Basis for the Motion

mukiialice64
Motions
February 21, 2024

In the Matter of:

XXX

_____________________________________,

 

  • Page Number 2, Part Number 3: Basis for the Motion

 

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____________________

XXX

 

  1. This application relates to the denial of my Form I-290B, Notice of Appeal or Motion, as a Motion to reopen and/or reconsider the decision of my I-539 because of a delay in filing the notice within the required timelines
  2. It is notable that USCIS has been denying my petition to change my status from H-1B to F1, on the ground that I failed to maintain my previously accorded status.
  3. On October 6, 20XX, I received a Notice of Action (I-797A). The notice showed the approval of my I-129, valid from XXX.
  4. On September 7, 20XX, I received a Notice of Denial of my I-539 Application to Change/Extend Nonimmigrant status. The USCIS based the denial on the ground that I had failed to maintain my previously accorded status. Consequently, I filed the I-290B on February 24, 20XX.
  5. While the said I-290 B (I-539) was still in the process of consideration, I received my Approval for Transfer Petition (I-797A) Valid from XXXX.
  6. Below, I will outline why the agency’s decision should be reversed.
  1. An exercise of the USCIS’s sound discretion would reverse the denial of my I-539 Application
    1. According to 8 C.F.R. § 103.5(a)(1)(i), failure to file before the 30-day period expires may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner.
    2. Based on the foregoing provision, the decision to deny my Motion for Reconsideration (and not waive the timeliness requirement of thirty days) is under the discretion of the Secretary of Homeland Security. See XXX.
    3. A decision of the USCIS is reviewed under the “arbitrary, capricious or an abuse of discretion” standard. See XXX. It follows; under the said standard, the USCIS’s decision is arbitrary, capricious, or an abuse of discretion if no reasonable fact finder could have come to the USCIS’s erroneous conclusion. See XXX.
    4. It is my contention that the USCIS failed to acknowledge that I maintained my previously accorded status. Notably, on XXX, I received a Notice of Action (I-797A). The notice showed the approval of my I-129, valid from XXX. Interestingly, on March 30, XXX, I received a Notice of Action (I-797A). The notice showed the approval of my I-129, valid from XXX. The foregoing is interesting because the USCIS denied my I-539 application on September 7, 2022, citing my failure to maintain my previously accorded status. When issuing the said denial, the USCIS never considered the approval of my I-129, valid from XXX to XXX.
    5. A proper exercise of the USCIS’s discretion would have noted that the XXX decision was issued without considering my two Notices of Action (I-797A), which evidences that I maintained my previously accorded status.
    6. Further, the USCIS sent me the second Notice of Action (I-797A) on March XXX, while my I-290 B (I-539) was still in the process of consideration. The Notice of Action approved my Transfer Petition (I-797A) Valid from XXX till XXX. My employer is going to request for another extension.
    7. It is also notable that when my first approval notice that was valid from XXX to XXX was revoked on May XXX I continued working for the same employer till my I-94 expired on XXX. I have proof of W2 for the same.
    8. Consequently, my Transfer Petition I-129 was submitted on XXX by the New Employer. At the same time, I submitted my I-539 (H1B to F1) on XXX. As I have already stated above, the Transfer Petition was approved on March 30 2023 but was valid from XXX.
    9. The foregoing explains and/or reasonably justifies the period between May 2021 to 08/19/2021 for which I have W2 s and the New I-797 approval.
  2. The agency has discretion to consider late Notices
    1. It is trite law that “[a]lthough a motion to reopen or reconsider must usually be filed within thirty days, ‘immigration authorities may excuse, in their discretion, an untimely motion […] ‘where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner.’” Ortega v. Holder, 592 F.3d 738, 746 (7th Cir.2010)
    2. Here, I respectfully request the agency to excuse the approximately five-month delay (between the September 7, 20XX decision and February 24, 20XX). Pursuant to the said law, the agency has discretion to excuse a delay if the delay is reasonable and if the delay was occasioned by reasons beyond the control of the applicant. I assert that the delay was not unreasonable. The said delay can be explained by the fact that I was waiting for the response to my Notice of Action (I-797A) that I only received on March 30, 20XX, while my I-290 B (I-539) was still in the process of consideration. The said Notice of Action contains proof that I maintained my previously accorded status. Notably, the Notice approved my Transfer Petition (I-797A) Valid from XXX till 0XXXX.
    3. In light of the foregoing, it is expedient for the agency to exercise proper discretion and consider the instant Motion to Reconsider.
    4. It is also my contention that the agency should not have rejected my I-290B and deposit my fee $675, then claim that I filed the Notice late.
  • USCIS erred in holding that there is NO grace period after revocation of I-129
    1. On or about November 18, 20XX, in a bid to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs, USCIS established a grace period of up to 60 consecutive days during each authorized validity period for nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status. See 81 FR 82398. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers. See final 8 CFR 214.1(l)(2).
