F and J Students May Close The Gap Due to FY 04 H-1B Quota if Change of Status is Filed by July 30 2004

USCIS Will Extend End Date of Authorized F or J Period Through October 1, 2004

The Department of Homeland Security ("DHS") issued a notice on July 23, 2004 supplementing procedures for certain H-1B cases affected by the 65,000 quota allocation for Fiscal Year 2004 ("FY 04"). The notice offers an extended grace period to act as a "gap filler." For F-1 or J-1 students, and their dependents, whose prospective employers have filed timely requests for change of status to H-1B with an employment start date on the petition of no later than October 1, 2004, but whose underlying F or J status expires prior to October 1, the extended grace period will protect their right to remain in the United States. The protection is offered provided DHS receives the timely filed request by July 30, 2004. The new measure is designed to prevent a lapse of status for aliens who have maintained their status and would otherwise be eligible for a change to H-1B status if the annual H-1B numerical limitation had not been reached.

Summary

Under Section 214(g) of the Immigration and Nationality Act (the "Act"), the total number of persons who may be issued H-1B visas or otherwise granted H-1B status during FY 2004 may not exceed 65,000. On February 25, 2004, U.S. Citizenship & Immigration Services ("USCIS") published a notice informing the public that the H-1B numerical limitation had been reached and that USCIS would not process any additional petitions with an employment start date on or before September 30, 2004. The additional notice published by DHS on July 23 extends the duration of status for certain F and J students if their prospective employer has timely filed a request for change of nonimmigrant status to that of an H-1B nonimmigrant alien where:

• The petition and change of status is received by USCIS (as indicated on the receipt notice issued by the agency) on or before July 30, 2004,
• The petition contains an employment start date of no later than October 1, 2004,
• The application for a change of nonimmigrant status is received by USCIS prior to the expiration of the alien's period of stay,
• The alien has not violated the terms of his F or J status, and
• In the case of J-1 exchange visitor, the exchange visitor is here as a J-1 student ( as opposed to a different category of exchange visitor) and the two-year home residence requirement under section 212(e) of the Act does not apply to him or her.

SEVIS will continue to maintain a record of F-1 and J-1 students that are in this extended grace period.

Motion to Reopen May Be Available For Relevant Cases Denied Previously Due to Perceived Failure to Maintain Status

William Yates, the Associate Director for Field Operations at USCIS, indicated informally in an email to the American Immigration Lawyers Association that the agency will accept motions to reopen previously denied cases where the denial was due to the agency not being aware of an extension of the 60-day and 30-day grace periods ordinarily available to F-1 and J-1 students, respectively. Mr. Yates indicated that the motion to reopen would be considered timely if filed within 30 days of the date of the new notice, i.e., by August 23, 2004. Although Mr. Yates' guidance is not binding, individuals who may have been adversely affected by a decision prior to announcement of the extended grace period are advised to consult with their counsel regarding the availability of a motion to reopen.

No Work Authorization During Extended Grace Period

The DHS notice explains that the additional extension is in fact an extension of the ordinary 60-day or 30-day "grace period'' already accorded an F-1 or J-1 nonimmigrant at the completion of his or her program and approved training. Thus a person benefiting from this extension of the "grace period'' may not work for the petitioning employer or otherwise engage in activities inconsistent with those that would be allowed during the ordinary 60-day or 30-day grace period. Dependents of an F-1 or J-1 nonimmigrant benefiting from an extended grace period must follow the same rules as those that apply to the F-1 or J-1 principal alien during the grace period.

Continuation of Grace Period Until October 1 Employment Start Date or, if Adjudication is Delayed Past October 1, Conclusion of the Adjudication of the Petition

If the H-1B petition for an affected F-1 or J-1 students is approved prior to October 1, the grace period will stay in effect until October 1, 2004 (i.e., the date an H-1B visa will become available and the employment start date).

DHS has stated that it believes it has sufficient time to approve the cases by October 1 provided they are filed by July 30. Should an application to change nonimmigrant status to H-1B remain pending beyond October 1, 2004, however, the individual (and dependents included on the application) will be protected by an ongoing discretionary grace period until USCIS adjudicates the H-1B petition and effectuates the change to H-1B status. As a result, such individuals will not be accruing unlawful presence as described in section 212(a)(9)(B) of the Act.

The Impact of a Denial of the H-1B Petition and Change of Status

If an H-1B petition filed on behalf of an F-1 or J-1 nonimmigrant is denied, the principal applicant and any dependents may finish his or her respective 60-day or 30-day grace period. If the H-1B petition is denied after the 60-day or 30-day grace period, the alien's F-1 or J-1 status is terminated as of the date of the decision and he or she, as well as any dependents, must immediately depart the U.S.

Consular Visa Processing Required If F-1 or J-1 Student Travels Outside U.S.

DHS has indicated that an F-1 or J-1 nonimmigrant with a pending H-1B petition cannot travel during the extended grace period announced in the July 23 notice. If the F-1 or J-1 applicant departs from the United States, he or she will be in a position to process for an H-1B visa at a U.S. consulate after the H-1B petition is approved, and therefore will not benefit from the extended grace period.

Reminder from DHS Of Obligation to Report All Changes Of Address on Form AR-11

F and J nonimmigrants affected by the notice, like all aliens in the United States, have an ongoing obligation to report each change of address and new address to DHS during their stay in the United States, per the Form AR-11 process detailed on the USCIS web site at http://uscis.gov/. An alien who fails to comply with the change of address requirements may be removable under section 237(a)(3)(A) of the Act and subject to criminal or monetary penalties under section 266(b) of the Act.