FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

XIAO LU MA,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent.

No. 15-73520

Agency No.

A088-601-792

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 11, 2018

San Francisco, California

Filed November 2, 2018

Before: Eugene E. Siler,* Richard A. Paez,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Paez

 * The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 MA V. SESSIONS

SUMMARY**

Immigration

The panel denied Xiao Lu Ma’s petition for review of a 

decision of the Board of Immigration Appeals that found Ma 

ineligible for status adjustment, holding that a grant of 

regulatory employment authorization under 8 C.F.R. 

§ 274a.12(b)(20) does not confer lawful immigration status 

for purposes of establishing eligibility for status adjustment 

under 8 U.S.C. § 1255(k)(2).

The governing statute, 8 U.S.C. § 1255(k) allows 

petitioners to apply for adjustment of status as long as the 

petitioners, among other requirements, “ha[ve] not, for an 

aggregate period exceeding 180 days . . . failed to maintain, 

continuously, a lawful status.” 8 U.S.C. § 1255(k)(2)(A). 

Ma was the beneficiary of an H-1B specialty occupation 

visa. His employer filed an extension of that visa, but it was 

denied, and his employer failed to file an application for 

status adjustment within 180 days of the expiration of his H1B visa. The United States Citizenship and Immigration 

Services denied Ma’s application to adjust status, 

concluding that Ma had engaged in unauthorized 

employment for well over the 180 days permitted by 

8 U.S.C. § 1255(k)(2)(A). 

The Department of Homeland Security initiated removal 

proceedings for having overstayed his visa, and Ma 

requested adjustment of status. Counsel for Ma argued that 

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

has been prepared by court staff for the convenience of the reader.
MA V. SESSIONS 3

8 C.F.R. § 274a.12(b)(20), which authorizes petitioners to 

“continue employment with the same employers for a period 

not to exceed 240 days beginning on the date of the 

expiration of the authorized period of stay” while a timely 

application for an extension is pending, conferred lawful 

status on Ma for the period between when his H-1B visa 

expired, and when his application for a visa extension was 

first denied. Under this theory, Ma would have been without 

lawful status for only 174 days before he applied for 

adjustment of status, which would fall within 8 U.S.C. 

§ 1255(k)’s 180-day threshold. The immigration judge and 

the BIA rejected this argument, concluding that employment 

authorization under 8 C.F.R. § 274a.12(b)(20) does not 

confer lawful status for purposes of adjustment of status. Ma 

was ordered removed to the People’s Republic of China and 

he timely petitioned for review.

As an initial matter, the panel concluded that Skidmore 

v. Swift & Co., 323 U.S. 134 (1944) deference was not 

warranted here because the BIA offered no explanation for 

its conclusion and failed to cite any supporting authority. 

Addressing what constitutes “lawful status” within the 

meaning of 8 U.S.C. § 1255, the panel noted that the statute 

was silent as to this issue, but that 8 C.F.R. § 1245.1(d)(1) 

defines “lawful immigration status” in 8 U.S.C. § 1255(c)(2) 

as including only six categories of individuals. The panel 

held that 8 C.F.R. § 1245.1(d)(1) is entitled to deference 

under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 

U.S. 837 (1984), explaining that the definition of lawful 

status was a reasonable agency interpretation because it fits 

within the statutory framework, which restricts the 

availability of adjustment for those whose lawful status had 

elapsed and provides a limited grace period through 8 U.S.C. 
4 MA V. SESSIONS

§ 1255(k). The panel also noted that to hold otherwise 

would render 8 U.S.C. § 1255(k) superfluous. 

The panel further held that 8 C.F.R. § 274a.12(b)(20)’s 

grant of employment authorization does not fall within one 

of the six categories enumerated in 8 C.F.R. § 1245.1(d)(1). 

