NAFSA Liaison
Meeting June 23, 2004
The following is a summary of questions and answers from the NAFSA-Texas Service Center liaison meeting from June 23, 2004.
The TSC emphasized several times that inquiries to TSC
through NAFSA designated contacts should be for student problems and issues
only. If the issue is a non-student
problem (such as an I-129 or employment-based issue), it will not be addressed
in as timely a manner. NAFSA is currently
working to try and resolve this issue with TSC.
Comments from TSC:
TSC noted that they have been receiving emails to the NAFSA schools email address from non-advisors. It is very critical that the CIPP and school email addresses stay private. TSC asked CIPPers to communicate the importance of maintaining the integrity of NAFSA-designated contact information.
The week of June 7-11, 2004, TSC was unable to access the
NAFSA designated email accounts and so were unable to respond to queries sent
during that time. The problem has now been corrected.
In the future, TSC will notify CIPPers if this problem occurs.
Sometimes individual adjudicating officers may contact advisors to address certain problems/issues and may need to leave a phone number for returning the call. TSC has emphasized that, once that issue is resolved, advisors should not continue to contact the officers directly but should use the normal process for inquiries (NCSC, fax/email, and CIPPers).
1. General
A. Use of NAFSA members designated email address and general concerns. At the NAFSA National Conference in May 2004, TSC made NAFSA members aware of a designated email address for members. Can you clarify how you would like the TSC email for members to be utilized? Should it be used for certain cases only or for those who prefer email to fax? Will requests by email receive responses in the same timeframe as faxed requests?
The NAFSA school’s
email address and fax is to be used by student/scholar advisors only. Either email or fax can be used to contact
TSC, neither is designated for any specific types of issues. At the present time they are receiving a
larger volume of faxes than e-mails so the email inquiries may receive quicker
responses; however there should not be significant differences in response
times. Faxes currently are being
responded to within approximately 24 hours.
TSC noted that some members are altering the fax inquiry form and
requested that this not be done. The NAFSA email address for advisors is tsc.schools@dhs.gov and the fax number is
(214)962-1450.
B. Unfortunately, advisors encounter a number of cases where a change of status or OPT application is approved or withdrawn by TSC, but the approval/withdrawal notice is not updated in SEVIS. In such cases the SEVIS record continues to show the request as pending, causing problems when updating the record or trying to submit new applications. We understand that this is a problem with the uploading of the data to SEVIS, and not a problem that TSC can fix; however, NAFSA also understands that the Nebraska Service Center (NSC) has been able to successfully correct this problem by requesting a duplicate approval notice. Is TSC aware that this is a possible fix, and would TSC be willing to try such an approach? Given that the data fix process can be very time consuming and problematic, this would be of great benefit to our members.
TSC has been notified
by ICE that ICE has recently implemented new software and new training which
should address this problem and so hope that this will not be a problem in the
future. They will also check with the
NSC and Headquarters to see if this fix would work and be acceptable, if
needed.
C. Can TSC provide any updates on the use of the National Customer Service Center (NCSC). We understand that CIS is still encouraging applicants to make use of the NCSC to ask questions or solve common problems. What types of questions can be addressed to the NCSC?
· Overdue applications?
· Missing receipts?
· Approved applications or EAD’s which have not been received by the applicant?
· Typographical errors made by the Service Center?
· More substantive errors? (Wrong dates, wrong status on I-94, etc)
· Regulatory questions?
We hear many reports of the NCSC line giving wrong regulatory information or in being unsuccessful in getting issues resolved, even after numerous calls and long delays. What should be done in these cases? (An update received following the submission of these questions notified CIPPers that the NCSC may be dissolved in September 2004, is TSC aware of this?)
All of the above
questions are appropriate for addressing with the NCSC. TSC has no knowledge of NCSC being
terminated. They are aware that CIS is
looking to enhance or provide improved service and that some calls will in the
future be directed to the Service Centers.
They do not have any other information at this time. The NCSC number is
1 (800) 375-5283.
D. What types of application are sent to the Missouri Service Center (the National Benefits Center)?
Life Act cases are being directed to the
Missouri Service center. Additionally,
some family-based I-485s are being sent there.
Please refer to the website for more information (http://uscis.gov/graphics/fieldoffices/texas/aboutus.htm#anchorORG).
E. Are any other applications forwarded by the TSC to other locations for adjudication?
Some I-130s are going to NSC because they
have been provided with additional resources to handle these cases. The only other types of applications that
would be forwarded would be those that are outside of TSC jurisdiction.
