1 NSC Open House Questions, March 29, 2005 OPT Questions: 1. Our office strongly encourages students to use our office as their mailing address when applying for a benefit. We have had multiple occurrences of the student receiving the initial application receipt notice from NSC, but then not receiving the final approval. For example, a student will receive the receipt for a COS application and the I-20 with the approval stamp but not the I-797 with the new I-94. Another example, a student will receive the receipt for the OPT application and the USCIS case status on-line system will show the OPT as approved, but the student does not receive the EAD. In these cases, the initial receipt has been received at our office so we do not think it is an address problem. In addition, it is not unusual for our office to receive mailings for students at other schools; the mailings are stuck to a mailing for a student at our school. We are very concerned that there is a system problem at the NSC that is causing mail to be sent incorrectly. Can you please comment? We would need receipt numbers to look into the issue of non-receipt of approval notices and EAD cards. If you have any, please submit them through the liaison process. As for the issue of multiple mailings in one envelope, we will look into whether our mail equipment is functioning properly and notify the card production facility in case it is multiple cards that are being received. If this happens in the future, please return the superfluous notice or card to the NSC so we can direct it to the correct address. 2. There is a problem with F-1 OPT and I-539 change of status approvals being updated in SEVIS. Can you please comment on what is being done to solve this problem? Issues regarding interfaces between USCIS systems and SEVIS (an ICE system) are being handled at the headquarters level. We would encourage you to inquire about this issue during a headquarters CBO meeting. 3. Often students use the address of a friend because student intends to relocate during the OPT pending time and does not have a new address yet. The address for the student in SEVIS is the address at which the student is currently physically residing. The NSC has on occasion sent the OPT application back to the student stating that the SEVIS address must match the address given on the I-765. This seems to be in conflict with the intent of DHS wanting to know the physical location of a student. Will NSC accept an I-765 that reflects a US address that is different from the US address in SEVIS? Yes. Our contractor is not instructed to check the I-765 address against the SEVIS or the I-20 address, so the application should be receipted. We are bringing this situation to our contractor’s attention. If your question is whether or not the application for OPT be approved if the address on the form differs from the address in SEVIS, the answer is yes. If the application is otherwise approvable, there is no basis to deny an application for OPT based on the address in SEVIS not matching the address on the form I-765 supplied by the applicant. 2 4. On occasion EADs get lost in the mail. At what point can a replacement EAD be issued? Some students have waited at least 2 months after approval, but are told that since the card has not been returned to the NSC, they must continue to wait. Undeliverable mail is usually logged in our system within 14 days. If the applicant has not received their EAD within that timeframe, they can file an I-765 for replacement. 5. Can an OPT application be cancelled by just a phone call from the student or a DSO or is a written request required? A request for withdrawal should be in writing so that the request can be made part of the record. We will also accept an email from the DSO on the behalf of the student. Also, since the I-765 is actually “filed” by the student, it should be the student signing the request for withdrawal of the I-765 application. The email NSC.email@example.com. 6. A student completes an MA program then applies for and completes 12 months post- completion OPT. Following the OPT, he returns to the university to complete one more quarter in a PhD program. Does he qualify for another 12 months post-completion OPT? We had a case like this and although it seemed "regulatorily" possible, it seemed too good to be true. This question has been referred to headquarters. 7. When the I-20 is updated in SEVIS following submission of the OPT application to the NSC, does the updated I-20 need to be sent to the NSC? Examples of updates would include a change in expected graduation date or change of OPT request dates. The officer reviews SEVIS records when adjudicating to verify that applicant’s status has not changed. If they see a change in SEVIS, that information will be taken into account for adjudication purposes. It would not hurt to have the updated I-20 sent in, but the most current SEVIS record will be what is used to process case. 8. If a student originally applied for the OPT period of less than 12 months, what documents should be submitted for an OPT extension requesting the remainder of the 12 months? What is the processing time for the EAD for the OPT Extension? They should submit the same documents that are required when initially applying for OPT. The I-20 that is submitted should have the additional dates listed in order for us to approve the case. The student should still go through their DSO as they normally do. We process applications as we receive them, so the processing time will depend on the pending workload when that application is received. 