FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAIM ATTIAS,

Plaintiff-Appellant,

v.

KRISTINE R. CRANDALL, Acting

Center Director of Nebraska Service

Center, U.S. Citizenship and

Immigration Services,

Defendant-Appellee.

No. 18-56629

D.C. No.

2:18-cv-02334-

DMG-JC

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted February 14, 2020

Pasadena, California

Filed July 30, 2020

Before: Jay S. Bybee and Daniel P. Collins, Circuit

Judges, and Barry Ted Moskowitz,

*

 District Judge.

Opinion by Judge Bybee

* The Honorable Barry Ted Moskowitz, United States District Judge

for the Southern District of California, sitting by designation.
2 ATTIAS V. CRANDALL

SUMMARY**

Immigration 

Affirming the district court’s grant of summary judgment

to the United States Citizenship and Immigration Services

(USCIS), the panel held that Haim Attias was ineligible for

adjustment of status to lawful-permanent-resident status

because he failed to establish that his lapse in lawful

immigration status was “through no fault of his own or for

technical reasons.” 

Under 8 U.S.C. § 1255(c)(2), an alien is barred from

adjusting status if he “has failed (other than through no fault

of his own or for technical reasons) to maintain continuously

a lawful status since entry into the United States.” As

relevant here, an implementing regulation, 8 C.F.R.

§ 245.1(d)(2)(ii), interprets the phrase, “other than through no

fault of his own or for technical reasons,” to mean a

“technical violation resulting from inaction of [USCIS].” 

Also as relevant here, only a lapse in status exceeding 180

days will preclude adjustment.

Attias was granted a B-1 employment visa, and the day

before the visa expired, he applied for an extension of the

visa. More than a year later, USCIS denied the extension. 

Attias had also filed an application for adjustment of status

based on his employer’s petition for an immigrant visa on his

behalf. After Attias’s visa extension was denied, USCIS

denied the adjustment application on the ground that he had

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ATTIAS V. CRANDALL 3

failed to maintain valid legal status for a period of over 180

days. 

The district court agreed with USCIS, relying on USCIS’s

Policy Manual, which interprets 8 C.F.R. § 245.1(d)(2)(ii) to

mean that if an application for a visa extension is ultimately

denied, an alien’s legal status lapses on the visa’s expiration

date, and no “technical violation” resulting from USCIS

inaction has occurred. 

The panel considered whether 8 C.F.R. § 245.1(d)(2)(ii)

is “genuinely ambiguous” such that the issue of deference

must be considered. Examining the language of the

regulation, the panel concluded that a “technical violation”

occurs only if the violation is a consequence of USCIS’s

inaction on a pending application; if the violation is caused by

anything within the alien’s control, such as substantive

ineligibility for an extension of lawful status, there is no

“technical violation.” Addressing the scenario where, as

here, an alien claims that a lapse in status was caused by

USCIS’s inaction on an application to extend lawful status,

the panel thus concluded that a “technical violation” occurs

only if the alien’s application to maintain lawful status is

ultimately granted. 

Because the panel concluded that this is the only way the

regulation can be read, it concluded that the text is not

“genuinely ambiguous,” and thus, the panel concluded that it

need not grant Auer deference to USCIS’s interpretation of

the regulation. However, the panel noted that it would hold

USCIS’s interpretation to be reasonable if it were to reach the

issue of deference.
4 ATTIAS V. CRANDALL

With respect to Attias, the panel concluded that his

unlawful status resulted from his failure to demonstrate

entitlement to an extension of his B-1 status, meaning that the

lapse was not excused as having occurred “through no fault

of his own or for technical reasons.” Moreover, because the

lapse exceeded 180 days, the panel concluded that Attias was

ineligible of adjustment of status. 

COUNSEL

Jonathan R. Sturman (argued) and David M. Sturman, Law

Office of David M. Sturman APC, Encino, California, for

Plaintiff-Appellant.

