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Missed Deadlines: Petition Denied in Status Adjustment Case

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By Corey Licht, Esq. on January 04, 2013 3:01 PM

This week, the First Circuit Court of Appeals reminded us to dot all the i's and cross all the t's when filling out immigration documents.

Jin Qing Wu, a Chinese citizen, entered the U.S. without inspection back in 1999. In 2007, Wu married a U.S. citizen and filed an application to adjust his status to lawful permanent resident.

Since Wu entered the country without inspection, however, there was an additional requirement he had to meet.

While noncitizens who enter the U.S. without inspection generally aren't eligible for an adjustment to lawful permanent resident, they can be "grandfathered" if a labor application was filed on their behalf before April 30, 2001 under 8 U.S.C. § 1255(i).

On April 16, 2001, Wu's employer in Fort Collins, Colorado, Lin Bo, submitted an application for labor certification on Wu's behalf to the Colorado Department of Labor and Employment (CDL), beginning a back-and-forth exchange that lasted for months. First, the CDL returned the application to Bo on April 24, requesting that certain corrections and additions be made within 45 days.

The CDL wrote Bo again on May 30. Then on June 20, Bo sent the CDL a new letter, stating that he had made the requested changes. Finally, the CDL stamped the application as "received" on July 5, 2001.

Seeing that the application for labor certification was "received" months after the statutory deadline, the Citizenship and Immigration Service (CIS) rejected Wu's application for status adjustment in October 2007. Removal proceedings were initiated against Wu soon after.

The case went before an Immigration Judge who found that Wu failed to meet his burden of showing the application was filed before the April 30, 2001 cut-off. Wu appealed to the Board of Immigration Appeals (BIA), who affirmed the decision.

On Wednesday, the First Circuit denied Wu's petition for review of the BIA's dismissal. The court noted that while the application was initially submitted before the deadline, it was not "properly filed" and "approvable" until well after April 30, 2001.

It also found that Wu had failed to demonstrate that the CDL date-stamp was clerical mistake. The court pointed to the extensive correspondence between Bo and the CDL as proof that the application contained a number of deficiencies.

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