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Eugene Goldstein, Esq.


Memorandum

Page , July 26, 2019

LAW OFFICES OF

EUGENE GOLDSTEIN AND ASSOCIATES

150 BROADWAY, SUITE 1115

NEW YORK, NY 10038


212-374-1544

Fax 212-374-1435

EGLAW@AOL.COM

http://www.eglaw-group.com
Lawrence Goldstein, Esq.

Lucy G. Cheung, Esq.

(Admitted in Mass.)

_________

Jacqueline Singh

Ana Peña

Legal Assistants
July 2, 2010

MEMORANDUM

To: International Education Program Administrators



  1. President’s July 1, 2010 Speech on Comprehensive Immigration Reform




  1. ICE Issues Strategic Plan for 2010-2014 - Where ‘O Where Is SEVIS?




  1. H-1B Developments

    • H-1B Cap Count as of June 25, 2010

    • DHS Issues 2009 Annual Report: “Characteristics of H-1B Specialty

Occupation Workers”


  1. Highlights of April 6, 2010 Vermont Stakeholder Q&A




  1. ICE/SEVP Issues Policy Guidance on Visa Revocations




  1. USCIS Publishes Extension of Agency Information Collection Request for I-612




  1. USCIS Proposes Fee Increases




  1. “N.Y. Times” on USCIS Marriage Interviews



  1. President’s July 1, 2010 Speech on Comprehensive Immigration Reform


On Thursday morning July 1st, President Obama presented a major policy speech on Comprehensive Immigration Reform.
After two years of being criticized for taking little or no action on his campaign promises to fix our broken immigration system, President Obama made a major speech supporting serious and positive reform. The speech touched on all of the arguments of fairness and enforcement. He specifically mentioned the DREAM Act, and keeping international students in the U.S. – instead of training them for our competition. The full speech may be viewed at www.whitehouse.gov. Time will tell what actions will follow.
The “New York Times” of July 2, 2010 carried an article and Editorial about President Obama’s speech, which can be found at the following links respectively:
http://www.nytimes.com/2010/07/02/us/politics/02obama.html?ref=us

 

http://www.nytimes.com/2010/07/02/opinion/02fri1.html?_r=1



  1. ICE Issues Strategic Plan for 2010-2014


On June 16, 2010 ICE made available its Strategic Plan for the fiscal years 2010-2014. At the same time, ICE Assistant Secretary Morton issued a message regarding internal realignment of ICE Offices. The seven page strategic plan contained a Mission Statement and Priorities, Goals, and Strategies including Preventing Terrorism and Enhancing Security, Protection of the Borders against Illicit Trade Travel and Finance, Protection of the Borders through “Smart and Tough Interior Immigration Enforcement,” and the Construction of an Efficient Effective Agency. However, something was missing.
Where ‘O Where Is SEVIS? The Strategic Plan and Secretary Morton’s message said nothing regarding SEVIS? Is SEVIS the poor step-child of the agency? Is SEVIS being moved to another agency? Or is it simply forgotten or overlooked. In any event, this omission in ICE’s five year Strategic Plan is curious, and certainly raises questions.
Further, on June 24, 2010 Homeland Security Secretary Napolitano published remarks to the National Association of Latino Elected and Appointed Officials. In her remarks she stated that ICE will prioritize “…the identification and removal of

illegal immigrants who have committed serious crimes in its immigration enforcement efforts…” It is hoped that this prioritization will stop the arrest of errant student overstays and that ICE will check with schools before making arrests, imprisoning, or requiring students to wear ankle bracelets. What may be good for ICE statistics, would not appear to be good for international education.



  1. H-1B Developments




  • H-1B Cap Count as of June 25, 2010


The H-1B cap goes on. As of June 25, 2010 there were 23,500 cap eligible petitions filed against the 65,000 cap, and 10,000 cap eligible petitions filed against the 20,000 cap for U.S. issued Master’s degree holders, or higher. Overall, it would appear that the 2010 H-1B numbers are running at about half the rate they did in the 2009 fiscal year.



  • DHS Issues 2009 Annual Report: “Characteristics of H-1B Specialty Occupation Workers”


The Department of Homeland Security recently issued a report regarding “characteristics of H-1B specialty occupation workers” for the fiscal year 2009. The report is dated April 15, 2010 and was issued to comply with a provision of the American Competitiveness and Work Force Improvement Act of 1998. The report provides information on the countries of origin, occupations, educational levels obtained, and compensation paid to H-1B visa recipients. The Executive Summary notes a 15% decrease for the number of H-1B petitions filed in fiscal year 2009, from fiscal year 2008. The rate of approvals decreased 22% in the same year. Approximately 48% of the approvals were for workers born in India, and two-thirds of the approvals were for workers between the ages of 25 and 34. Forty one percent held Bachelor’s degrees. Forty percent held Master’s degrees and 13% had a Doctorate. Six percent held professional degrees. Forty one percent worked in computer related occupations, and overall, the median salary was $64,000, $4,000.00 over the 2008 fiscal year. In short, chances are that the ordinary H-1B applicant will be a 30 year old Bachelor’s degree holder in computers from India earning $64,000.00.


