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Trumpism Without Trump? Irrational CSC F-1 Transfer Denials, Pt. 1. Roger Algase

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The USCIS California Service Center has never exactly had a reputation for going out of its way to help skilled or professional foreign workers or students applying for "non-immigrant" temporary status so they can advance their educational or career goals in the United States. However in two recent decisions involving clients of mine (case numbers and other details of which I must keep confidential) the CSC has outdone itself denying applications to change to F-1 from a different non-immigrant status by using tortured "logic" that would have even Donald Trump, if not Franz Kafka himself, scratching their heads in amazement.

The decisions outlined below both follow the same pattern of "reasoning", if that is what utter lunacy in agency decision making can be called, that would leave the normal standard for overturning an absurdly mistaken USCIS decision, namely "arbitrary and capricious" far behind in the dust.

I will summarize the two decisions. Both cases involved applicants who were in the United States with valid "nonimmigrant" visas which were about to expire and who wished to continue their education in the US in fields related to their areas of career interest before returning to their countries.

While still maintaining their previous non-immigrant status, the applicants each received valid I-20 forms from an established school listing a program of study scheduled to begin before the expiration date of their then current legal status.

Each applicant then timely filed the required I-539 change of status application form with the USCIS Vermont Service Center (since the school was on the east coast, where both applicants also live) while their then current legal status was still in force, as required by 8 CFR Section 248.1(b) relating to change of status applications.

About two months after filing, each application was transferred to the California Service Center by the VCS, which was apparently unable to handle its backlog for this type of case.

Subsequently, one of the above applicants received an RFE from the CSC asking some questions about the reason for the course of study, the study program itself and the applicant's source of support. A timely response was sent to the CSC, which was evidently satisfied with the answers, since it did not mention any of these issues in its final decision.

In the case of the other applicant. no RFE was ever sent, so the CSC evidently had no questions about the merits of the F-1 change of status application at any time in that case.

However about six months after filing the I-539 C/S applications, both applicants received denial notices stating that, even though the C/S applications were timely filed, the applicants had failed to maintain their previous non-immigrant status until a date no less than 30 days prior to the I-20 start date, as allegedly required by 8 CFR Section 214.2(f)(5), to be discussed further below.

This was despite the fact that, as mentioned above, each applicant had received an I-20 start date that was not only within the above 30-day period after expiration of their current non-immigrant status, but was actually before that status expired.

How is it possible that, the CSC could have made what seemed to be such an obvious mistake about the I-20 start dates, in order to use this issue as a basis for denying two otherwise meritorious change of status F-1 applications?

The answer is, that as was explained to me by the school official responsible for issuing I-20's the lengthy time period which USCIS now takes to process F-1 transfer I-20's (currently up to six months from filing the I-539, with premium processing not available for I-539 applications of any type) means that the I-20 issuing school has to "defer" the program start date on the I-20 to the next semester or other academic period in order to avoid having the SEVIS registration which ICE requires for all F-1 students, cancelled.

Therefore while the I-20 starting dates in these two applications were never changed, the SEVIS registrations for the two applicants were updated with later starting dates in order to comply with the applicable requirements.

It appears from the two above decisions that the CSC confused the deferred SEVIS program starting dates with the original I-20 starting dates. However the above regulation, which the CSC relied on as the basis for the I-539 denial, does not make any mention of SEVIS program starting dates. it only mentions the I-20 starting date, as will be shown below.

This is not a mere technical misunderstanding. If USCIS substitutes deferred SEVIS starting dates in place of the original I-20 program starting date mentioned in the regulation, it will become impossible for many prospective students who wish to change their non-immigrant status to F-1 to have these applications approved.

This is because keeping their previous non-immigrant status in force for an additional period of up to six months after filing for change of status to F-1, while waiting for a decision, would not be practical in many cases.Not only is the above reminiscent of Kafka, but also of George Orwell.

However, the above is not even the main problem caused by the CSC's reliance on the above mentioned 8 CFR Section 214.2(f)(5) as a basis for denying meritorious change of status to F-1 applications. There is a much more serious, fundamental, Service mistake involved as well

To be continued in Part 2.
_________________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards. Roger's email address is algaselex@gmail.com

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Updated 05-14-2016 at 11:50 AM by ImmigrationLawBlogs

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  1. Unregistered233's Avatar
    Were the decisions challenged with a motion?
    When will the second part of this blog be available?
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