Tuesday July 20, 2021

ALL’S WELL THAT ENDS WELL: APPLICANTS FOR CHANGE OF STATUS TO F-1 NO LONGER REQUIRED TO SUBMIT “BRIDGE” APPLICATIONS

by Rabindra Singh

After years of litigation, USCIS is now changing its tune by announcing today a new policy guidance that eliminates the need of filing “bridge applications” to extend/change nonimmigrant status for applicants who have timely filed a change of status (COS) application requesting student (F-1) status while the initially filed F-1 COS application is pending adjudication. 

I was correct in calling out USCIS and litigating improper denials of B-2 to F-1 COS applications.

I litigated this issue multiple times [Jaradat v. McAleenan et al, 1:19-cv-05320; Khowaja v. Kelly et al., 1:17-cv-03603] in the U.S. District Court for the Northern District of Illinois. 

For years, USCIS denied such COS applications solely on the ground that the applicant failed to file bridge extension application(s) after timely filing a COS application requesting student (F-1) status.

On each complaint, I argued that the Special Instruction was not just Instructions but a legislative substantive rule that was made effective without following the Administrative Procedure Act (APA)’s notice-and-comment process. As such, the Special Instruction should be set aside.

During the course of each litigation, USCIS never contended that the Special Instructions were not a legislative, substantive rule. Though each time USCIS fought hard, each time it settled by offering the relief requested in the complaint. 

I recall writing an Article titled USCIS Is Improperly Denying Visa Change Applicationspublished by Law360, in which I discussed the improper B-2 to F-1 denials at-length. 

My Article concluded by stating the following: 

“The deliberate decision by USCIS not to confront the core issue raised by the complaint in Jaradat v. Mcaleenan — whether or not the special instruction is a legislative, substantive rule— confirms that the April 2017 special instruction is not a special instruction but a substantive, legislative rule that was implemented without following the required APA’s notice-and-comment process.

USCIS, on its own, should set aside this legislative, substantive rule labelled as a special instruction otherwise it will continue to breed litigation in the future…”

Eventually, after waste of so much of applicants and tax payers resource, USCIS listened and changed its course.  

All’s well that ends well!

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