03/28/2008: Foreign Labor Certification Requirement and Procedures - Eye View
Questions: We are a small firm and do not have much resources to understand the sea of rules, policies, and procedures which we will have to follow to process the labor certification applications for our foreign worker employees. Even though we work with the immigration legal counsels when we process the labor certification applications, we would like to have some perspectives on the legal proceedings as related to the requirement and process. Can you please recommend such resources? Discussion: I like the term "sea" which you used to describe the amount of rules, regulations, policies, and practice information on this legal proceedings which are extremely confusing and overwhelming. However, in my opinion, the best material which you should keep handy while you go through the process is the summary of the Frequently Asked Questions by the Office of Foreign Labor Certification in step-by-step issues and topics. This gives an eye view of whole procedures and requirements involving this legal proceeding. Please refer back to this material from time to time to understand and update your understanding of the process. In a way, this will also assist your legal counsel in that you would be able to work and communicate with the legal counsel better. Please try it.
03/26/2008: Update of Overnight Delivery Services Acceptable to California Service Center
Question: You reported that the California Service Center had a policy of accepting delivery to the agency only from the bonded overnight delivery services and UPS was not listed in the list of bonded overnight delivery services. I have to file FY 2009 H-1B petitions on April 1 and want to know whether I will have a problem if I deliver it by the UPS? Discussion: This has been some concern to the H-1B filers. However, the AILA reports that the California Service Center will accept all the overnight deliveries via UPS, FEDEX, DHL. This is a good news indeed.
03/25/2008: Consular Processing H-1B Cap Filing
Question: We are an Indian IT consulting firm and scheduled to file the FY 2009 H-1B cap petitions. Some of the employees are currently in the U.S. in student OPT status and others are residing in India. We have been filing a number of cases and are somewhat familiar with the procedures. Is the consular processing H-1B filing different from the filing for the employees in the U.S.? Discussion: There is one caveat for the consular processing H-1B petition filings. The USCIS has been requiring two sets of original signature forms and supporting documentation for consular processing H-1B petitions since they were required to forward one set to the visa posts where the alien beneficiary were scheduled to apply for the H-1B visa. This requirement has been reinforced by the recent PIMS procedure of the U.S. Department of State. It is thus very important that unlike the filings for the prospective employees who are present in the U.S., if the employers file for the prrospective employees in foreign countries, they should submit a petitiion in duplicate with original signatures on both sets of documents. This discussion should be taken as an important reminders for the employers like your company that file the petitions for aliens living in foreign countries. Filing in duplicate does not mean that you are required to pay double of filing fees. There is one caveat, though. Since the USCIS will deny or revoke the multiple petitions by same employer for the same employee, the two sets of documents should be presented with one cover letter with a note "Consular Processing" in bold pen and clip the two sets together for single petition in one envelope. The two sets should be bound together.
03/24/2008: PIMS and H-1B Consular Processing Delays
Question: I am a business development manager working with a multinational corporation in L-1B status. Because of the nature of the job and the employer, I make a lot of international trips. My company human resouces department has waited until the last minite to prepare the papers for extension of current status which will expire in 20 days. They intend to file Premium Processing Services. My visa in the passport will expire in 20 days. However, I have a very important meeting scheduled overseas next months and am very worried about the situation. I heard that nowadays, the nonimmigrant visa applications take time because of the PIMS process in place and the visa posts will no longer be able to issue a visa unless the Kentucky Consular Center of the State Department first scans the L-1B documents to the visa posts after receiving the documents from the DHS. I do not want to be struck outside of the U.S. because of the visa renewal problem. Please help. Discussion: It is true that sometimes the issuance of the visas at the U.S. visa posts throughout the world is often delayed because of the PIMS process. The delay in transmittal of the file of L-1B approval can exacerbate the problem. Since the KCC cannot scan and transmit electronically to the visa posts without the original documents from the DHS, it has caused problems to the visa applicants quite frequently. Part of the problem is known to be related to the current procedure of L-1B extension petition process which does not require submission of the petitions and supporting documentations in duplicate with the original signature when the people apply for extension or change of nonimmigrant status or amendment of the petition within the U.S. According to the AILA, the USCIS is aware of the problem and intends to facilitate the process if the alien requests such facilitation at the time of filing extension of their status. The way the alien has to request such facilitation is to submit the extension petition and supporting documentation in duplicate with original signatures on both sets and request the Service Center to forward one of the two sets to the KCC upon approval of the petition. Accordingly, those who need travel and apply for the visa renewal during the trip should submit the petitions in duplicate with original signature on both copies. Since your human resources department has not sent out the extension petition, you may as well remind them of this practice of the Service Centers and ask them to file the petitions in duplicate. Good luck.
03/23/2008: New H-1B Cap Filing Rule and Multiple Petitons by Different Employers
Question: I have been working for the current employer on OPT program. This employer is currently preparing a FY 2009 H-1B cap petition for me on Apirl 1, 2008. The job is a Programmer-Anlyst. However, there is another employer in Silicon Valley that offers me a quality assurance engineer position. I am qualified for both of these positions. This employer, not knowing the current employer's petition, is about to file another petition for me on April 1, 2008. I could not disclose either of these two employers that both of them are filing H-1B petitions for me because it can jeopardize my job and career. However, I would like to keep the opportunities open to choose between these two employers. The new rule appears to say that mutiple H-1B cap filings for a same alien will be denied or revoked if they detect it. However, it just mentions about the multiple filings by the same employer for the same employee. What about multiple filings for the same alien by different employers? Discussion: The new rule that imposes restrictions on the multiple H-1B cap filings by the same employer for the same employee is to block certain employers who try to attempt unfair advantage of winning in the lottery process by filing presumptively frivolous filing or filing for a speculative job. It is a good rule in that every employer should enjoy an equal shake in the lottery process and not allowed undue and unfair advantage to any employers by using assumedly unethical tactics. However, same logics cannot apply in the situation where different employers want to hire an alien professional either in competition with other employers or without the knowledge of the existence of other employer. It is indeed an issue of every employer's right to recruit required foreign workers, which probably cannot be deprived of by the government legally. It is not an issue of the foreign worker's right but the issue of U.S. employer's right. For this reason or others, the new rule does not specifically provide that such multiple petitions by the different employers for the same alien will also be denied or revoked. It is however very clear that once the agency detects such multiple filings, they may scrutinize the bonafides or existence of each job and may issue RFEs depending on the specific circumstances. However, it may be ultra vires if they deny or revoke such multiple filings by different employers when there are indeed bonafide job offers and the offered job indeed exist for the foreign worker. It indeed has been a reality that some foreign workers from time to time filed multiple petitions by multiple employers and enjoyed the opportunity of picking and choosing one of the two employers. This should not however lead to a conclusion that any such multiple filings should be blessed by the agencies when these filings involve a frivolous or fraudulent scheme and a simple arrangement rather than existence of a bonafide job and job offer. These petitions have been regulated irrespective of the new rule. People should seek legal counsel when they will be involved with such multiple filings.
03/23/2008: Indian Three-Year Bachelor's Degree Plus Two-Year Master's Degree and EB-2 Petition
Question: I am an Indian Software Engineer. I graduated from a college in India earning a Bachelor of Scinece degree in Computer Science and two-year post-graduate degree of Master of Computer Application in India. I obtained labor certification approval for a software engineer position requiring a master's degree in computer science or bachelor's degree in computer science and five years of progressive experience in software engineering. I am about to file EB-2 I-140 petition and very concerned and confused about the rumor that the Nebraska Service Center has been denying Indian education of three years bachelor's degree plus two years of master's degree as equivalent to a U.S. master's degree. Please give me some information on the state of this issue. Discussion: The five-year post secondary school foreign degrees have presented a most puzzling challenge to the employment-based immigration practitioners. Initially the NSC took an extremely narrow formula on this issued backed by a precedent decision of AAO, which is so-called six-year post secondary degrees. This stiff formula has been gradually loosened up somewhat lately but still presents a very challenging issue in that the agency will determine this issue on a case-by-case basis throwing the answer wide open in the ocean. The Texas Service Center one time did not follow the suite of the Nebraska Service Center, and people with such backgrounds filed the I-140 petition with the TSC when such jurisdictional option was available. However, this door has been gradually shut off for the two reasons: The late direct filing policy disallows I-140 filing with the TSC for the job which is located in the NSC jurisdiction. Additionally, the TSC lately started issuing denials of such I-140 petitions based on the similar theory. Eventually, it all depend on case by case and for the reasons, people have placed an increased weight on the foreign credential evaluators, somewhat successfully. Therefore, there is no hard-and-fast rule on this issue, but generally the following facts have received a favorable decision at both Service Center level and AAO appeal level: (1) Approach to focus on the bachelor's degree. This approach focused on analysis of the courses and credits earned at the bachelor's degree level and persuaded the agency that the degree is equivalent to a U.S. bachelor's degree in computer science. This was particularly persuasive in the three situation. One is the British education system of 13-year education for a three-year college admission. In this case, both the agency and AAO accepted such three-year degree from the theory that one additional year of general studies before the college admission required only one year of general studies at the college level and such education focused on the specialty courses and education for two years at the college level. Accordingly, the British three-year college degree with 13-year elementary and high school program is well accepted as equivalent to a U.S. bachelor's degree. The second situation involves a bachelor's degree program that focuses on specialty courses rather than general studies. In a general degree of bachelor of science in India, two years are spent on the general studies and only one year or less is spent on the specialty courses. Such degree gives the strongest weapon to the Service Centers to deny the EB-2 petitions on the theory that combination of two degrees are not acceptable for a bachelor's degree equivalency. However, when the same degree of bachelor of science is focused on the specialty courses such as a degree of bachelor of science in computer science that spends for two years in the specialty education, it has a better chance to be recognized as bachelor's degree equivalent even if it is followed only by two-year master's degree in computer science, altogether five years in post secondary education. Sometimes, when the three-year bachelor's degree without such specialty focus is followed by a three-year graduate degree in the computer sicence, EB-2 petition has been approved on the theory of borrowing one year of specialty education from the three-year graduate level program to make the undergraduate degree equivalent to a bachelor's degree in computer science, even though the practice varied tremendously in these cases. (2) Another approach which is somewhat new but successful was somewhat to ignore the issue of a bachelor's degree equivalency and rather focus on the issue of master's degree equivalency. Traditionally, the master's degree program in certain British Commonwealth countries has been accepted as a U.S. master's degree equivalent when the graduate schools required a bachelor's degree in computer science for admission to the a master's degree program when a student completed a three-year degree program which the schools accepted as equivalent to a bachelor's degree because of the additional courses or training the student took. This analysis has not been well accepted by the agencies for the Indian education. However, very recently, there was a success in the AAO decision that more or less ignored the three-year bachelor degree and just focused on the analysis of the Indian master's degree program to see whether the graduate program was equivalent to a U.S. graduate program. This new approach leaves open a door a little bit wider in dealing with the Indian five-year education issues. Understandably, this new approach should heavily rely on very authoritative and credible academic and foreign credential evaluation agencies' detailed analysis, assessment, and evaluation of the specific courses which the alien took in the Indian master's degree program to reach a conclusion that in "specialty" courses wise, the Indian master's degree program was same or similar to the U.S. master's degree program. The concept may be analogous to the situation where a graduate school in the U.S. admitted an Indian three-year BS degree holders based on its assessment of the student's academic studies and other trainings, and the agency has accepted such U.S. master's degree without going behind of the admission process to challenge the nature of a master's degree. It appears that more and more employers are likely to use this new approach when the foregoing first approach is not available because of the three-year BS degree not focused on the specialty field of computer science or related fields. Again, people should understand that when it comes to the subject of present discussion, there is no hard-and-fast mechanical rule that can apply across the board simply based on the name of the degrees or number of years of education for the degrees. People should seek legal counsel.
