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Lavanya Viswanathan Iyer v. United States Citizenship and Immigration Services
Case Number: 1:22-cv-00254
Judge: Rossie D. Alston, Jr.
Court: United States District Court for the Eastern District of Virginia (Fairfax County)
Defendant's Attorney: Elizabeth Anne Spavins and Rebecca S. Levenson
Description: Alexandria, Virginia immigration law lawyer represented Plaintiff, who sued Defendant on a Judicial Review of Agency Action theory.
The instant case involves the U.S. Citizenship and Immigration Services' (“USCIS”) adjudication of Lavanya Viswanathan Iyer's (“Plaintiff”) applications to change her status to an education-based nonimmigration student status called “F-1” and for optional practical training (“OPT”) work authorization. Following a brief overview of the statutory and regulatory background, the factual and procedural history of the instant case are summarized below.
A. Statutory and Regulatory Background
1. F-1 Status
With F-1 nonimmigrant status, a student may lawfully reside in the United States while enrolled at approved schools. 8 U.S.C. § 1101(a)(15)(F). F-1 nonimmigrants are admitted to the United States for “duration of status,” that is, “the time during which an F-1 student is pursuing a full course of study at an educational institution approved by [USCIS] for attendance by foreign students, or engaging in authorized practical training following completion of studies.” 8 C.F.R. § 214.2(f)(5)(i).
To obtain F-1 status, a nonimmigrant who is already residing in the United States with a different legal status must file a Form I-539 Application to Extend/Change Nonimmigrant Status. USCIS publishes public instructions on its website for individuals seeking to submit such a form. See Instructions for Application to Extend/Change Nonimmigrant Status, U.S. Citizenship and Immigration Services, https://www.uscis.gov/sites/default/files/document/forms/i-539instr.pdf (last visited Jan. 19, 2023). On the first page of the instructions, USCIS advises: “we suggest you file at least 45 days before your stay expires or as soon as you determine your need to change or extend status.” Id.
An applicant must also obtain a Form I-20 Certificate of Eligibility for Nonimmigrant Student Status (“Form I-20”) from the institution that she plans to attend. 8 C.F.R. § 214.2(f)(1)(i)(A). Approved schools use a web-based system, called the Student Exchange and Visitor Information System (“SEVIS”), to generate Form I-20s on behalf of students applying for F-1 status. See 8 C.F.R. § 214.3(g). Once the Form I-20 is issued, the Designated School Official (“DSO”) is responsible for maintaining the individual student's record. Id.
2. OPT Work Authorization
Pursuant to the U.S. Department of Homeland Security's (“DHS”) regulations, a student holding F-1 status may “apply for authorization for temporary employment for practical training directly related to the student's major area of study.” 8 C.F.R. § 214.2(f)(10)(ii)(A). While international students holding many different nonimmigrant statuses are eligible to engage in fulltime study, only those holding F-1 nonimmigrant status can qualify for OPT. See Dkt. 1, Ex. 1 (Nonimmigrants: Who Can Study, U.S. Immigration and Customs Enforcement); 8 C.F.R. § 214.2(f)(10) (“Practical training [which includes OPT] may be authorized to an F-1 student . . . .”). A student lawfully studying under a different nonimmigrant status must therefore obtain a change to F-1 status to participate in OPT.
There is a strict filing window for applying for OPT-up to 90 days prior to program completion and no later than 60 days following program completion. 8 C.F.R. § 214.2(f)(11)(i)(B)(2). To apply, a student must request a Form I-20 from her DSO containing a recommendation for OPT. Id. § 214.2(f)(11)(i). The student will submit the Form I-20 along with an I-765 application for OPT. Id. § 214.2(f)(11)(i)(A). Students still awaiting decisions on their applications to change to F-1 status face a SEVIS-created roadblock because the system will not allow the DSO to generate the Form I-20 with an OPT recommendation until the student's F-1 status is approved. In those situations, DHS advises that the DSO can provide the student with a letter of explanation. See DSOs: Send USCIS a Letter of Explanation If You Cannot Issue Updated Forms I-20, U.S. Department of Homeland Security, Study in the States (Sept. 15, 2015), https://studyinthestates.dhs.gov/2015/09/dsos-send-uscis-letter-explanation-if-you-cannot-issue-updated-forms-i-20. DHS explains that providing such a letter “may prevent the student's application from simply being denied because the signed Form I-20 is missing.” Id. The guidance
further provides that “USCIS will work with” these students so that they can ultimately provide the required Form I-20 once the SEVIS issue is rectified. Id.
