On June 28, 2018 and July 13 2018, the CIS issued 2 memos that might drastically change the practice of Immigration law. Since I practice mainly Business Immigration Law, I will discuss the ramification of these two memos as they pertain to Business Immigration.
The RFE memo (July 13th) seems to say that RFEs will be issued for only those cases that does not meet the prima facia evidence. That evidence is just filing ALL THE REQUIRED FORMS. This memo starts from Sept 11.
The Notice to Appear memo (NTA Memo-June 28 ) says that That CIS will issue NTA (ie start removal proceedings) if CIS denies an application.
The guidance for the RFE memo is that we need to do our very best. It has not been interpreted yet, but we do need to file all control letters and Specialty Occupations letters at the filing stage.
But the NTA memo will have more far reaching consequences to Employment based applicants, particularly Stem students and H-1B portability.
An NTA is a document sent by ICE, when CIS refers the case to them. It starts the process of Removal. NTA’s are issued with no dates given on the Notice to Appear. It says TBD. According to the Supreme Court Case Pereira V Sessions, 2018, the court ruled that writing TBD makes the NTA flawed. It has to specify the date, time and place to appear. Since that is not ICE’s procedure, lawyers have had varied success in getting those cases dismissed. Basically it depends on the judge. But those cases were before Pereira. Now though ICE has to give dates and times, so it remains to be seen what ICE will do.
Students on STEM
Current Request for Evidences are not based on third party sites, but on period of stay after obtaining the OPT. Students CANNOT have more than 90 days in a 12 month OPT, more than 120 days for 17 months; and more than 150 days for 24 months. Please note that voluntary work IS counted as work, so they will need employer verification.
What happens if the stem applicant gets a denial of their H status and does not have time left on their OPT?
We would like to have individuals maintain status. Please study in your subject in as good a school you can get in. Please do not take CPT. Please do NOT work illegally.
What happens if an H petition for transfer gets denied?
We are advising clients to file with Premium and not quit the first job. Of course the CIS will give an RFE, esp if this is a computer job, and can and does deny with no proof.
What happens with folks filing for Adjustment of Status has been on CPT, or has worked with no authorization?
Increasingly CIS officers, during Employment based interviews, are going through an applicant’s status and can deny based on any status issues. However, there is a remedy applicable for Employment based applicants. Under Section 245 K of the INA, the government can only look at status 180 days from the last entry. So as soon as any of these individuals receives their Advance Parole documents, we are sending them to Canada or Mexico just before the interview, so Citizenship and Immigration can ONLY adjudicate status from the last entry.
For more information contact Banerjee&Associates