One thing that is wonderful about the United States is that we are country based on the law. What is stated in the law, and implemented through regulation, is the “word” by which things are followed. Or at least, one tries to do so. Which makes administrative law, of which immigration law is a specialized form of, quite interesting.

A very unusual circumstance presented itself today. In a I-539 change of status \ extension of stay case, we received an approval notice, followed by “Reopen Notice” provided on a I-797C with the same notice date as the approval notice.

 This presents some obvious and very interesting set of questions. 

  • First, did the change of status actually go through, and therefore, which status is the client still in the US on?
  • Second, what is the effect of the reopen notice on the approval?
  • Third, why would DHS ever do something odd like this? On the same day?

I have some personal suspicions, which has to do with the way the system is setup and as to what generates the I-797C notices. Without going into detail, I suspect there was an administrative error during processing, since unlike most reopen notices, this was generated by the service itself and without any request for additional documentation. Usually one has 30 days to provide the additional documents in a motion to reopen. Since nothing was requested, and due to the timing of the notice, it was probably something as simple as hitting the wrong set of keys or buttons, and attempts to fix it using available administrative tools.

Calls did not clarify exactly what status the client is on, and I doubt we will ever get any useful explanation about what happened (At least, I never wrote detailed explanations for messages outbound about errors while I was working for the Feds, and I doubt anyone ever will). But even knowing why will not help the end-client, who obviously deserves certainty in knowing what status they are really in the US on, and if any extensions must be made and what type of extension to ask for, or if they can now engage in the new activity they planned on doing. 

In this I-539, a paradoxically interesting hint was given since it was about getting someone into F (student) status. Students must be part of the SEVIS program, and the status for the client was changed to “Active”. 

Hence, we go back to the joys of administrative law. All methods, including approvals and rejections, abide by a specific set of procedures outlined in the regulations. To reopen a case, for instance, one must follow the procedures for motions to reopen. In the old Adjudicator Field Manual 10.17, some hints are given as to how this occurs when the service itself performs a motion to reopen. The short answer is, it’s in 8 CFR 103.5(a).

Within 8 CFR 103.5(a) contains an interesting nugget in subpart (1)(iv) which states ““Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution of any decision in a case or extend a previously set departure date.” 

Therefore, the section of law that allows for the motion to reopen specifically says the prior “decision in a case” remains valid and is not “stay”ed until a decision is made or “[u]nless the service directs otherwise”. This is most typically used when the service denies an H-1B or L-1A, and while the case is on appeal, no benefits are retained by the denied beneficiary. This is why cases on appeal for H-1B or otherwise frequently seek help from federal courts, as a TRO might be the best option to allow the person to stay in the US and keep working during the pendency of the litigation.

But as demonstrated in this example, this regulation IS a double-edged sword; the logical interpretation of the regulation is if there is an approval, that prior action of approval remains valid because motion to reopen is not stayed, until such time the service directs otherwise. 

Thus the joys of administrative law. Keep in mind, of course, counter arguments can be made against this argument, and the uncertainty is what keeps administrative law fresh and interesting. However, the U.S. remains a country of laws, reasonable results should arise from a fair reading of the law (eventually – after the courts and parties have at it, so it isn’t necessary cheap for a specific client who is forced to be stuck litigating….), and it’s easy to figure out what should happen if one looks.