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U.K. Woman Eligible for Residency Status After Lawyer Error

April 2, 2020, 4:28 PM

A woman from the United Kingdom may still be eligible for lawful permanent residency in the U.S. even though she fell out of lawful status when her attorney failed to file her visa renewal petition, the Ninth Circuit said.

The Board of Immigration Appeals’ interpretation of a law benefiting non-citizens whose lawful status lapsed through no fault of their own was too narrow, the appeals court said.

Patricia Audrey Peters was authorized to work in the U.S. under an H-1B visa. In 2006 her employer Impact Capital Advisors LLC petitioned to extend the visa.

For nearly 14 years Peters “has been stuck in what can only be described as a bureaucratic nightmare,” the appeals court said. Her attorney at the time assured her that he filed her petition with all necessary paperwork. U.S. Citizenship and Immigration Services claims it never received the petition.

Peters initially had no success finding out why USCIS didn’t act on her petition, and to avoid similar problems in the future she applied for lawful permanent resident status. USCIS denied the application on the grounds that she’d fallen out of lawful status when her H1-B expired more than 180 days before her application.

There’s an exception in 8 U.S.C. § 1255(c)(2) which holds that an applicant’s failure to maintain lawful immigration status won’t bar eligibility for permanent resident status if the failure occurred “through no fault of his own or for technical reasons.” Peters argued she qualified, because either her attorney failed to file the petition despite assuring her he had, or USCIS misplaced it.

But her Immigration Judge and the BIA held that a USCIS regulation limited the exception to four sets of circumstances, none of which Peters qualified for.

“We have little difficulty concluding that the BIA’s decision must be reversed,” the U.S. Court of Appeals for the Ninth Circuit said.

Despite her lawyer’s declaration under oath that he submitted the petition, substantial evidence supported the IJ’s conclusion that he never filed it, the court said.

“An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part,” the court said. “An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer.”

USCIS’s regulation is invalid to the extent it excludes an immigrant’s reasonable reliance on the assistance of counsel from the circumstances covered by the phrase “through no fault of his own,” the court said.

The opinion was written by Judge Paul J. Watford and joined by Judge N. Randy Smith and Judge Edward R. Korman of the Eastern District of New York, sitting by designation.

The court remanded the case to the BIA to consider the IJ’s alternative ground for denying Peters’ petition.

Peters is represented by O’Melveny & Myers LLP.

The case is Peters v. Barr, 9th Cir., No. 16-73509, 4/2/20.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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