B. Factual Background
Plaintiff entered the United States on January 6, 2020 on an H-4 visa, which is available for dependent spouses of individuals who have been granted H-1B work authorization. Administrative Record (“AR”) 1 000099.Plaintiff subsequently applied and was admitted to the University of San Francisco's one-year master's program in Marketing Intelligence that was set to begin on August 14, 2020. AR1 000091.
On August 1, 2020, two weeks before the start of her master's program, Plaintiff filed an I-539 application with USCIS' California Service Center to change her immigration status from an H-4 visa holder to an F-1 visa holder. AR1 000011. In support of her application, Plaintiff submitted a Form 1-20 dated July 10, 2020, indicating that her master's program would start on August 14, 2020 and run through August 13, 2021. AR1 000091.
As her graduation date was approaching, Plaintiff submitted an 1-765 Application for Employment Authorization on July 14, 2021, seeking permission to begin OPT following her graduation. AR2 03. In her application, Plaintiff identified herself as an eligible F-1 student seeking post-completion OPT. AR2 07 ¶ 27. Because Plaintiff submitted an I-765 application before USCIS had adjudicated her I-539 application, her DSO was unable to generate in SEVIS a
Form I-20 with an OPT recommendation that Plaintiff needed to include with her application. AR2 15. Following the Study in the States guidance, Plaintiff included a letter of explanation from her DSO as to why Plaintiff could not submit the required form and recommendation. Id. The letter also requested that, instead of denying Plaintiff's OPT application, USCIS issue a Request for Evidence (“RFE”) so that Plaintiff could provide an updated Form I-20 once her I-539 application is adjudicated. Id.
On August 13, 2021, Plaintiff completed her master's program. AR1 000091. At that time, she had not yet received a decision on her I-539 application. On September 16, 2021, one month past the academic end date entered by the University of San Francisco in Plaintiff's SEVIS record, Plaintiff's SEVIS record was cancelled. AR1 0000001-2. Although the University requested an adjustment of the record to re-activate Plaintiff's SEVIS status, because the end date of Plaintiff's studies remained the same, such an adjustment could not be made. Id. On September 20, 2021, USCIS denied Plaintiff's I-765 application for OPT, reasoning that the school had not updated Plaintiff's SEVIS record to recommend OPT or provided a Form I-20 indicating that recommendation. AR2 01-02.
Later, on October 5, 2021, USCIS issued an RFE, seeking additional information necessary to complete the adjudication of Plaintiff's I-539 application. AR1 000067-70. In that RFE, USCIS explained that “[a] review of [SEVIS] indicates that as of September 16, 2021 your nonimmigrant student status was cancelled,” and further stated that “[i]f the referenced SEVIS record is incorrect, your DSO must . . . correct the electronic system before any requested change or extension of status may be granted.” AR1 000068-69.
Plaintiff submitted a response to the RFE, explaining that, because her course of study had concluded, the University of San Francisco was not able to activate her SEVIS record. AR 1
000072. She also submitted a letter from the University of San Francisco confirming this explanation. AR1 000060. Finally, on November 23, 2021, USCIS issued a decision denying Plaintiff's I-539 application for a change to F-1 status. AR1 000030-32. In its decision, USCIS reasoned that Plaintiff's SEVIS record had been terminated on September 16, 2021 and she did not have a valid Form I-20 at the time of adjudication. AR1 000031.
Iyer v. United States Citizenship & Immigration Servs. (E.D. Va. 2023)
Outcome: For the foregoing reasons, it is hereby ORDERED that Plaintiff's Motion for Summary Judgment (Dkt. 10) is DENIED and Defendants' Motion for Summary Judgment (Dkt. 13) is GRANTED.