good morning your honor i represent mr mr ma and his last name is ma i represent mr ma and in your name my name is jean regulations grant of authority to continue employment includes lawful immigration status this is a very important issue for all of the people that come under this statute which is all the work based visa non citizen don't draft the briefs but still i'd like to add some points that aren't mentioned in the briefs are supposed to include all your arguments in your briefs yes yes there mention elaborated on as i would have i drafted it but so i'd like to address it the government tries to tries to pigeon well tries to expand this case beyond what this case i by saying that all employment authorization would mean status for everyone which is not this case the issue here is this specific statute which is very specific to work base six categories which doesn't include work authorization under two seventy four eight point two zero twenty and so therefore at least one of their theories is so long as the regulation is valid and upheld by other circuits that would exclude your argument that's not true because if you look at the statute the definition of  employment so it specifically refers to those that are authorized for employment now you just sort of lost me there ok let's go back  answer when you said the statute which provision are you have to be talking about are you talking about us syria talking about the regulations you know i'm talking about the definition while i was address ing your honour's reference to that to the definition of lawful immigration status that's an eight c f r twelve forty five point one right subsection two little little dollar much to an alien specific that chapters large so within that chapter is eight c f r subsection sorry eight c f r to fourteen point one  which provides for employment but as it also doesn't cover the what your client got which is work authorization the automatic work authorization under two seventy four a point twelve twenty yes because it's specifically deals with work authorization for those with extended visa applications ok but that particular section has to do with a an automatic right that that reference is to employment and well i'm sure there's a lot of employment but the swell effect provision that your client is is relying on is to seventy four eight point twelve twenty so my question to you is what's the connection between if our part to fourteen and that section you're relying on the connection is that the employment the definition of lawful immigration status that you had started off with right were first were first to meaning anyone this type of person can and can have lawful immigration status which is double double why someone that has an extended visa so as defined by our part to fourteen so you go to a t f are part two fourteen and this to fourteen point one percent specifically deals with those with employment and any and specifically states any other nonimmigrant in the u s may not engage in any employment unless he has been accorded a non immigration classification which authorizes employment and so the subject of regulation here provides for that authorized employment for someone that has an exe specifically and extended visa applications pending and so that is the link between these two the link probably pronouncing it wrong so let me ask you let me ask you a quote you started off by saying you wanted to add some argument or you wanted to tell you wanted to refine the argument in a brief you know i  this isn't even i was substituted and i think i agree i really you know your arguments need to be in the brief because then i wasted my whole entire time yeah i completely agree with you and i apologize for my predecessors brief that it's not well i'm not sure so sure you're pretty but your predecessors brief was not you know thorough and incomplete and high skilled data scientist i don't even know they existed and he exists and he had a lot of options available to him he could have applied for asylum his parents are political dis he has a b a he has a plus years of experience in the field here a lot of options for him if i were if i represent him earlier i would have done more but he he's not one of the people that the president wants to remove huey is far from that type of person he he there is a technicality here and we're talking about a difference of of six days i mean why this issue is important is because he has filed his adjustment to well his employer filed an adjustment of status application for him to get a green card but that was file beyond one eighty days he's allowed one eighty days of unlawful presence so it was filed beyond one eight days and the key why it's whether or not it's beyond or under we're saying it's  hundred seventy four days so the difference whether it's past one hundred eighty or actually under seventy four days is based on the statute whether or not this statute gave him lawful immigration status and so that's the crux of why we're arguing this statute and so we're just arguing for that six days so we were talking about calculations in the prior case we're just arguing for six days and it comes down to this statute this statute is he wasn't if he was authorized to work and if he was allowed to be in the united states during that period then he would have one hundred seventy may please the court robert thompson for the government it's one of the basic fundamental prop properties of an immigration law system that's based upon the government granting benefits to come into the country and stay in the country for non  individual can't grant themselves status and yet that's what the petitioner here is asking us to do he saying merely because i filed an application to extend my h one b status to extend the period of authorized  and i get the employment authorization i automatically get lawful status in the united states that can't be right the petitioner says that somehow the employment authorization provision in this case and that the grant of the employment authorization somehow creates that lawful status but if you look at twelve fifty five k that can't be right as well twelve fifty five k i believe it is  what i believe it is two subsection two right it would be has to actually has three criteria you can't be out for more than one hundred eighty days one of them is lawful status so you can't have more than one hundred eighty days of office and it is you also can't have more than one hundred eighty days of unauthorized employment it seems that you would have to have satisfy both of those criteria and you could satisfy one by getting employment authorization that counts to get over your authorized employment period but then you also can use that to get rid of the requirement that you must be in lawful status or must not be outside of lawful status for more than one hundred eighty days  second there is also a positive definition of lawful immigration status as you pointed out it and that require that that has a list of under two forty five  c f r two forty five point one d one six things right an individual is unlawful immigration status if one they're a lawful permanent resident two they're a nonimmigrant within their authorized period of stay or an extension so her to her argument is that the definition in the two and it's