03/21/2008: April Visa Bulletin and Consular Immigrant Visa Processing vs. 485 Adjustment of Status for Family Members
Question: I am an EB-2 Indian who suffered from the visa number retrogression. When EB-2 visa number was available, I started the consular immigrant visa processing through the American Consulate in Mumbai and afterwards it was halted because I was hit by the lightening rod of "unavailable" in the Visa Bulletin. Thank god, now my visa number will become current in April and I look foward to completing the immigrant visa processing in Mumbai. I have a son who is a freshman in a college. We initially filed I-485 applications in the U.S. but changed to the consular processing afterwards because I learned I had the problem of adjustment of status because of the nonimmigrant status violation one time.. My wife and I withdrew I-485 applications to go through the Mumbai consular processing. Would my son be able to complete his I-485 proceeding here in the Unied States while my wife and I complete the immigrant visa processing in Mumbai in April? Discussion: You are not alone when it comes to people who are forced to go through the consular immigrant visa processing because of the issues that make them ineligible to adjust status to a permanent resident in the U.S.through the I-485 proceeding. You made a right decision. Your family members are so called dependent derivative beneficiaries of your approved I-140 petition. The family membes are eligible for I-485 application as either an accompanying or following to join derivative beneficiaries. They are eligible to file I-485 applications either pending your own I-485 application or approval of your own I-485 application. By the time you withdrew your I-485 application, you son lost the status of an accompanying derivative beneficiary status for the I-485 proceeding and was not eligible for his own stand-alone I-485 application. Until your green card is approved either in an immigrant visa proceeding or I-485 proceeding, he should go through the same proceeding as part of your application process as adjudication of his immigrant visa or I-485 application is conditioned upon approval of your own immigrant visa or I-485 application. Accordingly, it will be critically important that either you quickly add your son to the pending immigrant visa proceeding or you refile I-485 application in the U.S. along with your son's I-485 application again. Otherwise, your son face a serious problem flowing from a potential visa number retrogression again or his aging out unless he is protected by the CSPA even he decides to file another I-485 in the future after your I-485 is approved.
03/21/2008: Overnight Express Filing of H-1B Cap Petition
Question: Our company has been using U.S. Express Mail or UPS overnight delivery services in filing H-1B petitions in the past. However, there are a lot of rumors going around as to what overnight delivery services should be used or not used. What is going on? Discussion: Unlike last year when the cap filing was closed on the second day, this year the cap filing will not be closed until the fifth day from the first day when the cap filing will be available (April 1). Therefore, inasmuch as the cap petitions are filed early, you will be less vulnerable to being shut out of the lottery opportunities inasmuch as the petitions are physically delviered to the Service Center facilities before the sixth day. There are a few points that the petitioners should keep in mind. The new rule makes it clear that the petitions must be physically delivered to the agency within the period. Accordingly, post-mark does not work. Additionally, any other delays in the physical delivery to the Service Center facility may not be excused, including the weather or delays caused by the delivery services for whatever reasons. Currently, three issues are discussed for filers. One is the U.S. Express Mail. People may want to check with the U.S. Postal Services, but it has been the U.S. Postal Services practice not to deliver the incoming express mails in the local postal stations to the Service Center facilities, particularly when people used the P.O. Box of the Service Center. The practice has been that the Service Center mail crew rather drove over to the local postal stations and picked up the express mails either twice or more often. Therefore, in some cases, even if the express mail packages have reached the U.S. postal station in the Service Center location, unless it is picked up by the Service Center mail pickup truck, the package can fail to be delivered to the physical facility of the Service Center within the period. The U.S. Postal Service can change their practices, but people may need a written assurance from the U.S. Postal Services to confirm that their practice has changed. Otherwise, people should ship out somewhat early if they want to file it by U.S. Express Mail, at least two days ahead of time. The other rumor you heard about is UPS. This rumor is related to the filers with the California Service Center. The California Service Center has been accepting overnight deliveries only from the "bonded" overnight delivery businesses. They have the list of the bonded overnight delivery services but UPS is not listed in the list. Even though UPS has not been listed in the bonded businesses, the California Service Center has been accepting filings which were delivered by the UPS without any problem. However, people are still nervous as the California Service Center can all of sudden adhere to their policy that they will accept the overnight deliveries only made by a bonded business. People do not want to take any chances in the lottery situation. However, three is an unconfirmed report that the CSC may continue to accept the UPS deliveries and may revise the list of overnight delivery acceptable entities. Pending the change, the rumor is still flying around. Our firm has been using exclusively UPS for all the immigration filings without any problem thus far, but we are not in a position to make a suggestion either pro or con when it comes to this issue. The third issue is closing of filing on the fifth day. It is the issue of the "fifth"day which happens to be Saturday this year. April 1 is Tuesday which is the first available date for the H-1B cap filing and the fifth day is Saturday. The new rule provides that the USCIS will close the cap filing and include all the cap petitions which they will receive within the first five "business" days from the first available day of April 1. It thus means that the USCIS will include those petitions which they will receive physically on Monday, April 7th as it will be the fifth businees day from April 1. Thus lottery selection process will not start until after April 7 this year.
03/21/2008: Premium Processing Filing of H-1B Cap Petitions
Question: My employer is considering the H-1B filing for me using Premium Processing Services. The advance copy of the H-1B cap filing rule change is somewhat confusing. Can you clarify whether the Premium Processing Request will be accepted and guaranteed adjudication within 15 days per the general rule of Premium Procesing? Discussion: The USCIS is not, repet not, suspending the Premium Processing Services for any H-1B petitions, including cap, cap-exempt, non-cap petitions. However, in the FY 2009 cap H-1B petitions, the 15-day clock will not start ticking until your petition is seleted in the random selection process. This includes both regular H-1B cap filings and U.S. earned master degree filings under FY 2009 H-1B cap. Accordingly, the Premium Processing Request will not help if the purpose of your PPS filing is to assure a favorable or preferential selection opportunity in the lottery. It is for sure that once your case is selected, they will process your petitions quickly, certainly within 15 days from the date of selection.
03/21/2008: No E-Filing of H-1B Cap Petitions
Question: The advance copy of the FY 2009 H-1B cap filing change rule does not indicate whether our company will be able to make e-filing of the cap petitions on April 1, 2008. We are trying to file all the petitions in papers, but also considering to make e-filing of some petitions on last minute. Will e-filing be available? Discussion: It is true that the new rule does not touch on the issue of availability of e-filing of the H-1B cap cases. However, you will note from the USCIS website that currently e-filing of H-1B petitions are not available. It is thus very important that you file the cap petitions in papers.
