In recent months, the CIS has been going back and re-examining pending adjustment of status applications for evidence of unauthorized employment. For purposes of this case study, we will examine the facts of the application for adjustment of status that is pending on behalf of Bill, an employment based EB2 applicant who has continued to hold H1B status since filing his I-485. Bill worked in the United States in H1B status for three years before filing for adjustment of status. After he filed for adjustment of status, he elected to continue to maintain H1B status.

While working for his consulting company employer, Bill's assignment changed several times. Each new assignment involved a new job site. Bill's employer did not obtain a new LCA for the changed work site, nor did they file an amendment to his approved H1B petition. As a result, the work that he did away from the job site specified in his approved H1B petition was not authorized. This, in turn, caused Bill to go out of status.

In the years leading up to the filing of Bill's application for adjustment of status (AOS), he made several trips in and out of the United States. In the interval between his last entry as an H1B and the date he filed for adjustment of status, he had a total of 125 days of unauthorized employment as a result of his employer's failure to obtain a new LCA and amend the H1B petition.

Bill's AOS application was nonetheless valid because of the provisions of Section 245(k) of the Immigration and Nationality Act. This section provides that an employment based applicant who has less than  cumulative 180 days of status violations since his or her last lawful admission and the date of the filing of their I-485 may still apply for and receive adjustment of status.

Once an applicant applies for AOS, ordinary status violations (such as overstay) end. Days in unauthorized employment, however, continue to accrue. In Bill's case, he had 125 days of unauthorized employment when he filed for AOS.

After he filed for adjustment of status, Bill elected to continue to use his H1B status for employment authorization, rather than using the EAD card he was entitled to receive as an AOS applicant. As a result, Bill continued to accumulate days of unauthorized employment. At the start of the twelfth week following his application for AOS, Bill exceeded the permitted 180 cumulative days of status violations. At this point, he became ineligible for adjustment of status.

As an aside, had he applied for and received an EAD card, and then used that as his employment authorization, he would not have had this problem. EAD cards are valid for unrestricted employment authorization and do not require LCAs or amendments.

Six months into his AOS processing, Bill received a request for evidence (RFE) from the CIS asking for evidence of his employment authorization. They compared the addresses shown on his G-325A form with his approved H1B petition and realized that he had moved several times, but his petition had not been approved. After several exchanges with the CIS, it became clear to Bill that he and his employer had failed to comply with the terms of the approved H1B petition and, as a result, he did not have lawful employment authorization.

In a last attempt to convince the CIS that it was not his fault that the employer did not file a new LCA and H1B amendment, he pointed out that these acts were within the exclusive control of the employer and that he had no way of even knowing if the employer had complied. The CIS, in their denial of Bill's application for AOS, pointed out that the regulations require the employer to provide an H1B beneficiary with a copy of the LCA. When Bill did not receive a copy of a new LCA after changing job sites, that should have put him on notice that something was wrong. At that point, he should have asked the employer about the missing LCA.  Had he done so, he would likely have been given some latitude. Since he didn't, he was left without any recourse and his AOS application was denied.

The CIS is now looking into this issue much more closely in AOS cases where the applicant continued to use H1B status for work authorization after filing for AOS. In some cases, where there was a long interval between the applicant's last entry in the US and his or her filing for AOS, they are also examining the validity of the applicant's H1B status prior to filing.