B-2 TO F-1 DENIALS: WHY CIS SHOULD CONSIDER REVERTING TO ITS PRIOR REGULATORY INTERPRETATION?
by Rabindra Singh
For the past few months, United States Citizenship and Immigration Services (CIS) has been denying certain B-2 to F-1 Change of Status (COS) applications. CIS, particularly the California Service Center (CSC), has been denying such COS applications submitted by applicants when they were in valid B-2 nonimmigrant status and when the school program start date was no more than 30 days post expiry of B-2 nonimmigrant status.
CIS has been denying such applications by pointing a gap of more than 30 days between the B-2 nonimmigrant status expiry date and the “deferred” program start date reflected in the Student and Exchange Visitor Information System (SEVIS) record. This is a major and disturbing shift from how CIS has in the past interpreted and applied regulations when adjudicating such applications. What is more disturbing is that CIS changed its’ regulatory interpretation without providing any formal or informal guidance, and has not been supporting its new interpretation through any precedent decision, interpretative rule or other generally applicable agency documents.
No one knows what triggered CIS to change its’ interpretations of the regulations but the million dollar questions are: (1) whether or not CIS is interpreting the regulations correctly; and (2) why it should consider reverting to its prior interpretation?
Is CIS Interpreting The Regulations Correctly?
CIS’ interpretation of the regulation that there should not be a gap of more than 30 days between expiry of applicant’s B-2 nonimmigrant status and the “deferred” program start date is erroneous because neither Section 248 of the Immigration and Nationality Act (INA) nor pertinent regulations contained at 8 C.F.R. Sections 248.1(b) and 214.2(f)(5)(i) state or imply that CIS may not consider COS applications from applicants whose prior status expired more than 30 days prior to “deferred” program start date.
CIS has been basing its decisions on the interaction of the interpretation of regulations contained at 8 C.F.R. Sections 248.1(b) and 214.2(f)(5)(i). Before taking a microscopic look at the language of the regulations, it is important to review the underlying statute, INA Section 248.
INA Section 248 specifically states, in pertinent part that:
“…The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is “continuing to maintain” that status and who is not inadmissible…[emphasis supplied]
The underlying statute, INA Section 248, is ambiguous. Though the statute states that the CIS may not grant a COS to someone who has “failed to maintain” his or her nonimmigrant status, it does not define what it means to “maintain” status. Does it mean that the nonimmigrant applicants must continue to maintain status until the submission of a COS application, or does it mean means that the applicants must continue to maintain status until CIS grants new nonimmigrant status.
Because the statute is ambiguous, let’s take a look at the implementing regulation contained at 8 C.F.R. Section 248.1(b). 8 C.F.R. Section 248.1(b) states, in relevant part:
“…a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of USCIS… [emphasis supplied]
Though the implementing regulation, 8 C.F.R. Section 248.1(b), adopts the ambiguous language, it also includes other language that clarifies the ambiguity in a way that favors the position of B-2 to F-1 COS applicants. Thus, under the plain language of the regulation, CIS may approve the COS application if the applicant submitted it before the expiry of his/her nonimmigrant status. Additionally, the regulation goes a step further by including a provision that an applicant may be eligible for a COS even if she or he failed to file before the previously authorized status expired. The ultimate decision of whether to excuse the applicant’s lapse lies within “the discretion” of the CIS.
The implementing regulation fails to address the specific situation which CIS has been quoting in the denials— “…that the Applicant was in a valid B-2 nonimmigrant status at the time of submission but later ‘allowed it to expire’ while application was pending CIS adjudication.”
CIS, thus, is basing denials on the gap of more than 30 days between the B-2 status expiry date and the deferred program start date. Without blaming its own delays in adjudicating such applications, CIS is pointing fingers towards such applicants who had submitted the applications on time but due to extended delays by CIS in adjudicating such applications the Designated School Officials (DSOs) were forced to defer the initial program start date. The question worth exploring is why CIS is focusing on the deferred program start date in place of the initial/original program start date as stated on the Form I-20 when adjudicating such COS applications.
Even assuming that CIS’ interpretation is correct, if the failure to file before expiration of status can be excused within the discretion of the service, then, it is only reasonable to conclude that filing within status (and later unintentionally falling out of status) must be excusable. It is not logical to conceive why the regulation would intend to provide a mechanism for excusing the former, but not the latter. The CIS’ interpretation would therefore result in an absurd and inexplicable inconsistency within the statute, and such interpretations are disfavored. See United States v. Granderson, 511 U.S. 39, 56. 114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994).
To add, CIS has been basing denials on the interaction of Section 248.1(b) with Section 214.2(f)(5)(i) contained in 8 C.F.R., and focusing much of its analysis on Section 214.2(f)(5)(i). However, CIS has failed to clearly indicate and explain how Section 214.2(f)(5)(i) applies to the interpretation of Section 248.1(b). In pertinent part, 8 C.F.R. Section 214.2(f)(5)(i) states,:
“…An F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20…[emphasis supplied]
Section 214.2(f)(5)(i) clarifies that the agency may only permit an applicant’s F-1 status to become effective as early as 30 days prior to his/her program start date listed on Form I-20, and no earlier. Nowhere does it specifically state or imply that the agency may not consider COS applicants whose prior status expired more than 30 days prior to the “deferred” program start date. The regulation simply does not address the dispositive issue, which instead turns on the proper interpretation of Section 248.1(b): whether the agency has discretion to consider applicants who file on time, but subsequently (and inadvertently) lose their prior status because of the delay by CIS in adjudicating such timely submitted COS applications?
