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Denial of an Immigrant Petition Does Not Necessarily Invalidate Prior Non-Immigrant Status

By:  Santiago J. Padilla, Esq.

An immigration law issue that I am sometimes asked is whether or not the filing of an application for permanent residency invalidates the nonimmigrant visa of the applicant.  This is a highly sophisticated immigration law question that many immigration practitioners have not dealt with.  However, the answer is rooted in an analysis of the immigration regulations and precedent decisions.

The example is as follows - an O-1 Visa holder desires to apply for permanent residency and applies under the Employment Based First Preference as a person with extraordinary ability. Therefore, the individual files an I-140 Petition and an I-485 Application for Adjustment of Status. However, USCIS subsequently denies the I-140 Petition (including the travel permit that the petitioner obtained). The question is whether or not the O-1 Visa is still valid under the "immigrant intent" doctrine which provides that after having filed a residency petition, the individual cannot apply for a classification that does not have "dual intent."

In fact, the immigration regulations seem to provide that the only non-immigrant classification that is allowed to have "dual intent" is defined in 8 CFR 214.2(h)(16)(i) - H-1C and H-1B and 8 CFR 214.2(l)(16) - L-1 and their dependents.

Therefore, the question is whether or not an H-1B, L, P-1 and/or O-1 visa holder that applies for permanent residency loses his or her underlying nonimmigrant visa.

This issue has been conclusively addressed by the Bureau of Immigration Appeals (BIA) in the precedent decision of Matter of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975); 70 No. 42 Interpreter Releases 1444, 1456-58 (No. 1, 1993). The decision includes a discussion of the evolution of Section 245 of the Immigration and Nationality Act and the maintenance of nonimmigrant status while seeking adjustment of status. Specifically, the 1952 Act provided that "Any alien who shall file an application for adjustment of his status under this section (245) shall thereby terminate his nonimmigrant status."  Id.  However, a 1958 amendment to the Act specifically eliminated this provisionSee Public Law NO. 85-700, August 21, 1958.  In recognition of this, the Bureau of Immigration Appeals determined in Hosseinpour that Congress intentionally eliminated the termination provision so that maintenance of nonimmigrant status would be possible for adjustment of status applicants.

Despite the BIA's decision in Hosseinpour, some practictioners still contend that a residency applicant risks losing his or her nonimmigrant status upon filing a residency petition.  Therefore, the Texas Service Center of USCIS recently clarified that

"Applicants who are in a valid non-immigrant status and file for Adjustment of Status and are subsequently denied may resume a pre-existing and still valid non-immigrant status for duration of that non-immigrant status authorized stay."

See TSC Clarification to American Immigration Lawyers Association, February 11, 2008 Q&A. As such, it is clear that most H-1B, O-1, L and other nonimmigrant visa holders will not automatically lose their nonimmigrant status when they apply for permanent residency in the United States, regardless of whether or not the petition is denied.

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If you have any questions regarding applying for a visa or any other immigration law issues, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at 800-483-7197, at [email protected], or on the internet.

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