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Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28486
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I am on student with F 1 visa and working on my 17 month

Customer Question

Hello, I am on student with F 1 visa and working on my 17 month STEM OPT EAD card, my work authorization ends in 15 Nov 2016. Based on new rule I was eligible to apply for the 7 month extension. I had 150 calendar days in my current OPT as of 20 Jun 2016. But at that time when I asked my university for an I20 to apply for that extension, they denied saying I was working for Infosy Ltd since it was a contracting company. But lately I have been hearing that my friends at my university where getting I 20's working for contracting companies, so I called my university and asked them, they are saying that is true and they were not aware of this situation when I was eligible and trying to apply for the 7 month extension. But now they would give me an I 20 for the same reason they denied me but I don't have 150 calendar days left with my current work authorization to be eligible to apply. Technically it was not my fault, I tried when I was eligible and university did not allow me to apply. Now I am not eligible based on the rule and because of their. Negligence I am losing my work authorization. Can I still get them to recommend me with a new I 20? Can I file a case against them for this mistake that they did?
Submitted: 8 months ago.
Category: Immigration Law
Expert:  Judith Ludwic replied 8 months ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

Can you get the DSO to write a letter stating that they mistakenly denied your request for the I-20 when you had 150 days or more left in your current STEM and that it is their misunderstanding about the new regulations that caused you to delay filing. They are issuing you the I-20 now after having received clarification regarding your eligibility to file based on working for a contracting company.

If you can get that letter you can send in the I-765 and request a decision "nunc pro tunc" based on error on the part of the university and not through any negligence or intentional delay on your part.

It is certainly worth a try because there was so much confusion with the new regs and the lack of guidance given by USCIS in a prompt and timely manner. I would include that in the waiver request for a decision nunc pro tunc which means "now for then".

Yes, you could file a legal action against the university for their failure to insure it's employees were trained properly about the new regulations. It will probably cost you several thousands of dollars to sue because a lawyer wouldn't take such a case based on contingency fee basis.

I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 8 months ago.
How do i apply for this nunc pro tunc decision along with my I765 application? Even if i do this there is not gaurantee that they will approve the request?
Customer: replied 8 months ago.
what is the waiver request. Can i know the exact waiver form # ***** i should fill and attach in this situation.
Expert:  Judith Ludwic replied 8 months ago.

You write a letter requesting the USCIS to consider the new I-765 under the nunc pro tunc process based on USCIS confusion and delay with providing the DSOs guidance on the new regulation and what employers qualify for the STEM extension.

There is no form. You may want to retain an attorney to do this for you since it is a legal procedure and not simply just filing the form.

That is what lawyers are trained to do, handle cases that fall outside the norm.

There are never any guarantees with anything to do with USCIS. Never. And any lawyer who guarantees anything is lying to you.

I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 8 months ago.
Do you mean that i hire an attorney to fill out all my forms including I765?I thought that the DSO will be giving the letter explaining their mistake and this was the waiver letter applying under a now for then situation.
Expert:  Judith Ludwic replied 8 months ago.

No, sorry, I meant to hire the attorney to prepare the Memorandum Requesting Adjudication under Nunc Pro Tunc. It is a legal theory used in any number of situations where government error caused a situation that would cause you harm, such as a denial. In this case the DSO is giving you a letter saying they made a mistake in refusing you the I-20 because of their misunderstanding of the law. Your theory is they misunderstood the law because USCIS did not send out comprehensive policy guidance of the new STEM regulations in a timely fashion.

That is the basis of your legal argument they you should be allowed to file the I-20 now for then (nunc pro tunc) because the extraordinary circumstances of this delay were beyond your control.

You need to set forth this legal argument that the theory of nunc pro tunc would apply to you in this case for a favorable waiver of filing within the 150 day period.

Lawyers are trained to set forth these types of arguments in memorandum form.

See this example of lawyers using nunc pro tunc and having USCIS turn back the clock.

https://www.goellaw.com/resources/case_studies/casestudy5/

So if you think about the amount of money you will loose by not having those additional months to work, it may be a wise financial investment to get a lawyer to write the Memorandum.

We are here to provide you general information. I have offered you a possible suggestion that could get you the additional time on your STEM. It is really your only option to try.

I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 8 months ago.
Will you be able to help me get this document. Since you are aware of the case information and may i know what will be the estimated cost to get it?
Expert:  Judith Ludwic replied 8 months ago.

No, the site rules prohibit experts from representing their customers. We can only provide you general information for guidance. You must retain an attorney if you want them to proceed on your behalf to prepare this Memorandum.

You can find a lawyer who does student related immigration law at

http://www.ailalawyer.com Select "student" from drop down menu.

Any lawyer anywhere can write this for you. You can print off this exchange and show them what I have suggested to you. You can also contact the law firm that did that case I gave you the link to.

I cannot tell you what any one lawyer will charge you for preparation of such a Memorandum. Every lawyer has different fee structures.

Judith

Expert:  Judith Ludwic replied 8 months ago.

May I answer anything additional for you to earn your satisfaction. I strive to give good customer service and comprehensive answers. I feel I have failed you. Please tell me what additional information would be helpful.
Judith

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