  1. Highlights of April 6, 2010 Vermont Stakeholder Q&A


On April 6, 2010 a Stakeholder’s meeting was held with the Vermont Service Center. The following are some of the questions and answers from that meeting, as approved by the Vermont Service Center:
STUDENT BASED & I-539 PETITIONS



2. Please discuss the Application for EAD Card for F-l and J-2.
For both classifications an Application for Employment Authorization (Form 1-765)

must be filed with the proper fee, signature and photo (unless e-filed), a copy of their prior EAD, if applicable, and evidence of status.
An F-1 must submit a SEVIS form I-20 containing the proper DSO recommendation issued within 30 days for the type of employment they are seeking; (c)(3)(A), (c)(3)(B), (c)(3)(C), (c)(3)(ii) or (c)(3)(iii). It is recommended that copies of all prior I-20s are submitted to avoid a possible request for evidence.
In addition, applicants filing under the (c)(3)(C) category should include evidence of the degree received and the employer's company or client company name and ID number as shown in E-Verify.
Applicants filing under the (c)(3)(ii) category should include a SEVIS Form I-20 endorsed for reentry by the designated school official within 30 days prior to the date of filing the Form I-765 and a certification from the international organization stating that the proposed employment is within the scope of its sponsorship.
Applicants filing under the (c)(3)(iii) category should include detailed evidence which establishes that they are experiencing severe economic hardship and that the circumstances causing it were unforeseen and beyond their control. This evidence should include financial documentation given to the school when they became a

student, to include a sponsor if applicable, as well as current financial documentation to establish income, assets and expenses. If the student has a sponsor, their financial documentation is required.
A J-2 must submit a copy of their and/or the principal J-1 's DS-2019 and a statement that money earned while employed will not be spent to support the J-1.
3. Are you expanding on or improving your communications with SEVP relating to student case processing and updates to SEVP? An example would be when F-1 OPT is using Cap Gap and the H is withdrawn, the policies on when this is ok and when the student must file a reinstatement is very muddy, and we get different answers from VSC and SEVP.
We are working toward improving our communication with SEVP relating to student issues. Our guidance on the scenario above is if the H-IB is revoked after the H-1B


employment validity period begins, the student must file for reinstatement if they wish to maintain a valid F-1 status.
4. Does VSC have plans to issue receipt notices for the I-612s that are submitted directly from DOS? At present, members often have no way to track the I-612 after it has been submitted to VSC because no receipt is sent. Please advise.
At this time VSC does not have the capability to issue receipt notices for the I-612s submitted from DOS. VSC is continuously exploring different options. In the meantime, when contacting VSC please be sure to use the applicant's exact name

and date of birth as it is listed on the state department letter. Also provide the A number if the applicant has been issued one.


6. Members have reported receiving denials of I-539s for dependent children of B-1 applicants (including NAFTA B-1s) because the derivative children either intend to attend school or are enrolled in school when a change is requested. There is specific guidance in the Adjudicator's Manual, Inspector's Field Manual and FAM that the attendance in school by B-2 dependents is clearly incidental to status as they are accompanying the principal B-1. However, the VSC has denied the I-539s quoting 8C.F.R.214.2 (b) (7). Please clarify.
Awaiting guidance


8. New I-20 when attendance is deferred:

Does VSC want us to send new I-20 when we have to defer attendance for a student whose change of status is still pending with VSC?
A new I-20 for students whose attendance has been deferred should not be sent to VSC unless it is requested in an RFE (request for evidence). If the case is otherwise approvable, VSC will make a pen and ink change on the 1-20 to match the program start date indicated in SEVIS.
9. Change of status and D/S grace periods:

If a J-1 is applying for a change of status to F-1, can there be a gap of up to 60 days between DS-2019 expiration date and I-20 start date (since there is a 30 day grace period allowed on the J and an F can enter up to 30 days in advance of start date?).
Yes, for a J-1 changing status to an F-l there can be a gap of up to 60 days.
10. OPT after SEVIS termination and subsequent reactivation:

If a student takes a leave of absence for a quarter (3 months) the SEVIS record is terminated, but then reactivated as the student returns within five months to complete his program. Is he still eligible to apply for and receive post-completion OPT, even though he only has one quarter to complete before graduating?