9. For an I-765 requesting Economic Hardship Employment for an F-1 student, the I-20 is printed from SEVIS without dates of employment. How is the starting date determined? What is the current processing time for this kind of application? The start date will be the date of approval. These applications are queued with other F-1 student I-765s. You can consult our processing time report to find the current processing time. 3 10. What should a student and/or DSO do if OPT was approved according to on-line information but the student did not receive the EAD 2-3 weeks after approval (assume no address change on the student’s part)? Can the student get the EAD from the district office? No, not if a card has been issued and mailed. District offices should only issue interim cards when the case is still pending and if the applicant provides evidence to the district that they qualify for the benefit sought. The student/DSO should file a new I-765 at the service center. 11. How does the NSC respond when an EAD is returned as undeliverable by the postal service? When an EAD is returned as undeliverable, the system is updated to reflect this and the EAD is filed in case an inquiry is made or an address change is received. If we receive an address change or inquiry on an EAD that has been returned, we will update system with current address and request that the filed EAD card be mailed out to the most current address we have. If the EAD is returned and there is a new address on the envelope from the post office, we will update our system with new address and mail card out again. 12. A student’s I-20 for “initial attendance was not stamped at the port of entry, but other documents (I-94, visa, passport) are in order. Student did not leave the USA during his study and did not have the opportunity to get the I-20 stamped Now the student applies for OPT. Will the student have problems with the OPT approval, given the lack of an admission stamp on the I- 94? An adjudicator should be looking at the ENTIRE case when adjudicating. If a decision on the case can be made without the admission stamp information (adjudicators can check SQ94 data in TECS for entry/exit data), then there should not be an issue. 13. A student is graduating June 25th with his MBA & contemplating applying for OPT to start right away On the other hand, he is getting married to his long-time sweetheart (US citizen) on July 16th and in the following week walking in to file the I-485 package Question is: if he applies for and receives OPT, then files the I-485 without an accompanying I-765, would the fact that he is then in Adjustment of Status process automatically nullify his OPT authorization? Or would he remain eligible for the 1-year OPT? This question has been referred to headquarters. 14. Please clarify the procedures for withdrawing and rescinding an OPT Application. The NSC Preferred method is to send an e-mail message to NSC.firstname.lastname@example.org with the subject line stating “I-765 Withdrawal.” Include a reference to the receipt number for the application in the body of the message. As an alternative, you may send the request via postal mail. The cover letter should clearly indicate that the request is for the withdrawal of the I-765 application. Including a photocopy of the receipt notice or a reference to the receipt number for the application is helpful. U.S. Department of Homeland Security Bureau of Citizenship and Immigration Services Nebraska Service Center P.O. Box 87765 Lincoln, NE 68501-7765 4 15. Please clarify the best practice of submitting an address change (the most efficient/effective manner) Applicant should call the National Customer Service 1-800-375-5283 to make an address change. These changes are sent to the NSC and they are typically processed within 2-3 days of receipt. 16. If a student is applying for post-completion OPT and knows he will be moving to California before the OPT will be adjudicated - can he use the California address on the I-765? Applicant should list the address that they are residing at when they file their application. Once they move they should contact the National Customer Service 1-800-375-5283 to make an address change. 17. Previously it was said that a student would be eligible for an additional 12 months of OPT if the student had been 1) outside the U.S. more than five months (and still meets all other eligibility requirements) or 2) in another status for 12 months. Can you please explain why in one situation there is a 5 month time frame and in the other 12 months? In the past, five months in another status qualified for another 12 months of OPT. This question has been referred to headquarters and counsel. 18. Recently NAFSA has been told by DHS that it is okay to approve a second Reduced Course Load for final semester if the student did not graduate as expected. Will NSC consider the student in status for eligibility purposes for OPT under these circumstances? This question has been referred to headquarters and counsel. I-539 Questions 19. Is there a limit on the number of times a person in B2 visitor status may apply for extensions? As a matter of regulation, no there is no limit to the number of times a B2 visitor may apply for extensions. However, by definition, the B2 is a TEMPORARY visitor for pleasure. After one or two extensions, the applicant must provide justification for the extension, evidence of funding, proof of intent to depart, etc. 20. Is someone who is here as a B-1 business visitor is allowed to apply for Change to F-1 status, or is that category prohibited from doing so? A B1 visitor is allowed to apply for a Change of Status (COS) to F-1 student. 21. I have a B-2 changing to F-2 who received a request for evidence to document payment of the SEVIS fee. Is an individual applying for F-2 status required to pay the SEVIS fee? The reason for the request for documentation of payment of the SEVIS fee is not to determine whether or not the F-2 applicant has paid the fee, but to determine that the F-1 has paid. The F-2 status is dependent on the F-1 and if the F-1 is not in status, then the application for the F-2 status cannot be approved. 5 22. We have students who applied for COS to F-1 and their applications were approved. When students show us the I-797 approval and the processed I-20, we activate their file in SEVIS. However, SEVIS still lists them as “pending COS”. When we print the I-20 after activation or when the student applies for a new I-20 (change major, level, OPT and so on), the new I-20 still indicates the reason for issue as “Initial, Change of Status Requested”. The SEVIS Help Desk, when we ask to correct, refused to do that and informed us that it should be done by the US CIS upon approval of COS. Could you please clarify this issue? Please see the response to question 2. 