Elizabeth D. Kurlan (argued) and Daniel P. Chung, Trial

Attorneys; Samuel P. Go, Senior Litigation Counsel; Glenn

M. Girdharry, Assistant Director; William C. Peachey,

Director; Joseph H. Hunt, Assistant Attorney General; Office

of Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for DefendantAppellee.

OPINION

BYBEE, Circuit Judge:

The United States Citizenship and Immigration Services

(USCIS) denied Appellant Haim Attias’s application for

lawful-permanent-resident status. USCIS found that Attias

had failed to continuously maintain lawful status prior to the

filing of his application, rendering him ineligible for an

adjustment in status. See 8 U.S.C. § 1255(c). Attias filed
ATTIAS V. CRANDALL 5

suit, claiming that his lapse in lawful status is excused

because the lapse occurred “through no fault of his own or for

technical reasons.” Id. Thus, Attias contends that USCIS’s

decision should be “set aside” under the Administrative

Procedure Act (APA) because it is “not in accordance with

law.” 5 U.S.C. § 706(2). The district court disagreed and

granted summary judgment to USCIS. We affirm.

I. BACKGROUND AND PROCEEDINGS

A. Statute, Regulations, and USCIS Guidance

After being lawfully “admitted or paroled into the United

States,” an alien’s status “may be adjusted” to lawful

permanent resident if certain conditions are met. 8 U.S.C.

§ 1255(a). But an alien is categorically prohibited from

obtaining an adjustment of status if the alien falls into one of

eight categories enumerated in 8 U.S.C. § 1255(c). The

relevant category for our purposes is the second one. Under

that provision, an alien is barred from adjusting status if the

alien “has failed (other than through no fault of his own or for

technical reasons) to maintain continuously a lawful status

since entry into the United States.” Id. § 1255(c)(2). In other

words, an alien is ineligible for lawful-permanent-resident

status if the alien’s lawful status has lapsed at any point since

entering the country, unless the alien demonstrates the lapse

occurred “through no fault of his own or for technical

reasons.” Id.

The statute provides no further definition of the phrases

“lawful status” or “through no fault of his own or for

technical reasons.” See id. But an implementing regulation

does. As relevant here, the regulation defines “[l]awful

immigration status” as “[a]n alien admitted to the United
6 ATTIAS V. CRANDALL

States in nonimmigrant status . . . whose initial period of

admission has not expired or whose nonimmigrant status has

been extended.” 8 C.F.R. § 245.1(d)(1)(ii). The regulation

also interprets “[t]he parenthetical phrase other than through

no fault of his or her own or for technical reasons” to mean

“[a] technical violation resulting from inaction of [USCIS]

(as for example, where an applicant establishes that he or she

properlyfiled a timely request to maintain status and [USCIS]

has not yet acted on that request).” Id. § 245.1(d)(2)(ii).

1

Thus, if an alien’s lapse in lawful status “result[s] from

inaction of” USCIS, the lapse is excused and will not render

the alien ineligible for adjustment of status under § 1255(c). 

Id.

The final relevant statutory provision is 8 U.S.C.

§ 1255(k). That provision creates an exception to § 1255(c)’s

categorical bar on adjusting status even when an alien’s lapse

in lawful status is the alien’s fault. Under § 1255(k), if an

alien is eligible for certain employment-related visas, a lapse

in lawful status will not preclude the alien from obtaining an

adjustment of status so long as the lapse did not exceed an

“aggregate period” of 180 days. Id. § 1255(k).2 Put

differently, § 1255(k) creates a blanket 180-day “grace

period” for particular aliens. See Peters v. Barr, 954 F.3d

1238, 1240 (9th Cir. 2020). These individuals are not

prohibited from adjusting status because of a lapse in lawful

1 The regulation describes three other situations that satisfy

§ 1255(c)’s parenthetical phrase, none of which is relevant here. See

8 C.F.R. § 245.1(d)(2)(i), (iii)–(iv).

2 Section 1255(k) contains several other conditions an alienmust meet

to take advantage ofthe 180-day grace period, but those conditions are not

at issue.
ATTIAS V. CRANDALL 7

status unless the lapse exceeded 180 days, at which point

§ 1255(c)’s prohibition would apply.