reference to and who's not immigrant status has been extended in accordance with part two fourteen eight c f r chapter let me look at that and so he responded i mean that subsection he specifically refers to employment rate and then there is specific language here that any other nonimmigrant in the united states may not engage in any employment unless he has been accorded nonimmigrant classification which authorizes employment or has been granted permission to engage in employment which would mean outside of some status right so he's either here or status or for example an individual who  applied for adjustment status or who has applied for asylum an individual who has applied for some benefit the government has allowed them for various us for purposes of we don't want people being without employment going destitute while they are seeking benefits that we allow some individuals to work even though they don't have status so what this provision is talking about it isn't a status granting provision the status granting provisions are in  fourteen point two and other provisions for example the ones with t v s and you faeces later on in the provision but the one provision is purely about who gets employment it's not about lawful status so that reference back in two forty five it's an individual who's been extended a status under those provisions and not every single provision is going to be a status granting pr now the third thing is if we can go back and look at their specific statute that they talked about in their brief than that is eight c f r two seventy four a point twelve b twenty one of the things you want to look at when you look at that if you look at that statute which says employment instant incident to status that provision sections one through one thousand do something very clear they say if you have status if you've been granted status under this provision over here into fourteen for a certain visa then you get in then you're authorized to work for this person in particular this particular class and employer this particular employer and one  d looks expressly explicitly like that what twenty does is that it says if you were in status so again it says there's a stat you were in status if that and you applied to extend your period of authorized stay then you get employment authorization it doesn't say that by getting that employment authorization you get lawful status and in fact if you look specifically at twenty twenty itself it authorizes the employment period of in place of employment authorization beginning on the date of the expiration of the period of authorized stay your period of authorized stay is over and yet you're allowed to continue working and the reason why you have this is because imagine we didn't have the subsection you have people who had applied to extend their status perfectly permissible and who receive their adjudicates and says you now have the status but for whom there is a period between the time they applied in the time it was granted retroactively back to the time that you know back to the period that they're authorized to ended who couldn't have worked so us is so the government had to make a choice and that was to allow individuals who were going to get the status who would subsequently get their extensions not to work in the period during which they had the application so that the people who would not get the their applications approved wouldn't work or alternatively to let the people who did not have who were not going to get the benefit who extensions were going to be denied allow them to work so that the people who could who did ultimately get their extensions granted could work during the period if the procreation here for status he filed the application his application for adjustment status and that is the is this is the h one b you're asking about or is it the or is it the lawful permanent status application both his adjustment application was filed when he was no longer in lawful immigrants status there's no can and there's no question about that first it was the first one was filed and that's the reason why he has the benefit of the twenty because he filed it before the period it within the eleven days before it expired so that that really didn't matter one thing that the petitioner could have done he could have brought himself into the hundred eighty days he had a labor certification that he had filed and that that december and that was granted on january i believe was january these second that was a poor january third two thousand and seven as a reason i asked the question i wondered if you could have taken some action during the third we wouldn't be here today because he would be within one hundred eighty days is he have any alternative now is god's will says no i he can he can attempt cons process if he is removed he can certainly attempt to seek a waiver of his time outside of the country and consul process to return to the country but this is one of those unfortunate situations in which the rules are set up such that you know and we do not dispute that he is he has a fantastic background that he is going to have to try and return to the country from abroad if this is if the if the court denies his petition for  courts deals with the same issue and goes and you lab or it's on why for so many reasons the this statute this particular statute does include immigration status for the specific type of people and regarding the filing of the filing of the employment based adjustment of status application my client contrary to what the government just told you my client has no control over that it's in the employer based and so his employer files these applications for him and so he has no control over the day just like his employer file the h one b extension employers are not allowed to file it will be extensions beyond six months so they have to wait until six months before the their employee expires to file an extension they can file earlier to avoid a gap so there are there are also their hands are tied because of that and that's that's based on the statute is  statutory that they have to wait six months and so there's definitely going to be a gap for all of these h one b employees that need extensions because they can't file earlier and with the president's extreme vetting and the delays going on with us c i s that's why i was so many regulations there are so many there's so much tolling there's and there's regarding a failure for technical reasons because of the government's delay and this is all not in the non citizens control mr maher has no control and he has no notice there's a there's a serious due process violation here the government wants to do with these what i filed a twenty a j letter about was the pamphlet produced by the government as to what people in mr maher situation should do should they stay or should they go and they have no notice as to whether or not they should stay or go in there and they can't they can't go they can stay if they go he risks abandoning his extension application the government may deny his h one b extension because he departed treating that as an abandonment he would have a very hard time returning if his visa had expired he would have to go get a new visa your time we appreciate your arguments on both sides of the matter is submitted at this time