl status though te
date of adjudication. Adjudication of such a application merely clarifes the status to which a
alien was entitled. Thus, fr puroses of section 245(c)(2) of the Act, an alien in nonimmigrat
status whose timely extension request is denied begins to accumulate time in unlawfl
immigration status upon expiration of status, regardless of how long the DHS took to adjudicate
the application. Such a alien's falue to maintain continuously a lawful status is not "other
than through no fult of his own or fr technical reasons" uder section 245(c)(2) of the Act.
9
As a result, the respondent did not remain in continuous lawl status as required by section
245(c)(2) of the Act and his time spent out of status is too lengthy to enable him to beneft fom
te 180-day provision in section 245(k) of the Act. We thus afr the holding that the
respondent does not qualif fr adjustent of status under section 245(a) of te Act.
Accordingly, the fllowing orders ae entered.
ORER: The appeal is dismissed.
9
Although the respondent assers that Matter of L-K-, supra, suppors a contray result, we
disagree. Because te respondent in Mater of L-K- was held not to have met the ''technical
reasons" criterion in ay event, we did not need to deterine in that case te question whether
the time prior to the DHS's action on te perinent application would have retospectively been
properly treated as time spent in lawl status if the "techical reasons" criterion had oterwise
been satisfed.
7
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
A096 155 870
FURTHER ORDER: Pursuant to the Immigration Judge's order ad conditioned upon
compliance with conditions set fr by the Immigration Judge ad te statute, the respondent is
perited to voluntaly depat te United States, without expense to the Goverent, within
60 days fom the date of ths order or any extension beyond that time as may be grated by te
OHS. See section 240B(b) of the Act, 8 U.S.C. 1229c(b); see also 8 C.F.R. 1240.26(c), (f.
In the event te respondent fils to voluntarily depa the United States, the respondent shall be
removed as provided in the Immigration Judge's order.
NOTICE: If the respondent fails to voluntaly depar the United States within the time
period specifed, or any extensions granted by the OHS, the respondent shall be subject to a civil
penalty a provided by the regulations and the statute and shall be ineligible fr a period of
10 years fr any frther relief under section 240B ad sections 240A, 245, 248, and 249 of the
Act. See section 240B( d) of the Act.
WAING: If te respondent fles a motion to reopen or reconsider prior to the expiration
of the voluntay depae period set fr above, the grat of volunta depaure is
automatically terminated; the period allowed fr voluntay departure is not stayed, tolled, or
extended. If the grant of voluntary depaure is automatically terminated upon the fling of a
motion, the penalties fr filure to depa under section 240B(d) of the Act shall not apply. See
8 C.F.R. 1240.26(e)(l).
WARNING: If, prior to depaing the United States, the respondent fles ay judicial
challenge to this administratively fnal order, such as a petition fr review pusuat to section
242 of te Act, 8 U.S.C. 1252, te grant of voluntary deparure is automatically terinated, and
the alterate order of removal shall immediately tae efect. However, if the respondent fles a
petition fr review ad ten departs the United States within 30 days of such fling, the
respondent will not be deemed to have departed under an order of removal if the alien provides
to the OHS such evidence of his or her depare that the Immigration ad Customs Enorcement
Field Offce Director of the DHS may require and provides evidence OHS deems sufcient that
he or she has remained outside of te United States. The penalties fr filure to depart under
section 240B( d) of the Act shall not apply to an alien who fles a petition fr review,
notwithstanding any period of time that he or she remains in the United States while the petition
fr review is pending. See 8 C.F.R. 1240.26(i).
8
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Cite as: Ivica Trupcevic, A096 155 870 (BIA Nov. 7, 2013)
/
UNITED S, . :'ES DEPARTMENT OF JUSTICE
EXECUTIVE 01 .ICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
File No.: A96- I 55-870
In the Matter of:
Ivica TRUPCEVIC
Respondent.
CHICAGO, ILLINOIS
)
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Date: December 30, 2008
I REMOVAL PROCEEDINGS
CHARGE: Section 23 7(a)( I )(B) of the Immigration and Nationality Act ("'INA"), 8
U .S.C. 1 227(a)(l )(8) - Remained in the United States fr a time longer
than permitted.
APPLICATION: Section 245(a) of the IA, 8 U. S. C. 1255(a) -Adjustment of Status
ON BEHALF OF THE RESPONDENT:
Scott D. Pollock, Esq.