Two documents created by USCIS explain the agency’s

interpretation of these statutory and regulatory provisions

when adjudicating an alien’s application to adjust status. The

first document is a memorandum issued in 2008 by Donald

Neufeld revising USCIS’s Adjudicator’s Field Manual,

Chapter 23.5(d). Memorandum from Donald Neufeld, Acting

Assoc. Dir., Domestic Operations, United States Citizenship

and Immigration Services (July 14, 2008) [hereinafter

Neufeld Memo]. The Neufeld Memo primarily focused on

the interaction between § 1255(k) and § 1255(c). See id. at 1.

As relevant here, the Neufeld Memo explored the concept

of “lawful immigration status” and the effect a pending

application for an extension of or adjustment in status has on

an alien’s legal standing. Consistent with the regulatory

definition of “lawful immigration status,” the Neufeld Memo

notes that “[e]xpiration, revocation, or violation of status puts

a nonimmigrant out of status, and the alien remains out of

status until some adjudication restores status or the alien

departs the United States.” Id. at 5. Thus, merely filing an

application to extend lawful status does not grant the alien

lawful status: “The period during which an alien has a

pending [extension of stay], [change of status], or adjustment

of status application does not constitute, in and of itself, a

period in which the alien is in a lawful ‘status.’” Id. at 6.3If,

3 By way of example, the Neufeld Memo states, “if an alien applied

for adjustment of status three days prior to the expiration of his or her

nonimmigrant status and the adjustment of status application was

eventually denied, the alien will not be considered to be in lawful status

after the expiration of the nonimmigrant status.” Neufeld Memo at 5.
8 ATTIAS V. CRANDALL

however, the application is “ultimately approved,” USCIS

will treat the alien as if “the alien was in a lawful

nonimmigrant status” during the application’s pendency. Id.

Additionally, the Neufeld Memo took the position that where

the unlawful status resulted from a “‘technical violation’ or

through no fault of the applicant, . . . such period does not

count against the 180-day period” allowed by § 1255(k). Id.

The second document promulgated by USCIS is the

agency’s Policy Manual. In Volume Seven, Part B, Chapter

Four of the Policy Manual, USCIS provides guidance for

applying 8 C.F.R. § 245.1(d)(2). Recall that this regulation

interprets § 1255(c)’s exculpatory clause—“through no fault

[of the alien] or for technical reasons”—to include “[a]

technical violation resulting from inaction of [USCIS] (as for

example, where an applicant establishes that he or she

properlyfiled a timely request to maintain status and [USCIS]

has not yet acted on that request).” 8 C.F.R. § 245.1(d)(2)(ii). 

According to the Policy Manual, an alien may take advantage

of this regulatory provision only if, prior to the expiration of

the alien’s lawful status, the alien “filed an application to

extend or change nonimmigrant status that was meritorious in

fact, not frivolous or fraudulent, or otherwise designed to

delay removal or departure from the United States.” 

Mirroring the analysis set forth in the Neufeld Memo, the

Policy Manual notes that if the application is ultimately

approved, “the start date of the extended status is retroactive

to the expiration date of the initial or previously extended

period of status.” But if the application is denied, the alien’s

legal status lapsed on the expiration date, and “[a] technical

violation resulting from inaction of [USCIS]” has not

occurred. See 8 C.F.R. § 245.1(d)(2)(ii).
ATTIAS V. CRANDALL 9

To illustrate this point, the Policy Manual provides the

following example. An alien’s legal status will expire on

June 30, 2009. Prior to that date, on June 1, the alien files an

application to extend his legal status for six months. USCIS

does not act on that application before June 30, so the alien’s

lawful status expires. On August 1, 2009, the alien then files

an application to adjust status. The Policy Manual explains

that if USCIS eventually grants the June 1 application to

extend status, “USCIS considers the [alien] to have

continuously maintained lawful status for purposes of

adjusting status.” In other words, the lapse in lawful status is

forgiven as a “technical violation resulting from inaction of

USCIS.” On the other hand, “if USCIS denied the extension

application, the [alien] would have fallen out of status as of

June 30 and would be barred from adjusting status, unless an

exemption applies.” Thus, according to USCIS’s Policy

Manual, whether an alien who filed a timely application to

extend status may take advantage of 8 C.F.R.

