USCIS Memo Clarifies Status Gap Due to Cap Issues
Posted Aug 13, 2004
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William Yates, Associate Director for Operations, issued a Memo on August 8, 2004 detailing procedures for handling H1B petitions filed on behalf of F-1 and J-1 nonimmigrants affected by the Federal Register Notice of July 23, 2004 (Yates Gap Memo). We covered this notice in our July 26, 2004 article, F-1/J-1 Cap Relief Clarified Further, available on MurthyDotCom.
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Grace Periods
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In the Yates Gap Memo, the USCIS answers key questions for Service Center Directors, Regional Directors, and the Office of International Affairs. The first question is whether persons currently in the 30- or 60-day grace period after their F or J statuses are eligible for change-of-status approval for H1B status that is effective as of October 1, 2004. The Yates Gap Memo affirms that these individuals are eligible for change-of-status approval. It further clarifies that, as long as one was in status on the date that the change-of-status application was originally filed, that person may be approved for a status change even if the duration of status expired before the issuance of the Federal Register Notice (Notice), or expired after the issuance of the Notice, as long as the application to change status or a Motion to Reopen an application to change status is pending with the USCIS.
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Prior Denials of Change of Status
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The second question is what a person can do who was in F-1 or J-1 status, remains in the U.S., and received a denial of a change-of-status application prior to July 23, 2004 in order to obtain a change-of-status approval. The Yates Gap Memo states that such an applicant may file a motion to reopen / reconsider the change-of-status denial, but the motion must be received by the USCIS no later than August 23, 2004. Such motions must include the correct fee.
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Processing Time for Motions to Reopen / Reconsider
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The third question asks whether such Motions to Reopen / Reconsider will be processed more quickly than the typical 4 to 8 months. The Yates Gap Memo affirms that Motions to Reopen / Reconsider these particular change-of-status denials should be processed prior to October 1, 2004.
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Prior Motions to Reopen / Reconsider
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The fourth question asks whether one who filed a Motion to Reopen / Reconsider prior to the Notice must file a separate Motion to Reopen / Reconsider for this issue only. The Yates Gap Memo states that a separate Motion to Reopen / Reconsider is not required, but the petitioner should supplement the pending Motion with all the required information so that it may be processed prior to October 1, 2004.
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Prior Premium Processing Payments
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The fifth and final question asks whether one who previously filed a change-of-status application to H1B status and paid a premium processing fee may use that same processing fee for a second change-of-status application. The Yates Gap Memo states that this is not permitted since the earlier fee was used towards the earlier decision that was premium processed. The Memo reaffirms that, if the person files a Motion to Reopen / Reconsider the earlier denial of the change of status, that Motion to Reopen / Reconsider should be processed by October 1, 2004.
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Conclusion
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We at The Law Office of Sheela Murthy appreciate that the USCIS has made efforts to further clarify this issue and intends to process all Motions to Reopen / Reconsider related to this issue prior to the beginning of fiscal year 2005.
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