03/20/2008: Multiple Petitions of Regular Cap Petition and U.S. Earned Petition
Question: I graduated from the University of Minnesota earning a master of business administration degree. I have been working for a brakerage firm on OPT. As you know, I am eligible to file a bachelor's degree H-1B petition being subject to 65,000 regular cap as well a U.S. earned master degree H-1B 20,000 numbers which are not subject to the 65,000 regular cap. Accordingly, I should be allowed to file two petitions, one using just a bachelor's degree and the other using U.S. earned master's degree. Today, the USCIS released advance copy of the H-1B filing change rule and I am somewhat confused about the rule for the question I have. Please help. Discussion: Bascially, the new rule intends to prohibit multiple filings inasmuch as a same employer files more than one H-1B petitions for the same alien employee, no matter whether it involves different occupations or regular cap or 20,000 special cap. Close reading of the changed rule indicates that if an employer files two petitions (one regular cap and the other U.S. master degree cap) for the same employee before the USCIS announces the reach of the annual cap, both of these two petitions will be "denied" or "revoked" if they in error approved any one of these petitions. It is thus very clear that you should not file the two petitions either in a same packet or different packets during the cap count period of the five days beginning from April 1, 2008. Such multiple filings are intended to serve no purpose whatsoever other than to increase the chance of being selected, but under the new rule, the USCIS will select the master degree cases first for 20,000 special number cap, and should anyone fail to be selected within 20,000 special cap, the petition will automatically have a second chance to be selected as part of 65,000 regular cap. There is one exception, though. Even though the new regulation will not specifically touch on this issue, the USCIS stated to the AILA that if 20,000 cap does not reach when the USCIS announces that they received enough numbers, and those who earned a master's degree after March 31, 2008 files a U.S. earned 20,000 cap petition pending the regular cap petition, USCIS will not consider such two petitions as multiple petitions.
03/19/2008: USCIS Released Advance Copy and Q&A. Please visit our Breaking News site.
03/19/2008: FY 2009 H-1B Cap Filing Rule Release Delay and Documentation Problem
Question: Our company is an Indian consulting company located in Chennai, India. We have a subsidiary in San Francisco, California. We want to file some H-1B cap petition on April 1, 2008 and need coordination among our office in India, future employees in India, our company in San Francisco, our client companies in the U.S. and other potential employers. This delay of release of the regulation presents a tremendous stress and a logistic problem. What do know by now about the upcoming regulation? Discussion: As we reported in the Breaking News, there is a delay in release of this regulation on the part of USCIS. The only information that are available at this time include the following which have been somehow released to the AILA through their liaison channel: (1) They may change from two days to five days the period of time during which cap cases can be received to be included in the lottery. Last year, they closed on April 2. This will reduce chances of being selected statistically. (2) Multiple filings be prohibiled by the same employer even if the filings are for different jobs. However, the USCIS may accept the multiple petitions filed by "related employers." (3) If the prohibited multiple filings are detected, these petitions will be denied rather than rejected and there will be no refund of the filing fees. The same will happen when such petitions are approved and afterwards detected to be multiple filings. The agency will revoke such petitions altogether without refund. Very steep penalty in away. (4) Out of the total pool, the Service Centers will first select the U.S. master degree case to use 20,000 special numbers. If they receive more than 20,000 before the close of the deadline, any U.S. master degree cases which failed to make it within 20,000 selections will go into the general 65,000 cap pool. Accordingly, the U.S. master degree holders will have a better chance to be selected even in the worse cases of number of U.S. master degree filings. For the purpose of the U.S. master degree cases, the USCIS apparently conceded that they will recognize those who completed the master degree program "in toto" just awaiting official conferral of the degree as the eligible candidate for the special 20,000 numbers! (5) Unlike last year, the receipt notces will be issued only to those whose cases have been selected in the lottery process. Last year, this caused a number of problems for the USCIS.
03/17/2008: Special News: OMB Cleared H-1B Cap Filing Rule and USCIS to Release the Rule Soon.
03/17/2008: H-1B Porting Pending H-1B Extenson Petition
Question: I have been working for the currrent employer for almost three years. My H-1B status was about to expire on March 15, 2008 and my employer filed the extension petition timely on March 1, 2008. My employer received the Receipt Notice on March 13, 2008 in the mail. This petition is pending with the Vermont Service Center. But last Friday, March 14, 2008, I was offered by another employer for a position which I cannot resist to take it. The new employer is a fortune 100 company and the packet of benefit and contract is unbelievably attractive. This company is willing to file a new H-1B petition assuming that I can port to the new employer as soon as the employer receives a Receipt Notice. I wonder whether my H-1B status can be ported even if my current H-1B expired and the extension petition is still pending. Discussion: The rule of H-1B porting is very complex. Upto now, the H-1B porting has been governed by the so-called Yates Memorandum. This is also related to the rule of a H-1B alien's period of stay authorized by the DHS when I-94 has expired. It is current policy that when a H-1B employer files an extension petition before the current H-1B expires, the alien is considered in a period of stay authorized by the DHS. Once the H-1B alien is in such a period of stay authorized by the DHS, the H-1B alien can port to a new employer even after the current H-1B status expired while waiting for the decision of the extension petition inasmuch as the new employer files a new H-1B petition and is in possession of the evidence of filing such as Receipt Notice. One condition is that the extension petition must be non-frivolous. Accordingly, should the current employer file an extension when the position has been eliminated for a number of different reasons and there is no longer such job, the porting will be invalid. Accordingly, inasmuch as the current employer filed a non-frivolous extension petition and did not withdraw the extension, the H-1B can be ported to the new employment even after the current I-94 expired.
03/16/2008: PERM Labor Certification and Upcomng Prevalng Wage Change in July 2008
Question: Our company has five employees from China for the R&D postions. We intend to file PERM applications in September 2008. Can we obtain the prevailing wage determnation from the SWA and use it for the recruitment beginning from June 2008? We are afraid that ongoing inflation will substantially push up the prevailing wage in the second half of this calendar year and we may not be able to meet the increased rate. Discussion: The Bureau of Labor Statistics publishes new prevailing wage rate in July every year. As you noted, the prevailng wage rate may go up substantially because of the inflation and consumer index changes. Under the labor certification rule, the SWA's prevailing wage is valid only for 180 days and in order to use the prevailing wage rate, the employer has to either conduct recruitment during the period when the prevailing wage determination is valid or the PERM application must be filed during the period when the prevailing wage determination of SWA remains valid. When it comes to the SWA's prevailing wage determnation, some states give 180 day validity and some states give only three months (90 days). However, when they approach the BLS release of new prevailing wage rage, all the SWAs must give a prevailing wage determination which will be valid only for 90 days. For instance, if you request prevailing wage determination on March 31, 2008, they will give the determination valid until June 30, 2008. If you request the prevailing wage determination on April 20, 2008, they will give prevailing determination valid through July 20, 2008 and not longer. Accordngly, it may be prudent to seek the prevailing wage determination and initiate the recruitment process as soon as possible not to deal with the increased prevailing wage in the next second half year of 2008. Your plan to initiate the recruitment activities in June 2008 is too close to deal with the forthcoming prevailing wage rate. The SWAs are not likely to give prevailing wage determination until the new rate is published in July 2008. You may change the plan and initiate the process as soon as possible.
03/15/2008: 2009 H-1B Cap Filing and Labor Condition Application
Question: Our company is currently collecting documentation from the future employees in India to file the 2009 H-1B cap petitions on April 1. Unfortunately, they have been experiencing some delays in collecting some documents which are acceptable to the USCIS. As we are approaching close to the deadline, we are nervous. What are the precautions that we will have to take for timely filing of these petitions? Discussion: When it comes to the cap filing, the employers can fail at three levels: (1) Electronic random selection. Assuming that the USCIS will receive more cases than the annual limit, they will go through the computer random selection process. One has to have a luck to be selected. (2) Rejection of the petitions for the flaws. USCIS and this site have warned enought the types of flaws that will lead to rejection of the petitions. Rejection means that the petition is not considered filed. (3) Denial of the petition. Once petition is successfully selected and "filed," the petitions must pass the thresholds for eligibility of the petition through the evidence that accompanies the petition. In order to deal with the first hurdle, employers are considering either duplicate or multiple petitions. However, depending on the upcoming USCIS release of the regulation on FY 2009 H-1B filing, such duplicate or multiple filings will face either rejection or denial. The predicament is the timing of release of the rule. It is expected to take time as it has to be approved by the OMB. Since OFLC submitted the rule for OMB review on February 22, 2008, it can be approved and released too close to the deadline. In certain cases, particularly emergent cases, the OMB reviews are usually approved in ten days under their guidelines. Otherwise, it takes from 30 days to 90 days to complete the review. Assuming that the OMB completes the review in 30 days, the earliest this rule can be published will be March 23 or later. Employers are anxiously waiting for this rule. The second problem involves credential documentation for IT occupations. Lately, the USCIS has tightened up the acceptable foreign education/training documents. The heydays are gone when the USCIS loosely accepted the certificates and diplomas issued by the training or education entities in India. The foreign credential evaluation agencies in the U.S. are well aware of the changing USCIS standards and are rejecting certain certificates or diplomas that fail to meet the USCIS standards. Besides, these foreign credential evaluation agencies are growingly experiencing a backlog in issuing the foreign credential evaluation reports because of the flood of orders they receive as it comes close to March 31, 2008. Third problem could be potential system failure with the labor department that processes Labor Condition Application for H-1B. As we discussed earlier, the OFLC is expected to go through the system "test" on March 29, 2008, and even though the agency states that the labor condition application online filing may not be affected, when it comes to "machines," it can be anybody's guess and there is no guaranty that the sysem will not be disrupted. Considering all of the foregoing contingencies, the employers should get the papers as soon as possible. Some employers have been considering filing petitions either electronically or on premium processing request, but the availability of these two options during the cap filing period remains up in the air at this point. The new regulation is expected to set the rules on these points.