§ 245.1(d)(2)(ii) depends on USCIS’s final resolution of the

extension application.

B. Facts and Proceedings

With the legal framework and agency guidance in mind,

we now turn to the facts of this case. Attias, a citizen of

Israel, was admitted to the United States on a B-2

nonimmigrant visa in 2015. His B-2 visa was valid until

November 2, 2015. In September 2015, Attias filed an

application to change his B-2 visa to a B-1 visa.4 USCIS

approved Attias’s application, changing Attias’s status to a

4 A B-1 visa is for business purposes. A B-2 visa is generally for

tourism. See 8 U.S.C. § 1101(a)(15)(B).
10 ATTIAS V. CRANDALL

B-1 nonimmigrant visa. Attias’s B-1 visa was valid from

February 29, 2016 to April 2, 2016.

On April 1, 2016, the day before his B-1 visa expired,

Attias filed a Form I-539 Application to Extend/Change

Nonimmigrant Status (Form I-539) requesting an extension

of his B-1 visa until October 5, 2016. USCIS did not

immediately act on this request, so Attias’s B-1 visa expired

the next day. Without the visa, Attias’s continued presence

in the United States was unlawful.

USCIS first responded to Attias’s Form I-539 on July 19,

2016, when it requested that Attias submit additional

evidence supporting his continued eligibility for a B-1 visa. 

Attias responded to the request for evidence on August 16,

2016. Nearly a year later, on July 25, 2017, USCIS denied

Attias’s application to extend his B-1 visa, explaining that

Attias had failed to demonstrate that his presence in the

United States would be temporary, making him ineligible for

the visa.

Attias did not challenge that decision. Instead, even

before his request to extend his B-1 visa was denied, Attias

began attempting to obtain legal status through other means. 

On January 26, 2017, his employer filed a Form I-140

Immigrant Petition for Alien Worker, which was granted on

November 29, 2017. In conjunction with that filing, Attias

filed a Form I-485 Application for Adjustment of Status

(Form I-485), requesting he be given lawful-permanentresident status.

USCIS denied the Form I-485 on February 9, 2018. 

Relying on § 1255(c), § 1255(k), and 8 C.F.R. § 245.1,

USCIS explained that because Attias’s Form I-539
ATTIAS V. CRANDALL 11

application to extend his B-1 visa was denied, Attias’s

“nonimmigrant status expired on April 2, 2016.” 

Accordingly, the agency found that Attias “failed to maintain

a valid nonimmigrant status from April 3, 2016 to January 25,

2017 which constitutes 9 months and 23 days (i.e. 298 days).” 

Because this lapse in legal status exceeded 180 days, USCIS

determined that § 1255(k) did not apply. Thus, USCIS

concluded that Attias was “restricted from adjusting [status]

as described under [8 U.S.C. § 1255](c)(2), (7) or (8),” so

Attias’s “application may not be approved.”5

Attias timelysought reconsideration ofUSCIS’s decision. 

He claimed that his lapse in lawful status was excused under

§ 1255(c) because the lapse occurred “through no fault of his

own or for technical reasons.” Relying on 8 C.F.R.

§ 245.1(d)(2)(ii), Attias argued that USCIS’s delay in acting

on his timely filed Form I-539 caused a technical violation,

excusing his unlawful status.

USCIS denied the motion to reconsider. Citing the

Neufeld Memo, USCIS explained that an individual falls “out

of status” upon “[e]xpiration, revocation, or violation of

status,” and the pendency of an “application does not

constitute, in and of itself, a period in which the alien is in a

lawful ‘status.’” When Attias’s B-2 visa expired on April 2,

2016, Attias was no longer in lawful status. Even though

USCIS’s inaction on Attias’s Form I-539 “appears to have

5 Because his employer’s FormI-140 was granted, USCIS considered

Attias to be in a lawful status beginning on January 26, 2017, the day that

I-140 application was filed. Attias was therefore in lawful status on the

day he filed his Form I-485 application to adjust his status. Cf. 8 U.S.C.

