9th Cir.;
15-55676

The court of appeals affirmed a district court judgment. The court held that a visa petition that was denied could be deemed to have been “approvable when filed” only upon a showing of changed circumstances between the time the petition was filed and the time it was denied.

Chung Hsiao came to the United States from Taiwan in 1993 on a student visa. He earned a master's degree in electrical engineering in 1995. In 1990 and 2000 Hsiao filed petitions seeking a visa permitting an alien with an advanced degree, “exceptional ability,” or “extraordinary ability” to obtain a visa under certain specified circumstances. The Immigration and Naturalization Service denied both petitions. Hsiao remained in the U.S. and, in 2012, once again filed a petition for an “extraordinary ability” visa. The U.S. Citizenship and Immigration Services (USCIS) approved the petition. Hsiao thereafter applied to adjust his status to that of lawful permanent resident. USCIS denied the application based on Hsiao's prior failure to maintain lawful status. Although 8 U.S.C. §1255(i) provides that such disqualification will be forgiven if the alien was the beneficiary of a visa petition that was filed on or before April 30, 2001, 8 C.F.R. §245.10(a)(1)(i)(A) requires that the qualifying visa petition have been “approvable when filed.” USCIS found that because Hsiao's 1998 and 2000 visa petitions were both denied on the merits, they were not “approvable when filed” and thus did not qualify.