03/14/2008: PERM Centralization and Update
Question: We are a small IT consulting company that needs to file a few PERM applications on or after June 1, 2008. The labor department announced that the PERM jurisdiction will be centralized at the Atlanta National Processing Center effective June 1, 2008. Since filing of a PERM needs at least a three-month lead time to conduct recruitment to comply with the PERM regulation, we have a number of questions that are related to the ongoing restructuring of filing and processing system for the labor certification applications. Is there any clue as to when the details will be released? Discussion: The Office of Foreign Labor Certificaton has yet to announce the details for the electronic filers whose online filing of PERM is expected to be automatically directed to the Atlanta National Processing Center effective June 1, 2008. There are a few things you should watch closely during the next few weeks: (1) OFLC is currently in the process of preparing PERM FAQ updates. The latest update was Round 10. It is expected that they will release it in the near future. The new Round FAQ may answer most of your questions. (2) On March 29, 2008, the PERM sites are scheduled to undertake "test" of the system. March 28, 2008 is "Third Anniversary" of PERM program since it launched the PERM program on March 28, 2005. The current form ETA 9089 expires on March 28, 2008. The proposed new form has already been released and the new form may be adopted sooner or later. The test may or may not include system reconfigulation to reflect the change in the filing form and the jurisdictional change. They announced that during the period of test, there will be some delays for the PERM filers to receive the confirmation of filings online. The new form will incorporate a number of changes the importance of which may not be detected by the layman filers unless they review it line by line and very closely. I have already reported that the new form will reduce the span of discretionary decision for the adjudicators and narrow down substantially the specific standards and requirements. Probably this is the best time for the future PERM application filers to review the proposed new ETA 9089 form which this site reported earlier. (3) New filing fee of $650 may be charged sooner or later. The legislation has yet to be introduced in the Congress, but it may not take too long before they start charging the filing fees, probably around the start of new fiscal year. One interesting question is how they will collect it for the online filers. We do not know at this time whether they will develop online payment system. The employers and aliens should start making arrangement with their banks and credit card companies for payment of USCIS filing fees and PERM labor certification filing fees online as they continuously move on tranforming the filing system to electronic. We hope that the soon-to-be-released FAQ update gives us some perspectives for the foregoing changes and related details of their plans.
03/13/2008: H-1B Cap Multiple Petition Filing and New Start-Up Businesses
Question: I am a Software Architect waiting for I-485 application. I and my wife received EAD based on her I-485 application filing. She is also a high-level IT engineer and has just incorporated a consulting company in the State of California. This is a start-up business with no proven business achievement and no capital and no office. The start-up business must start somewhere and I have a few candidates for the IT consultant positions. Once I am allowed to hire them, I will be able to develop some clients and develop projects for these future employees. What are the chances of getting such H-1B cap petitions approved in April? Discussion: As I stated earlier, the new regulation may be published not until around March 23 and everyone is anxiously waiting for the regulation because of the multiple filing issue. At this point, no one knows whether and how this issue will be handled in the new regulation. When it comes to the cap filing, there are broadly three groups of people who will have to file H-1B cap petitions on April 1. The Group I is new professionals residing outside of the U.S. waiting for the H-1B opportunity to join a U.S. employer and launch an immigration journey in the future. Most of them are located outside of the U.S. Group II is those aliens who are currently residing in the U.S. a a spouse dependent visa status that does not have employment authorization. A substantial number of these spouses are also professionals in various fields. Group III is the graduates of a U.S. higher learning institution who graduated either last year or early this year. There may be other groups who need change of status from other visa status to H-1B for a number of different reasons. But the foregoing three groups may constitute primary pool of supply of the foreign professionals for H-1B cap filing. When it comes to the demand for the H-1B employees, a substantial number of the petitions may be filed by large companies taking away a large share of the total cap numbers. However, there are a growing number of new businesses, mostly consulting businesses that are formed by nonimmigrants with EAD. Some of these start-up businesses may become a target for potential multiple H-1B petitions by the H-1B candidates. Unconfirmed sources indicate that the agency is aware of the new development in the H-1B market and they are concerened. There are two separate things involved in the 2009 H-1B cap filing. One is random selection. The other is adjudication of selected cases. We are currently completely in the dark when it comes to the random selection criteria and process. Obviously this will be made clear in the new regulation. The issue which is being discussion involves more or less second stage issue. It is likely that because of their suspicion relating to the phenomena that have been developing in the country, the adjudicators may scrutinize the cases more closely when it comes to the petitions filed by such new start-up consulting businesses. Even without such unusual circumstances, the agencies have been reviewing the petitions very closely when the petitions are filed by such new start-up business. You should develop the cases more carefully keeping this in mind.
03/12/2008: H-1B Cap Multiple Petition Filing
Question: I graduated from a University in the U.S. earning a Bachelor's degree in Business. My employer is currently preparing for the H-1B filing for FY 2009 cap on April 1, 2008. I understand that the USCIS is expected to publish a rule on the H-1B cap filing in the very near future and the rule may disallow the multiple H-1B cap filings by the same employer for the same employee. This rule may help me who can file only one petition by the employer in that I have a better chance to be selected in the lottery. However, I hear that to bypass the problem, people are filing multiple petitions by different employers for the reasons that legally USCIS will not be able to prohibit U.S. employers to file a H-1B petition with or without knowledge that another petition is filed by another employer for the same alien. It appears that there will be pervasive multiple filings for the same alien by two or more different employers. Accordingly, the USCIS may be flooded by the petitions coming April 1, 2008. I am concerned because a poor guy like me will suffer and have less chance statistically to be selected in the lottery. Any information about the upcoming USCIS rule? Discussion: I understand your concerns. The USCIS is fully aware of the problems. Issue does not end with victimization of some filers resulting in a less chance of being selected statistically. More serious issue involves waste of H-1B cap numbers. Supposng that three employers file three petitions for the same employee, it will result in the waste of two annual cap numbers which could have allowed two other people to obtain the FY 2009 H-1B cap visas. The extent of damage depends basically on two factors. One is how many aliens will attempt such filing. The other is how many different employers will file multiple petitions for a same alien. The second factor will raise more concern than the first one. Legally, however, the agency may have a limited authority to prevent such behaviors because every U.S. employer is entitled to hire a foreign worker on a H-1B status. Obviously, there will be an issue of the "good faith" or "bona fides" of the multiple employers and "existence" of the petitioned jobs for each of these multiple employers. Filing of such multiple petition with the knowledge that other employers are filing for the same employee, particularly when they do not intend to hire the alien or they do not have the jobs for the alien will eventually lead to the civil sanctions or even criminal indictment. At this time, we have no information about the answer to such question in the upcoming 2009 H-1B cap filing rule. One thing that is certain is a potential serious consequence for immigration lawyers, should any lawyer file such multiple petitions on behalf of the same employee client. They are likely to face a disciplinary action by the lawyers board or DHS or DOL jeopardizing their law practice or even license. Considering the fact that the USCIS and DOL are fully aware of this problem, they are likely to take some kind of actions, even though nothing has been announced or released. Please stay tuned.
03/11/2008: Transfer of Priority Date or Transfer of I-485?
Question: I am an Indian Software Engineer. I had the privilege of two employers filing two labor certification applications for me. One is a EB-2 case with the priority date of 04/15/2001 and the other is a EB-3 case with the priority date of 06/13/2002. Both cases obtained I-140 petitions approval. During the 2007 VB fiasco, I was able to file I-485 application using EB-2 I-140 petition. Now, the visa number for EB-2 is "unavailable" and it may even last longer. I am thinking about the two options: One is to transfer the EB-3 priority date to the EB-2 petition since the EB-3 at least has a cutoff date. The other option is to transfer EB-2 priority date to EB-3 petition and ask the USCIS to adjudicate and approve I-485 application. What do think? Discussion: Wait a minute. Are you saying that when EB-2 number is unavailable, by transfering EB-3 visa number with a cut-off date, you think your case becomes "current" in the visa number and the USCIS has to approve your case? I must say you do have a very imaginative and creative logical mind, but unfortunately, it does not work that way. When the Visa Bulletin says the visa number is "unavailable," it literally means unavailable for the entire priority dates. Now let's look at your second option transferring 2001 EB-2 priority date to EB-3 petition, in which event your EB-3 priority date can be amended to 04/15/2001 and the visa number may become available for your EB-3. However, in order to achieve that, you will have to take two risky steps. One is to file EB-3 petition amendment to change the priority date to 04/15/2001 using transfer of the EB-2 priority date. However, since you filed I-485 based on EB-2 petition, you will have to take second step, requesting the agency to transfer your pending I-485 application from EB-2 petition to EB-3 petition. Can you imagine how long it is going to take to complete these two steps? I said your idea was risky because according to the Nebraska Service Center, once I-485 is transferred from one I-140 petition to another I-140 petition, they are not going to allow you to transfer back I-485 from EB-3 to EB-2 when the visa number retrogression moves in opposite direction making EB-3 either unavailable or experiencing a steep retrogression, while the EB-2 number becomes available for your EB-2 priority date. Transfering I-485 from upper stream preference I-140 to lower stream prefeernce is indeed a very risky adventure considering the fact that historically the EB-3 numbers are retrogressed in most cases, while EB-2 numbers are available in most cases. Legally, the NSC position can be wrong in that the underlying I-485 applications should be transferable to another I-140 petition under the USCIS memorandum. In reality, though, fighting against the agency may consume a tremendous amount of time, during when the visa number situation can chance against you. Consequently, your plan does not sound an exciting idea. Remember that your EB-2 is extremely important in that it gives you the benefit of grandfathering of 245(i) such that in the event that you violate the immigration law, you will still be able to obtain the I-485 approval by filing I-485A and paying $1,000 penalty. Just keep patience and wait out for a while.
