The Ninth Circuit has determined that an adjustment applicant who relied on her attorney to file an extension of her H-1B status has fallen out of status through no fault of her own. “An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part. An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer. If the advice turns out to be erroneous and results in the applicant’s failure to maintain lawful status, no one using the term ‘fault’ in its ordinary sense would say that the applicant herself was to blame. If blame were assigned it would be placed on the attorney, whose job it is to know the intricacies of immigration law.“ The court also deemed 8 C.F.R. § 1245.1(d)(2) to be invalid to the extent that it does not recognize reasonable reliance on counsel’s advice as a failure to maintain status through no fault of the applicant.
The full text of Peters v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/02/16-73509.pdf