USCIS TO ALLOW F-1 STUDENTS OPPORTUNITYTO REQUEST CHANGE OF STATUS
Short-term, Immediate Measure for Beneficiaries of Selected H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) announced today that it would allow

F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.  This short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal

year (with an October 1 employment start date) and have requested a change of status. For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.  Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.

USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.

NOTE: If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations.

USCIS ISSUES REVISED GUIDANCE ON CHILD STATUS PROTECTION ACT (CSPA)

U.S. Citizenship and Immigration Services today issued guidance that will modify its

earlier interpretation of the Child Status Protection Act (CSPA) which permits applicants for certain immigration benefits to retain classification as a child even if he or she has reached the age of 21.

The new guidance, changes how USCIS interprets the applicability of the CSPA to aliens who had aged out prior to the enactment of the CSPA on August 6, 2002.

Under prior policy guidance, USCIS considered an alien beneficiary of a visa petition that was approved before August 6, 2002 to be covered by the CSPA only if the beneficiary had filed an application for permanent residence (either adjustment of status or an immigrant visa) on or before August 6, 2002, and

no final determination had been made on that application prior to August 6, 2002. This new policy extends CSPA coverage to aliens who had an approved visa petition prior to the enactment of CSPA but who did not have a pending application for permanent residence on the date of enactment of the CSPA.

Aliens who were ineligible under the prior policy and who subsequent to the enactment of the CSPA never filed an application for permanent residence may file an application for permanent residence to take advantage of this new interpretation. Aliens who filed an application for permanent residence after the enactment of the CSPA and who were denied solely because they had aged out may file motions to reopen or reconsider without a filing fee.

Questions & Answers

Q: What is the Child Status Protection Act (CSPA)?

A: CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by USCIS.  The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children (see below).

Q: Who benefits under the new CSPA guidance?

A: The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

Q: Are there other considerations impacting eligibility requirements?

A: Yes.

  • The new guidance does not include aliens who, prior to Aug. 6, 2002 (date CSPA was enacted), had a final decision on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.
  • If an alien filed an application for permanent residence after the enactment of the CSPA, and the application was denied, that denial must be ‘solely based’ on a finding that the applicant was not a child because the CSPA did not apply. An I-485 can be denied for various reasons; if your I-485 denial was based for a reason other than for CSPA, then this revised CSPA guidance does not apply to you. Finally, if you had an approved immigrant visa petition before August 6, 2002, and did not file an I-485 after

the enactment of the CSPA, you could still benefit if (1) you are filing as an immediate relative or (2) your visa became available on or after Aug. 7, 2001, you did not apply for permanent residence within one year of petition approval and your visa becoming available.

Q: How do I know if I was denied solely based on CSPA?

A: The written denial decision you received from USCIS will state the basis for the denial.

Q: Will it matter whether the child reaches the age of 21 before or after the enactment date of the CSPA to benefit from this revised policy?

A: No, provided the applicant did not have a final decision prior to Aug. 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the applicant claimed to be a child.

Q: Please explain the differences of benefit for an immigrant petition filed by a U.S. citizen and a Lawful Permanent Resident.

A: Immigrant Petition as a child filed by a U.S. citizen:

  • If the child is under the age of 21 on the date of the filed immigrant petition, he/she will not ‘age out’. He or she will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.

Immigrant Petition as a child filed by a Lawful Permanent Resident:

  • If the immigrant petition was approved and the priority date becomes current before the applicant’s ‘CSPA age’ reaches 21, the child will not ‘age out’, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In order for CSPA coverage to continue, the child must apply for permanent residence within a one-year of the date the priority date became current.

Q: How do I calculate my ‘CSPA age’?

A: For preference category and derivative petitions, your ‘CSPA age’ is determined on the date that your visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your ‘CSPA age’ is under 21 after that calculation, you

will remain a child for purposes of the permanent residence application.

Q: If my child is a derivative of a petition filed on my behalf, can my child benefit under CSPA?

A: Yes, so long as the child also meets CSPA eligibility requirements previously discussed and applies for permanent residence within one year of the priority date being current.

Q: If I was previously denied because of ‘aging out’, can I file a motion to reopen or have my I-485

reconsidered? If so, is there a filing fee incurred?

A: Under the new policy, USCIS will accept, without a filing fee, a motion to reopen or reconsider a denied

I-485 application if the following criteria are met:

  • A visa petition was approved prior to Aug. 6, 2002 and the I-485 was filed after Aug. 6, 2002;
  • The applicant would have been considered under the age of 21 under applicable CSPA rules;
  • The applicant applied for permanent residence within one year of visa availability; and
  • The applicant received a denial solely because he or she aged out.

Q: Is there a deadline for filing a motion to reconsider my I-485 if the original was denied solely for

‘aging out’? Where should I file the motion?

A: No deadline. Applicants should apply at their local USCIS field office.

Q: I did not have an application for permanent residence pending on Aug. 6, 2002 and did not subsequently apply for permanent residence? Am I still eligible for CSPA coverage?

A: Yes, provided the applicant meets the following criteria:

  • The applicant is applying for permanent residence as an immediate relative; or
  • The applicant’s visa became available on or after Aug. 7, 2001; and

The applicant did not apply for permanent residence within one year of the petition approval and visa availability, but would have qualified for CSPA coverage.

What travel documents and identification are required for a foreign national or green card holder to enter the U.S.?

Answer

ALL persons* traveling by air between the United States and Canada, Mexico, Central and South America, the Caribbean, and Bermuda are required to present a valid passport or Air NEXUS card.