03/10/2008: Validity of Labor Certification and Eligibility for 7th Year H-1B Extension
Question: My labor certification was certified on April 2, 2007. It was "unskilled worker" category. My employer did not have a lawyer and handled the case on his own. Since the visa number for the category for Mexico was so behind, the employer was just waiting for the visa number to file any papers with the USCIS. I am a Mexican architect working on a H-1B status. My H-1B was about to reach the six-year limit and when I applied for the H-1B 7th year extension on premium processing, Vermont Service Center denied the H-1B petition stating that I was subject to the annual cap and was not eligible for the 7th year extension. What is going on? Discussion: It appeared that your employer screwed up. The labor certification which was certified on April 2, 2007 expired on January 12 this year since your employer did not file I-140 petition based on the certified labor certification application. The 7th year H-1B extension is not available under the AC 21 Act when there is a final decision on the pending labor certification or I-140 petition or I-485 application. Since the labor certification has expired, you are no longer eligible for the 7th year extension of H-1B petition. For the purpose of the H-1B 7th year extension, it should not matter whether you were eligible for H-1B petition as an intern architect, while the pending labor certification application was for a laborer job, inasmuch as a valid labor certification was pending or approved and remains valid. The USCIS says you are subject to the annual cap because you have used up the six-year limit and are subject to one-year residence outside of the U.S to apply for another H-1B visa status. Because of the situation, you are subject to the annual cap. It sounds terrible.
03/10/2008: Nationality/Citizenship vs. Country of Birth in Immigration Benefits Proceedings
Question: I am a Chinese born in Beijing. When I was three years old, my parents and their children moved to Canada and we all became citizens of Canada. I entered the U.S. as a citizen of Canada in I-94 and no one bothered to ask about my country of birth. Now I completed the labor certification application and when I filed concurrent I-140 petition and I-485 application, the USCIS approved I-140 petition but denied I-485 application saying the visa number is not available for me. I am an EB-2 applicant. When I look at the Visa Bulletin, the visa number is available for EB-2 other than India and China. Why did Texas Service Center deny my I-485 application? Discussion: Under the U.S. immigration laws, the alien applicant's background is treated differently between the nonimmigrant proceedings and the immigrant proceedings. In nonimmigrant proceedings. the applicable laws and rules are governed by the "citizenshiip" of the applicant, while in immigrant proceedings, the laws and rules are governed by the "place of birth." For instance, the "citizens" of 27 countries enjoys an entry to the U.S. for a visit without a visa under the visa waiver program. Canadian "citizenss" also do not need a visa to visit the U.S. The definition of "citizen" includes both native born citizen and naturalized citizen or those born in a foreign country of a citizen of a different country. However, when it comes to applying for any "immigrant" (green card proceeding) proceedings, the citizenship of the applicant practically has no place to play. All that counts for the purpose of the eligibility of an immigrant visa is the country of birth. In your case, you probably misunderstood that you were eligible for I-485 application since the EB-2 visa number was available for Canada (ROW=Rest of World) in the Visa Bulletin. For the immigrant proceedings, you are still considered a Chinese and you will have to keep track of the movement of the visa numbers in the monthly Visa Bulletin for China. Your next question was why you were not eligible for cross chargeability and use Canada and apply for I-485. The answer remains same. Cross chargeability is related to the "immigrant visa" (green card) proceeding and cross chargeability is determined by the country of birth and not citizenship.
03/10/2008: Biometrics Requirement and Biometric Collection Fees for I-131 Refugee Travel Document and Reentry Permit
Question: I filed EB-485 application along with I-765 EAD application and I-131 Advance Parole application and paid $1,020. Is it my understanding correct that the fee included $80 biometrics fees and when I apply for I-131 this year, I do not have to pay $80 again since I filed it after August last year? Discussion: It sounds there is a confusion on your part comparing apples and oranges. I-131 is filed for three purposes. One is Reentry Permit, second is Refugee Travel Document, and third is Advance Parole. You filed I-131 to apply for an Advance Parole document. When it comes to the Advance Parole, it is true that you do not have to pay the I-131 filing fees again including biometric collection charge. However, the recent USCIS announcement that biometrics would be required include only filing of I-131 for Reentry Permit Application or for Refugree Travel Document Application. People who file for Reentry Permit or Refugee Travel Document must pay not only I-131 filing fees but also a separatge $80 biometric fees. One other difference is that pending application, the applicant for Reentry Permit can travel, while the applicant for Advance Parole cannot travel until it is approved, because such travel will be considered abandonment of I-485 application.
03/08/2008: H-1B Employer's Obligation to Make a Back-Pay of Salary for Rehired H-1B Employees
Question: We are also a small Indian IT consulting firm in the U.S. Since the country's economy is not predictable, how do we have to deal with a valuable IT employee who has been working for us for four years in a H-1B status and we may have to terminate the employment for a period until a new project is located. If the country's economy really turns into a recession and we will have to lose the client where this employee works, we are considering to send him to our operation in India and bring him back after one year. We will have no other options since the H-1B law does not allow bending of the H-1B employees. Or we are considering termination of his employment and rehiring him later when we locate a new project using the H-1B petition we already have for him. What options do we have? Discussion: Your question involves a very tricky rule as to what constitues "termination" of the H-1B employment. Under the current case law, when the H-1B employee makes himself continuously available but either is termianted, the employment is considered to have continued unless the three conditions are met. First condition is the employer's termination of the employment in writing. Second condition is the employer's written notice of termination of employment to the USCIS. Third codition is not rehiring the same employee using the same H-1B petition. If the employer rehires such terminated employees without taking these steps, the employer will take a risk of being sued for the back-wage payment by the employee for the period between the date he was terminated and the date he was rehired. Sometimes employers are reluctant to report termination of an employee to the USCIS because it will lead to the revocation of the approved H-1B petition and the employer will not be able to rehire the employee later without filing a new petition. However, from the perspectives of the employers, it will be risky to rehire a former H-1B employee who has been laid off or terminated but the employer failed to notify terminaiton of employment to the USCIS and attemps such rehiring using the existing H-1B petition. From the legal perspectives, your second question will raise a troublesome issue down the road. As to the first question, when the employee is sent to foreign operations for over a year, such former employee will have two options. Your company files a new H-1B petition that will not be subject to the H-1B annual cap to recapture the remaining time of the H-1B six year limit and bring him back. Or your company files a new H-1B petition on April 1, 2008 seeking FY 2009 H-1B cap. When you choose the second option, he will not be able to return to your company until October 1, 2008 even though he will be given a fresh new six-year H-1B limit. In both of these situations, your company in the U.S. may not be liable for the back-pay of wages since your company is not using the old H-1B petition and the employee agreed to terminate the H-1B employment in the U.S. himself and have himself not made available for the job in the U.S. by departure from the U.S. Sometimes, the rehiring employer in the second option may run into a creative lawyer of the employee who wants to go after your company by presenting very creative legal and factual arguments. When employer considers a rehiring of the former employee, the company should certainly seek legal counsel before taking an action.
03/08/2008: Rule of H-1B Employer's Obligation to Pay H-1B Salary for a New H-1B Employee
Question: We are a small IT consulting firm in New Jersey doirng business for over five years. We intend to file a number of FY 2009 H-1B petitions on behalf of the Indian IT professionals in the U.S. or in India on April 1, 2008.. Once these cases are selected, they will be able to join our company on October 1, 2008 in a H-1B status. As you know it, the country's economy is noticeably slowing down and moving into a recession. From the perspectives of an employer, it is very difficult to predict the consulting business market after more than six months and we want to know when our obligation to pay these employees will start to comply with the law. Discussion: Good question! Under the law, the employer who files a H-1B petition on behalf of a new employee is obligated to pay the H-1B salary on the date when the following two conditions exist. (1) The prospective employee makes himself or herself available for the job and report to the employer or the employer has already a control over the prospective employee. Additionally, the H-1B employee can be hired under the law. (2) Once the foregoing conditions are met, the H-1B employer must pay the H-1B salary to the prospective H-1B employee within 60 days from the date when the prospective employee is eligible to work if the prospective employee is already in the U.S., and if the prospective employee is not in the U.S., within 30 days after the date of arrival of the prospective employees in the U.S. Accordingly, in the event that the prospective employee is already in the U.S., if the prospective employee fails to show up and make himself or herself available to take the job or the employee is not eligible to take the job for a number of reasons such as the USCIS refuses to grant a change of status from other nonimmigrant status to H-1B or the alien has violated nonimmigrant status and is not eligible to start the H-1B employment, or other reasons that make the alien not available or ineligible for the H-1B job, the clock of 30 days or 60 days will not run to triggerr the employer's obligation to pay the H-1B salary to the propspective new H-1B employee. Inasmuch as such 30 days or 60 days would not start to run, the employer does not have to withdraw the approved H-1B petition to shield itself from its obligation to pay the new H-1B beneficiary.
