Following the publication of the Notice from Department of Homeland Security extending the status of certain F and J nonimmigrant students requesting change of status to H-1B (please see our last posting in this site), William Yates, USCIS Associate Director for Operations, sent out an email on July 23, 2004 in response to the question, "Will CIS allow MTRs (Motion to Reopen) on already-denied cases (referring to H-1 cases denied after the cap was reached in February of 2004 while the denial caused the gap problem for F and J students)?"
In the email Mr. Yates answered that "There are at least two options here. One would be to file a new request to change nonimmigrant status, and the second would be to file the motion to reopen. ˇI see nothing in the notice that would require that the MTRˇbe filed by July 30.
Due to the circumstances in this case I would think that we would extend the normal 30-day requirement to file a motion such that the clock for the motion starts on July 23.
Any change of nonimmigrant status that was denied prior to July 23, is considered to be a correct decision and a motion filed with the USCIS must contain the appropriate fee.
Any change of nonimmigrant status denied on or after July 23, for failure to maintain status as of October 1, will be reopened by the USCIS at no cost since a denial on the maintenance of status issue alone would constitute an error on our part.
This email does not constitute official USCIS policy. However, it is intended to provide some general sense of how we will treat these cases. I know that a few issues not covered here are likely to arise with respect to maintenance of status, and USCIS will try to identify and cover other circumstances in a document to follow."