Per 8 CFR §214.2(f) (10), practical training may be authorized to an F-1 student who has:

Been lawfully enrolled on a full time basis for one full academic year in a Service approved college, university, conservatory, or seminary.
• An eligible student may only request employment authorization for

practical training in a position that is directly related to his or her major area

of study.
Note: Students in English language training programs are ineligible for practical training.
With regard to the scenario above, as long as the applicant had been a full-time student for an academic year prior to their leave of absence, they would be eligible for OPT (Optional Practical Training) in this scenario.
11. OPT start date gap:

We have had a STEM OPT card issued with a start date that is ten days after the start date requested. This results in a gap between the end of the first OPT card and the beginning of the next. 8 C.F.R. § 214.2(f) (11)(iii)(A) provides that "The employment authorization period for the 17-month OPT extension begins on the day after the expiration of the initial post-completion OPT employment authorization and ends 17 months thereafter, regardless of the date the actual extension is approved." Although a student who has applied for a STEM extension can continue working for up to 180 days beyond the expiration of the prior post-completion OPT EAD while the STEM extension application is pending [8 C.F.R. § 214.2(f) (11)(i)(C) and 8 C.F.R. § 247a.12 (b)(6)(iv)], having a gap on the EAD cards can create confusion.
Could VSC ensure that STEM OPT card start date matches the start date recommended in SEVIS?
Our officers are instructed that a STEM OPT validity period starts the day after the (c)(3)(B) OPT validity ended and ends 17 months later. DSOs should contact us via the VSC Schools email and request to have cases reviewed that have not been given the proper (c)(3)(C) validity dates.
12. Multiple requests for change of status:

When there are two separate change of status applications pending for the same person (J-1 to F-2 and F-2 to H-1B) at different service centers, and one application (J-1 to F-2) must be adjudicated before the other (F-2 to H-1B) can be processed, what guidance can you provide to assure that the change in status occur in the correct sequence at the different service centers?
Based upon the above fact pattern it is assumed that the first filing is a Form I-539 application and the second filing is a Form I-129 petition. To successfully change status from J-1 to F-2 and from F-2 to H-1B, the beneficiary must be maintaining valid


F-2 status at the time the I-129 change of status petition is adjudicated. Thus, the I-539 application must be granted before the I-129 petition is adjudicated.

To avoid denials or delay of processing, USCIS recommends that an applicant/petitioner wait to file a second change of status petition until after the first petition has been approved. By having two change of status petitions pending simultaneously, the applicant/beneficiary assumes the risk that the Form I-539 will be denied, such that the alien never acquired F-2 status, or that the Form I-129 will be adjudicated first, resulting in a denial of change of status since the alien is not yet in F-2 status.
Nonetheless, should you file in this fashion please include a cover letter with one or both filings and provide as much information about the other filing as possible. For example, the I-129 H-1B petitioner should provide the receipt number of the first application/petition, if available, what Service Center the petition has been filed with, the name, date of birth and nationality of the beneficiary as listed on both petitions. If USCIS can identify the two filings, it will try to adjudicate the petitions in the requested order; however, USCIS cannot guarantee that this will occur.
13. Impact of TPS cases on Spring OPT applications:

What impact will the Haitian TPS application process have on the processing of OPTs this spring?
We do not expect that the Haitian TPS process will have an effect on OPT cases filed at the Vermont Service Center. However, we cannot speak to this on behalf of the other Service Centers.
14. STEM extension applications:

How early will VSC accept a STEM extension application? The regulations do not address timeframe. Since this is technically treated as an "extension," can an applicant rely on the general advice on the USCIS Web site that states, "You cannot file for a renewal EAD more than 120 days before your original EAD expires?"
We are aware that the regulations do not address the filing time frame for STEM cases and would not reject and/or deny cases filed more than 90 days early.
15. Signature on I-20 and DS-20l9 for F and J dependents:

The SEVP online DSO training states that the principal should sign his or her own I-20 or DS-2019 Form and those of minor dependents, and a spouse sign his/her own. VSC has sent a request for evidence when a spouse has signed the form for him or herself. Who should sign a dependent's F-2 I-20 and J-2 DS-2019 - the principal F-1 or J-1 or the dependent?
The F-1 student should sign the F-2 I-20. Number 11 on the I-20 states "Student Certification and Signature of Student." Likewise the J-1 should sign the J-2 DS-2019. The signature block on the form is for the J-1 exchange visitor certification.



17. Lockbox filing and receipt numbers on back of checks:

Will the lockbox contractors write the receipt number on the back of checks as VSC has done in the past? This has been helpful when things are lost in the mail.
A number will be printed on the back of the check. It is not the same as the receipt number for the application; however, it can be used to locate an application filed at the lockbox.
18. Contacts at lockbox facilities:

Is there any way to directly contact the lockbox facility if there are issues with receipting or must the contact be made at the service center? Are there other contact/communication options?
Applicants, petitioners, and G-28 designated representative may contact the lockbox regarding receipting errors via email at lockboxsupport@dhs.gov.