23. A J-1 student applies for COS: his initial visa stamp says the student is subject to INA Section 212(e). But, a renewed visa stamp states the student is not subject to 212e or has no notation on the subject. His DS-2019 does not indicate subjectivity to 212(e). Can the COS be approved (if other requirements are met)? If the initial visa stamp indicates that the J-1 is subject to the provisions of Sec 212(e), he/she is considered to be subject regardless of subsequent program changes. COS can be approved only after approval of an I-612 waiver. 24. A COS to F-1 was just denied because the previous B-2 status expired more than 30 days before the start date on the I-20. I understand the logic and understand this is a directive from HQ; however, I never saw a memo on this or any type of written clarification that this new interpretation was taking effect. How are DSOs supposed to know about such significant policy changes? This question has been referred to headquarters and counsel. 25. Change of status: Is it still policy that if an individual applies for COS from H-1B to F- 1, it will not be approved if when adjudicated the individual will no longer be in H-1B status AND the date is more than 30 days before the start of school? In order for ANY change of status (COS) to be approved, the applicant MUST be maintaining status. If the applicant is out of status the application will generally be denied. H-1B Questions 26. For H-1B’s must the beneficiary have the diploma in hand, or is it enough to have completed all requirements for the degree? ( e.g., we have a Master's student who has now completed all graduation requirements for his MS in Computer Science, but we only officially graduate students and award diplomas twice each year -- January and June. Must he wait, or will a letter from the university to the effect that all requirements for the degree have been completed, suffice?) A letter from the university to the effect that all requirements for the degree have been completed, should suffice. It may be a good idea to include transcripts 27. In H-1B portability cases, what date is used as the start date on the I-797 approval notice – the date requested on the I-129 or the date of adjudication? In a case where a new employer files an I-129 near the end date of an existing H-1B status (requesting an extension), often the I- 797 has a start date well after the expiration of the preceding I-797, creating the appearance of a 6 gap in status. Also, in adjudicating a future I-129 for an alien who has such a gap in dates, would the gap be construed as a failure to maintain status? On portability cases, the approval (start date) is the date of adjudication. The gap that you are referring to is the time the beneficiary is “out of status.” However, the beneficiary is not accruing unlawful presence and this would not have an adverse consequence on the adjudication of a future I-129. 28. Same question for I-129’s reporting an “amendment” in job duties – what is the date of adjudication and effect of any gap in I-797 approval dates? Time of adjudication 29. Employers must file an I-129 to report a “material change” in H-1B employment circumstances. Is there any guidance on how much change is required to trigger this new filing? Can we use a “rule of thumb” such as if the 3-digit occupational classification on the labor condition application would be the same after the change as before the change, that the change is not “material” for this purpose? If the beneficiary’s duties change or his/her location of employment changes then this would constitute a “material change” 30. Please clarify the requirement for "2 sets (original)"of H-1B petitions for new employment: I understand they need 2 sets of the I-129, H supplement, and I-129W (with original signatures). Do they need 2 sets of all the supporting documents, or would 1 set of those suffice? Please include two set of supporting documents. 31. When we send in an H-1B Petition, how does the NSC like the petition to be put together? For instance, is there a certain order to the forms? Should the check(s) be stapled to the front page? Should we separate the different sections using colored paper? Is there a certain binding that is preferred? Please see the NSC web site for guidance. 32. In the H-1B Petition, should transcripts be included or is the copy of the diploma enough? Transcripts should be provided as they evidence the beneficiary’s course experience. 33. In the H-1B Petition, is it necessary to include a Letter of Offer and Signature of Acceptance from the alien for the position, or does an employer’s letter of support letter describing the terms of employment and describing the employment suffice? An employer’s letter of support letter describing the terms of employment and describing the employment will suffice. 34. In the H-1B Petition, is it necessary to include a photocopy of the Social Security Card? No. 7 35. Who should pay H-1 processing fees (Premium Fee, Application Fee, Fraud Prevention Fee) – the employer or/and the beneficiary? The ACWIA fee and the fraud fee must be paid by the employer. 36. Are the filing fees made out to USCIS or DHS? Either is fine. 37. Regarding the H-1b 20,000 exemption from FY'05 cap for those with a US graduate degree... is that 20k just for this year, or will that be 20k per year? Please pose this question to headquarters. 