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I-539 for Client who Fell Out of Status

I-539 for Client who Fell Out of Status

Applicants: Ms. Yang*
Nationality: China
Applying For: Application to Extend/Change Nonimmigrant Status
Case Type: I-539
Challenges:

  • Fell out of status on a student visa
  • Had case denied through no fault of her own, because she never received a Request for Evidence
  • USCIS initially refused to reopen case which threatened her education and job in the United States

 

BACKGROUND

Life as an overseas student can be very difficult. Not only do you have to deal with the culture shock of a brand new country, deal with people you don’t know, and try to do high-level coursework in a language that isn’t your primary language at home, but you have to also ensure that you are following through on all immigration processes as well. It is a demanding time for any person, and a single mistake in any one area can lead to drastic consequences that are often disproportionate to the mistake itself. And sometimes, the mistake that was made wasn’t even made by you, a situation that Ms. Yang found herself in during the middle of 2017 through 2018.

Ms. Yang had come from China to study here in the United States. She had graduated from an architect program at a well-known university in China and had actually been working for five years when she decided she wanted to get her masters level education here. To make that transition more smoothly, she decided to go to language school here first. However, she did make a minor administrative error while she was here. She was transferring schools and needed to fill out an I-20 form to transfer her student visa status. She had already done so at one school and thought she was covered, but she needed to fill out a new one for the new school. Since she did not, when she was accepted into the new school, she was informed that she needed to complete an I-539 form to extend or change her immigrant status, which she filed on August 27th, 2017. On November 27th, United States Citizen and Immigration Services issued a request for evidence (RFE), a regular occurrence in these cases, and many types of immigration cases. What was unusual, however, was that while USCIS said the request was sent to the English language school in which Ms. Yang was enrolled, the school never received the RFE. Lost and confused, Ms. Yang did not know where to go from here until she contacted Tsang & Associates.

 

KEYS TO SUCCESS

Having no idea what her status was, on January 29th, 2018, Ms. Yang received a notice that her case had been denied due to “abandonment.” It was a devastating moment for her, she was crushed. Suddenly, her status in this country, her ability to continue to stay, and learn here was threatened. The notice did not state that she hadn’t responded to an RFE or give any reason as to why they thought she was abandoning her case. She had 33 days to file a motion to reopen her case. On February 2nd, she attended an InfoPass appointment with USCIS and learned then of the RFE that she had never received nor heard of previously. She asked for the RFE at that time but was told her only option to move forward was to file a motion to reopen, so on February 23rd, she filed a motion with a Notice of Appeal or Motion to reopen the adverse decisions since she had not obtained the RFE at any point.

June 27th, USCIS denied the request to reopen her case based on no new evidence being presented. They had wanted some sort of discrepancy of address to prove that she had not received the RFE, but since there was no discrepancy, they had denied her. For many, this is a nightmare scenario. Through no fault of her own, it now seemed like she was fully out of options. Now her only hope was that someone at USCIS would realize that they had been the ones to make a mistake, an exceedingly rare occurrence.

“The evidence she presented to us, from her story itself, alright, that is injustice. She was never given the opportunity to be reinstated. It was her right, and she was never given that… She was a smart client, and it wasn’t right.” – Andy

The consequences for a minor clerical error compounded by the RFE error were already enormous. She couldn’t go to school, she couldn’t work legally. She was essentially bound to do absolutely nothing with her time here, forced to hang out at home on the couch waiting for someone else to determine if she’d ever get to continue her studies in the United States. However, our team was up to the task.

 

OUTCOME

We were, with a strongly worded and written appeal to her case officers, able to get them to agree to reopen her case and to get them to send a second request for evidence. This kind of result is extremely difficult to achieve, as no one would like to admit fault, no one would like to admit they failed to send a notice that they thought that they had sent. Also, it is difficult to imagine that Ms. Yang would have had her case reopened without legal help because sometimes it takes the gravitas of a legal team to help open the minds of immigration caseworkers to new possibilities. Because Ms. Yang had retained our services, we were able to get her case reopened and we helped her file the information she needed for the RFE and the I-539. Now she gets a real opportunity to make her case.

*Client name has been changed for privacy.