Case specific issues should be directed to the appropriate Service Center.

20. Requirements for Reinstatement to Student Status:

For F- 1 reinstatements, are you requiring transcripts from previous schools? Please discuss the other basic documentation and requirements adjudicators look for.
We do request transcripts for each educational facility that the student has attended. We ask this only if the student needs to establish they have consistently been attending school.
Other basic documentation we normally require:

• Original I-94

• Reinstatement I-20 with original signatures of both student and DSO

• Copies of all Forms I-20 that have been issued to the student for any periods of

F-1 student status

• Letter from school stating the reason student fell out of status, when the student

first approached the DSO regarding reinstatement, the reason for being

recommended for reinstatement and the dates these took place

• Evidence student has ability to support themselves



  1. ICE/SEVP Issues Policy Guidance on Visa Revocations


On June 7, 2010 ICE/SEVP issued “Policy Guidance” for DSOs entitled “Policy Guidance 1004-04-Visa Revocations.” That policy guidance, which is claimed to be “advisory in nature and informational in content” [whatever that means] was published with the purpose of providing guidance on the interpretation of applicable law and regulation. It does not bind SEVP, or the public. However, one should be careful about ignoring this representation of SEVP’s current thinking.

The purpose of the guidance is to provide advice on how to record and respond to law enforcement inquiries involving students whose visas have been revoked. Specifically, how these revocations should be recorded in SEVIS. The report notes that since September 11, 2001 the State Department has revoked 1,250 visas based on information suggesting possible terrorist activity or links. There is no breakdown as to the specific type of visas revoked. It is noted that when the visa is revoked, no advance notice is given to the “alien.” If the visa holder is in

the United States, SEVP will provide the DSO with a list of revocations at the DSO’s school.
The guidance states:

If a DSO receives a visa revocation notice, the DSO should take the following actions in the student’s SEVIS record:

  • If the nonimmigrant was entering on an initial Form I-20, “Cancel” the record upon notification.

  • If the nonimmigrant student was re-entering the United States to continue a program of study, enter “Terminated” in the SEVIS record for “No Show.”

Some circumstances require revocation of a nonimmigrant student’s visa while the nonimmigrant is in the United States and in status. Visa revocation is not, in itself, a cause for termination of the student’s SEVIS record.

It is possible that neither the student in question nor the DSO has knowledge of the visa’s revocation. However, law enforcement authorities may contact the school officials to verify whether the student is maintaining status.
Contact SEVP if you have questions.
Considering the non-regulatory nature of the guidance and the uncertain and tepid instructions, one might wish to contact SEVP to ask just what they are requesting.



  1. USCIS Publishes Extension of Agency Information Collection Request for I-612


The “Federal Register” of May 27, 2010 carried a “Notice” from USCIS regarding agency information collection activities for form I-612, the Application for Waiver of the Foreign Residence Requirement of section 212(e) of the Immigration Act. That application is used to file waiver requests for J-1 visa holders who are subject to the two year home residence requirement, and who seek a waiver for reasons of political asylum or hardship. The “Notice” states that there are an

estimated 1,300 responses annually. There is no discussion of applicants using the other waivers for Interested Government Agency Waivers, or for No Objection Statements.



  1. USCIS Proposes Fee Increases


Last month we reported upon a new fee schedule for the Department of State’s Consular Fees to take effect on July 13, 2010. Not to be outdone by the State Department, USCIS has announced a fee increase for many its applications.

Although naturalization will remain at $595.00, green card applications will increase from $930.00 to $985.00 and I-765s will increase from $340.00 to $380.00. The separate biometrics fee will increase from $80.00 to $85.00.



  1. “N.Y. Times” on USCIS Marriage Interviews


For those who wonder what happens to students who get married to an American citizen (who, hopefully, is respectively beautiful and/or handsome, and is, at least, rich) the “New York Times” of June 13th and June 14th carried a two-part series regarding the interviews given to married couples for whom the initial USCIS interviewer had some doubt about the bona fides of the marriage. These interviews are called “Stokes” interviews and are the stereotypic interviews which separate the couple and compare their answers to, sometimes, rather bizarre questions. The articles can be found on the “Times” website at the following links:

http://www.nytimes.com/2010/06/13/nyregion/13fraud.html?scp=1&sq=%22stokes%22&st=cse
http://www.nytimes.com/2010/06/14/nyregion/14marriage.html?fta=y

Many thanks for your comments, your suggestions and for referring your students, scholars and faculty members.
Please let me know if you have any questions, or if you would like copies of any of the materials covered.
Note: The information provided in this Memorandum is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Neither the publisher, nor any contributor is responsible for any damages resulting from any error, inaccuracy, or omission contained herein.

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