The panel observed that, of the six categories, the only one 

with any relevance to this case is 8 C.F.R. § 1245.1(d)(1)(ii), 

which extends lawful status to persons admitted “in 

nonimmigrant status as defined in [8 U.S.C. § 1101(a)(15)] 

whose initial period of admission has not expired or whose 

nonimmigrant status has been extended.” However, the 

panel explained that it was undisputed that Ma’s application 

to extend his visa was denied at all levels of review and that 

his visa expired long before he applied for adjustment of 

status. Moreover, the panel explained that 8 C.F.R. 

§ 1245.1(d)(1)(ii) clearly limits its recognition of 

employment authorization to visas (or visa extensions) 

obtained under 8 U.S.C. § 1101(a)(15), which does not 

include employment authorization under 8 C.F.R. 

§ 274a.12(b)(20).

Observing that the Immigration & Nationality Act’s 

opaque and, at times, inflexible requirements inevitably 

produce painful outcomes, the panel noted that Ma had had 

every reason to believe he was in compliance with the law. 

The panel also noted that Ma had excelled in his job, had 

settled into the role of caring for his parents (both of whom 

were forced to flee China), and that removal would bar Ma 

from returning to this country for ten years. However, the 

panel concluded that these considerations, as moving as they 

may be, do not factor into the calculation for status 

adjustment and that, in light of the law, the panel was left 

with no choice but to deny Ma’s petition for review.
MA V. SESSIONS 5

COUNSEL

Jean Wang (argued), Wang Law Office PLLC, Flushing, 

New York; Don P. Chairez, Law Offices of Don Chairez, 

Long Beach, California; for Petitioner.

Robert Dale Tennyson Jr. (argued), Trial Attorney; Terri J. 

Scadron and Carl McIntyre, Assistant Directors; Joseph H. 

Hunt, Assistant Attorney General; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

PAEZ, Circuit Judge:

Navigating the labyrinth that is the worker visa, 

employment authorization, and status adjustment process 

under the Immigration and Naturalization Act (“INA”) is not 

for the faint of heart. So technical and so complex are the 

INA’s requirements that unlucky petitioners may find 

themselves in removal proceedings without ever realizing 

that their status was in jeopardy to begin with. As a result, 

avoiding removal often hinges on the skill and knowledge of 

one’s employers and their lawyers, whose hands—like those 

of Ariadne’s—may or may not hold the red thread out.

Xiao Ma, the beneficiary of an H-1B visa, petitions for 

review of his final order of removal. Ma’s employer filed 

for an extension of his H-1B visa, but it was denied, and his 

employer failed to file an application for status adjustment 

within 180 days of the expiration of his H-1B visa. Because 

the application to extend the H-1B visa was denied, Ma was 

without lawful status in this country for 331 days before he 
6 MA V. SESSIONS

applied to adjust his status—well over the 180 days 

permitted by 8 U.S.C. § 1255(k)(2)(A), which would have 

otherwise protected him from removal. He was, however, 

legally authorized to work in the country during the months 

between the expiration of his H-1B visa and the denial of his 

application for an H-1B extension pursuant to 8 C.F.R. 

§ 274a.12(b)(20). Nonetheless, because 8 C.F.R. 

§ 1245.1(d) does not recognize regulatory employment 

authorization as conferring lawful immigration status for 

purposes of status adjustment under 8 U.S.C. 

§ 1255(k)(2)(A), the Board of Immigration Appeals (“BIA”) 

correctly concluded that Ma is ineligible for status 

adjustment. We therefore must deny Ma’s petition for 

review.

I.

Nowhere is the complexity of the INA’s worker visa, 

employment authorization, and status adjustment process 

more evident than in the facts undergirding Ma’s removal 

proceedings.