F. What is the best way to correct TSC errors on I-797's or EAD's? (Examples: Names misspelled; wrong citizenship; wrong dates; wrong immigration status)
If the error is
noticed before adjudication, fax the TSC with the request for correction as
soon as possible. If the error occurs
after the case is adjudicated a request for correction should be made by fax
and with evidence that it was a Service Center error. If the error was not the fault of the Service Center, the
petitioner would need to refile the application with the amendment and new
fee.
2. I-765 Issues
A. One of the most frequent student problems we encounter are EAD cards being returned to the TSC because of address problems or being lost in the mail. The process for returned cards works fairly well; however, when cards are lost in the mail, the process can be confusing and lengthy. There have been reports of cases in other Service Centers that, when an EAD has been lost in the mail, the Service Center has been willing to replace the lost EAD without requiring the applicant to file a new application for replacement EAD. Can you please clarify TSC policy on such a situation? Would TSC be willing to reissue the card without the filing of a new application?
If the card is
returned to TSC, then a request can be made to resend the card with an address
update. Unfortunately, if the card is
not returned to TSC, TSC has to assume that it has been lost and the petitioner
will have to refile the application with new fee.
B. Can you clarify how NAFSA members should be utilizing the cancel OPT function in SEVIS if the application has already been submitted to the TSC? Should the cancel function be used simultaneously with a fax to TSC to withdraw the application, or should the advisor wait for confirmation that the application has been withdrawn by TSC before canceling in SEVIS?
In such a situation,
the DSO should change SEVIS simultaneously with a fax to TSC to withdraw the
application. Adjudicating officers will
check SEVIS prior to adjudicating the case to see if there have been any
changes noted in SEVIS following the submission of the application. If the application has already been adjudicated,
then the withdrawal notice should be faxed immediately. If received early, the adjudicating officer
may be willing to revoke the card, even if it has been issued.
Similarly, When the Service Center cancels the OPT, how is this information relayed to the DSO or student? (Sometimes there is no notification. How can we make sure the cancellation has been made?). If Service Center has canceled the OPT, how will this information be transmitted to SEVIS? [DSO's have called the SEVIS Help Desk to request that OPT be removed from SEVIS so that student can apply for OPT at a later date. The Help Desk has instructed the DSO to contact the Service Center for assistance or to get a letter from the Service Center.]
In cases of withdrawal and revocation, notices are sent out on the same day the decision is made; however TSC is not sure how this is noted in SEVIS. Petitioners should retain these letters for future applications (especially in the case of revocations, the revocation notice should be included with the 2nd application for clarification). Adjudicating officers present at the meeting stressed the importance of the EAD cards being sent directly to the school, and not to the student. They also noted that, if a revocation is requested following the issuance of an EAD, they may be more willing to revoke the card if they know that it is sent directly to the DSO and that the DSO can retrieve and destroy the card prior the student being able to use it. Proof of destruction of the card, e.g. photocopy of cut-up pieces of the card, would have to be submitted. NAFSA cautions DSOs in trying to use the revocation process, as it may be risky. It is always best to advise students to apply only when they are relatively confident in their ability to complete in order to avoid the need to request a withdrawal or revocation. Additionally, DSOs should never destroy an EAD unless they have been requested to do so by TSC.
C. During the Service Center Session at the NAFSA National Conference in Baltimore (May 2004), the Service Center indicated that a student outside the US on a study abroad program could not apply for OPT, even though the student had maintained legal F-1 status and was active in SEVIS. Since that time, we have heard of cases being approved in certain Service Centers. Can you explain how such a situation is viewed by TSC? Would the TSC approve an OPT application in this kind of situation?
TSC has deferred
answering this question and will need to check with CIS Headquarters on the
appropriate response.
D. NAFSA understands that the I-765 OPT application must be received by the appropriate Service Center before the student’s program end date. Can TSC reaffirm the definition of “received”? Could the receipt day be classified as the postmarked date of the application, and not the date that the Service Center records the application as received (the Receipt Notice date). There are a number of situations that may delay students in applying for OPT, including concerns about successfully completing their program. Using the Receipt Notice Date has made it very difficult for institutions to advise students appropriately on the latest date by which they will be able to apply (2 weeks before their program end date, 1 week, etc.) due to the uncertainty of the timeline by which mail is marked as received at TSC. Another option is to use a delivery date, as noted by the Postal Service, making it very easy for students to track their receipt date.