§ 1255(c)(2) (noting that it is generally an independent bar to adjustment

ofstatus ifthe alien “is in unlawful immigration status on the date of filing

the application for adjustment.”).
12 ATTIAS V. CRANDALL

exceeded normal processing times,” USCIS ultimatelydenied

the Form I-539. And because the Form I-539 was denied,

“the period during which [that] application was pending does

not constitute a lawful status.” Thus, Attias “failed to

maintain a valid nonimmigrant status” for 298 days,

rendering him ineligible for an adjustment of status to lawful

permanent resident.

Following USCIS’s denial of his motion to reconsider,

Attias initiated this lawsuit. He requested that USCIS’s

judgment be set aside under the APA. Attias contended that

USCIS had misread the statute and regulation, arguing that

USCIS’s delay in adjudicating his Form I-539 caused a

“technical violation” under 8 C.F.R. § 245.1(d)(2)(ii) that

excused his failure to maintain lawful status.

The district court rejected Attias’s argument and granted

summary judgment to USCIS. In its summary-judgment

order, the district court sua sponte took judicial notice of

USCIS’s Policy Manual. The court found that the Policy

Manual’s interpretation of 8 C.F.R. § 245.1(d)(2)(ii) was “not

plainly erroneous or inconsistent with” the regulation, so that

interpretation must control. And under USCIS’s

interpretation, Attias’s lapse in lawful status was not excused

because USCIS ultimately denied his Form I-539. 

Accordingly, USCIS’s denial of Attias’s I-485 was not

contrary to law under the APA.

Following entry of the summary-judgment order, Attias

filed a motion for reconsideration. The district court denied

the motion, and this appeal followed.6

6 The district court had jurisdiction under 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291.
ATTIAS V. CRANDALL 13

II. ANALYSIS

Under the APA, a “reviewing court shall . . . hold

unlawful and set aside agency action, findings, and

conclusions found to be . . . not in accordance with law.” 

5 U.S.C. § 706. Attias argues that USCIS’s denial of his

Form I-539 on the grounds that he failed to continuously

maintain lawful status is contrary to § 1255(c) and 8 C.F.R.

§ 245.1(d)(2)(ii). In his view, the facts of this case fall

squarely within the text of the regulation—he “filed a timely

request to maintain status” and USCIS did not “act[] on that

request” between April 3, 2016 and January 25, 2017, the

period of his lapse in lawful status. See 8 C.F.R.

§ 245.1(d)(2)(ii). As a result, his lapse in lawful status was

the result of a “technical violation” and should be excused.

USCIS takes a different view. It contends that its

interpretation of 8 C.F.R. § 245.1(d)(2)(ii) set forth in the

Policy Manual is entitled to deference. And under that

interpretation, no “technical violation” occurred here because

Attias’s Form I-539 was ultimately denied. Thus, he fell out

of lawful status when his B-1 visa expired on April 3, 2016,

and that lapse in lawful status is not excused, precluding him

from obtaining an adjustment of status to lawful permanent

resident.

When faced with an agency’s interpretation of its own

regulation, we must first determine whether the regulation is

We review the district court’s grant of summary judgment to USCIS

de novo. Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir.

2017). We may affirm the district court’s judgment “on any ground

supported by the record.” Lima v. U.S. Dep’t of Educ., 947 F.3d 1122,

1125 (9th Cir. 2020).
14 ATTIAS V. CRANDALL

“genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400,

2414 (2019). To determine if a regulation’s text is genuinely

ambiguous, we must “resort[] to all the standard tools of

interpretation,” including analysis of the regulation’s “text,

structure, history, and purpose.” Id. at 2414–15. If the

regulation’s text is unambiguous, we give no deference to the

agency’s interpretation: “[t]he regulation then just means

what it means.” Kisor, 139 S. Ct. at 2415. But if the

regulation is ambiguous, we will defer to the agency’s

interpretation so long as that interpretation is “reasonable,” is

based on the agency’s “substantive expertise,” “reflect[s] [the

agency’s] fair and considered judgment,” and represents “the

agency’s authoritative or official position.” Id. at 2415–17

(internal quotation marks omitted).

