Our firm has successfully represented a client who was facing deportation because of an erroneous denial by USCIS of his I-485 application. The client had entered the United States on an F-1 visa. He was later petitioned by his now employer for a green card. In 2020, the USCIS wrongly alleged that because he had been required to repeat some courses due to attending less than 75% of classes in a term and that he had failed to maintain lawful F-1 status. After the client's I-485 was denied and he was placed in removal proceedings, the client came to us for representation in his removal proceedings and to resubmit his application for adjustment before the Immigration Judge.

Our office successfully argued that he had never failed to maintain his F-1 status as he continued to maintain a full course of study, maintained regular attendance in compliance with the institution's attendance policy, and made normal academic progress, completing his program in good standing in 2015. Our office successfully argued that the F-1 rule for colleges and universities gives the Designated School Official (DSO) discretion to certify what is considered a “full course of study” for F-1 purposes. The DHS does not explicitly define what is considered “regular attendance” nor “normal academic progress”. Rather, institutions have set their own criteria in the form of their attendance policy and requirements for academic progress required for maintaining their F-1 status with the institution.

Not only did the USCIS err in finding that the client had failed to maintain F-1, but even if accepting USCIS' flawed analysis, the USCIS erred in their calculation of total days, alleging that his days of failing to maintain lawful status exceeded 180 days. INA 245(k) provides certain employment-based adjustment applicants with an exemption from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) adjustment bars. This exemption applies to an applicant who has failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms and conditions of his or her admission for an aggregate period not exceeding 180 days. The exemption applies to an eligible applicant who fails to maintain a lawful status or violates the terms and conditions of his or her nonimmigrant visa following his or her most recent admission, as long as the aggregate period of the violations is 180 days or less.

In reality, the alleged days of failing to maintain lawful status in the client's case was less than 180 days and thus fell within the exception under INA 245(k). Recognizing the USCIS' multiple errors, the Immigration Judge rightfully approved the renewed I-485 application, granting the client lawful permanent residence. 

USCIS officers can sometimes make mistakes. If you think the USCIS has made an error in the adjudication of your case, we invite you to schedule a consultation with one of our experienced attorneys. Schedule an appointment here: https://www.bravlin.com/schedule-appointment.