THE past two years have seen an increase in the rate of denial of applications for adjustment of status. With the denial of these applications, particularly employment-based adjustment of status, the USCIS is almost immediately issuing a Notice to Appear (NTA) in removal proceedings. With the USCIS sending almost all employment cases to the Nebraska Service Center (NSC), employers and their sponsored workers can almost expect to receive a Request for Evidence (RFE) from USCIS on the I-140, I-485 or both at some point during the protracted process. The USCIS is brazenly issuing denials on tenuous, and in some cases, patently incorrect, legal bases, leaving applicants and attorneys confused as to do next. An applicant for adjustment of status who has been placed in removal proceedings, however, may have several legal options and must assert his rights in court in order to exercise them.
 
Among the most controversial issues involving denials of employment-based applications for adjustment of status is the USCIS’ interpretation of Section 245(k). Along with Section 245(i), Section 245(k) is an exception to the general rule that in order to adjust status in the US, an applicant must be in "valid nonimmigrant status" at the time of filing the application. Section 245(k) provides that an employment-based immigrant may still be eligible for adjustment of status, as long as the applicant has not failed to maintain "a lawful status" for a period in excess of 180 days. In interpreting Section 245(k), the USCIS has taken the narrow position that "lawful status" means "valid nonimmigrant status," despite the plain meaning of the statutory language, illogic of USCIS’ interpretation and bad policy the position presents.
 
At the heart of the controversy is the question whether the period during which an applicant had a prior I-485, Application for Adjustment of Status, pending with the USCIS is a period during which the applicant was in "a lawful status" for the purposes of 245(k). This situation has arisen many times, where USCIS denies an employment-I-485 because an applicant failed to provide a document to USCIS in response to an RFE or could not obtain a document in time, such as a Visa Screen, due to delays by a third-party such as the CGFNS. In this latter situation, common to many Registered Nurses, the visa screen was the only document needed to complete the adjustment of status process and the inability to provide the document was completely beyond their control! 
 
Since an applicant for adjustment of status is required to remain in the US, must appear for biometrics and fingerprinting and is issued a work authorization document while the I-485 is pending, common sense would suggest that the applicant’s status is "lawful" during this period. Therefore, if the applicant’s properly filed and meritorious I-485 were denied on some technical basis, Section 245(k) should allow the applicant to re-file for adjustment of status within the 180 day "grace period" after the denial. The USCIS, however, has taken the position that the period during which the prior adjustment of status application was pending was not a period of "lawful status," and that an applicant is ineligible for adjustment under Section 245(k) if more than 180 days has elapsed since the applicant’s "nonimmigrant status" expired.
 
Even though Section 245(k) was enacted into law in 1996, the USCIS has failed to promulgate regulations setting forth its position in applying Section 245(k). In response to Federal Litigation instigated by this office and perhaps others across the US, the USCIS issued a memorandum last year in an effort to justify its position, which states in essence that the period during which an I-485 is pending is only deemed a period of "lawful status" if the I-485 is approved! Critical readers of the memorandum may wonder which is more amazing: the absurd position USCIS takes in the memorandum, or the fact that it took 13 year for them to come up with the position.
 
The USCIS’ position is in direct conflict with the plain meaning of Section 245(k). The USCIS’ recent memo purporting to justify its position only adds insult to injury: If the period during which an application for adjustment of status is pending is only "lawful" if the application is approved, Section 245(k) would be rendered virtually meaningless. Unfortunately, only expensive and time consuming litigation will resolve this legal dispute.
 
Worse, the USCIS position is also exacerbating the healthcare crisis in the US and the economy along with it. Many of the affected workers are Registered Nurses and other healthcare workers, of which there is a severe shortage in the US. The shortage drives up the costs and diminishes the quality of medical care in the US. Despite these important policy concerns, the USCIS continues to deny the applications of these important workers on an extremely technical, and invalid, basis. 
 
The only option in response to the USCIS’ recalcitrant position is to fight. Workers whose applications have been denied must fight for the correct interpretation of this law, which only makes common sense, at the USCIS level, in the Immigration Courts and in the US District Courts, until the USCIS correctly interprets the law for all and institutes appropriate policy to at least help alleviate the healthcare crisis in America.