Scott D. Pollock & Associates, P.C.
I 05 W. Madison Street, Suite 2200
Chicago, Illinois 60602
ON BEHALF OF THE GOVERNMENT:
Amy E. Greene, Assistant Chief Counsel
Deparment of Homeland Security
55 East Monroe Street, Suite 1700
Chicago, Illinois 60603
DECISION OF THE IMMIGRATION JUDGE
The respondent seeks relief fom removal in the frm of adjustment of status based upon
an approved Immigrant Petition fr Alien Worker, Form 1-1 40. For the reasons stated below, I
will deny his application fr adjustment of status and grant him voluntary departure.
I. BACKGROUND
The respondent is a frty-two-year-old male native and citizen of Croatia. He entered the
United States as a student on an F-1 visa, graduated fom the University of Indiana and changed
his status to that of an H-IB temporary worker on Februar 8, 1999. See Ex. 3-1. In March
1999 he began working fr The Methodist Hospitals of Indiana, where he is curently employed
as a Nuclear Medicine Technologist. See Gr. Ex. 2, Tab G. The respondent was authorized to
work as an H-IB temporar worker until December 24, 2001. See Ex. 3-1.
J 96-155-870
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O' n Deember 20, 2001, The Methodist Hospitals fled a request to extend the
respondent's H-1 B status with the frmer U.S. Immigration and Naturalization Services
("'INS"). 1 See Ex. 3-3. On February 1 4, 2002, legacy INS issued a Request fr Evidence asking
the respondent to submit additional documents supporting the extension request. Id. The
Methodist Hospitals submitted additional evidence on May 9, 2002, and legacy INS denied the
extension request on July 23, 2002. See Ex. 3-4. Upon notice of the denial of his H-lB
extension, the respondent stopped working at The Methodist Hospitals.
On June I 4, 2002, while the H- 1 B extension request was still pending, The Methodist
Hospitals fled an Application fr Alien Employment Cerifcation, Form ET A 750 ("labor
certifcation") with the Department of Labor on behalf of the respondent. See Ex. 3-6. The labor
cerifcation was approved on September 19, 2002. Id
On November 20, 2002, The Methodist Hospitals in conunction with the respondent
fled an Immigrant Petition fr Alien Worker, Form 1-140 and an Application to Register
Permanent Residence or Adjust Status, Form I-485, with legacy IS. See Exs. 3-7 & 3-8. On
March 29, 2005, United States Citizenship and Immigration Services ("USCIS') denied the
respondent' s application to adjust status stating that the respondent had filed to continuously
maintain lawfl status and had been out of status fr more than 180 days. See Gr. Ex. 2, Tab H.
On September 13, 2007, the Department of Homeland Security ("the goverent") fled
a Notice to Appear ("NTA") charging the respondent with removability under section
237(a)(l)(B) of the INA, 8 U.S.C. 1227(a)(l)(B) fr remaining in the United States fr a time
longer than permitted.
At a removal hearing held on November 7, 2007, the respondent admitted fctual
allegations one, two and fur and denied fctual allegation three, which contended that he was
only authorized to remain in the United States until December 14, 2001 .2 The respondent
conceded that he is removable as charged. Therefre, based upon the respondent's admissions,
the Court fnds that alienage and removability have been established by clear and convincing
evidence, as required by Section 240(c)(3) of the IA, 8 U.S.C. 1229a(c)(3). See 8 C.F.R.
1240.S(a),(c). The respondent did not designate a country of removal; therefre, the Cour will
designate Croatia, the respondent's country of citizenship.
In lieu of removal, the respondent renewed his request fr adjustment of status under
Section 245(a) of the IA, 8 U.S.C. 1255(a). In this case, t
h
e respondent seeks adjustment of
status to that of a lawfl permanent resident based upon a approved I-140 petition.
On March I, 2003, the functions of the frmer INS were transfrred to the Department of Homeland Security
pursuant to Title IV of the Homeland Securit Act of 2002, Pub. L. No. I 07-296, 116 Stat. 2135, 2177.
At the hearing, the respondent indicated that the date was incorrect and that his 1-94 card authorized him to remain
in the United States until December 24, 200 I.
A96-l 55-870
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II

. F'INDINGS & ANALYSIS

A. Arguments and Aplicable Law
This case turs on similar but distinct concepts in immigration Jaw. The statutes,
regulations, case law and legal interpretations of immigration ofcials distinguish between the
concepts of "lawfl status or authorized period of stay", and Hunlawfl presence". These
concepts, although sounding similar, can afect an alien's eligibility to receive certain
immigration benefts. 3 This is one such case.