In 2003, Ma, a citizen of the People’s Republic of China 

with a bachelor’s degree in computer science and 

technology, accepted a job offer from the Law Offices of 

Qiang Ma (“Ma Law”), a small law firm based in Alhambra, 

California, for the position of computer analyst. Ma Law 

successfully applied for an H-1B specialty occupation visa 

on Ma’s behalf. The visa was valid from September 10, 

2003 to August 4, 2006. At some point in July 2006, shortly 

before the visa was set to expire, Ma Law applied for an 

extension of Ma’s H-1B status by filing a form I-129, 

Petition for a Nonimmigrant Worker. Half a year later, on 

January 9, 2007, the Director of the California Service 

Center of the United States Citizenship and Immigration 

Services (“USCIS”) denied Ma Law’s I-129 petition, 
MA V. SESSIONS 7

because Ma Law had failed to submit “suitable evidence to 

justify that [Ma’s] continued duties would be in line with that 

of a specialty occupation worker.”1

Ma Law appealed the Director’s determination to the 

Administrative Appeals Office (“AAO”) on February 2, 

2007, a month after the Director denied his petition. While 

that appeal was pending, Ma Law filed three concurrent 

applications on Ma’s behalf on July 2, 2007: (1) an I-485 

application for adjustment of status to permanent resident; 

(2) an I-140 petition for an alien worker; and (3) an I-765 

application for employment authorization with the Nebraska 

Service Center. The USCIS approved the I-765 application 

for employment authorization on September 26, 2007. By 

this point, Ma had been working in the country without a 

valid visa for 417 days.

On January 9, 2008, the AAO dismissed Ma Law’s 

appeal of the Director’s decision to deny its application to 

extend Ma’s H-1B visa. Citing that dismissal, the Director 

of the Nebraska Service Center denied Ma Law’s I-485 

application to adjust Ma’s status on September 25, 2009.2 

The Director concluded that because Ma had been “engaged 

 1 The USCIS specifically requested that Ma Law provide evidence 

demonstrating that there would be sufficient qualifying work for Ma to 

warrant extending his H-1B visa. When Ma Law failed to provide a 

satisfactory response, the Director denied the I-129 petition.

2 The USCIS initially denied Ma Law’s I-485 application on 

February 24, 2009, based on its denial of Ma Law’s I-140 Immigrant 

Petition for Alien Worker six days before. The Director, however, 

granted Ma Law’s request to reopen the adverse I-140 decision and 

approved the petition on April 2, 2009. This necessitated reopening the 

I-485 proceedings, which the Director did on April 10, 2009.
8 MA V. SESSIONS

in unauthorized employment” for 418 days3—well over the 

180 days permitted by 8 U.S.C. § 1255(k)(2)—he was 

ineligible for status adjustment. The Director also concluded 

that Ma was ineligible to be grandfathered in as the 

beneficiary of an immigrant visa petition or labor 

certification application filed on or before April 30, 2001, 

because no one had filed a visa petition on his behalf on or 

before April 30, 2001. Ma Law filed a motion to reopen the 

decision on October 29, 2009, which the USCIS denied on 

December 29, 2009. Ma Law’s appeal of the denial was 

dismissed on January 29, 2010.

 3 The Director relied on section 1255(k)(2)(B) (unauthorized 

employment) to deny Ma Law’s application. In contrast, the IJ and the 

BIA relied on section 1255(k)(2)(A) (failure to maintain lawful status) 

to deny Ma’s request to adjust status during his removal proceedings. 

The Director’s calculation of the dates, however, appears to be incorrect 

in two ways. First, 8 C.F.R. § 274a.12(b)(20) authorizes H-1B visa 

holders like Ma whose visas have expired but who have timely filed for 

an extension to “continue employment with the same employer” for up 

to 240 days or until a service center director denies the application for an 

extension, whichever comes first. In which case, Ma worked without 

valid employment authorization from January 9, 2007, the day his 

application for an extension was denied, until September 26, 2007, the 

day his I-765 application was approved—a period of 260 days. Second, 

even if the Director correctly excluded section 274a.12(b)(20)’s period 

of valid employment authorization from his calculation—which he did 

not—Ma’s H-1B visa was valid up to and including August 4, 2006, 

which meant that Ma was without status beginning August 5, 2006. This 

results in a period of 417 days, not 418 days. These errors only highlight 

the difficulties facing petitioners who wish to apply for status adjustment 

and who are expected to track relevant dates as closely as Copernicus 

once tracked the movements of the sun. See Nicolaus Copernicus, De 

Revolutionibus Orbium Coelestium [On the Revolutions of the Heavenly 

Spheres] (1543).
MA V. SESSIONS 9

The Department of Homeland Security (“DHS”) 