As we previously noted, the regulatory provision

primarily at issue here is 8 C.F.R. § 245.1(d)(2)(ii), which

interprets § 1255(c)’s parenthetical exculpatory clause to

include “[a] technical violation resulting from inaction of

[USCIS].” The key textual phrase for our purposes is

“resulting from.” The phrase seems plain enough, but our

instincts are confirmed in various dictionaries, which define

“result” as “to proceed or arise as a consequence, effect, or

conclusion.” Result, Merriam-Webster.com (last visited June

23, 2020); see also Result, Black’s Law Dictionary (11th ed.

2019) (defining “result” as “[t]o be a physical, logical, or

legal consequence; to proceed as an outcome or conclusion”);

Result, Oxford English Dictionary Online (last visited June

23, 2020) (defining “result” as “[t]o arise as a consequence,

effect, or outcome of some action, process, or design”). 

Consistent with these definitions, a “technical violation”

occurs under the regulation only if the violation is a

consequence or effect of USCIS’s inaction on a pending

application. In other words, the alien’s lapse in lawful status
ATTIAS V. CRANDALL 15

must be caused by bureaucratic delay. If the lapse is caused

by anything within the alien’s control, including a failure to

anticipate his deadlines, this subsection of the regulation does

not apply. See Xiao Lu Ma v. Sessions, 907 F.3d 1191, 1199

(9th Cir. 2018) (explaining how the alien might have avoided

“inflexible requirements [that] inevitably produce painful

outcomes”).

This reading of the phrase “resulting from” informs our

interpretation of the example set forth in the regulation’s text. 

Recall that the regulation articulates the following example of

a technical violation: “where an applicant establishes that he

or she properly filed a timely request to maintain status and

[USCIS] has not yet acted on that request.” 8 C.F.R.

§ 245.1(d)(2)(ii). If read in isolation, this example appears to

cast a broad net—so long as an alien files a timely application

to maintain status, any lapse in legal status is excused while

that application remains pending, even if the lapse is not

caused by USCIS’s inaction. But such a broad interpretation

is inconsistent with the text of the regulation as a whole. 

Indeed, this interpretation would nullify the requirement that

the lapse “result[] from” USCIS’s inaction. See id.

Simple hypotheticals will demonstrate the point. Suppose

that an alien files a timely, meritorious application to extend

status. If USCIS acts with instantaneous dispatch, the

application will be granted and there will be no lapse in the

alien’s status. If, however, USCIS does not act with such

dispatch, the alien will be temporarily out of status until the

application is granted. USCIS considers that gap in status to

be “[a] technical violation resulting from inaction of

[USCIS].” 8 C.F.R. § 245.1(d)(2)(ii). The technical violation

is excused under § 1255(c). Let’s change the hypothetical. 

Assume an alien files a clearly frivolous application to extend
16 ATTIAS V. CRANDALL

lawful status just before the alien’s lawful status expires. 

USCIS does not act on that application for several months, so

the alien’s lawful status lapses. Because the application is

frivolous, USCIS will eventually deny it. In this scenario, the

alien’s lapse in lawful status did not result from USCIS’s

inaction, but instead resulted from the alien’s substantive

ineligibility for an extension of lawful status. That lapse is

not a “technical violation” excused under § 1255(c). A

“technical violation” thus occurs only if the alien’s

application to maintain lawful status is ultimately granted. 

See 8 C.F.R. § 245.1(d)(1)(ii) (stating that an alien is in

lawful immigration status only if the alien’s “admission has

not expired or whose nonimmigrant status has been extended”

(emphasis added)).

