Kolken & Kolken. Results-oriented immigration lawyers - specializing in Green Card, Deportation Cases and Temporary Visas.

DEPORTATION PROCEEDINGS TERMINATED

Published: Nov 27, 2012 3:00 pm

Our client is a married native and citizen of India. He was lawfully admitted to the United States in L-1B specialized knowledge status, and his wife was admitted in L-2 dependent status.  Before his status expired, his employer timely filed an extension petition. His status expired while the employer was awaiting an adjudication of the petition.

The regulations provide that a person can continue to be employed for a period of 240 days beyond his expiry date pending an adjudication of a timely application for an extension. During this period, he and his wife were encountered by officers of the Department of Homeland Security (DHS) and Immigration Court proceedings were instituted seeking their deportation as overstays. It is the position of the DHS that no lawful status can be acquired when a person remains in the United States after the expiry of his status, notwithstanding the regulation permitting continued employment while awaiting a timely filed application for extension of status.

At this point we were retained.

We immediately contacted the Immigration Court where the proceeding had been venued and determined that the Office of Chief Counsel for the district had not yet filed the legal papers which conferred jurisdiction upon the Court. We then submitted a formal letter to the Office of Chief Counsel for the district and served them with our Notices to Appear as Attorney on behalf of our clients. We advised them of what had occurred and pointed out that another regulation prevented the adjudication of the timely filed application for extension of status once Immigration Court proceedings were instituted.  We further advised them that recently a United States District Court Judge in Connecticut had ruled that the regulation allowing continued employment conferred lawful status, contrary to the U.S. Department of Homeland Security’s position.

We requested that the Immigration Court proceeding be terminated as improvidently begun, prior to the filing of the charging document with the Immigration Court, which would have delayed the resolution of the matter for many months, and while they had jurisdiction to terminate the proceeding. Under the circumstances presented, DHS elected not to pursue the Immigration Court proceedings and to allow the adjudication of the application for extension, and as a result, the Immigration Court proceedings were terminated at our request. Because we were retained immediately, we were able to save the clients the agony and expense of a prolonged Immigration Court proceeding.

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