initiated removal proceedings against Ma on May 3, 2010 

for overstaying his H-1B visa. That year, Ma left Ma Law 

and joined MGM Resorts Corporation as a senior business 

analyst, having successfully earned his MBA at San Diego 

State University two years prior. At his hearing on February 

3, 2014, Ma denied that he had remained in the United States 

past August 4, 2006 without authorization from the 

Immigration and Naturalization Service (“INS”) or DHS.4 

He also requested adjustment of status as relief from 

removal.

Counsel for Ma argued at the removal hearing that 

8 C.F.R. § 274a.12(b)(20), which authorizes petitioners to 

“continue employment with the same employers for a period 

not to exceed 240 days beginning on the date of the 

expiration of the authorized period of stay” while a timely 

application for an extension is pending, conferred lawful 

status on Ma for the period between August 4, 2006, when 

his H-1B visa expired, and January 9, 2007, when the 

Director first denied Ma’s I-129 application for an extension. 

Under this theory, Ma would have been without lawful status 

for only 174 days before he applied for adjustment of status, 

which would fall within 8 U.S.C. § 1255(k)’s 180-day 

threshold. The IJ rejected Ma’s argument. Relying on 

Matter of Rotimi, 24 I. & N. Dec. 567 (BIA 2008), the IJ 

concluded that employment authorization was not the same 

as lawful status and that even though Ma had maintained 

valid employment up to January 9, 2007, that did not mean 

 4 Ma admitted the other allegations contained in his Notice to 

Appear, which were (1) he was not a citizen or national of the United 

States; (2) he was a native and citizen of the People’s Republic of China; 

and (3) he was admitted to the United States as an H-1B worker “for a 

temporary period not to exceed August 4, 2006.”
10 MA V. SESSIONS

that Ma had “maintained a lawful nonimmigrant status while 

the request for employment authorization was pending.” By 

the IJ’s calculations, Ma had been living in the United States 

without lawful status from August 5, 2006, when his H-1B 

visa expired, to July 2, 2007, when he filed his application 

for status adjustment with the USCIS—a period of 

331 days.5 As a result, the IJ denied Ma’s application for 

adjustment of status.

The IJ further concluded that although Ma’s parents were 

granted political asylum in 2012 for dissident activity, Ma 

was over 21 years old at the time his parents’ asylum 

applications were filed. As a result, Ma was ineligible for 

asylum as a dependent. Lastly, the IJ concluded that Ma was 

ineligible to be grandfathered in as the beneficiary of an 

immigrant visa petition or labor certification application 

filed on or before April 30, 2001.

The removal hearing revealed that Ma was an exemplary 

employee at MGM resorts and had recently been voted 

employee of the year for his work as a senior business 

analyst. Moreover, as the only child in his family, Ma had 

been the sole source of support for his parents—neither of 

whom speak English—ever since they were granted asylum 

in the United States. Removal would bar Ma from returning 

to this country to reunite with his parents for at least a 

decade. See 8 U.S.C. § 1182(a)(9)(B). Recognizing the 

“sympathetic” facts in Ma’s case, the IJ nonetheless 

concluded that his hands were tied by the “frustrations and 

 5 Both the IJ and the BIA correctly used July 2, 2007 as the end date 

when calculating the time Ma was without lawful status. See Gazeli v. 

Session, 856 F.3d 1101, 1105 (6th Cir. 2017) (“Section 1255(k) permits 

the beneficiary of an approved work-visa petition to adjust his status if 

he has not accrued more than 180 days out of ‘lawful status’ prior to 

applying for adjustment.”).
MA V. SESSIONS 11

technicalities concerning the very technical requirements for 

applying for adjustment of status.” Thus, even though there 

was evidence that Ma was the recipient of “numerous 

approvals of requests for employment authorization from 

USCIS continuing to [the date of the removal hearing],” the 

IJ ordered Ma removed to the People’s Republic of China 

because 8 C.F.R. § 274a.12(b)(20)’s grant of employment 

authorization did not confer lawful status for purposes of 

status adjustment under 8 U.S.C. § 1255(k)(2)(A).

