USCIS does care if it is your fault that you went OOS. USCIS has conditions about who cannot receive adjustment of status, one being: “you are employed in the United States without USCIS authorization or you are no longer legally in the country (except through no fault of your own or for some technical reasons).” If you failed to somehow maintain a legal status and if you are unable to prove otherwise, USCIS has the right to deny your AoS. There was an EB case whose first lawyer screwed him up and consequently he went out of status, and USCIS denied his AoS application on the grounds of not maintaining legal status (between H1B and EB AoS application). He hired a second lawyer who filed for a MTR and proved that the client went OOS due to no fault of his own and was finally granted the PR (under the very condition mentioned above). The same condition is mentioned in I-485 application instructions on page 2 10F.
Izzy, my disagreement was with your statement that Summet got his card because, even though he used his EAD card, it was not his fault for being out of status. He was OK because, officially, he has not been out of status.
Regarding my statement that USCIS will not care if it is your fault or your lawyer's fault, I still stand by it. So the grounds for rejection include: "you are employed in the United States without USCIS authorization or you are no longer legally in the country (except through no fault of your own or for some technical reasons)." It is obviously a vague statement, unless it is qualified in some other place what they mean by no fault of your own.
In the first place, if your AOS case is rejected, and you do not have your non-immigrant status anymore because you used your EAD card (the initial question that started this debate), you can always leave the country and switch to CP. I think the lawyer does not prevent you from leaving.
Now, your story proves exactly my point. USCIS did not care what was the cause of that person not being in status, and they rejected his case. If you are more adventurous and you want to stay and fight based on that vague exemption, it is your call. But for a DV case, time is also very important. Come September 30, if the process is not resolved, you are not going to get the GC based on winning the DV, no matter what.
The way I interpret that exemption, is to include only cases when you are somehow prevented from leaving the country once your status expired, e.g. due to a natural disaster, or getting seriously injured, or a state of war, other stuff like that. I am not saying that is the way USCIS interprets it, but I think you do not know how USCIS will interpret it either.
You can definitely go to a court of law and argue against deportation, or AOS denial. Sometimes people win. It helps to have a good lawyer. If it is a jury trial, emotions play a big role as well. I have a story as well. I know a case of somebody who drove under influence, failed to yield priority, and hit another car causing the death of a passenger in that other car. Now, this driver was a US citizen, in fact an employee of a US embassy in another country. The embassy used diplomatic immunity to get him out of the country and back to US where he stood trial. He was cleared of the main charges and he got out with just a probation. But I think we can all agree that driving under influence, failing to yield priority and killing somebody are not alright, and it may not work the same way for everybody.
http://en.wikipedia.org/wiki/Teo_Peter
So yeah, going to court may pay off. I just do not think it is sound advice to tell people that if you hire a lawyer, you can then use your EAD card and lose your non-immigration status without fear of repercussions if your AOS case is denied.