Attias raises two objections to this reading. First, Attias

argues that § 1255(c)’s exculpatory clause “is equitable in

nature,” so it should be interpreted broadly. Generally, an

ameliorative “rule will be interpreted and applied in an

ameliorative fashion,” especially in the immigration context. 

Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003). 

But this canon of construction “do[es] not override the

principle that the ordinary meaning of words . . . controls.” 

Durand v. U.S. Dep’t of Labor, 662 F.3d 1106, 1109 (9th Cir.

2011).

Second, Attias claims that this reading renders 8 C.F.R.

§ 245.1(d)(2)(ii) entirely superfluous, and so it cannot be

correct. See Marx v. Gen. Rev. Corp., 568 U.S. 371, 385–86

(2013). Attias points out that § 1255(c) and 8 C.F.R.

§ 245.1(d)(2)(ii) only apply when an alien “fail[s] . . . to

maintain continuously a lawful status.” 8 U.S.C. § 1255(c). 

Thus, in Attias’s view, if USCIS considers an alien to have

never fallen out of lawful status when it ultimately grants an
ATTIAS V. CRANDALL 17

application, § 1255(c) and 8 C.F.R. § 245.1(d)(2)(ii) would

never apply.

We disagree. When an alien’s lapse in lawful status

occurs “through no fault of his own or for technical reasons,”

the lapse is excused and USCIS will treat the alien as though

he had continuously maintained lawful status. 8 U.S.C.

§ 1255(c); 8 C.F.R. § 245.1(b)(6). It makes no difference

whether we would say that USCIS has engaged in a legal

fiction or that USCIS has given retroactive effect to the

application for an extension. If an alien’s lapse qualifies for

§ 1255(c)’s exculpatory clause, the alien will be considered

to have never been in unlawful status. The only reason

USCIS can consider an alien “to have continuously

maintained lawful status” when it ultimately grants an

application to extend lawful status is because it is

commanded by § 1255(c) to ignore a lapse in status that

occurred for “technical reasons.”

Because we believe this is the only way the regulation can

be read, we conclude that the text is not “genuinely

ambiguous.” We thus need not grant Auer deference to

USCIS’s interpretation of the regulation. See Kisor, 139 S.

Ct. at 2414.7 And given our reading of the regulation, this

case is easily resolved. Attias’s lapse in lawful status was not

caused by USCIS’s inaction. To the contrary, Attias’s lapse

resulted from his substantive ineligibility for an extension of

7 We note that USCIS’s Neufeld Memo and Policy Manual read the

regulation the same way we have. Even were we to reach the question of

Auer deference, a fortiori, we would hold USCIS’s interpretation to be

reasonable. See Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir. 2006)

(“[W]e defer to [an] agency’s interpretation of its regulation unless an

alternative reading is compelled by the regulation’s plain language . . . .”

(internal quotation marks omitted)).
18 ATTIAS V. CRANDALL

his B-1 visa. By ultimately denying Attias’s Form I-539,

USCIS found that Attias failed to demonstrate his entitlement

to an extension of B-1 status. That failure, not USCIS’s

attendant delay in adjudicating the Form I-539, resulted in

Attias being in unlawful status. Accordingly, Attias’s lapse

in lawful status did not occur “through no fault of his own or

for technical reasons,” so the lapse is unexcused. 8 U.S.C.

§ 1255(c); 8 C.F.R. § 245.1(d)(2)(ii). And because the

duration of his lapse in lawful status exceeded 180 days,

Attias may not take advantage of the 180-day grace period in

§ 1255(k). Accordingly, he is ineligible for an adjustment of

status to lawful-permanent-resident status. See 8 U.S.C.

§ 1255(c); see also Xiao Lu Ma, 907 F.3d at 1199. USCIS’s

denial of Attias’s Form I-485 was not contrary to law under

the APA, and the district court’s grant of summary judgment

to USCIS was proper.

III. CONCLUSION

We conclude Attias “failed . . . to maintain continuously

a lawful status since entry into the United States.” 8 U.S.C.

§ 1255(c). He is thus statutorily ineligible for an adjustment

of status to lawful permanent resident. The judgment of the

district court is

AFFIRMED.