EXTENSION OF STAY, CHANGE OF STATUS, UNLAWFUL PRESENCE AND PETTY THEFT
By: Roman P. Mosqueda, Esq.
The rule [8 C.F.R.214.2(c)(4)] is that an extension on of stay (EOS) application may be approved for an alien applicant who maintained his or her nonimmigrant status before the application (Form I-539, $195 filing fee) was filed.
Similarly, 8 C.F.R. 248.1(b) provides that a change of nonimmigrant status (COS) may be approved for an alien who maintained his or her status before the application (Form I-539, $195 filing fee) was filed.
So, the relevant inquiry is whether the alien had maintained his or her
status before the application for extension of stay or change of status was
filed. If not, the application (EOS
or COS) would be denied.
The regulations (C.F.R. 248.1) do not provide a definition of
“maintaining status.”
But in the determination whether the applicant had maintained status
before the application was filed, the U.S. Citizenship and Immigration Services
considers:
(1)
whether the authorized period of admission (stated in Form I-94,
Arrival/Departure Record) or the approved extension of stay (stated in a
new Form I-94 or Form I-797, Notice of Action) has been overstayed; and
(2)
any other conduct relating to the maintenance of current status,
including unauthorized employment. See
the 3/27/03 Podolny Memorandum for Thomas E. Cook.
Under 8 C.F.R. 214.1(c)(4), “an extension of stay may not be approved
for (an) applicant who failed to maintain the previously accorded status or
where such status expired before (the) application or petition was filed, except
that failure to file before the period of previously authorized status expired
may be excused in the discretion of the Service… .”
“(A)n alien will be in status only as long as he or she remains within
the initial period of his or her admission.
Of course, if the alien’s extension of stay or change of status
application is granted, the alien will again be in ‘status’.” See Podolny
Memorandum.
Accrual of Unlawful
Presence:
“Authorized period of admission” or approved extension of stay,
whereby the alien remains in status, is distinguished from “period of stay
authorized by the Attorney General”.
Period
of stay authorized by the Attorney General is defined as including “the entire
period during which a timely filed, non-frivolous application for extension of
stay or change of status is pending with the Service, covering the 120-day
tolling period stated in Section 212(a)(9)(B)(iv) of the Immigration and
Nationality Act and continu(ing) until the date the Service issues a
decision.” See Podolny
Memorandum.
Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act provides
that “an alien is deemed to be unlawfully present in the United States if the
alien is present in the United States after the expiration of the period of stay
authorized by the Attorney General… .”
In order to be considered within a period of stay authorized by the
Attorney General, an alien’s application for extension of stay or change of
status must have been filed before the previously authorized stay expired. See
Adjudicators Field Manual, 30.1(d)(4).
Thus, if an alien filed a timely extension of stay or change of status
application, and that application is ultimately denied, the alien can begin to
accrue unlawful presence beyond the date of the denial, regardless of whether
the alien filed additional, but untimely, requests for extension of stay or
change of status that are awaiting adjudication. See Podolny Memorandum.
But certain aliens who are beneficiaries of employment-based petitions
(First Preference, EB-1 priority workers); Second Preference, EB-2
(Professionals with advance degrees or aliens of exceptional ability); and Third
Preference, EB-3 (skilled workers, professionals and other workers) and
ministers or religious workers, as special immigrants, may adjust status,
provided they have not, for an aggregate period exceeding 180 days:
1.
failed to maintain, continuously, a lawful status;
2.
engaged in unauthorized employment; or
3.
otherwise violated the terms and conditions of the alien’s admission.
See section 245 (k) of the Act.
So, they are given a grace period of 180 days to be out of status or be
unlawfully present, to engage in unauthorized employment (no work permit), or to
violate the terms of their admission.
Petty Theft:
Under Section 484(a) in relation to Section 488 of the California Penal
Code, petty theft is defined as the willful and lawful stealing, taking carrying
leading or driving away the personal property of another, of a value not
exceeding the sum of four hundred dollars ($400.00).
It is also commonly known as shoplifting. Theft is a crime involving
moral turpitude that affects adjustment of status to lawful permanent resident,
as well as, naturalization to United States citizenship.
In order to avoid the adverse effect of a theft crime, the Author was
able to plea bargain a petty theft misdemeanor complaint against a first-time
offender to trespassing under Section 602(k) of the Penal Code, with Assistant
City Attorney Eugene Hall.
And
he obtained a sentence of one-year summary probation, five days of Hollywood
beautification program, and stay away from Costco (Los Feliz) for the period of
probation, from Judge H. Chester Horn, Jr., of Department 78 of the Hollywood
Court, for his client on July 26, 2004.
The lesson from this case is that if your attorney plea bargains hard
enough, you may obtain a better disposition of your criminal case, no matter how
petty the charge is.