Unpub. BIA on 245(k): Matter of Norra

"The only issue in this appeal is whether the respondent's failed to maintain "lawful status" such that they are not eligible for adjustment of status under section 245(a) of the Act.  Specifically, the record reflects that the respondents filed for extensions of their nonimmigrant visas on October 25, 2005; the visas were set to expire on November 6, 2005 (Exh. 4).  The respondents contend that, despite their diligence in checking the status of their extension requests, they did not receive an approval notice from the Department of Homeland Security ("DHS") until March 2009 (Exh. 4).  The approval notice was back-dated as to be valid through May 2006 but no longer (Exh. 4).....  As such, the Immigration Judge determined that the respondents were out of status longer than 180 days prior to filing their adjustment of status applications in June 2007 such that they are not eligible for adjustment of status under section 245( a) of the Act (I.J. at 6-7)....

In this case, the evidence in the record shows that the respondents filed their extension requests a month before their nonimmigrant visas were set to expire and that they, through counsel, checked the status of their requests with Citizenship and Immigration Services ("CIS") on May 10, 2006; December 8, 2006; and, on June 27, 2007.  Each time, the status checks showed the "current status" of their extension requests as "[c]ase received and pending."  Thus, as late as June 27, 2007, just 2 days prior to filing their applications for adjustment of status, CIS record checks showed the respondents extension requests were still pending and had not yet been approved.  However, in the notices of denial for the respondents' adjustment of status applications, the DHS indicated that their extension requests had been approved and notices had been sent out in January 2006.  The record indicates that there is no duplicate of this alleged notice and the DHS has not provided evidence that such notices were ever mailed to the respondents.  Without evidence that the respondents were mailed notices that their extensions had been granted prior to March 2009, the date of the only approval notice contained in the record, we cannot agree that the respondents were out of status when they filed their adjustment of status applications in June 2007....

Under the circumstances of this case, we find that the respondents are not barred from adjustment of status under section 245(a) of the Act because they were in lawful status during the entire pendency of their extension requests, or until March 2009.  Thus, the respondents were in lawful status when they filed their applications for adjustment of status in June 2007 and should be provided the opportunity to apply for such relief." - Matter of Norra, Mar. 21, 2014, unpub.