John Valdez’s Legal Blog

Immigration attorneys recently received some good news in the Judicial Court system.  The District Court, Central District of California, in Alimoradi v. USCIS (CV-08-02529 DDP (JCx)) (”Alimoradi”), gave immigration attorneys a great tool in defending clients who seek adjustment of status after committing a technical immigration violation.

The Alimorandi Court ruled that government regulations interpreting the phrase through “no fault of his own or for technical reasons” are impermissibly narrow.  To explain this ruling, I will need to provide you with some background.

The Statutory and Regulatory Provisions 

The above-stated phrase ruled upon is found in the statute for adjustment of status.  Section 245 of the Immigration and Nationality Act generally precludes applicants from adjusting their status to that of a U.S. permanent resident if he works without authorization or violates his status; however, there is an exception if the unauthorized work or status violation occurred through no fault of his own or for technical reasons.  The USCIS has narrowly interpreted the “no fault of his own or for technical reasons” phrase to just four exceptions:

• Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control . . .; or
• A techical violation resulting from inaction of the Service . . . [; or]
• A technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay … [;or]
• A technical violation resulting from the Service’s (USCIS) application of the maximum five/six year period of stay for certain H-1 nurses . . . .

8 CFR section 245.1(d)(2).

The Problem with the Regulations

I have long felt that 8 CFR section 245.1(d)(2) was drafted much too narrow.  Congress drafted the applicable statute to help immigrants adjust their status despite a technical violation that is minor in nature.  Yet, the regulations limited the exception to four very narrow cases. 

I can think of many cases where an immigrant could have violated his immigration status without his knowledge and without his fault.  For example, his employer could have mistated his job duties on an I-129 petition leading to a finding that the duties he actually performed violated the terms of his visa.  The immigrant is not required to sign or review this form, so the mistake would not have been caused by the immigrant.  Yet, this exception is not included in  8 CFR section 245.1(d)(2).  There are countless other examples of technical violations not included in this regulation.

Alimoradi Faults the Regulation

The Alimoradi Court specifically found the ”narrow construction imposed by the regulation is manifestly contrary to the statute.”  The Court, thus, felt that there are other permissible exceptions that will permit immigrants to adjust their status after a minor immigation violation.

The Implications of the Court’s Decision

The Alimoradi Court’s decision is very limited in its precedent.   It is only binding authority in the District Court’s juridiction in the Central District of California.  Yet, it is very important.  Immigration attorneys can use the case as a persuasive argument in other Districts, and other courts may adopt its reasoning.  I, for one, am very happy to have another bullet in my arsenal when arguing similar cases.