Xiao Ma v. Jefferson Sessions, III, 907 F.3d 1191

Background

Xiao Ma, an H-1B beneficiary, worked for Ma Law; his H-1B initially valid through Aug 4, 2006. Ma Law filed an I-129 to extend his H-1B shortly before expiry; USCIS denied that I-129 on Jan 9, 2007 and the AAO affirmed.
While the extension appeal was pending, Ma Law filed an I-140, I-485 (adjustment), and an I-765 (employment authorization) on July 2, 2007; USCIS later approved the I-765 on Sept 26, 2007.
Ma continued working under 8 C.F.R. § 274a.12(b)(20) authorization for up to 240 days after timely-filed extension; the regulation authorizes employment but does not expressly confer nonimmigrant status.
The IJ and BIA concluded that regulatory employment authorization under § 274a.12(b)(20) does not constitute "lawful nonimmigrant status" for purposes of 8 U.S.C. § 1255(k)(2)(A); Ma had more than 180 days without lawful status before filing the I-485, making him ineligible for adjustment.
Ninth Circuit reviewed de novo whether the regulation’s employment authorization counts as "lawful status" under § 1255(k); it declined to afford Skidmore deference to the BIA’s unpublished explanation but held that 8 C.F.R. § 1245.1(d)(1) is entitled to Chevron deference and controls the definition of "lawful immigration status."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether employment authorization under 8 C.F.R. § 274a.12(b)(20) constitutes "lawful nonimmigrant status" for § 1255(k)	Ma: § 274a.12(b)(20) allows continued lawful employment during pendent extension, so that period should count as lawful status and keep accrued days under 180	Gov: § 274a.12(b)(20) grants only employment authorization, not a nonimmigrant status; the agency’s regulatory definition controls	Held: No. Employment authorization under § 274a.12(b)(20) does not confer lawful nonimmigrant status for § 1255(k) purposes.
Whether the BIA’s brief/unexplained conclusion merits Skidmore deference	Ma: BIA position should be given weight	Gov: Agency regulation 8 C.F.R. § 1245.1(d)(1) governs definition of lawful status	Held: Skidmore deference not warranted to the BIA’s cursory explanation; court instead applied Chevron to the regulation.
Whether 8 C.F.R. § 1245.1(d)(1) governs the meaning of "lawful immigration status" in § 1255(k)	Ma: Regulation inapplicable or insufficient to resolve § 1255(k) question	Gov: § 1245.1(d)(1) is a permissible, binding agency interpretation of "lawful status" and should control	Held: § 1245.1(d)(1) is entitled to Chevron deference and controls; its enumerated categories exclude § 274a.12(b)(20) employment authorization.
Whether the statutory 180-day exception in § 1255(k) is rendered meaningless if § 274a.12(b)(20) does not count	Ma: Counting § 274a.12(b)(20) is reasonable to avoid harsh results	Gov: Treating § 274a.12(b)(20) as status would swallow the limited exception in § 1255(k)	Held: Court agrees with government that the regulation’s narrow list preserves § 1255(k)’s limited grace period; statutory scheme supports the agency definition.

Key Cases Cited

Skidmore v. Swift & Co., 323 U.S. 134 (agency guidance weight depends on persuasiveness)
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (agencies receive deference when interpretation is reasonable)
Dir., OWCP v. Greenwich Collieries, 512 U.S. 267 (cursory agency conclusions warrant reduced deference)
Gazeli v. Sessions, 856 F.3d 1101 (6th Cir.) (discussing § 1255(k) and accrual of days out of lawful status)
Chaudhry v. Holder, 705 F.3d 289 (7th Cir.) (applying regulatory definition of lawful status to § 1255 context)
Dhuka v. Holder, 716 F.3d 149 (5th Cir.) (discussing § 1245.1(d)(1) deference)
Rebilas v. Mukasey, 527 F.3d 783 (9th Cir.) (standard of review for BIA legal determinations)
Uppal v. Holder, 605 F.3d 712 (9th Cir.) (Skidmore framework)
Saldivar v. Sessions, 877 F.3d 812 (9th Cir.) (agency deference discussion)
Kozulin v. INS, 218 F.3d 1112 (9th Cir.) (looking to IJ opinion as a statement of reasons when BIA relies on it)