The BIA dismissed Ma’s appeal from the IJ’s order. The 

BIA agreed with the IJ that employment authorization under 

8 C.F.R. § 274a.12(b)(20) does not confer lawful 

nonimmigrant status for purposes of status adjustment. 

Accordingly, the BIA concluded that Ma was without lawful 

status from August 5, 2006 to July 2, 2007, a period of over 

180 days, which precluded Ma from establishing his 

eligibility for adjustment of status.

Ma timely petitioned for review.

II.

We have jurisdiction under 8 U.S.C. § 1252 to review the 

BIA’s final order of removal. “We review the BIA’s 

determination of issues of law de novo, deferring to the 

BIA’s interpretation of an immigration statute where that 

interpretation is ‘based on a permissible construction of the 

statute.’” Rebilas v. Mukasey, 527 F.3d 783, 785 (9th Cir. 

2008) (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1041 

(9th Cir. 2005)).

III.

The governing statute, 8 U.S.C. § 1255(k) allows 

petitioners to apply for adjustment of status under section 
12 MA V. SESSIONS

1255(a) as long as the petitioners, among other requirements, 

“ha[ve] not, for an aggregate period exceeding 180 days—

(A) failed to maintain, continuously, a lawful status.” The 

question presented on this appeal is a narrow one: does 

8 C.F.R. § 274a.12(b)(20)’s grant of employment 

authorization confer lawful nonimmigrant status on 

petitioners for purposes of status adjustment under 8 U.S.C. 

§ 1255(k)(2)? We hold it does not.

A.

As an initial matter, we conclude that Skidmore v. Swift 

& Co., 323 U.S. 134, 140 (1944) deference—which we 

ordinarily afford the BIA’s unpublished decisions—is not 

warranted here. See Saldivar v. Sessions, 877 F.3d 812, 815 

n.3 (9th Cir. 2017). “Under Skidmore, the measure of 

deference afforded to the agency ‘depends upon the 

thoroughness evident in its consideration, the validity of its 

reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power 

to persuade, if lacking power to control.’” Uppal v. Holder, 

605 F.3d 712, 715 (9th Cir. 2010) (quoting Skidmore, 

323 U.S. at 140). Although the BIA concluded that 

employment authorization under 8 C.F.R. § 274.12(b)(20) is 

not commensurate with “lawful nonimmigrant status” for 

status adjustment under 8 U.S.C. § 1255(k), it offered no 

explanation for its conclusion and failed to cite to any 

supporting authority. Cursory conclusions are neither 

persuasive nor entitled to deference. See Dir., OWCP v. 

Greenwich Collieries, 512 U.S. 267, 277 (1994) (concluding 

that the Court’s “cursory conclusion” in a different case 

“does not warrant the same level of deference we typically 

give our precedents”). We therefore decline to defer to the 

BIA’s interpretation of 8 U.S.C. § 1255, and address for the 
MA V. SESSIONS 13

first time whether 8 C.F.R. § 274.12(b)(20) confers lawful 

status on petitioners seeking adjustment of status.6

B.

Petitioners seeking to adjust their status in this country 

must first understand the general framework of 8 U.S.C. 

§ 1255. Generally speaking, the Attorney General of the 

United States has the discretionary authority to adjust a 

petitioner’s status to lawful permanent resident provided that 

“(1) the alien makes an application for such adjustment, 

(2) the alien is eligible to receive an immigrant visa and is 

admissible to the United States for permanent residence, and 

(3) an immigrant visa is immediately available to him at the 

 6 To the extent the BIA intended to rely on the IJ’s opinion “as a 

statement of reasons, we look to the IJ’s oral decision as a guide to what 

lay behind the BIA’s conclusion.” Kozulin v. I.N.S., 218 F.3d 1112, 1115 

(9th Cir. 2000). But the IJ’s decision here is similarly unpersuasive. 

