Bloggings on Immigration Law

by Roger Algase

Incompetence, Indifference and Inimical Attitudes On The Part Of Immigration Officials Continue Unabated, Regardless Of What Anyone Says About The Big Picture.

As the election goes into the final stretch, the media focus is on the big immigration picture, But for people who are actually applying for green cards and visas, the only thing that matters is what is happening to their petitions and applications. No matter what grandiose promises the politicians may or may not make, the immigration system can work only if it is administered by officers who both know the law and are willing to follow it.

Unfortunately, the idea that the people responsible for making decisions about actual immigration cases are willing either to learn what the law is, or pay attention to it, let alone doing both, often seems to be more of a Platonic ideal than actual reality. Recently, I wrote about an adjustment of status to permanent resident application filed by one of my clients which was held up by an RFE requesting evidence that the applicant, who had been in the US for over a decade, had never been out of status or violated the terms of his admission.

No problem, because in that particular case, the client had always maintained legal status from day one up to the present. But in that case, the client would have been eligible to adjust status anyway, even if he had been out of status at some point in the past, because he came within the provisions of INA Section 245(k), which allows certain employment based green card applicants to adjust to green card status without leaving the United States, even if they have not always maintained legal status in the past. 

Section 245(k) is not a new or exotic law. It has been around for quite some time, and (I thought) was a very well known statute. Well, evidently, it was not so well known to the adjudicating officer in this case. Fortunately, when this statute was brought to the attention of the officer (along, just to be safe, with the requested, but unnecessary, evidence of maintaining legal status at all times previously) the green card was finally approved. 

No harm  was done, except for a delay of a few weeks while the unnecessary additional evidence was collected, submitted and reviewed. But in an even more recent, and still pending, case involving another one of my clients, the delay caused by official ignorance or unwillingness to follow the law may not necessarily be so quickly resolved.

This case involves an H-1B visa application at an overseas US consular office by a well qualified professional working in a well recognized specialty occupation for a long established H-1B employer. The employer's H-1B petition was approved over a year ago without any difficulty or question, and the employee's change of status from F-1 student to H-1B worker was also approved at the same time as part of the petition. 

However, when the employee, who has always been working in the H-1B job according to the conditions in the approved petition, went to his native country for a vacation and applied for a routine H-1B visa stamp at a US consular office in order to return to the US, the visa was held up because his post-completion optional practical training (OPT) work permission had expired several months before the starting date of his approved H-1B petition, (even though the petition was filed before the OPT expiration date), since his petition was subject to the annual limit on H-1B visas. This situation is known as the H-1B "cap gap".

The visa officer, therefore, thought that the applicant had overstayed his permission to remain in the US, and, to make things worse, had also worked illegally during the "cap gap" period between his OPT expiration and his approved H-1B starting date. The consular officer, it developed, was apparently not aware of the automatic OPT extension that the DHS, by regulation, as well as by published notice and guidance, has been granting to F-1 students in a cap gap situation at least since 2008.

When advised about the automatic cap OPT extension, the visa officer, to his credit, immediately agreed that the cap gap extension applied, and that there was no question of the applicant having ever remained or worked in the US without permission. But he then requested production of an additional document to prove that the applicant's cap gap OPT extension was in effect. The requested document (an updated I-20 form showing the OPT extension) neither existed nor was required, as the OPT extension is expressly made automatic by operation of law upon timely filing of an H-1B petition for change of status 

When this fact was also pointed out to the consular officer, the result was silence, and so far as I know, the visa has not yet been issued. My client remains stuck overseas, and his employer is still waiting. 


About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.