03/08/2008: F-1 Not "In-Status" and FY 2009 H-1B Cap Filing
Question: I finished a school earning a degree of Bachelor of Science in Computer Science from a University in Florida in May 2006. I took one year of optional practical training and worked for an employer in Las Vegas, Nevada as a network administrator for one year. The OPT expired in May 2007. Since then I have remained Illegal. There is an employer who needs my services and is willing to file the H-1B cap petition on April 1, 2008. Considering my illegal status, I am nervous. Please give me some helpful information and save me from the sleepless nights. Discussions: There are many types of nonimmigrant visas. Most types of nonimmigrants have a I-94 with the date of expiration of pemitted stay in the U.S. However, there are three types of visas that give the nonimmigrants I-94 without any expiration date. For these aliens, they remain in status while they comply with the programs. These aliens include F-1 students, J-1 Exchange Visitors, and I Journalists. They are given an I-94 with the Duration of Status (D/S) which means that inasmuch as they are in the program, their nonimmigrant status does not expire. Once the alien complites or violates the status, theryare no longer in a legal status. But for the purpose of determination of their eligibility to apply for a nonimmigrant visas at visa posts outside of the U.S. and return to the U.S. on such a new nonimmigrant status, they are not considered in a period of unauthorized stay while they remain in the U.S. unless one of the following three things takes place: (1) He-she is determined to be out-of-status by the immigration officials..This usually takes place when the alien submits certain status extension or change of status application. The other situation is the arrest of the alien by the immigration officials who determines that the alien is not in a lawul status. (2) Determination by Immigration Judge that the alien is not in status when the alien is brought before an immigration court for removal hearing. (3) The alien applies for a visa in a consulate and the consular official determines that the alien is not in status. This is very important in that the law that bars any aliens from application for a nonimmigrant visa or returning to the U.S. who overstayed in the U.S. for six months or longer does not apply to these D/S aliens unless the six months ran out after one of the foregoing three determinations was made by the government officilas. In other words, no matter how long such alien remained in the U.S. in out of status, inasmuch as the alien was not determined by the government officials that the alien was out of status and more importantly six months pass from such determination, the American consul cannot deny a nonimmigrant visa (for instance, H-1B) solely based on the alien's history of staying in the U.S unlawfully. For these reasons, these alien should never file a H-1B petiion with the USCIS requesting change of status or extension of status when they know that they are not eligible for such extension or change of status because of their violations and because such petition or application will trigger the Service Centers to send a letter that they approves the H-1B petition but denies the alien's extension or change of status. The clock of the six-month dead valley will then start ticking and should the alien leave the country and try to apply for the H-1B visa stamp in their home country after six months of such Service Center decision, the visa application will be denied and the alien will not be able to return to the U.S. unless the alien stays outside of the U.S. for three years or ten years depending on how long the overstay lasted in the U.S. It is thus imperative for these aliens not to submit a H-1B petition coming April 1, 2008 requesting change of status within the U.S. Their employers can and probably should file a H-1B cap petition for the alien but such petition should ask for a consular processing rather than change of status. In such event, the only information the employer will have to provide on the H-1B petition is the alien's qualification for specialty occupation in terms of the required education and experience and basic biographic information such as name, date of birth, country of birth and no others relating to the alien's whereabouts and the alien's current or prior stays in the U.S. Filing a H-1B petition with a request for extension or change of status for such aliens in F or J or I visa violations will turn out to be a suicidal act or an invitation for the ICE enforcement agency to arrest and start removal proceedings. Such aliens should rather file a simple consular processing H-1B cap petition and leave the country not exceeding six months from one of the foregoing determinations, if any, and apply for the H-1B visa stamp in their home country and return to the U.S. on a H-1B visa. Again the consular officials will not deny the H-1B visa strictly based on the record of the alien's extended stay in the U.S. after termination from F or J or I program inasmuch as the foregoing determinations and the passage of six mnths are detected by the consular officials. It appears that you fit into this category of nonimmigrant. You need a lawyer and should not file the H-1B cap petition on April 1, 2008 unless you first seek legal counsel.
03/08/2008: Employment Authorization After Expiration of H-1B I-94 Pending H-1B Extension Petition
Question: I have been working in a H-1B status for the past four years. The employer filed a H-1B extension petition on October 29, 2007. The petition is currently pending the name check clearance. My current H-1B is about to expire on March 15, 2008. I am nervous because unless I receive the decision by April 28, 2008, I will not have employment authorization which was given pending adjudication of the extension petition. What do I have to do? Discussion: It is true that under the immigration regulation, the employment authorization is automatically extended pending extension petition for 240 days inasmuch as the extension petition was filed timely (before expiration of the current H-1B). The question remains when the clock of 240-day authomatic employment authorization starts ticking. There are a few things which you will have to know about this 240-day automatic employment authorization pending extension petition. (1) This rule applies only with the same employer who filed the extension petition. (2) The rule also applies only to "extension" petition. Thus filing of initial H-1B petition does not have this 240-day automatic employment authorization benefit. (3) The clock of 240-day automatic employment authorization starts ticking from the date of expiration of current H-1B petition and not, repeat not, from the date of extension petition filing. (4) This 240-day automatic employment authorization pending the extension applies not only to H-1B but also to certain other employment-based nonimmigrant aliens such as L-1, TN for Canadians, E-1, E-2, P-1, P-2, P-3, H-2A, H-2B, H-3, J-1, R-1, O-1, I, A-3, etc. The rule thus does not apply to other employment-based nonimmigrant extension petition, not to mension non-employment-based nonimmigrant status such as F-1, B-1, etc. (5) The 240-day automatic employment authorization clock immediately stops and expires once the extension petition is denied. From the foregoing discussion, you will learn that your employment authorization will not expire until September 15, 2008 "pending" the decision. You are lucky that your employer filed the extension petition sufficiently in advance of expiration of your current H-1B status. Accordingly, those who are vulnerable for extended name checks because of their nationality like former communist countries, certain middle east nations, etc., may as well file the H-1B extension not at the last minute for this reason. Once 240-day clock is expires, there is no longer employment authorization even if the petition is still pending.
03/07/2008: Centralization of PERM Filing at Atlanta National Processing Center on June 1, 2008 and Internal Notice Posting Problem
Question: We are an employer hiring a number of IT professionals whose services are critical for our clients. We need their services more or less on a permanent employment basis. Accordingly, we are about to intiate the PERM labor certification process which requires from two and a half months to three months for recruitment process. The rule appears to require an internal notice posting within the company where these professionals work for ten consecutive business days and wait for 30 days. The job bank job order must also last for 30 days, after when we will have to wait for 30 days before we can file the PERM application. However, the late announcement of the Office of Foreign Labor Certification that effective June 1, 2008, the PERM applications by mail should be submitted to the Atlanta NPC no matter where the job is located in the U.S. raises some question about the electronic filing. It also states that they are chaning the procedure as part of their ongoing efforts centralization permanent application and temporary application separately. We intend to file the applications online. One predicament is "internal notice posting." Since the agency denies the PERM applications if they learn that notices were posted directing the people to contact with a wrong National Processing Center, we do not know what to do since we are currently under the jurisdiction of Chicago National Processing Center and have been listing the name and address of the Chicago National Processing Center in the internal posting notices for the PERM cases. Since the cases which will have to initiate the process are likely to be filed after June 1, 2008, we do not know which address we should put in the internal posting, Chicago or Atlanta. Discussion: We reported quite earlier the DOL plan to centralize the PERM applications at the Atlanta NPC in the summer of 2008. Apparently as part of such move, the PERM applications have been certified in the name of "National Certifying Officer," Dr. William Carlson, the head of OFLC rather than the Directors or Certifying Officers in Chicago or Atlanta. The new procedure which they have just released applies to the paper filing of the applications by mail. For those employers who intend to file the application by "mail" after June 1, 2008 may obviously want to put the name and address of the Atlanta NPC in the internal notice posting. The OFLC may exercise a discretion to allow internal notice posting with the name and address of Chicago NPC during the short transitional period, but they have yet to announce such policy. The real confusion tends to arise in the electronic filing. Since the filers are not filing with any specific NPC, and rather the system automatically assigend and directed to either Chicago NPC or Atlanta NPC giving the case number of either ETA C------ or ETA A------, the filers have been just assuming that they were filing with the Chicao NPC when they were located within the Chicago NPC jurisdiction and the name and address of Chicago NPC waa posted in the internal notice posting. The challenging question is what will happen after June 1, 2008. There is some chance that when the employers file online the application and print out the application after June 1, 2008, they may or may not see the case number starting ETA A--------- rather than ETA C------- series. Such case numbers will indicae that they also launched such centralization of PERM cases even electronicly filed. However, from the perspectives of the employers, it appears that since the OFLC has yet to formally announce on the electronic filing issues either in a federal register notice or its FAQ, until such announcement is published, it may be safe for the employers to print the current jurisdiction NPC name and address on the inernal notice posting even if they plan to file after June 1, 2008. Obviously, the OFLC may release such announcement sooner or later giving more specific guidance, and the employers should watch carefully the upcoming announcement of the OFLC on this issue.
03/07/2008: 485 Adjudication Policy Change on FBI Name Check and Expired Fingerprinting
Question: I am one of those I-485 applicants who have been suffering from the FBI name check delays and the stalled I-485 application processes pending the FBI name checks. The recent announcement of the USCIS that they would adjudicate those cases that had been waiting for the FBI name check completiont for longer than six months was literally a blessing. My problem is my fingerprinting has expired since the fingerprint is valid only for 15 months. Will they approve my I-485 application without updating the fingerprints? Discussion: Report indicates that the USCIS has been implementing the new policy expeditiously and diligently at all levels including Service Centers and local district offices. They have been working hard to pull out the eligible cases and to approve the eligible I-485 applications by March 30, 2008. Without doubt, it is a terrific news. There have apparently located a number of cases whose fingerprint had expired. Since they cannot approve I-485 without a valid fingerprint, they are currently sending out fingerprint appointment notices expeditiously. It appears that upon refingerprinting, they adjudicate the pending I-485 applications without further delays. Those whose fingerprint has expired should watch the mail religiously not to miss the refingerprinting timely. This applies to both family-based I-485 applications pending at the local district offices and the National Benefits Center as well as the employment-based I-485 applications pending at the Service Centers. For the family-based I-485 cases which have been pending before the National Benefits Center, the agency has also been pulling out such cases to reschedule the refingerprinting or scheduling interviews at the local district offices such that as many eligible cases are adjudicated by March 30, 2008. Again, the eligible 485 waiters should carefully watch their mails not to take any chances. Those who do not receive approvals by March 30, 2008 should make inquiry via 800 National Customer Service Center, never via fax or directly mailing to the agencies.