    2. In the decision rendered on January 20, 20XX, USCIS stated that after it revoked my I-129 on May 5, 2021, there was no grace period for me. On the contrary, USCIS fails to apply the foresaid 60 day grace period that it grants to persons who have had their visas revoked, to either find a different employer, change status, have a I-140 petition filed, or leave the country. It is essential to note that during the grace period, under said policy and/or law, I should not be considered out of status.
    3. As I had already stated in my previous motion(s) for reconsideration, I reasonably knew that the revocation did not render me out of status. That explains why I continued working for the same organization whose H1B had been revoked by USCIS. As proof thereof, I have the W2s that I received then (Exhibit- Evidence of W2 payment). Accordingly, my receipt and/or payment of W2s within the said period is sufficient proof that I maintained my previously accorded status.
    4. Failure of the USCIS to uphold its policy of granting individuals said 60 days grace period amounts to blatant miscarriage of justice, which flies in the face of congress’ good intention of enacting the American Workforce Improvement Act of 1998 (“ACWIA”), et seq.
  1. USCIS failed to recognize H-1B portability
    1. Section 105 of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) improved the H-1B program by increasing job portability for H-1B nonimmigrant workers. Specifically, section 105 allows an H-1B nonimmigrant worker to begin concurrent or new H-1B employment upon the filing of a timely, nonfrivolous H-1B petition. See INA 214(n), 8 U.S.C. 1184(n). The H-1B nonimmigrant worker must have been lawfully admitted to the United States, must not have worked without authorization after the lawful admission, and must be in a period of stay authorized by the Secretary. See USCIS Memorandum from Donald Neufeld, “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections XXX of the Act” (May 6, XXX) (“Neufeld May 2009 Memo”) (describing various “periods of authorized stay”), available at XXX
    2. Employment authorization based on the pending H-1B petition continues until adjudication. See XXX. If the H-1B petition is denied, the employment authorization provided under said provision ceases. Id. Congress created H-1B portability to “allow an H-1B visa holder to change employers at the time a new employer files the initial paperwork, rather than having to wait for the new H-1B petition to be approved. This responds to concerns raised about the potential for exploitation of H-1B visa holders as a result of a specific U.S. employer’s control over the employee’s legal status.” See S. Rep. No. 260, at 22-23.
    3. The portability of H-1B visa holders, as enunciated in said law and/or policy, clearly shows how I was entitled to change my employer (within the 60-day grace period), even as I waited for my request to change my status to F1 to be approved. It follows; USCIS disregards such broad protection of H-1B visa holders, when it maintains, erroneously, that I failed to maintain my previously accorded status by working after the revocation of my visa.
  2. It is against established policy under the American Workforce Improvement Act of 1998 (“ACWIA”) to subject individuals with H-1B visas to unreasonable revocations of their licenses
    1. ACWIA was intended to address shortages of workers in the U.S. high-technology sector. Congress, for instance, increased the annual numerical cap on H-1B visas to increase the number of such workers in the United States. See Section 102(a) of AC21.
    2. It is also notable that the congressional statements accompanying ACWIA recognized that the continued competitiveness of the U.S. high-technology sector is “crucial for [U.S.] economic well-being as a nation, and for increased economic opportunity for American workers.” See XXXX (statement of Sen. Spencer Abraham); see also (“This issue is not only about shortages, it is about opportunities for innovation and expansion, since people with valuable skills, whatever their national origin, will always benefit our nation by creating more jobs for everyone.”)
    3. In addition to the foregoing, ACWIA also included several measures intended to improve protections for U.S. and H-1B nonimmigrant workers, which include inter alia, enhanced penalties for employer violations of Labor Condition Application (LCA) obligations. See Section 413 of the ACWIA.
    4. Said law also established a fee on certain H-1B employers to fund, inter alia, job training of U.S. workers and scholarships in the science, technology, engineering, and mathematics (STEM) fields. See XXX.
    5. The foregoing policy and law clearly shows the U.S. government’s intention to increase workers in the high-technology sector. Impliedly, based on the protections accorded under ACWIA, the U.S. government does not intend to subject individuals with H-1B nonimmigrant visas to unnecessary revocations.
    6. It follows; USCIS’s decision that I failed to maintain my previously accorded status, contradicts established policy and law, which reason justifies a reconsideration of USCIS’s decision, to my favor.

 

Dated: ____________

Respectfully submitted,

 

 

 

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____________________

XXX

 

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