UNITED STATES DEPARTMENT OF XXXXXXXXXXXXXXXX
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
___________ SERVICE CENTER
_______________
In the Matter of: )
XXXXXXXXXXXXXXXXX ) I-539N Motion to Reconsider
_____________________________________, ) Form I-539
MOTION TO RECONSIDER
1. INTRODUCTION
The applicant, XXXXXXXXXXXX, moves U.S. Citizenship and Immigration
Services, pursuant to 8 CFR §103.5(a)(3), to reconsider its [ENTER DATE] decision denying his
I-539 application to extend/change immigrant status. Applicant moves USCIS to reopen and
reconsider its denial of his I-539 in order to consider additional evidence that is pertinent to the
case.
The applicant contends, for the reasons stated more fully below, that USCIS’ decision to
deny his I-539 application was erroneous as a matter of law and as a matter of facts as applied to
law.
2. STATEMENT OF FACTS AND STATEMENT OF THE CASE
On or about August 9, 2021, the applicant filed a Form I-539, application to
extend/change non-immigration status.
On or about [ENTER DATE], USCIS filed a decision on the said issue, which decision
denied applicant’ I-539 application. In the decision, USCIS relied on 8 CFR §248.1(c). The
presiding officer further granted the applicant permission to challenge the decision by submitting
a motion to reconsider.
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3. ARGUMENT
THE USCIS ERRED BY HOLDING THAT THE APPLICANT DID NOT MAINTAIN
THE PREVIOUSLY ACCORDED STATUS.
Federal immigration law provides that the Secretary of XXXXXXXXXXX may authorize
a change from one non-immigrant classification to another nonimmigrant classification for "any
alien lawfully admitted to the United States as a non-immigrant who is continuing to maintain
that status and who is not inadmissible under [applicable provisions]." See 8 U.S.C. § 1258(a).
The corresponding federal regulation provides that 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. . . ." See 8 C.F.R. § 248.1(a). The
regulations further state that "a change of status may not be approved for an alien who failed to
maintain the previously accorded status or whose status expired before the application or petition
was filed. . . ." See 8 C.F.R. § 248.1(c).
CIS interprets 8 U.S.C. § 1258 and 8 C.F.R. 248.1(c) as requiring that the non-immigrant
maintain their previously authorized non-immigrant status until their new status begins.
An agency’s interpretation of its own regulation is "controlling" if it is not "plainly
erroneous or inconsistent" with the regulation. Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct.
905, 137 L.Ed.2d 79 (1997); see also SEC v. Phan, 500 F.3d 895, 904 (9th Cir. 2007)." This
means, by necessary implication that an agency’s interpretation of its regulation is not
controlling if such interpretation is erroneous.
The applicant avers that the USCIS adopts an erroneous interpretation of the said
regulations. Notably, the interpretation fails to clearly determine when a revocation of H1B takes
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effect. It is not clear whether it takes effect immediately, or at the expiry of the time indicated in
Form I-94. It is also not clear what is the status of an applicant who changes a revoked H1B to a
F-1 visa. Lastly, the agency’s interpretation fails to clearly show the status of an applicant who
files a transfer petition, which is under appeal. The applicant further avers that the regulation at
issue, 8 C.F.R. § 248.1, is ambiguous because it does not define what it means to "maintain the
previously accorded status”.
It is worth noting that on May 5, 2021, the USCIS revoked the applicant’s approved I-
129 with the receipt number SRC2029150941 that was approved on October 6, 2020. The
applicant’s I-94 was due to expire on September 2021. Accordingly, the applicant went on to
work for the same entity until September 2, 2021, and kept receiving Form W-2, Wage and Tax
Statement, for that period of time. The applicant has proof of tax returns filed until 2021 and
paystubs until July.
The applicant then filed a change of status from the revoked H1B to F1. At the same
time, the applicant’s attorney filed the revoked H1B transfer petition to a new organization,
whose receipt notice is available for this agency’s perusal. Accordingly, the applicant started
working on the new company since September 3, 2021. USCIS denied this transfer petition,
which decision the applicant’s attorney is appealing.
The applicant maintains that there is no clarity of interpretation from USCIS on when a
revocation of H1B takes effect; whether the said revocation takes effect immediately, or at the
expiry of the time indicated in Form I-94; what is the status of an applicant who changes a
revoked H1B to a F-1 visa; and what is the status of an applicant who files a transfer petition,
which is under appeal.
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USCIS therefore cannot hold that the applicant has failed to maintain the previously
accorded status, yet there is lack of clear interpretation of the applicable regulations, in the
applicant’s circumstances, as discussed above.
4. CONCLUSION
The USCIS erred when it held that the applicant has failed to maintain the previously
accorded status. The interpretation adopted by the USCIS of 8 C.F.R. § 248.1(c) fails to clearly
appreciate the applicant’s circumstances.
Dated: ____________
Respectfully submitted,
____________________
XXXXXXXXXXXXXXXXX
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