FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT XIAO LU MA, No. 15-73520 Petitioner, Agency No. v. A088-601-792 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. 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 H- 1B 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 ...
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