An application is not
considered “received” until the appropriate fee is collected. If a check bounces, then the receipt notice
date is moved forward until the fee clears.
TSC cannot make any changes to this process (although one adjudications
officer noted that they try to give students the benefit of the doubt if the
postmarked date is prior to graduation), and therefore, urges advisors and
students to do the best possible to get applications in early.
E. Can you tell us if the adjudicator looks at the program end date on page one of an I-20? If so, how is this information used for an OPT application? Is the program end date listed in the SEVIS OPT recommendation (on page 3) enough information to document that the student has completed the program? Is any documentation of the expected graduation or completion required? [Some Service Centers have sent RFE's asking for the graduation date.]
Yes, they do look at
the completion date since it is critical.
Whatever can be done to make clear the student’s completion date is
encouraged. Some schools continue to
send in I-538 forms and, although no longer required, the form does make clear
the date of program completion. DSOs
can also put the completion date in the remarks section of page 1 or in the OPT
recommendation itself. As an example,
Texas A&M University uses the following recommendation for OPT: “The
student is seeking temporary employment for post-completion practical training
(following August 2004 graduation on August 14, 2004) in the student's major
field of study and commensurate with the student's degree level.”
F. What information can the DSO provide, and how, in order to ensure that the student is granted the full 12 months of OPT (up to 14 months after graduation)? Currently, some service centers are approving only up to the ending date on Page 3 of the I-20, even when DSO clearly requests the full 12 months. If 12 months were requested, but less than 12 months is granted, what can student/DSO do to get this error corrected?
TSC stressed that applications must be
timely filed and that they cannot grant OPT beyond the 14th month after program
completion. If, however, a TSC error is
made and the full 12 months was requested from date of adjudication (this
should be included in remarks), a request for correction can be made by fax.
G. When a student has applied for work permission for Economic Hardship, and wishes to extend it for a second year, SEVIS will not permit a second application. How should this application be prepared to send to the Service Center?
If the recommendation cannot be made in SEVIS,
then TSC suggested that the application be prepared as always and accompanied
by an annotation on page 3 of the I-20 and/or the I-538 form. TSC also stressed that Economic Hardship
applications (even for extensions) should be submitted with proof of continued
financial need and the student’s transcript so that the officer can verify
eligibility and that the student is maintaining status.
3. I-539 Issues
With change of status cases, it is important to note that the Service Centers made a statement at the NAFSA National Conference in Baltimore that TSC has reiterated. The statement is that a change of status cannot be approved more than 30 days before the noted program start date. If the change of status application reaches the adjudicating officers desk for decision prior to that date, the application will be denied. It will be important for advisors to be cautious in timing the submission of these applications with this in mind. Furthermore, this applies to individuals where there would be a gap in status of more than 30 days from the end of their current status (including any grace period) to the beginning of the F-1 status. Note: CIPPers have seen a few cases denied based on a gap in status, but not because of early submission, thus, there is still confusion about whether or not applications are being denied if submitted early. If members know of recent cases, either approved or denied, that were approved more than 30 days prior to the program start date, please contact lhammons@tamu.edu so that this situation can be monitored appropriately.
A. In response to denials in change of status applications for students who were on Optional Practical Training, but had not submitted evidence of employment, during our last liaison meeting in February 2004, TSC indicated that they are looking for documentation in SEVIS that the student has remained in close contact with the DSO if they have not obtained employment. Since that time, a NAFSA liaison call summary (NGLU 2004-c, March 10, 2004) with CIS Headquarters indicated that this should not be occurring and that they would follow up with Service Centers on this issue. Can you provide any update to this situation? Does TSC still require documentation in SEVIS or by other means for students on OPT wanting to change status but who were unable to secure employment?
Yes, TSC still
requires documentation of close contact with the DSO. This can be noted in SEVIS or they will accept a letter from the
DSO attesting to the student's continued efforts to secure employment. They do not require the physical evidence of
the student having sought employment.
B. What is the current target time for processing Change of Status applications to F-1?
Currently about 60
days.
C. Is there any way to expedite a COS to F-1 status? When and how?
Please refer to the expedite criteria and
use the expedite form (see Region III website for both).
D. There are still a number of applications pending for COS from F-2 to F-1, dating from a period when regulations were ambiguous about F-2 enrolment. When can we expect to see some responses to these applications? If some of these cases will be approved, which ones? [What is the cut off date? [i.e., if the F-2 began study before a certain date, a COS will be permitted. What is this date?]
