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« Impact of TN Visa Reciprocity Changes to Previously Issued TN Visas | Main | USCIS Confirms No Portability Unless in H-1B Status »
Wednesday
Apr132011

Court Confirms 240 Day Rule for EOS Petition Prevents Removal

On Tuesday, in the case of El Badrawi v. DHS, a federal district court confirmed its prior opinion that the "240-day rule", which provides extended work authorization privileges for timely filed I-129 Extension of Status (EOS) petitions, does provide the beneficiary with the right to remain in the U.S. during the extended work authorization period. USCIS had taken the position that the 240 day rule only provides employment authorization, and not the legal status to remain in the U.S.

USCIS had previously convinced the Fifth Circuit federal court of appeals that the 240 day rule did not prevent the denial of an Adjustment of Status (AOS) application for failure to maintain lawful immigration status. See my prior post on the Bokhari v. Holder case. The court in El Badrawi v. DHS did not find the reasoning in Bokhari v. Holder persuasive, and also noted that its case dealt with removal (deportation) as opposed to an Adjustment of Status application.

The result from this decision is that TN visa workers may have some assurance that they cannot be removed from the U.S. during the 240 day extended work authorization period. Yet, at the same time, TN visa workers and others should be aware that under Bokhari v. Holder, utilizing the 240 day rule may result in the denial of a subsequent AOS application for failing to maintain lawful immigration status. In light of the incongruency of these decisions, I suspect that there will be future court cases that will attempt to reconcile the discrepancies in these two court opinions.

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