Oral declarations are no longer accepted from U.S., Canadian or Bermudian travelers seeking to enter the U.S. by sea and/or land.

As Late as Spring 2009 – Date to be determined by the Secretary of Homeland Security, in consultation with the Secretary of State. ALL persons*traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea (including ferries), may be required to present a valid passport, Nexus, Fast card or other documents as determined by the Department of Homeland Security. While recent

legislative changes permit a later deadline; the Departments of State and Homeland Security are working to meet all requirements as soon as possible.

Ample advance notice will be provided to enable the public to obtain passports or passport cards for land/sea entries.

*Lawful permanent residents (LPRs), refugees, and asylees (of the United States) will continue to be able to use their Alien Registration Card (Form I-551),

issued by DHS, or the Travel Document issued to those with refugee or asylee status to apply for entry to the United States.

A foreign national or alien entering the U.S. is generally required to present a passport and valid visa issued by a U.S. Consular Official, unless they are coming

from a country eligible for the Visa Waiver Program, or are a lawful permanent resident of the U.S. or a citizen of Canada.  The Visa Waiver Program allows

foreign nationals from certain countries to be admitted to the U.S. under limited conditions and for a limited time without obtaining a visa. The foreign national

must be coming from an eligible country, staying no more than 90 days, for pleasure/medical purposes, and able to prove they are not inadmissible. The foreign

national is still required to have a passport. To obtain a list of countries eligible for the Visa Waiver Program, please reference the Department of State web site.

Foreign nationals that are lawful permanent residents of the U.S. must present a Permanent Resident Card (“Green Card”, INS Form I-551), a Reentry Permit (if

gone for more than 1 year), or a Returning Resident Visa (if gone for 2 years or more), and their passport to reenter the United States if traveling from outside

the Western Hemisphere. If traveling to Canada or Mexico, the Permanent Resident Card is sufficient, although, carrying a passport as well could help facilitate your reentry. (LPRs that are out of the U.S. for more than 180 days are subject to new immigrant inspection procedures as per 8 USC 1101.)

Foreign nationals that have applied for permanent residency or a change of status may need to be approved for advance parole in order to be readmitted to the U.S. after traveling abroad. Canadian citizens generally are not required to have a visa or a passport (See new WHTI requirements above) and may visit the U.S. for up to 6 months. However, Canadians must be able to prove their identity and citizenship to enter the United States. CBP will accept either a birth certificate, citizenship certificate or passport as proof of citizenship. If the Canadian citizen does not have any of these because they were lost or stolen.  The burden of proof is on the traveler to prove that they are Canadian citizens. Copies of correspondence requesting a replacement of documents, etc. might be accepted, but it is up to the CBP officer to determine whether or not such paperwork meets that burden of proof.  Canadians coming as a Treaty Trader, classification E are required to have a visa to enter the U.S.

A visa and passport are not required of a Mexican national who is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a

machine-readable biometric identifier, issued by the Department of State and is applying for admission as a temporary visitor for business or pleasure from contiguous territory. If the traveler is not coming from the Western Hemisphere, a passport is required.

Continuing students who are going to travel outside of the United States must see their foreign student advisor and obtain an endorsement from the DSO or

RO. The endorsement will be made on page 3 of the SEVIS Form I-20 or page 1 of the DS-2019. When returning to the United States, a continuing student/exchange visitor must present a valid SEVIS Form I-20 or DS-2019 with the DSO or RO signature showing that the student is active and in good standing with the school or program.

To obtain a nonimmigrant visa, contact the Department of State at www.state.gov. Be aware, the Department of State can authorize travel to the U.S.  However, a visa does not guarantee that you will be allowed to enter the U.S. CBP has the authority to grant or deny your admission to the United States. The Bureau of Citizenship and Immigration

Services determines how long you may stay in the United States and whether or not you may extend your stay. You may contact them at 1-800-375-5283.

DHS Proposes Biometric Airport and Seaport Exit

Procedures

The U.S. Department of Homeland Security (DHS) announced a notice of proposed rulemaking that will establish biometric exit procedures at all U.S air and sea ports of departure. The majority of non-U.S. citizens are already required to submit digital fingerprints and a digital photograph for admission into the country. The US-VISIT Exit proposal would require non-U.S. citizens who provide biometric identifiers for admission to also provide digital fingerprints when departing the country from any air or sea ports of departure. “The 9/11 Commission called for biometric entry and exit records, because biometrics confirm that travelers are who they say they are and the purpose of their travel is as they claim it to be,” said Homeland Security Secretary Michael Chertoff.

The proposed rule would require commercial air carriers and cruise line owners and operators collect and transmit international visitors’ biometric information to DHS within 24 hours of leaving the United States.  Carriers are already required to transmit biographic information to DHS for all passengers prior to their departure from the United States.   The proposed rule does not designate a specific location within the port of departure for biometric collection and does not apply to small carriers or vessel owners and operators, or to general aviation.  DHS completed a test of biometric exit procedures at several U.S. airports and seaports last year. Based on the results of this test, DHS determined that biometric exit procedures must be integrated into the existing traveler process to ensure compliance and provide visitors with a consistent experience from port to port. DHS intends to implement air and sea biometric exit procedures by January 2009.  The notice of proposed rulemaking will be published in the Federal Register and will provide the general public an opportunity to submit written comments electronically or by mail.

Best,

Kaushik Ranchod

This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on this information. The above information should not be construed as legal advice. Please note that laws change frequently.