Further, as stated above, except through the Denials, CIS has failed to support its newfound interpretation of the regulation contained at 8 C.F.R. Section 214.2(f)(5) by any precedent decision, any other interpretative rule or other generally applicable agency documents such as internal Policy Memorandum, Q&A or Guidance.
CIS, in its Denials, is quoting above-stated relevant portion of Section 214.2(f)(5)(i) and is trying to draw an analogy by stating: “Similarly, USCIS may grant a request for a change of nonimmigrant status to that of an F-1 academic student effective 30 days before the program start date listed in the SEVIS records…”
Even assuming that CIS is drawing proper analogy, the next question worth pondering is: Which program start date listed in SEVIS records?—the “original” or “initial” program start date OR the “deferred” program start date?
It would be improper and illogical for the adjudicators at CIS only to rely on the “deferred” program start date as listed in the SEVIS records when adjudicating long-pending COS applications when CIS delays required the DSOs to defer the program start date, sometime multiple times.
Rather than relying on the “deferred” program start date, adjudicators should take into consideration the “original” or the “initial” program start date by carefully looking into the available and accessible complete ‘SEVIS Event History’. If for any reason the adjudicators do not have access to the complete SEVIS history, a Request for Evidence (RFE) should be sent to the applicants (or applicant’s legal representative, if any) so that complete SEVIS Event History can be provided to CIS. CIS’ changed reliance only on the “deferred” program start to calculate the gap between the previously maintained nonimmigrant status and the program start date is erroneous and improper, and could very well be challenged in Federal Courts.
Why CIS Should Consider Reverting To Its Prior Interpretation?
Though INA Section 242(a)(2)(B)(ii) specifically divests Courts of the jurisdiction to review the discretionary determinations of the CIS, it does not bar them from reviewing any non-discretionary dimensions of a decision of the CIS. There is a distinction between eligibility for discretionary relief and the favorable exercise of discretion. Pure questions of law that do not touch upon decisions that are under the discretion of the Attorney General or Secretary of Homeland Security are left to the Courts.
The Courts, thus, have the jurisdiction to review a determination of CIS that an applicant is statutorily ineligible to be considered for a COS. If the Court concludes that the agency’s decision regarding eligibility is erroneous, the Court possesses jurisdiction to remand the case to CIS, ordering the agency to re-evaluate the applicant’s application in accordance with the appropriate eligibility principles. However, INA Section 242(a)(2)(B)(ii) does not authorize the Court to dictate how the agency ought to exercise its discretion.
Does that mean that CIS could misuse the discretion provided by the INA, and when challenged could sway the Court in its favor by asking Court to give deference to its newfound interpretation of the regulations?
The short answer is “most likely not.” Though CIS could argue that the statute, INA Section 248, is ambiguous, and, thus the Court should give significant deference (Chevron deference) to its interpretations, it is highly likely that the Court will buy CIS’s argument because CIS neither changed its interpretation and interaction of the regulations using the exercise of delegated lawmaking authority nor has been supporting its newfound interpretation of the regulations through any precedent decision, interpretative rule or other generally applicable agency documents.
Thus, the Courts will not only hesitate to extend Chevron deference to CIS’s new interpretation of the existing regulations, it would even waver to apply to apply Skidmore deference which is generally applied to informal agency actions. Accordingly, the Court will only accord the agency’s interpretation the low level of deference that is given to the informal interpretive decisions of low-level agency officials. See Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 138 (2d. Cir. 2002). Under this standard, the Court will defer to the agency’s interpretation, “but only to the extent that [it has] the power to persuade.” See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944).
It would be an arduous task for CIS to persuade the Courts because both California and Vermont Service Centers are on record as taking the position that a COS to F-1 remains approvable as long as the applicant’s status at the time of filing was within 30 days of the program start date listed on the Form I-20. Thus, until CIS supports its shift in the interpretation through either rule making process or any interpretive rule, internal agency guidance/memo or a similar document, Courts will be reluctant to give any significant deference to CIS’ new interpretation. As such, it is highly likely that courts will not side with CIS in supporting its changed interpretation of the existing regulations.
Based on the foregoing discussion, it can be deduced that CIS’ interpretation of the regulation that there should not be a gap of more than 30 days between expiry of applicant’s B-2 nonimmigrant status and the “deferred” program start date is erroneous because neither the statute and nor its related regulations support the newfound interpretation. Further, because CIS would significantly risk losing in the Court when challenged on its new interpretation, it would be prudent for CIS to revert to its prior interpretation and stop denying such B-2 to F-2 COS applications.
 SEVIS is a web-based system for maintaining information on international nonimmigrant students and exchange visitors in the United States.
 All SEVP‑certified schools in the United States are required to have DSOs to communicate with Student and Exchange Visitor Program (SEVP), update student records, and help students maintain their student status by providing advice, or helping them fill out important forms.
 Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
 either through notice-and-comment procedures; or the trial-type procedures that are characteristic of formal agency adjudications.
 Skidmore v. Swift & Co., 323 U.S. 134 (1944).