38. Some I-129 adjudicators examining an “extension without change” H-1B application issue an RFE taking position that the initial approval, and subsequent extensions granted by other adjudicators were done in error. Employers rely on consistency of adjudications by the NSC. Is there an adjudication presumption in favor of approving an extension without change, for the sake of consistency. First, the Center is always striving for consistency. We, and the agency, recognize that a hardship can be created when an extension petition is denied. To that end, Associate Director for Operations Bill Yates issued a memorandum on April 23, 2004 which directs, “In matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator… should be given deference.” The memo, however, provides for exceptions where there was a material error in the previous petition approval, a substantial change in circumstances or there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. The Center’s policy is to abide by that memorandum. I-140/I-485 Questions 39. Is concurrent filing of I-140/I-485 still permissible? If so, are they adjudicated concurrently? Yes, concurrent filing is still permissible; however we are no longer adjudicating I-140s and I- 485s together. We have found that it is more efficient to adjudicate them separately. 40. May I-140/I-485/I-765 and Advance Parole application be filed together, concurrently? What address is to be used when all these applications are submitted at the same time? Yes, the I-140/I-485/I-765 and I-131 may be filed concurrently providing all applicable eligibility criteria are met including visa availability. Each petition or application should be prepared and submitted as if it were standing alone (i.e., with its own set of documentation) including evidence of dependent relationship for derivatives. If you are submitting Form I-765 and/or I-131 with your concurrently filed forms I-140 and I-485, please send the entire package to the P.O. box listed for concurrent filings for Form I-140, the underlying petition (P.O. Box 87485, Lincoln, NE 68501-7485). Instructions are available at www.uscis.gov linked under forms, or the Nebraska Service Center. Also be aware that if filings are submitted with a single remittance and the amount is wrong, the entire package must be rejected. 8 41. Employment based I-485’s are portable after pending for 180 days. Is approval of the I- 140 AND 180 days of pendency required to qualify for portability, or is an employment-based I- 485 portable after 180 days whether or not the I-140 has been adjudicated? This question would be best answered by Headquarters as there is currently no affirmative policy guidance related to this particular question. The NSC interprets the statutory language of section 106(c) of AC21 to mean that the visa petition must be valid and therefore approved, in order for the portability provisions to apply. 42. PROLOGUE For many years we have submitted EB-1-2 petitions for outstanding researchers funded by grants and each such petition has been approved, without exception. Following an RFE in 2004 asking for evidence of "permanent" funding, I personally spoke with Acting NSC Director Greg Christian on an NSC/Iowa-Nebraska AILA liaison telephone call. I explained that my university only filed such petitions when there has been a long history of grant funding for the particular area of research, where there has been a clear intention to seek continued funding in the area and where there is there is an intention to employ the alien beneficiary for the indefinite future. Furthermore, I indicated that we would be pleased to provide a history of funding in the area of research to corroborate the petitioner's letter to that effect. (In fact, we had done this years ago until EB-1-2 cases were favorably adjudicated without this additional documentation.) Mr. Christian replied favorably, saying that such long-term pattern of funding with the intention to seek continued funding for the indefinite future in the particular research field in which the alien beneficiary is employed "would be considered evidence of permanency" [his words]. Mr. Christian also indicated that I would be permitted to cite his answer in my communications with the NSC, that is, my response to the RFE. Following my response, our petition was approved. QUESTION: Are grant-funded positions considered "permanent" in the context of an outstanding researcher Form I-140 where (1) there has been a documented longstanding history of grants in the field, (2) the stated intention of the petitioner is to seek continued funding in this area and (3) the stated intention of the petitioner is to employ the researcher in this position for the indefinite future? The regulation requires initial evidence in the form of a letter offering the alien a permanent research position in the alien’s academic field. The Service generally does not go behind offers of permanent employment to inquire about the university’s sources of funding. Related question: Is a grant-funded position considered "permanent" in the context of an outstanding researcher Form I-140 if the position is deemed "permanent" pursuant to the employing institution's personnel policy? The Service relies on 1) the terms of the offer of employment made by the employing university to the alien and, 2) the regulatory definition of permanent. In cases requiring clarification, the Service may request additional evidence/information from the university’s hiring authority. NSEERS Questions 43. Sometimes a student who is from a country included in NSEERS is not enrolled in the program upon entry into the US – no FIN # on the I-94 card, etc. Is this student required to check out upon departure from the US? Would a NSC adjudicator, in the process of adjudicating a benefit for this student hold the failure of CBP to enroll the student in NSEERS against the 9 student – presume it was the student’s failure? Who has the burden of proof for NSEERS subjectivity – the service or the student? USCIS adjudicators look at the alien’s nonimmigrant history to determine if the alien was subject to the original call-in registration, and/or POE registered on or after 10/1/02 and subject to a 30- day interview, or subject to an annual interview prior to 12/2/03 when these follow-up interviews were suspended. If an alien is found to be subject to NSEERS based on the criteria above, and the record does not establish compliance, then a request for evidence will be issued.