To qualif fr adjustment of status under section 245(a) of the IA, an alien must
establish the fllowing: 1 ) he is eligible to receive an immigrant visa, 2) he is admissible to the
United States fr permanent residence, and 3) an immigrant visa is immediately available to him
at the time the application is fled. IA 245(a); 8 Ue S.C. l 255(a); see also 8 C.F.R.
1245.l(a).
Section 245(c) of the IA establishes various bars to adjustment of status, one of which
is contained in section 245(c)(2). Section 245(c)(2) prohibits an applicant fom adjusting his or
her status if the applicant has filed (other than though no fult of his own or fr technical
reasons) to maintain continuously a lawfl status since entry into the United States." IA
245(c)(2); 8 U.S.C. 1255(c)(2). However, section 245(k) of the IA provides that
employment-based adjustment applicants are allowed to apply fr adjustment even if they filed
to continuously maintain lawfl status, as long as they have not been out of status fr an
aggregate period of more than 180 days. IA 245(k); 8 U.S.C. 1255(k). Lawfl immigrant
status fr puroses of 245(c)(2) is defned in part as being admitted to the U.S. as a
nonimmigrant whose initial period of admission has not expired or whose nonimmigrant status
has been extended. 8 C.F.R. 245. l (d)(1 ).
The government contends that the respondent is ineligible to adjust status since he filed
to continuously maintain lawfl status as required under section 245(c)(2) of the IA, and does
not qualif fr the 245(k) exception since he has been out of status fr more than 180 days. See
Gr. Ex. 2, Tab H. The goverment points to the fct that the respondent's I-94 card refected that
he was authorized to remain in the United States until December 24, 2001. On that date, his
lawfl status ended. Although The Methodist Hospitals fled an extension of stay request with
IS on the respondent's behalf on December 20, 200 I (befre his lawful status terinated), the
The concept of'unlawfl presence" was added to the INA by the IJegal Immigration Refr and Immigrant
Responsibilties Act of September 30, I 996 (IIRAIRA), Pub. L. No. I 04-208, I I 0 Stat. 3009. Unlawfl presence is a
ground of inadmissibility under Section 2 I 2(a)(9)(B) and bars adjustent of status afer an alien accres unlawfl
presence and then returs to the United States afer a departure. The respondent although "out of status" is not
barred fom adjustment of status because this ground of inadmissibiJity is only triggered afer a deparure fom the
United States. Moreover the statute provides that fling a timely extension of nonimmigant stay does not count as
unlawfl presence time. See Section 2 l 2{a)(9)(B)(iv)(II).
Unlike the concept of unlawfl presence "maintaining continuous lawfl status,, or "violating a period of authorized
stat' is a bar to adjustment of status fund in Section 245(c) of the INA and applies to most adjustment of status
applicants seeking to adjust status in the United States.
A96-155-870
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goverent argues that this does not extend the period of lawfl status. The goverment asserts
that the respondent would remain in lawfl status only if the INS had approved his extension of
stay request. Since it was denied after the respondent's previously approved stay expired, the
goverment argues that the respondent has been out of status as of December 24, 2001, the date
his original period of stay expired.4
The respondent claims that he is eligible fr adjustment of status under the Section
245(k) exception because he has only been out of lawfl status fom the time his extension of
stay request was denied by USCIS on July 23, 2002 until the time he fled his application fr
lawfl permanent residence on November 21 , 2002. (A period less than 180 days).
Section 245(c)(2) bars an applicant fom adjusting status under 245(a) if the applicant
does not maintain continuous lawful status, unless the filure to do so was through no fult of the
applicant or fr technical reasons. The respondent argues that he fts the exception under
245( c )(2) since his inability to maintain continuous lawfl status occured while his extension of
stay application was pending with the INS and their delay in adjudicating his extension request
was through no fult of his own or was fr technical reasons. The respondent points to 8 C.F.R.
245.l(d)(2)(ii) to suppor his argument. The parenthetical in section 245(c)(2) of the IA
"other than through no fult of his or her own or fr techical reasons" is limited by the language
The arguments of the goverment atorey are consistent with two memoranda fom USCIS and legacy INS
discussing section 245(c)(2) and 8 C.F.R. 245. l (d)(2)(ii). See generaly Ofce of the General Counsel, INS, U.S.