03/07/2008: Long-Awaited Green Card Approval and Problem of Reentry Permit Application
Question: I have been working with a multinational corporation in India as the key nuclear engineer. This company has been rapidly growing as affected by the recent development of the relationship between the U.S. and India on the nuclear issues. I filed I-485 application based on the labor certification which was filed by an affiliate company in the U.S. The application has been stuck because of the FBI name check backlogs. Because of the nature of the job, apparently they required more intensive name check process. Believe it or not, the USCIS lately changed the policy of I-485 adjudication upon passage of 180 days after the FBI name check request and approved my I-485 application. Now, there has evolved a situaion with my Indian employer in India that needs my services at least for a year or longer and due to the important work that I will be in charge, I will not be able to return to the U.S. during the time. I understand that I can file the Reentry Permit application and leave the country without waiting for the approval which will take months and months, and once the Reentry Permit is approved, I do not have to return to the U.S. for two years without losing my green card status. I will have to leave the country by April 10, 2008. How soon can I submit the application (I-131)? Discussion: Contratulations for your green card approval. One of the key requirement for approval of Reentry Permit is to establish your permanent resident "intent" in the U.S. It appears that you may be able to satisfy the threshold requirement in your case due to the temporary emergency nature of your employer's needs abroad. It is true that in the past, inasmuch as you submitted the Reentry Permit (I-131) while you were "physically present" in the U.S. when you filed the application, you could even leave the country even next day without affecting the Reentry Permit application. Unfortunately, this has changed since March 5, 2008. Under the new procedure that took effect on March 5, 2008, people must propvide biometrics before their departure from the U.S. after filing of I-131 Reentry Permit application. Otherwise, the application will be denied. Since you have yet to file this application, you may have a problem of meeting the biometrics requirement before your departure as the biometrics collection appointment will be set up by the Nebraska Service Center after receiving the application. The Reentry Permit application filing requires a substantial amount of evidence and documentation and you may need sometime to collect all of the evidence and documents even just to file the application, not to mention receiving the biometrics appointment with the Application Support Center by the USCIS. You should immediately contact your employer in India to see whether there is any way they can reschedule your temporary assignment in India for another two months or so. It is indeed unfair that the USCIS changed the procedure on March 5, 2008 without giving a single day of time before the new procedure took effect. There are a number of people who face the problem similar to yours due to the lightening rod the agency dropped over a night. There are some people who will have to return to the home country because their parents are terminally ill and need their cares since there are no other close relatives to take care of the elderly parent. It is indeed frustrating. Read the newly announced policy change.
03/06/2008: Recapture of L-1B Overseas Time While Waiting EB Visa Numbers
Question: I am a citizen of the United Kingdom. I am a financial analyst who had worked with a leading financial institution in U.K.for three years before I was transferred to its subsidiary in New York City four years ago in L-1B status. The job requires a very frequent trips to the U.S. for business conference and coordination. Additionally, the parent company required me to work in U.S. for quite a substial period of time. In fact, I spent most of the time in U.K. and out of four years in L-1B status in the U.S., I spent almost two years at the parent company in U.K. I have a bachelor's degree in economics and the U.S. employer filed the labor certification application on July 25, 2005. The EB-3 labor certification and I-140 petitions have been approved. I am waiting for a visa number and hope that it will become current in the near future. Problem is the L-1B maximum limit is five years and I only have one more year to reach the limit. I will have to work until the visa number becomes available. What would happen with me if the visa number fails to become current in the next one year? Discussion: L-1B is a nonimmigrant status which is flexible in terms of wages, work site, and time that is allowed to spent at the foreign parent company. Besides, the spouses can also work after obtaining an EAD. The people in L-1 visa status often tavel a lot and even work at the foreign parent company for a substantial period of time just as you did. However, the L-1 employers and alien employee often forget or neglect that just like the H-1B situation, anytime spent outside of the U.S. are not counted in the L-1B maxium limit of five years. All of the overseas time can be recaptured, exending the permitted stay in L-1 status way beyond the five calendar years. In your case, you can recapture the two years which you spent in the U.K. and are eligible for extension of your L-1B status for another three years. It means that you are practically allowed to stay in the country not for five years but for seven years! It can go even beyond seven years if you continue to travel outside of the U.S. in the future. Your priority date is fairly early and I have no doubt in my mind that the EB-3 for ROW may move to your priority date certainly within your authorized nonimmigrant L-1B stay. Remember that once you recapture the overseas time and apply for extension of the status recapturing time, your accompanying spouse and children are also eligible for the same extension, again beyond the five year limit!
03/05/2008: Decoupling of H-4 and Recapture of Time in H-4 for the Purpose of AC 21 H-1B Extension
Question: I came here in a H-1B status and my wife, in a H-4 status. My H-1B is approaching five years and six months, but I am not eligible to file H-1B extension beyond the six year limit because my labor certification was filed only three months ago. By the time I reach the H-1B six-year limit, I would not be able to prove that the labor certification has been pending for 365 days. Last year my wife changed her status from H-4 to H-1B. You discussed the option of recapture of time which was not used in the U.S. to file a H-1B petition not being subject to the H-1B cap even after staying outside of the U.S. one year continuously. However, I do not want to leave the country to recapture the overseas time either before or after staying outside of the U.S. for one year. Is there any option available to achieve the same purpose without leaving the country? Discussion: Typically, when people face the problem like yourself, they have been advised to leave the country to stop running of the clock of H-1B six-year and recapture the overseas time upon returning to the U.S. However, when people are in such a unique situation as yours involving the spouse being in a H-1B status, you can use the rule of decoupling of H-4 which states that any time in H-4 or L-2 status will not count in deciding the H-1B or L-1 maximum limit. Accordingly, you can immediately change status from H-1B to H-4 using your spouse's premium processing services and remain in that status until the labor certification is approved and then apply for change of status from H-4 to H-1B and upon reaching the six year limit, file the 7th-year H-1B extension since by that time you would have passed 365 days before you reached H-1B six-year limit. If somehow, you get even I-140 petition approval, you can appy for the H-1B extension in three-year increments.
03/04/2008: H-1B Filing Using Recapture of Unused Time for H-1B Six-Year Limit in the U.S. After Staying Outside of the U.S. Continuously for Longer Than One Year Not Being Subject to FY 2009 H-1B Cap
Question: I am a chemical engineer who came to the U.S. on April 5, 2004 in a H-1B visa status filed by the U.S. employer. On March 3, 2006, I resigned the company and returned to China because I was offered a very attractive research job that can help my future career. Now, I found a U.S. employer in Chicago who needed my expertise which I had gained during the employment in China for a period of three years. I understand that FY 2009 H-1B cap may reach on the first day on April 1, 2008 if this employer file a new H-1B petition for me since I had stayed outside of the U.S. for longer than one year consecutively. This employer thought they would have to file the FY 2009 H-1B cap petition on April 1, 2008 since I would be subject to the H-1B cap for staying outside of the U.S. longer than one year. What is my chance for being selected in the lottery for the H-1B cap filing on April 1, 2008? Discussion: Under the current USCIS policy, those who worked in the U.S. in a H-1B status and stayed outside of the U.S. for longer than one year consecutively have two options. One is to file a cap H-1B petition to start anew six-year of H-1B limit. The other option is to file a H-1B petition without being subject to the H-1B cap, recapturing the unused H-1B six-year limit time. In your case, you only stayed in the U.S. for approximately two years . Therefore you can file the H-1B petition without being subjected to the FY 2009 H-1B cap numbers and join the new U.S. employer in Chicago. You have a little over four years remaining to exhaust your six-year limit of H-1B maximum. This is possible because any alien who took out a H-1B number can use the H-1B time upto six years regardless of his conituous stay outside of the U.S. for one or more years. You also have an alternative option to file a new H-1B cap petition on April 1, 2008 claiming eligibility for a fresh new six-year limit, for having stayed outside of the U.S. for one year or longer continuously, using the FY 2009 H-1B cap number. If you take the latter option, you can stay in a H-1B status upto six more years rather than only about four more years before you will be subject to the new annual cap in the future. However, considering the fact that you will be able to use about four more years without being subject to the FY 2009 H-1B cap and you can file the H-1B petition anytime before or after April 1, 2008, it would not make sense that you should file a FY 2009 H-1B cap filing on April 1, 2008. This is particularly true in that since your new employer may start the labor certification and you obtain a I-140 petition approval certainly within the four-year period of time, even after you exhaust the recpatured four-year H-1B time, you will be able to extend the H-1B extension indefinitely in the three-year increments using AC 21 inasmuch as there would be a visa number retrogression.
03/03/2008: H-1B and Bachelor's Degree Equivalent Experience
Question: I am a canadian in electrical engineer career. I graduated from a high school which is equivalent to a U.S. high school. I could not go to a college because my parents could not afford sending me a college. Upon graduation, I started working in construction industry for five years gaining experience in highway designining. Afterwards I changed the job and have been working for a large electrical company in Canada starting from the work of electrical technician for two years to electrical engineer for nine years. I have been offered a job by an electric company in the U.S. to work as an electrical engineer and intend to file a H-1B petition on April 1, 2008. I understand that H-1B does not necessarily require a college degree inasmuch as I have more than 12 years of experience. What is my chance? Discussion: It is true that the H-1B applicant does not need a bachelor's degree inasmuch as one has 12 years of experience which is evaluated to be equivalent to a U.S. bachelor's degree. For this purpose, three years of experience is considered equivalent to one year of a college degree program. However, just experience is not enough. There are a few additional requirements. One is requirement for experience in the specialty (electrical in the instant case). The second requirement is "progressive" experience. Unless the years of experience included a gradual progression technically or otherwise, it does not meet the requirement. In your case, you have 16 years of work experience which cannot be considered to a college degree in equivalent to a electrical engineer for the purpose of the H-1B petition.
