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In the Matter of:
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Page Number 2, Part Number 3: Basis for the Motion
Sign here
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Introduction
1. This motion is to challenge the decision that denied my I-539. I intended to
change my status to F-1, so I could pursue studies. I initially filed an I-539, which was denied. I
then filed a motion to reconsider, which was also denied on November 1, 2022. This Motion is
therefore challenging your decision to deny my motion to reconsider; and the decision denying
my I-539.
Factual and Procedural Background
2. On May 5, 2021, USCIS revoked my I-129 (receipt number SRC2029150941).
The I-129 had been approved on October 6, 2020.
3. At that time, my I-94 had not yet expired. It was set to expire on September 2021.
For that reason, I continued working for the same organization whose H1B had been revoked,
until September 2, 2021.
4. Between the time my I-129 was revoked, and the time I stopped working for the
employer, I had received W2s (Exhibit- Evidence of W2 payment). My receipt and/or payment
of W2s within the said period is sufficient proof that I maintained my previously accorded status.
5. My attorney then filed a Transfer Petition. A Receipt Notice (Receipt No. L1N2
133250904) was then sent on September 3, 2022. The Transfer Petition is currently on appeal.
Since I had received the Receipt Notice, I proceeded to work in the new organization, from
September 3, 2022.
6. I then filed I-539, to change my status to F-1. However, on or about [ENTER
DATE], USCIS filed a decision on the said issue, which decision denied my I-539 application. I
filed the first motion for reconsideration, which was denied, leading to the instant motion.
The decision was incorrect based on evidence on the record
7. To the best of my knowledge and understanding, I maintained my previously
accorded status, and was never out of status. According to 8 C.F.R. § 248.1(a), a non-immigrant
alien "who is continuing to maintain his or her non-immigrant status, may apply to have his or
her non-immigrant classification changed to any non-immigrant classification."
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8. First, lawful status is determined by an individual’s I-94. An I-94 determines how
long the individual can remain in the United States, which visa classification the individual was
admitted it, and when he/she should request a change of status, extension of status, or depart.
9. In this case, the May 5, 2021, revocation of my I-129 happened when my I-129
had not yet expired. Accordingly, I have never worked under an expired visa.
10. Next, when the I-129 was revoked, I reasonably understood that I could work
until the end of August 2021 for previous employer. As evidence that I kept working for the
employer, I received W2s until August 2021, which I have attached herein.
11. It is also noteworthy that when my I-129 was revoked, my attorney filed a
Transfer Petition and a Receipt Notice was issued. Therefore, when I stopped working at the
organization that I had my 1-29 revoked, I proceeded to work in a new organization pending the
determination of the appeal on the Transfer Petition filed by my attorney.
12. In light of the foregoing, the decision denying my motion for reconsideration is
erroneous since I had maintained my previously accorded status.
ii. On the alternative, leave should be granted to appeal the H1B revocation, nunc pro
tunc
13. Leave to appeal nunc pro tunc have been granted where "complete justice to [a
Petitioner] dictates such an extraordinary action" and the "record before [the agency] presents
many sympathetic and mitigating factors." Matter of T-, 6 IN Dec. 410, 413 (BIA 1954).
Accordingly, the USCIS has the discretion to approve a NPT request if it is demonstrated that:
(1) the late filing is the result of extraordinary circumstances beyond the control of the applicant
or petitioner and the delay is commensurate with the circumstances; (2) the foreign national has
not otherwise violated her/his nonimmigrant status; (3) the foreign national remains a bona
fide nonimmigrant; and (4) the foreign national is not subject to deportation or removal
proceedings.
14. In this case, I humbly request to be granted leave to challenge the decision issued
on May 5, 2021, nunc pro tunc. First, extraordinary circumstances, which are beyond my control,
precluded me from filing a timely appeal and/or motion for reconsideration, challenging the May
5 th decision to revoke my I-129. Notably, I was under the impression that my attorney rightly
challenged the decision by filing a Transfer Petition. Accordingly, I proceeded to work on the
new organization, once I got a Receipt Notice of the Transfer Petition. After all that, I desired to
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change my status to F-1, and pursue further education. It is only when my I-539 was denied that I
realized that all along the May 5 th decision was not rightly challenged. All the foregoing
circumstances show why I have delayed in challenging the May 5 th order.
15. Next, as already stated above, I have not violated my immigrant status, and have
remained a bona fide immigrant. At no point have I worked under an expired I-94.
16. Lastly, I am not subject to removal proceedings, or deportation.
17. I humbly request I be given leave to file a Motion to Reconsider, Nunc Pro Tunc,
challenging the May 5 th decision that revoked my I-129.
Conclusion
18. In light of the foregoing, the decision denying my motion for reconsideration, and
my application for I-539, should be reconsidered and/or reversed, in the interest of justice. First,
I maintained my previously accorded status. On the alternative, I request for leave to file a
motion nunc pro tunc, considering the extraordinary circumstances of my case.
Dated: ____________
Respectfully submitted,
Sign here
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