A costly mistake
US IMMIGRATION NOTES - Atty. Marco F.G. Tomakin (The Freeman) - October 18, 2020 - 12:00am

This week I want to emphasize the importance of ensuring that your application/petition fees are paid correctly when you submit it before the USCIS.

Jim came to the US under a student (F1) visa. He religiously attended his classes and complied with all the terms of and conditions of his visa. After graduation, he applied for a post-completion Optional Practical Training (OPT). For those who do not know what OPT is, Post completion OPT is a type of work authorization for F1 students who are completing their bachelor’s or graduate degree. This is a great opportunity for students taking a hands-on, real-world experience in the application of their field of study. As this is a form of employment, Form I-765, Application for Employment Authorization is submitted to USCIS by the student along with Form I-20, Certificate of Eligibility for Non-Immigrant Student Status. This latter form has specific student information that USCIS requires from the school which is signed by a Designated School Official (DSO).

In a post-completion OPT procedure, there are specific time tables that must be strictly observed. One of which is that the I-765 Application, also known as application for Employment Authorization Document (EAD) must be submitted within 30 days from the issuance of Form I-20.

In Jim’s case, his Form I-20 was issued on May 16, 2020. He submitted his EAD application on May 31 and was received by USCIS on June 5, 2020. On June 17, he received a letter from USCIS rejecting his EAD application on the grounds that he did not pay the correct fee. On June 20, he resubmitted his EAD application with the correct fee this time. On September 28, USCIS denied his application on the ground that it was filed beyond 30 days from the Form I-20 was signed by the school DSO. You may ask, was it not timely filed at his first submission? The answer is no. Remember that an application/petition which is rejected for some reason, in this instance, incorrect fees, is not considered filed. Thus, his first submission was not considered filed. The second submission was considered filed as it was accepted by USCIS.

The sad thing about this matter was that Jim did not have much time left in his period of authorized stay in the US. And his options of filing a new application, an appeal or motion for reconsideration are very limited and too narrow to have a high chance of a reversal for the denial. Even if he takes either of those options, he also runs the risk of violating further his non-immigrant status. This is a risk that he cannot afford to take as his brother has a pending sibling I-130 petition for him. The only safe path for him is to go back to his home country.

Jim’s case illustrates the need to carefully check your application/petition before you submit and send it to USCIS. It was a very costly mistake for him and we hope we can learn from his experience.

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