Dep't of Justice, Interpretation of"Period of Stay Authorized by the Attorey General" in detenining "unlawfl
presence" under INA section 212(a)(9)(B)(ii) (March 27, 2003) ("2003 Memo"); U.S. Citizenship and Immigration
Services, U.S. Department of Homeland Security, Applicabilit of Section 245(k) to Cerain Employment-Based
Adjustment of Status Applications fled under Section 245(a) of the Immigration and Nationalit Act (July 14, 2008)
("2008 Memo").
The 2003 Memo arose due to an increase in flings fom aliens who desired to remain in the United States passed the
period of authorized admission, but were concered about accruing unlawfl presence while awaiting action by
legacy INS. See 2003 Memo at pl. Immigration practitioners argued that the fling of an extension of stay request
prevents an alien fom accruing unlawful presence while waiting fr legacy INS to make a decision, even if that
decision is ultimately a denial. See id at p2. Legacy INS stated that "[t]he period during which a timely fled
[extension of stay 1 or [change of status] application is pending continues the alien's period of authorized stay in the
United States (allowing the alien to avoid accruing unlawfl presence), but does not extend the alien's period of
authorized status'". Id. An alien's authorized status is "determined with refrence to his or her Fon 1-94
{arrival/departure record) or, where the alien is the beneficiar of an approved [extension of stay] or [change of
status] application, with refrence to the validity dates on the Fon 1-797 ("Notice of Action") approval notice." Id
at p2, f. 3. An alien is considered to be "in status" either during the initial time period authorized upon admission,
or if an extension of stay application is granted. Id at p4. This memorandum highlights the diference between
"unlawful presence" fr purposes of determining inadmissibility under Section 212(a)(9)(B) of the INA and
ineligibility for adjustment of status under Section 245(c)(2) of the INA.
The 2008 Memo explains how section 245(k) of the INA waives certain bars to adjustment listed under
245(c) fr employment-based adjustment applicants. The 2008 Memo explains that "[e]xpiration, revocation, or
violation of status puts a non immigrant out of status, and the alien remains out of status until some adjudication
restores status or the alien depars the United States." 2008 Memo at pS. In the majority of cases, the 180-day
calculation begins on the day "the alien's status expires, is revoked, or is violated fllowing the alien's most recent
admission." id (Both memoranda are attached to this decision fr convenience.)
A96- l 55-870
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in 8 C .F .R. 245 .1 ( d)(2). That section states in part that an applicant is not considered barre
.
d
fom adjustment under section 245(c)(2) of the INA if the filure to maintain status happened
due to ''a technical violation resulting from inaction of the Service (as fr example, where an
applicant establishes that he or she properly fled a timely request to maintain status and the
Service has not yet acted on that request).'' 8 C.F.R. 245. I (d)(2)(ii). The respondent argues
that he properly fled a timely request to maintain and extend his H- 1 B nonimmigrant status with
IS, and the seven month delay in processing his application constitutes "inaction" on the part
of IS, which should not be fctored into the calculation of the time the respondent was out of
status.
B. Conclusion
Afer carefl consideration of the arguments on both sides and the record in its entirety, I
fnd that the respondent is statutorily ineligible fr adjustment of status under Section 245(c)(2)
because he has filed to maintain continuous lawfl status and does not qualif fr the 245(k)
exception because he has been out of status fr more than 180 days.
In reaching this decision this Court concludes that the respondent's period of authorized
status expired on December 24, 2001. The Board of Immigration Appeals ("BIA") has
consistently held that an alien violates his status in the United States when his period of
authorized stay expires. See Matter of Tebren, l 5 I&N Dec. 689 (BIA 1976). Filing an
extension of stay has never been considered maintaining lawfl status unless the extension is
granted. Id. It would indeed be a strange result if an alien could efectively bypass an ofcial
determination by immigration authorities as to the length of time he or she would be "authorized
to stay'' in the U.S. simply by fling an extension request without regard to its merits.
The respondent argues, however, that the period of time that his nonimmigrant extension
request was pending with the IS befre it was denied, should not be counted as "out of status"
time, in calculating the 180 period fr puroses of the Section 245(k) exception. Respondent
contends that the period of time that his extension request was pending with the INS constitutes
"techical reasons" under 8 C.F.R. 245.l(d)(2)(ii). However, the respondent's reliance on this
regulation is misplaced and without merit.
