The new USCIS H1B memo: Section III, Why they are wrong on the law

[Ron Gotcher]

We have just published section three of our analysis of the new CIS H1B memo. This section explains why they are so clearly wrong on the law.

You may view it by going to http://www.immigration-information.c...-the-memo.html

[sanbom]

Just read your views. Has anyone filed the Litigation yet? .Also if this applies to new H1B petitions why are people asked client letters etc. at Port of Entry

[Ron Gotcher]

Before a case can be litigated in federal court, the interested party must exhaust all mandatory administrative remedies. In the case of H1b petitions, this means taking an appeal to the AAO and waiting for their decision. Right now, the AAO is taking more than a year to decide H1b appeals. These policies were implemented about a year ago. We should see the first AAO decisions on appeals coming down in March or April at the earliest.

I'm not sure I understand what you mean about "new" petitions. If you are suggesting that these policies only apply to cases filed or approved after the date of the memo (January 8, 2010), you are wrong. This has been CIS policy for more than the immediate past one year.

[sanbom]

Thanks very much for your clarifications. Also If the the petition is approved earlier lets say around October 2008 and if one goes for stamping in India based on that petition, will the consulate still verify the Employer-employee relationship based on the memo.

[Ron Gotcher]

Let me try one more time to make this clear:

1. The memo does not raise any new issues that haven't already been policy for at least the past one year.
2. The State Department is not part of the CIS and they generally do not follow CIS policy memos (they try to follow the law, instead).