NSC Update on Student and H1B Issues
Posted Apr 29, 2005
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The Nebraska Service Center (NSC) answered some questions recently put to them by the National Association of Foreign Student Advisors (NAFSA). As would be expected, many of these issues are pertinent to our student readers of MurthyDotCom and the MurthyBulletin. The U.S. Immigration and Customs Enforcement (ICE) monitors the Student and Exchange Visitor Information System (SEVIS), but U.S. Citizenship and Immigration Service (USCIS) issues the employment authorization document (EAD) and other service-related benefits to students.
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Since H1B issues are also relevant to many students graduating and entering the U.S. workforce, NSC responses addressed matters important to potential H1B beneficiaries and their sponsors. We at The Law Office of Sheela Murthy have summarized the information, dated March 29, 2005, for our interested readers.
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Which Address to Use When Graduating?
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Student addresses are subject to frequent change. The foreign student advisors asked whether the Optional Practical Training (OPT) application would be refused if the student used an address on the application other than the address contained in the SEVIS database. The reason for this is that many students intend to move following graduation and before they receive the OPT. They are essentially a bit unsettled during this time. Thus, they use a friend's address as the permanent address for the application so that it will not be sent to the SEVIS address, which they will leave after graduation.
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NSC advised that the OPT application process should not include an address review. The OPTs should be approved even if the address listed differs from the SEVIS or I-20 address. They responded that this matter would be brought to their contractor's attention so that it would not cause a rejection of the EAD application.
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What are Procedures for Address Change Notification?
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To avoid problems in EAD delivery, any address changes should be made by calling the National Customer Service number at 1.800.375.5283. The changes are sent to NSC and, according to NSC, processed within a few days of receipt.
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Applicants are directed to use the address where they are residing at the time of filing, rather than a future, anticipated address. They are then directed to update their address, as explained above, once they move. Because the use of a friend's address is acceptable for this purpose, however, it would seem easier and less likely to result in potential misdirection of the OPT card to use a permanent address. As is explained below, OPTs that are lost in the mail require new applications. Obviously, this is time consuming and expensive and delays one's ability to start work. Such delays could also result in the employer rescinding the job offer and hiring someone else who is authorized to work immediately.
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What Happens if NCSC Does Not Make the Address Correction?
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In response to concerns that the change-of-address requests submitted to the National Customer Service Center (NCSC) were not being effectively handled, NSC stated that they believe change-of-address requests from the NCSC to NSC are being processed timely and effectively.
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As an alternative to using the NCSC, NSC recommended that customers send change-of-address requests to P.O. Box 87865, Lincoln, NE  68501-7865. This address is ONLY for change-of-address requests. Case status requests and other inquiries may be delayed or go unanswered if sent to this address.
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Also, NSC reminded NAFSA members that students and others providing the NSC with a new address does not fulfill AR-11 address-change, mandatory legal requirements. AR-11s must be filed separately and should be sent to: P.O. Box 7134, London, KY  40742-7134.
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How to Cancel an OPT Request?
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If a person wants to cancel an OPT application, s/he needs to make the request in writing. The NSC provided an eMail address to NAFSA for this purpose. Therefore, the Designated School Official (DSO) should have this information available for the student. The school can send the eMail to the USCIS on behalf of the student. If a hard copy withdrawal is sent, it should be signed by the student since the OPT is actually the student's application.
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The NSC prefers that the eMail be sent with a reference line "I-765 Withdrawal" and with a reference to the receipt number in the body of the message. Alternatively, the request may be sent in hard copy to the NSC, P.O. Box 87765, Lincoln, Nebraska,  68501-7765, with a cover letter clearly referencing the withdrawal request as well as the receipt number and/or a copy of the receipt notice.
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What Happens if the EAD is Lost in the Mail?
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The NSC advises that if the online system reflects OPT approval, but the student doesn't receive the card within 2 to 3 weeks, then the student cannot get an interim EAD from the district office. The district office only issues interim EADs if the case has been pending for 90 days or longer.
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In those cases where a card has been approved and not received, the student / DSO needs to file a new I-765 application at the Service Center.
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Sometimes, EADs are approved but cannot be delivered to the particular address due to relocation and other issues. If the EAD is returned as undeliverable by the Post Office, the NSC will update its records to reflect this. They do so in case they receive an inquiry or an address-change notification. If they receive the address-change notification or inquiry for the returned EAD, they will request that the EAD be mailed to the updated address. NSC did not indicate how long they keep the returned EADs in their possession.
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Is the Diploma Required to File for H1B?
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Many students try to change from student status to H1B. Since H1Bs require that one have a bachelor's degree or above (or equivalent), the question was asked whether it is enough to complete the degree or is the actual paper diploma required. There is sometimes a delay between degree completion and graduation / receipt of the physical diploma. With the H1B cap issues faced by many new graduates, the need to avoid delay in H1B filing is vital.
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The NSC responded that it should be sufficient to simply submit a letter from the university stating that all degree requirements have been completed. They also recommend submitting transcripts, whether or not the diploma has been received, as they reflect the actual course work completed.
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When is an H1B Amendment Required?
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The NSC clarified that H1Bs must be amended if there has been a material change in the H1B employment terms and circumstances. This is often important to recent graduates who may find their job duties evolving as they gain experience. The NSC stated that an amendment is needed if the beneficiary's job duties change or the location of employment changes.
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We note that many people's job duties vary a bit in the normal course of employment, based upon the employer's needs, personal preferences and strengths, and other factors. The H1B does not need to be changed for each minor variance. If there is a promotion, lateral reassignment, relocation, or if the job has materially changed over time, then an H1B amendment should be filed. While it is sometimes difficult to identify when the H1B needs to be amended because of a change in certain job duties, one must always file an H1B amendment when the existing Labor Condition Application (LCA) does not cover the new place of employment. This will necessitate a new LCA and an H1B amendment.
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Who Should Pay Certain H1B Fees?
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The NSC was asked who should pay the various required fees that must accompany the H1B filing. That is, which fees, if any, have to be paid by the employer and which can be paid by the H1B beneficiary. NSC stated that the ACWIA (training) fee, which is either $1500 or $750 depending upon the size of the employer, must be paid by the employer. They also are requiring the employer to pay the $500 anti-fraud fee, though this information appears to conflict with information from the USCIS Headquarters given to AILA representatives previously.
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During a recent pronouncement by Service Center Operations (SCOPS) in an AILA liaison meeting, SCOPS stated that the $500 training fee can be paid either by the employer, the employee, or even a third party. Therefore, there appears to be some confusion within the USCIS on this matter that needs resolution. The ACWIA fee has always been the responsibility of the employer.
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Conclusion
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We at The Law Office of Sheela Murthy appreciate these insights into the various procedures at NSC. They will help students in their struggles with many legal and life decision concerning work in the United States following graduating from colleges and universities.
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