The application of 8 C.F.R. 245.1 (d)(2) is limited to fur situations. The situation
applicable here is where an applicant fles a timely request to maintain status, but there is
"inaction" by the IS. See 8 C.F.R. 245.l(d)(2)(ii). Here, the respondent's extension request
was acted upon by the IS and denied on July 23, 2002. The respondent, nevertheless, artflly
suggests that the long period of delay in adjudicating his petition, should nevertheless be
considered under the "technical reasons" exception. This argument must also be rejected.
First, although the respondent fled a timely request fr extension of stay on December
20, 2001, the IS requested on February I 4, 2002 that the respondent submit additional
documents supporting his request. The respondent did not respond with his additional evidence
until May 9, 2002. Thus, almost 3 months of the adjudication period was attributable to the
respondent's own delay. Moreover, the record refects that even when this material was
A96- l 55-870
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submitted the INS acted in a reasonable period of time thereafter. Thus, the respondent's
contention that the delayed action" in adjudication his extension request should be considered
'"inaction" simply is not suppored by the record.
This Cour's conclusion that the respondent's period of acontinuous lawfl status" ended
on December 24, 2001 when his nonimmigrant status expired is also supported by the BIA's
decision in Matier ofl-K-, 23 I&N Dec. 677 (BIA 2004 ). In L-K, the respondent argued that the
timely fling of an application fr asylum continued his ""lawfl status" in the United States fr
purposes of adjustment of status under section 245(a) of the IA. The BIA concluded that once
the asylum ofcer acted on the application, the respondent no longer qualifed under the
"technical reasons" exception in the regulations and that the respondent was properly considered
-out of status" when his period of authorized stay expired as a nonimmigrant. Id
Finally, the respondent contends that i the fling of a timely nonimmigrant extension
request does not violate an alien's status fr puroses of accruing "unlawfl presence" then the
same rationale should apply to the concept of "maintaining continuous status." However, the
respondent's argument ignores the diference between a ground of inadmissibility under section
212(a)(9)(B) of the IA and a bar to discretionary relief under section 245(c)(2) of the IA.5
In sum, the respondent is not eligible to adjust status under 245(a) of the INA because he
was out of lawfl status fr more than 180 days. This conclusion, however, does not prevent the
respondent fom consular processing an immigrant visa fom abroad. The respondent has
accred less than one year of "unlawfl presence" (calculated fom the denial of the extension
request until he fled his application fr adjustment of status on November 20, 2002), and is thus
not inadmissible under section 212(a)(9)(B)(i)(II).6
Accordingly, the fllowing orders will be entered:
ORDER
IT IS HEREBY ORDERED that the respondent's application fr adjustment of status
.under Section 245(a) is DENIED as a matter of law.
The memoranda fom legacy IS and USCIS, although not binding on this Court, aid in an
interretation consistent with the Board's holding in L-K. The 2003 Memo explains that while
an alien has a pending request to extend his stay or change his status, the alien's period of
authorized stay is extended so that the alien does not accrue unlawfl presence. See 2003 Memo
at p2. However, the memo goes on to explain that this does not extend the period of '4authorized
status". Id The 2008 Memo adds that an alien is considered to be ''in status" either during the
i nitial time period authorized upon the aJien 's admission to the U.S., or if an extension of stay
application is granted. See 2008 Memo at p6.
Section 2 I 2(a)(9)(B)(i)(I) of the INA is inapplicable to the respondent as he did not voluntar depar the United
States prior to the commencement of removal proceedings.
A96-155-870
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I
IT IS FURTHER ORDERED that in lieu of an order of removal, the respondent be
granted voluntar departure without expense to the Goverment if he departs on or befre March
1 , 2009 or any extension beyond such date as may be granted by the Department of Homeland
Security and under such conditions as they shall provide.
IT IS FURTHER ORDERED that in order to qualif fr voluntary departure, the
respondent post a $500.00 bond with the Deparment of Homeland Security within fve days of
the receipt of this decision.
IT IS FURTHER ORDERED that if respondent fils to depart when and as required, or
fils to post the required departure bond, then the privilege of voluntary departure shall be
withdrawn without frther notice of proceedings and the fllowing order shall thereupon become
immediately efective: the respondent shall be removed fom the United States to Cro on the
charge contained in the Notice to Appear.
ROBERT D. VINIKO
U.S. IMMIGRTION JUDGE
.,
A96-l 55-870
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