As part of our efforts to amplify the AILA Law Journal, author Martin Robles-Avila gives us a sneak peek into his article in the newly released Fall 2023 edition of the AILA Law Journal entitled “No Fault/Technical Reasons: A Postmortem on Flawed Rulemaking and Its Effect on Nonimmigrant Status Breaches” in which he discusses a quandary business immigration practitioners often find themselves in determining whether a client is eligible for adjustment of status. AILA members, read Editor Cyrus Mehta’s preview here and then access your free digital copy of the Law Journal to read more!

A preponderance of the evidence suggests most readers of this communique will not also read my AILA Law Journal article, No Fault/Technical Reasons: so, I’ll entice you with an abridged version. Let’s start with a classic quandary that every business immigration practitioner inevitably confronts: your client has a pending asylum application, employment authorization document (EAD), and an approved I-140—are they adjustment of status eligible? They (likely) haven’t maintained nonimmigrant status and asylum applications pend forevermore; but is that their fault, or for a technical reason? If you are an AILA member, you may have even posed your question on one of the listservs and in response, received a babbling chorus of delphic responses, including a few vexing “following[s]”, all confirming your confusion and concern.

A bit of background for the uninitiated or the befuddled. Establishing eligibility for adjustment is not as simple as proving someone has been “inspected and admitted or paroled” with a visa “immediately available.” INA § 245(a). In part, that’s because a separate subsection, § 245(c), identifies eight categories of noncitizens who–notwithstanding 245(a)’s permissiveness–are barred from adjusting. For our purposes, (c)(2) covers the vast majority of employment-based sins—unauthorized employment; being in “unlawful immigration status” at the time of filing; and failures to maintain “continuously a lawful status since” entering the U.S.–and this prepositional phrase is the protagonist of our plot– “(other than through no fault of his own or for technical reasons)”. And that’s precisely how it’s stated in the text, as a “parenthetical exculpatory clause” (Attias v. Crandall, 968 F.3d 931, 937 (9th Cir. 2020).)

But what exactly does it mean? “[N]o fault of [their] own” sounds pretty expansive, right? And “technical reasons” could include all sorts of nonsubstantive violations, too inconsequential to bar a noncitizen from adjustment. Like, for example, filing an asylum application while in valid nonimmigrant status but losing that status because USCIS processing times are interminable. As it happens, regulations define the exculpatory clause, limiting it to four specified instances, one of which is so specific that it is generally unavailable:  8 C.F.R. §245.1(d)(2)(iv) refers to “technical violations resulting from the Service’s application of the maximum five/six year period of stay for certain H-1 nurses only if the applicant was subsequently reinstated to H-1 status in accordance with the terms of Public Law 101-656 (Immigration Amendments of 1988).”  This leaves a scant three instances ostensibly comprising the entire universe of what is meant by “no fault of the applicant or for technical reasons.” I dig into those 3 reasons in depth in my law journal article.

Having time and again gone through the exercise of consulting (and reconsulting) both the exculpatory clause and its implementing regulations, I was struck by a sense of disconnect. This article exposes the statutory and regulatory history, showing that not only are the regulations drawn too narrowly given the capacious statutory text; but perhaps more importantly, they are the illegitimate child of a defective rulemaking process.

Reading through sepia-toned congressional records, I learned a few intriguing things: first, when the exculpatory clause first came into being in the Immigration Reform and Control Act of 1986 (IRCA), its original text read “(other than through no fault of his own for technical reasons)”. Notice the missing little word? It wasn’t until two years later in the Immigration Technical Corrections Act of 1988 that Congress added the conjunction “or” to the phrase, upgrading it to its current iteration. But prior to this amendment, on March 3, 1987, legacy INS had already initiated rulemaking as to the predecessor version of the statute– issuing an interim rule to define the phrase, “other than through no fault of his own for technical reasons”, without the intervening conjunction.

If you think the addition of the conjunction “or” between “other than through no fault of his own” and “technical reasons” is not significant, we’ll just have to part company. As Justice Gorsuch recently observed, “[a]t one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power” (Niz-Chavez v. Garland, 141 S.Ct. 1474, 1486 (2021).)  Or as Scalia and Garner wrote of conjunctions, “[s]ometimes huge amounts of money can depend on these little words” (Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at 117 (2012)).

This lapse is all the more egregious when considering that despite initiating rulemaking in March 1987–and the very statutory text being implemented undergoing a meaningful amendment in 1988–INS never issued a correction. While it did issue a correction to the interim rule on April 27, 1987, it did so only to correct a statutory citation (from “243(h)” to “243(h) (2”). Why would INS issue a correction to make this anodyne alteration, but not as to something as critical as an amendment to the very statutory text being implemented? And it wasn’t until July 12, 1989, that INS issued the final rule, plenty of time to issue a correction. I was also stunned to learn that the interim rule generated only five comments—talk about a bygone era.

So, the next time you encounter a riddle involving whether a failure to maintain status is “through no fault” of the applicant, or for a “technical reason” and the regulations leave you disheartened, bear this history in mind when crafting your legal arguments. And if this doesn’t sway you to read the unabridged version, we’ll just have to pretend to be friends at the next conference.