January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Maintenance of Immigration Status By: Michael L. Kabik, Esq. © 2005 Immigration, Nationality & Consular Practice Group Shulman, Rogers, Gandal, Pordy & Ecker, P.A Rockville Pike, Rockville, Maryland U.S.A. Telephone: (301) Facsimile: (301) Web Site:

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.2 Maintenance of Immigration Status General Requirements [8 CFR §214.1] For all nonimmigrant classifications Special Requirements [8 CFR §214.2] Delineated for each nonimmigrant classification

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.3 Maintenance of Immigration Status AR-11 Requirement – Change of Address Notification Applies to all aliens [INA §§262(a), 265(a), 8 CFR §265.1] Including Permanent Residents Remaining in the US for 30 days or longer Except aliens in A or G nonimmigrant status [INA §263(b)]

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.4 Maintenance of Immigration Status AR-11 Requirement – Change of Address Notification Must file with CIS within 10 days of change of address [INA §§265(a), 266(a)] Failure to maintain status Misdemeanor ($200 fine and/or 30 days) Subject to deportation [INA §237(a)(3)(A) ]

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.5 Maintenance of Immigration Status Admission to US Various nonimmigrant classifications [INA §101(a)(15)] For certain time period indicated on Form I- 94 Departure Record

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.6 Maintenance of Immigration Status Failure to maintain status Non-compliance with terms of nonimmigrant classification Failure to make change of address notification

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.7 Maintenance of Immigration Status Failure to maintain status Unauthorized employment Certain criminal activity Overstay of authorized admission

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.8 Maintenance of Immigration Status Impact of failure to maintain status On application for extension or change of nonimmigrant status Denial of extension or change of status [INA §248, 8 CFR §§214, 248.1] In general Subject to deportation [INA §237(a)(1)(C)(i) ]

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.9 Maintenance of Immigration Status Discretionary reinstatement [8 CFR §§214.1(c)(4), 248.1(b)] Failure to file application to extend or change status before the period of authorized status expired may be excused if:

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.10 Maintenance of Immigration Status Delay due to extraordinary circumstances beyond the control of the applicant and commensurate with the circumstances; Alien has not otherwise violated his nonimmigrant status; Alien remains a bona fide nonimmigrant; and Alien is not subject of Deportation Proceedings or Removal Proceedings

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.11 Maintenance of Immigration Status Impact of failure to maintain status On adjustment of status to Permanent Resident Immediate Relatives (spouses, children, parents) of US citizens –Can adjust status even if failure to maintain nonimmigrant status –If inspected at entry to US

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.12 Maintenance of Immigration Status Impact of failure to maintain status On adjustment of status to Permanent Resident Everyone else –Not eligible to adjust status –Except if eligible under INA §245(i)

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.13 Maintenance of Immigration Status Unlawful Presence (3/10 Year Bars) [INA §212(a)(9)(B)] Alien unlawfully present in US for > 180 days but < 1 year and voluntarily departs the US prior to commencement of Expedited Removal or Removal Proceedings Inadmissible for 3 years after departure or removal

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.14 Maintenance of Immigration Status Unlawful Presence (3/10 Year Bars) [INA §212(a)(9)(B)] Alien unlawfully present in US for 1 year or more Inadmissible for 10 years after departure or removal

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.15 Maintenance of Immigration Status Tolling for Good Cause [INA §212(a)(9)(B)(iv)] Calculation of period of unlawful presence is tolled during the pendency of application to change or extend status, up to 120 days if:

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.16 Maintenance of Immigration Status Alien lawfully admitted or paroled into US; Filed a nonfrivolous application for change or extension of status before the date of expiration of the authorized period of stay; and Has not been employed without authorization before or during the pendency of such application

January 21, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.17 Legal Disclaimer Facts of individual cases differ The information provided herein is general in nature and is not intended as legal advice Consult with an experienced immigration attorney with regard to specific cases