Citing only Matter of Rotimi, 24 I. & N. Dec. 567 (BIA 2008), the IJ 

concluded that work authorization could not be equivalent to lawful 

status. Matter of Rotimi, however, addressed only the meaning of 

“lawfully resided continuously” in the context of waiver of 

inadmissibility under section 212(h) of the INA, 8 U.S.C. § 1182(h). 

24 I. & N. Dec. at 568 (emphasis added). Although Rotimi stated in dicta 

that “work authorization is not equivalent to a lawful status; nor is it 

necessarily reflective of a right to lawfully be or remain in this country,” 

id. at 578, the BIA explicitly limited its holding in Rotimi to “whether an 

applicant for privileges or benefits is deemed to have ‘lawfully resided’ 

here for purposes of [waiver of inadmissibility].” Id. at 577. Rotimi thus 

has little bearing on this case, which revolves around whether 

employment authorization under a specific regulation confers lawful 

status (not lawful residence) on petitioners who have overstayed their 

valid H-1B visas for purposes of status adjustment. See El Badrawi v. 

United States, 787 F. Supp. 2d 204, 227–28 (D. Conn. 2011) (concluding 

that Rotimi was inapplicable because it “did not involve a removal 

proceeding; it did not involve an H-1B visa holder; and, it did not involve 

the regulation at issue here”).
14 MA V. SESSIONS

time his application is filed.” 8 U.S.C. § 1255(a). Certain 

classes of petitioners, however, are ineligible for status 

adjustment. See id. § 1255(c). These include petitioners 

who are “in unlawful immigration status on the date of filing 

the application for adjustment of status or who ha[ve] failed 

(other than through no fault of [their] own or for technical 

reasons) to maintain continuously a lawful status since entry 

into the United States.” Id. § 1255(c)(2).

To the extent that section 1255(c) acts as an exception to 

the general rule laid out in section 1255(a), section 1255(k) 

acts as an exception to section 1255(c)’s continuous lawful 

status requirement. Under section 1255(k), beneficiaries of 

“an approved work-visa petition,” such as an H-1B visa, may 

adjust their status even if they have failed to maintain 

continuous lawful status as long as they have “not accrued 

more than 180 days out of ‘lawful status’ prior to applying 

for adjustment.” Gazeli v. Session, 856 F.3d 1101, 1105 (6th 

Cir. 2017) (quoting 8 U.S.C. § 1255(k)); see also Yong Dong 

Kim v. Holder, 737 F.3d 1181, 1186 (7th Cir. 2013) (“For 

immigrants seeking an employment-based adjustment of 

status, as Kim was seeking here, the statute provides an 

exception to the requirement of continuous lawful status.” 

(citing 8 U.S.C. § 1255(k))). Put simply, qualifying 

applicants like Ma are not barred by § 1255(c) from applying 

to adjust their status under § 1255(a) as long as they meet the 

criteria of § 1255(k), including not staying in this country for 

over 180 days without some type of lawful status. See 

8 U.S.C. § 1255(k)(2)(A).

The question, then, is what constitutes “lawful status” 

within the meaning of 8 U.S.C. § 1255. As to this, the statute 

is silent. Neither section 1255(k)(2)(A) nor section 1255(c) 

defines “lawful status.” In response to this gap, the INS 
MA V. SESSIONS 15

promulgated a regulation, 8 C.F.R. § 1245.1(d)(1),7 which 

defines “lawful immigration status”8 in 8 U.S.C. 

§ 1255(c)(2) as including only six categories of individuals.9 

Because Congress did not define “lawful immigration 

status,” the agency’s promulgated interpretation of the term 

is entitled to deference under Chevron, U.S.A., Inc. v. Nat. 

