NewsFlash : F-1/J-1 Gap Relief Clarified Further
Posted Jul 26, 2004, updated Jul 29, 2004
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As reported in the MurthyBulletin July 23, 2004, the USCIS issued a Notice addressing extensions of status for persons who would otherwise have gaps in status between their F-1 or J-1 (student) status and the first available FY2005 H-1s on October 1, 2004. See our July 23, 2004 article, H1B/J1 Updates: Gap Extensions Possible, July 30, 2004 Deadline, available on MurthyDotCom. The Federal Register Notice only addressed cases that were either filed, but not adjudicated, or not yet filed. It did not address the denials of many F-1/J-1 (student) change-of-status requests, those FY2005 cases filed between April 2004 and the issuance of the Notice on July 23, 2004. This matter was clarified in an eMail from a Senior USCIS official shortly following the issuance of the Federal Register Notice. The eMail states that the clarification is not official USCIS policy, but rather, it is intended to provide a "general sense of how we will treat these cases." It does indicate that more clarification of other issues is likely to follow.
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Previous COS Denials Will Need Some New Filing
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The eMail declares that a person who had requested a change in status (COS), but was denied due to a status gap has "at least two" options to use the extension of status provisions in the July 23, 2004 Notice. What is clear is that the denial will remain in place unless a new filing of some type is made. Additionally, we note that the potential remedies are only for changes in status from F-1 or J-1 (student) to H-1 caused by the lack of available H-1s until October 1, 2004. It does not cover change in status denials issued for any other reason.
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Option 1 : File New Change of Status Request
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The first option is that the employer could file a new request to change nonimmigrant status. This would require a new H1B filing, possibly as an amendment, with a request to change status for the previously approved petition.
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Option 2 : File Motion to Reopen
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The second option is to file a Motion to Reopen (MTR) of the decision in the prior case, in light of the Federal Register Notice. The eMail states that it is believed the USCIS would extend the normal deadline of 30 days to file the motion from the date of the denial of the COS. In this instance, the thirty days would be counted from the date the Notice was issued, July 23, 2004, instead of from when the prior COS denial was issued by the USCIS. Therefore, this may represent a more viable option in most cases. Even here, the H1B employer would need to act quickly and only has until August 22, 2004 to file the MTR. The USCIS additionally clarified on July 28, 2004, that it will, hopefully, adjudicate Motions to Reopen previously-denied change-of-status applications for students moving from F-1 or J-1 to H1B status before October 1, 2004, if the Motion is filed within the next couple of weeks. [The preceding, bolded text was added July 29, 2004.]
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Denials of COS after July 23, 2004
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The eMail clarifies that any change of status request covered by the Notice that was denied on or after the date the Notice was issued will be reopened by the USCIS without cost, as it would be regarded as Service Error. However, this does not appear to mean that the USCIS will act on these matters on their own Motion, without a filing. The affected individual / employer will need to file a Motion and request a COS approval based upon Service Error.
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We note that the discussion of MTRs is limited to those cases for which there was a request for COS that was denied. It does not address cases in which the COS may not have been requested, since it was not permitted under the rules in effect at the time of filing. Many people selected consular processing, simply because the rules did not allow for a change in status at the time that their cases were filed.
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Perhaps such employers could now file either an MTR or an H1B amendment, requesting the COS based on the Federal Register Notice, though the Memo does not address this option at all.
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Conclusion
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We at The Law Office of Sheela Murthy thank the USCIS for their prompt clarification of the procedure in these matters, in view of the time sensitivity of the deadlines of the Federal Register Notice. We note, however, that a great deal of confusion and extra filings could have been avoided if the Notice had been issued closer to the time that the H-1 cap was reached, in February 2004. Many students did not file a request for a change of status. Many made arrangements and have already returned to their home countries for consular processing. At a time when we are seeing amazing strides aimed at backlog reduction, the five-month delay in issuing the Notice has created additional work for the consulates and the USCIS and additional stress, expense, and uncertainty for students and their prospective employers.