These cases are with legal council and TSC
is still awaiting a decision by Headquarters.
To their knowledge, there are not many of these types of cases.
4. Employment
Based Issues
A. If an H-1B employee is moving from a cap-exempt employer to a cap-subject employer, will he now be subject to the cap? [Note: Customer Service Line is telling callers that they will not be subject in this case.]
Yes, the employee will now be subject to the
cap. In reference to the problems of
the Customer Service Line, Headquarters has been notified of the problem.
B. If new employer submits petition to begin Oct. 1, 2004, when may the employee begin working for the new employer? (Do portability rules apply for employment before 10/1?)
The employee cannot begin until 10/1/2004 if
moving from a cap-exempt to a cap-subject employer. NOTE: this issue is not quite as straight forward or clear cut as
TSC indicates. There are no regulations
relating to H-1 portability, only a memorandum from then INS headquarters dated
June 19, 2001, and entitled Initial Guidance for Processing H-1B Petitions as
Affected by the "American Competitiveness in the Twenty-First Century
Act." This memo states:
The AC21 §105 provides that a nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a nonfrivolous H-1B petition on the nonimmigrant's behalf, if:
(a) the nonimmigrant was lawfully admitted to the United States;
(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.
There is no limitation relating to
cap/non-cap employment. This may change
when regulations are published and finalized but right now it appears that an
individual can legally start working under these circumstances as soon as the
petition is filed, not 10/01/04, as indicated by the TSC.
C. What if the previous job ends before Oct. 1, 2004?
The employee will need to depart and utilize
consular processing. NOTE: The same
interpretation as noted above would apply here.
D. Student is in F-1 status with OPT expiring June 1, so the grace period ends on July 30. An H-1B petition has been filed to begin on October 1, 2004. May student remain in the U.S. (not working) and will a change of status be approved?
No.
If extension of duration of status is granted, then TSC will need
guidance on how this answer might change.
NOTE: CIS has apparently submitted proposed regulations to OMB that
would extend D/S and bridge this gap for F's and J's. TSC was unaware of these pending regs.
E. Many (many!!) I-129's are being returned to the employer with a notice that they are subject to the cap even when they are sent with an I-129W stating that the employer is a post-secondary institution And/or they are filed for extension of status with the same employer. What can we do to avoid this persistent problem?
They believe this problem has been
addressed. If we continue to see
problems, they can be faxed to TSC with page 1 and 2 of the I-129.
F. Now that the training fee is no longer in effect, how should we fill out Part B of the Form I-129W?
The form should be completed in its
entirety.
G. After a COS application is approved from H-4 or F-2 (etc.) to H-1B, the beneficiary is sometimes denied a Social Security Number because CLAIMS has not transmitted the information to SAVE. We realize that the Service Center can not change data in CLAIMS. But is there some way the service Center can help in such a situation?
Please contact your CIPPer to assist in
contacting TSC with these problems.
H. An employee of Employer A has an approved I-140 and an I-485 has been pending more than 180 days. She wants to begin a new job with Employer B, using "Permanent Residence portability". What (if any paperwork) needs to be submitted to the Service Center by the employee or by either employer?
If pending more than 180 days, they are
allowed to change as long as it is the same or similar job as the original
petition. Do not submit any additional
information until it is requested.
I. How is CIS interpreting "same or similar job classification" in regards to portability? What documentation is needed to show similarity?
Submit position description or job duties
showing similarity.
J. During the Service Center Session at the NAFSA National Conference in Baltimore (May 2004), it was indicated that I-485's filed simultaneously with I-140's would be adjudicated at the same time the I-140 is adjudicated. Has this commenced yet? If not, when do you anticipate it will start?
Yes, it has commenced.
K. The latest Service Center Processing Dates report for
Texas (6/4/2004) shows that I-824's filed on or before October 8, 2002 are
currently being worked. This extremely
long wait time is causing serious problems for individuals who, for various
reasons, need duplicate copies of approval notices or notification of
consulates.
TSC confirmed the
lengthy backlog for I-824's. They
emphasized their rigorous program to reduce backlogs and the availability of
the expedite process
L. When an error, e.g. misspelled name or incorrect DOB, has
been noticed in an application that has been submitted but not yet adjudicated,
what is the best way to submit a correction so that it can be reflected in the
adjudication?
Contact NCSC.
M.
If TSC error, they will correct without fee. If not, a new fee and amended petition must be submitted.