Res. Def. Council, 467 U.S. 837 (1984), unless the 

 7 This regulation is identical to 8 C.F.R. § 245.1(d)(1). While 

section 1245.1(d)(1) applies to the Executive Office for Immigration 

Review in the Department of Justice, section 245.1(d)(1) applies to the 

immigration agencies in the DHS. They provide the same guidance to 

different agencies as to the definition of “lawful immigration status” for 

the “purposes of [INA] section 245(c)(2) [or 8 U.S.C. § 1225(c)(2)].” 

Compare 8 C.F.R. 1245.1(d)(1) with 8 C.F.R. § 245.1(d)(1); see also 

Scheerer v. U.S. Att’y. Gen., 445 F.3d 1311, 1319 n.13 (11th Cir. 2006) 

(explaining regulatory history).

8 Although 8 U.S.C. § 1255 does not use the term “lawful 

immigration status,” the “plain inference is that the regulatory definition 

applies to all of these interchangeable formulations”—“unlawful 

immigration status,” “lawful status,” and “lawful nonimmigrant status.” 

Chaudhry v. Holder, 705 F.3d 289, 293 (7th Cir. 2013). We decline to 

read section 1245.1(d)(1) to “define nothing at all.” Id. Furthermore, 

although the regulation only mentions 8 U.S.C. § 1255(c)(2) and not 8 

U.S.C. § 1255(k), we agree with the Seventh Circuit that “it is most 

natural to conclude that the ‘lawful status’ contemplated in the latter 

subsection is the same ‘lawful status’ discussed in the former.” Id.

9 The six categories are (1) lawful permanent residents; 

(2) nonimmigrants admitted under 8 U.S.C. § 1101(a)(15) whose 

statuses either have been extended or have not expired; (3) refugees 

whose statuses have not been revoked; (4) asylees whose statuses have 

not been revoked; (5) parolees whose statuses have not expired, been 

revoked, or been terminated; and (6) persons who fall within the purview 

of the Immigration Nursing Relief Act of 1989 and who have filed their 

applications for adjustment of status on or before October 17, 1991. 

8 C.F.R. § 1245.1(d)(1).
16 MA V. SESSIONS

interpretation is “arbitrary, capricious, or manifestly 

contrary to the statute.” Id. at 844.

The parties did not initially address whether this 

regulation is entitled to Chevron deference. After the case 

was submitted for a decision, we directed the parties to file 

supplemental briefs addressing whether section 1245.1(d)(1) 

is entitled to Chevron deference. The government presented 

compelling arguments based on the statutory framework and 

regulatory history.10 Congress authorized the Attorney 

General to prescribe regulations to govern the grant of status 

adjustments, 8 U.S.C. § 1255(a), and the Attorney General’s 

definition restricts lawful status, for the purpose of 

adjustment, to six categories. 8 C.F.R. § 1245.1(d)(1). This 

is a reasonable agency interpretation because it fits within 

the framework, which restricts the availability of adjustment 

for those whose lawful status had elapsed and provides a 

limited grace period through section 1255(k). To hold 

otherwise would render section 1255(k) superfluous. 

Accordingly, we hold that section 1245.1(d)(1) is entitled to 

Chevron deference and controls.11 We next address whether 

section 274a.12(b)(20)’s grant of employment authorization 

 10 Ma’s supplemental brief confuses the issue and argues instead that 

8 C.F.R. § 1245.1(d)(1) is irrelevant to the analysis. To the extent Ma 

argues that the regulation 8 C.F.R. § 274a.12(b) is entitled to deference 

under Auer v. Robbins, the argument is off point and is not persuasive. 

519 U.S. 452 (1997).

11 In doing so, we join at least two of our sister circuits who have 

also held that 8 C.F.R. § 1245.1(d)(1) or 8 C.F.R. § 245.1(d)(1) is 

entitled to Chevron deference. See Gazeli v. Sessions, 856 F.3d 1101 

(6th Cir. 2017); Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013); see 

also Dhuka v. Holder, 716 F.3d 149, 158–59 (5th Cir. 2013).
MA V. SESSIONS 17

falls within one of the six enumerated categories.12 We 

conclude it does not.

