F-1 Graduate Work Permit Application Denied

Applicant: Miss Chen
Country/Region: China
Case Type: I-290B Case Reopening (Motion to Reopen) + F-1 Student Visa
Case duration: one month

BACKGROUND
• Ms. Chen’s I-765 work permit (EAD) application was denied due to incorrect check date.
• Despite being given a new case number, USCIS denied the I-765 petition and refused to reset the 30-day time calculation, indicating that USCIS likely considered Ms. Chen to have lost her status.
• Given the strict enforcement of the 30-day deadline by USCIS, the evidence for reopening the I-290B case is extremely weak, despite the fact that a petition for reopening has been filed.
• Ms. Chen’s alternative is to reapply for an F-1 student visa and waive I-765.
• With no work permit and no student visa, Ms. Chen’s months of illegal status will result in a three-year ban from entering the country!

Background introduction:
Ms. Chen graduated from one of the top academic institutions in China and came to the U.S. to continue her education, during which time she maintained her legal F-1 student status. With the dream of staying in the U.S., Ms. Chen needed to obtain a letter of recommendation from the Designated School Official (DSO) and submit an I-765 petition to the U.S. Immigration Service (USCIS) within 30 days of obtaining the letter of recommendation. On December 11, she received a notice from USCIS that the check was “incorrectly dated”; the following day, she immediately resubmitted the petition with a correctly dated check according to the remedial plan provided by USCIS.

It was not until March of the following year that Ms. Chen received a “deny and close” notice from USCIS on the I-765 petition on the grounds that the petition had not been filed within the 30-day deadline (starting on November 5) for obtaining a letter of recommendation from the designated school director. At a loss, Ms. Chen found Tsang & Associates, PLC, a highly regarded law firm, on the Internet and immediately called for help.

KEYS TO SUCCESS
During the phone call, we learned about Ms. Chen’s impending loss of legal status: if she abandons her work permit application, not only will she lose her status immediately, but the loss of status and unlawful presence will count from the end of the Grace Period after graduation. The loss of status and illegal residence for a few months will result in a three-year ban on entry!

Tsang & Associates, PLC advised Ms. Chen on a two-step strategy.

Step 1: File a Motion to Reopen I-290B case
Although the evidence for reopening the case was very weak and the chances of success were extremely low, it would buy Ms. Chen time to make her second move and avoid accumulating time out of status and unlawful presence. We reviewed all of the files and concluded that the USCIS decision was unfair – Ms. Chen was given a new case number when she resubmitted her petition with a correctly dated check under the remedial scheme offered by USCIS, which should have reset the deadline, but the denial of the petition cited the old original date and case file. We had only two weeks to prepare a reopened petition and explain to USCIS that Ms. Chen’s application deadline should be reset.

While the rehearing petition was pending, Tsang & Associates, PLC began to make a second move.
Ms. Chen took a few weeks to define her life goals and make a good life plan – to stay in the U.S. and be with her best friends, relatives and cute pets. After a long discussion about Ms. Chen’s career plan, we had several strategy meetings and agreed that “Ms. Chen should go back to the ivory tower to continue her education” is the best policy, that is, to apply for school and a new F-1 student visa again. Of course, she had to leave the country before she could enter.

However, for a variety of reasons, this move is on the verge of an abyss.
First, USCIS expressly prohibits F-1 students from working in the United States. departing the United States to apply for a new student visa, Ms. Chen would have to completely abandon her I-765 petition, which allowed her to stay and work in the United States.
Secondly, when Ms. Chen re-entered the country, customs officials saw such a complicated situation, the chances of refusing her entry were extremely high.

The pending reopening petition is the only reason to retain Ms. Chen’s legal status, if abandoned, and re-entry on a new F-1 student visa is also denied, then the months from the end of the grace period after graduation are lost status and illegal residence time, must immediately return to China, and three years are not allowed to enter the United States. Despite her trepidation, Ms. Chen decided to take this step.

Tsang & Associates, PLC provided Ms. Chen with a detailed description of what she would encounter in an interview with a CBP officer.
When a customs officer pulls up Ms. Chen’s name on the computer, it displays a complicated file. Usually, if a customs officer expects to take more than 2 to 3 minutes to evaluate a person, the person will be invited to the Secondary Inspection reception room (commonly known as the “dark room”). If a customs officer refers Ms. Chen to the “dark room,” she will face questions about her visa, identity, etc., and the questioning may last from several hours to several days.

To help Ms. Chen prepare for the interview, Tsang & Associates, PLC provided a detailed statement of applicable facts, legal references to assist Ms. Chen’s re-entry into the country, a handy reference file to submit to customs officials, and a mock question and answer session with a preview of every possible question, including abandonment of employment visa and return to school, etc.

OUTCOME
After flying back to China to visit her parents, Ms. Chen returned to the United States with all her documents. Through a mock interview preview, Ms. Chen was well prepared and explained her situation clearly and fluently to the customs officer and was successfully granted re-entry! Not surprisingly, Ms. Chen soon received a notice of denial of reopening from USCIS, which appeared to be a failure, but the filing of the reopening petition bought her time to stay legally in the U.S. as an F-1 student. Soon after, Ms. Chen entered one of the top schools in New York to continue her education. Tsang & Associates, PLC saw Ms. Chen smiling like a plum in the snow, as she had hoped.

Lawyer Comments:
When dealing with documents related to U.S. immigration law, any “slightest error”, such as typographical errors, wrong dates, late responses, etc., can result in a “lost cause” for the future. In addition, the success or failure of a case cannot be taken at face value, and it is important to adopt “roundabout tactics” to “save the country”. If your U.S. visa case is in a similar predicament and you are at the end of your rope, give us a call at 562-924-1981 and your case may be the next successful case for Tsang & Associates, PLC. “Your case may be the next successful case for Tsang & Associates, PLC.

*More cases:
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*To protect customer privacy, customer names are pseudonyms.