NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELECTROMEDICAL TECHNOLOGIES No. 19-15966 INCORPORATED, a Delaware corporation; et al., D.C. No. 2:18-cv-00508-GMS Plaintiffs-Appellants, MEMORANDUM** v. CHAD WOLF, in his capacity as the Acting Secretary of the United States Department of Homeland Security; et al.,* Defendants-Appellees. Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding Argued and Submitted May 7, 2020 Portland, Oregon Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA,*** District Judge. * Chad Wolf is the current Acting Secretary of Homeland Security and was automatically substituted as a party. Fed. R. App. P. 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. Page 2 of 3 Peter Gajic and his employer, ElectroMedical Technologies, Inc., appeal from the district court’s order rejecting their challenges to the denial of ElectroMedical Technologies’ untimely filed H-1B visa extension petition and Gajic’s application for adjustment of status. We affirm. 1. United States Citizenship and Immigration Services (USCIS) did not arbitrarily deny the visa extension petition, which was filed over seven years after Gajic fell out of status. Plaintiffs argued before the agency that the petition’s lateness should have been excused due to ineffective assistance by their prior attorney, who failed to file a visa extension petition on Gajic’s behalf. See 8 C.F.R. § 214.1(c)(4)(i). But after prior counsel stopped representing Plaintiffs, they waited roughly two years before filing a visa extension petition. Plaintiffs did not argue before the agency that their lawyers during this time period also acted negligently. Thus, even if the portion of the filing delay attributable to attorney negligence were excusable, there still would have been two years of unexcused delay. USCIS did not abuse its discretion in rejecting the petition on the ground that prior counsel’s negligence was incommensurate with the delay in filing. 2. Because USCIS did not err in rejecting Gajic’s visa extension petition, it necessarily did not err in rejecting his application for adjustment of status. Gajic was ineligible for adjustment of status because he had been out of lawful status and was without employment authorization for far longer than 180 days when he Page 3 of 3 submitted his application. See 8 U.S.C. § 1255(c)(2), (c)(7), (c)(8), (k). AFFIRMED. 19-15966 Court of Appeals for the Ninth Circuit ca9 9th Cir. Electromedical Tech. Inc. v. Chad Wolf 12 May 2020 Civil Unpublished 374b1cc1fc70d1f08b550fc36508dae7c9a34824
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