Of the six categories, only the second has any relevance 

to this case. Section 1245.1(d)(1)(ii) clearly extends lawful 

status to persons admitted “in nonimmigrant status as 

defined in section 101(a)(15) of the [INA] whose initial 

period of admission has not expired or whose nonimmigrant 

status has been extended.”13 It is undisputed, however, that 

Ma Law’s application to extend Ma’s H-1B visa was 

ultimately denied at all levels of review. It is also undisputed 

that Ma’s H-1B visa expired long before he applied for 

adjustment of status. Moreover, section 1245.1(d)(1)(ii) 

clearly limits its recognition of employment authorization to 

visas (or visa extensions) obtained under 8 U.S.C. 

§ 1101(a)(15), which does not include employment 

authorization under 8 C.F.R. § 274a.12(b)(20).

The law, then, is clear: While nonimmigrant workers like 

Ma may legally continue working in this country for up to 

240 days while they wait to hear back from the USCIS on 

their extension applications, they do not have lawful status 

during this period of time for purposes of status 

 12 Section 1245.1(d)(1)’s six categories are clearly exclusive and not 

illustrative. See 8 C.F.R. § 1245.1(d)(1) (explaining that “[f]or purposes 

of section 245(c)(2) of the [INA], the term ‘lawful immigration status’ 

will only describe the immigration status of an individual who” falls 

within the six following categories (emphasis added)).

13 Section 101(a)(15) of the INA, or 8 U.S.C. § 1101(a)(15), 

recognizes H-1B visa holders like Ma as one of the “classes of 

nonimmigrant aliens.” 8 U.S.C. § 1101(a)(15)(H).
18 MA V. SESSIONS

adjustment.14 The margin for error under 8 U.S.C. § 1255(k) 

is very slim. Had Ma’s employer filed the I-485 application 

for status adjustment shortly after the I-129 petition was 

denied instead of waiting for over five months, Ma would 

likely be within the 180-day grace period. Alternatively, if 

Ma’s employer had filed the I-129 petition for an extension 

months before his H-1B visa was set to expire, rather than 

weeks before, fewer days would have elapsed between the 

denial of the I-129 petition and the expiration of his H-1B 

visa, which would have saved Ma precious days from 

counting towards the 180-day threshold. Instead, the delays 

in filing mean that Ma was in this country for well over 

180 days without lawful status before Ma Law applied for 

status adjustment on his behalf.

IV.

The INA’s opaque and, at times, inflexible requirements 

inevitably produce painful outcomes. Ma had every reason 

to believe that he was in compliance with the law. No doubt, 

he expected that his employer’s application to extend his H1B visa would be granted, and when it was not, he likely 

thought his appeal would be successful. When his separate 

application for employment authorization was later granted 

in 2007, there was even less reason to think that he would be 

at risk of removal. In the decade since, Ma has excelled at 

his job and settled into the role of caring for his parents, both 

of whom were forced to flee China in 2012. Removal would 

 14 One exception to this, which Ma never raised before the agency, 

is 8 C.F.R. § 1245.1(d)(2)(ii)’s “technical violation” exception to the 

180-day threshold. Section 1245.1(d)(2)(ii) provides that petitioners 

may nonetheless satisfy the continuous lawful presence requirement for 

status adjustment if their failure to meet the 180-day grace period is the 

result of a “technical violation” for which they are not responsible.
MA V. SESSIONS 19

bar Ma from returning to this country—and his parents—for 

ten years.

But these considerations, as moving as they may be, do 

not factor into the calculation for status adjustment. In light 

of the law, we are left with no choice but to deny Ma’s 

petition for review.15

PETITION DENIED.

 15 As discussed before the IJ, however, Ma may be eligible for an 

unlawful presence waiver (Form I-601A) based on hardship to his

parents. The government indicated before the IJ that it was open to the 

possibility of an I-601A waiver, because Ma has a valid I-140 and a 

willing employer to serve as his sponsor.