03/01/2008: OPT and Concurrent Filing of H4 Application and H-1B Petition on 04/01/2008 FY 2009 H-1B Cap Filing
Question: I am one of those who have been working on OPT EAD which will expire in May 2008. I have been agonizing for not being able to establish permited stay through October 1, 2008 to file the FY 2009 cap H-1B petition. My husaband is a journalist working with a national TV station on a H-1B status. Is there any way I can file the H-1B petition on April 1, 2008? Discussion: This is a country that places the highest value on family unity. In this regard, the question remains whether you can file application for change of status to H-4 and petition for change of status to H-1B in sequence or concurrently. In your case, it appears you have two options. One option is to file I-539 change of status from F-1 OPT to H-4 based on your husband's H-1B status before April 1, 2008 and file H-1B cap petition on April 1, 2008 with the proof of pending I-539 application and request to adjudicate I-539 application first so that they can approve your H-1B petitiion since the approval of I-539 will establish your nonimmigrant status through October 1, 2008 in the new H-4 status. In the event you failed to file I-539 ahead of time, you will still have another option of filing both I-539 for change of status from F-1 to H4 and I-129H petition for change of status to H-1B concurrently on April 1, 2008 with the reminder of concurrently filed I-539 on the H-1B petition and request to adjudicate I-539 first before they adjudiccate H-1B petition. It appears that the USCIS HQ appears to accept both of these options. However, there are some risks involved in both of the options. The first risk is that consideration of option is not a right or a privilege but just a question of discretion. Accordingly, even though the USCIS adjudicators are aware of the HQ policy on these options, the Service Centers can make a mistake at two levels: One is the mail room where the contractors process the mails and the second level is the adjudicators themselves who somehow miss such concurrent filing and special request to adjudicate I-539 application first. The risk will increase if both I-539 and I-129H are filed same time on April 1, 2008. Therefore, for safeside, you may want to file I-539 as soon as possible and upon receiving the I-539 Receipt Notice, you attach the Receipt Notice to the H-1B petition filing on April 1, 2008 with the request to adjudicate I-539 first. To remind your request clearly, you may want to use bold color magic marker and write your request all over including cover letter, I-129H form, I-129 H-1B Data Collection form. If I-539 and I-129H are filed at the same time, you should also write on I-539 form concurrent filing pending I-129H petition. It appears that the foregoing options may be available whose spouses are in a valid employment-based nonimmigrant visa status and if you are eligible for change of status to a dependent visa status such as L-2, E-2, etc. The agency would exercise discretion in these types of cases to prevent potential separation of the spouses or unnecesary hardship on the talented foreign U.S. school graduates. Unfortunately, this option will not be available to the single persons. Unmarried OPT tends to consider returning to school and obtain a new I-20 before April 1, 2008 and file it with the H-1B petition on April 1, 2008. In the past, when H-1B cap number did not reach on the first day of April 1 and lasted one month or two months, they considered I-539 application for change of status to a visitor (B-2) before filing the H-1B petition and filed H-1B petition at the last minute before reaching the cap so that they are more or less assured that I-539 is approved first and the Service Center, at the time of adjudication of H-1B, they use the approved B-2 application and approved H-1B cap petition. The petitioners also reminded the adjudicators the pending I-539 in some cases, but some of adjudicators denied I-539 as a frivolous application, which resulted in collapse of the H-1B petition as well. Even this risky option is more or less practically shut off this year for the following reasons. The visitor status cannot be given more than six (6) month under the USCIS rule, meaning that earliest such I-539 can be filed is April 1 or later dates to keep the visitor status valid through October 1, 2008. If the change of status to visitor visa is filed earlier than April 1, they can approve change of status to B-2 which will expire earlier than October 1 and such application serves no purpose to fill the gap. Since the lottery will take some time after April 1, 2008, there may be some people who are willing to venture filing such I-539 either concurrently with H-1B petition or after April 1 and request the Service Center to adjudicate I-539 first. But unlike spouse situation, there is no humanitarian or family unity consideration involved in these cases and the agency is not likely to consider such cases favorably. This will present a unique problem in using B-2 change of application approach because of the USCIS prediction that the H-1B cap numbers are likely to reach on the first day. One important caveat: When employers file H-1B cap petitions which are selected in the lottery, the USCIS will still approve such petitions where the alien beneficiaries are not eligible for change of status from F-1 to H-1B, provided the alien's change of status will be denied and request the alien to apply for the H-1B visa at the American Consulates and return on a H-1B visa status. This benefit may be still valuable in that the alien has taken out the cap number which they can use any time by aplplying for the H-1B outside of the U.S. The only inconvenience is that the alien cannot stay in the U.S. after completion of the two month grace of expiration of OPT and cannot work after after expiration of OPT. Not too many employers take such situation favorably because of the disruption of their business. Inasmuch as the employers are willing to take such options, the OPTs who will not be eligible to change of status from OPT to H-1 within the U.S. because of the status gap through October 1, 2008 would definitely file the H-1B cap petition to take out the precious H-1B cap numbers!
02/29/2008: Backlog of I-485 Processing and Refingerprint
Question: My EB-485 has been pending for over two years and I had to take fingerprinting more than two times. I work and live in a rural area and every time I had to take fingerprinting, I had to drive more than 100 miles. Can you tell how often I need to take fingerprinting? Discussion: Under the rule, fingerprint was valid only for 15 months and people had to refingerprint at least every 15 months. However, the information indicates that as of July 2007, fingerprints are stored under a new system and those fingerprints will be able to be refreshed so that the agency will not need to take refingerprinting in the future. It is indeed a good news. Accordingly, once this new system is in full force, the requirement of refingerprinting in 15 months is likely to change in the future. By the way, when people file I-485 applications, they should receive the fingerprint notices within six months. According to the USCIS, should the I-485 applicants fail to receive the fingerprint scheduling notice within six months, they should call 800 number to inquire.
02/29/2008: E-filing of Petitions and Deviation of Jurisdictions
Question: I am an Invest Analyst working in Chicago. I filed I-140 petition online on January 25, 2008 based on the certified labor certification application. The Direct Filing guidance indicates that the I-140 must be filed with the Service Center that has jurisdiction over the place of work. It should then be Nebraska Service Center. But I have received the Receipt Notice from Texas Service Center. Apparently, my case is handled by the TSC and not NSC. I cannot complain since TSC processing times of I-140 appears to be faster than NSC. I find it is a luck. However, I wonder why mine was picked up by the TSC? Discussion: Nowadays, USCIS has been switch around cases either for receipting or for processing among the different Service Centers. Somehow, it is very confusing. According to the USCIS, the e-filing of certain petitions are centralized for certain types of cases when the petitions are e-filed rather than filed by the mail. When I-140 petition is e-filed, it is Texas Service Center that processes and adjudicates the I-140 petitions. Therefore, at this time, all the e-filed I-140 petitions go to the Texas Service Center. In I-129 cases, when people e-file the cases, all the e-filed I-129 go to the California Service Center, no matter where the job is located. It can change, but that is how the e-filed cases are handled now. In your case, since you work in Chicago, you should have filed I-140 petition with the Nebraska Service Center if you filed the petition in papers by mail or overnight delivery services. However, if you make e-filing, it automatically goes to the Texas Service Center. No wonder why you have received the Receipt Notice from the Texas Service Center.
02/28/2008: Expiration of PERM Applications Certified Before July 16, 2007
Question: My employer filed PERM application for me in June 2, 2007 which was certified on June 27, 2007. The company was financially in bad shape. Besides the company filed so many I-140 petitions and the company was afraid that if it filed I-140 petition for the next several months, all the pending I-140 petitions might be denied because of the financial ability to pay the proffered wage for all the pending I-140 petitions. The company thus waited until the deadline when the certified labor certifications would expire under the DOL regulation which took effect on July 16, 2007. Under the regulation, the deadline for the cases which had been certified prior to July 16, 2007 was January 12, 2008, which is 180 days from July 16, 2007. The employer shipped out the I-140 petition on January 11, 2007 with the expection that it would be delivered to the Service Center on January 12, 2007 via U.S. Express Mail. The problem is January 12 was a Saturday. I am counting on the approval of this petition for my future because my H-1B six-year limit will reach in two months from now and if this petition is somehow denied for untimely filing of I-140 petition, my immigration journey in this country will be practically wiped out. Please help. Discussion: Our site repeatedly reported that the Service Centers did not pick up the mails from the U.S. postal stations at the location of each Service Center during the weekends and in that regard, any filings that reach the postal station during the weekend would not be considered filed until the following Monday. However, this issue of the expiration of the certified labor certification application has somewhat a different angle in that the involed regulation clearly provided 180 days for the expiration. Under the various court rules and agency rules, delivery of certain notices or mails during the weekend is handled differently. In some cases, the dealine is considered not reached until the following work day which is Monday, but in other situations, the deadline is considered reached the working day immediately prior to the weekend. In the immigration practice, the USCIS has taken in most cases the second approach. In the instant case involving your pending I-140 petition, the USCIS disclosed recently that the labor certifications which were certified prior to July 16, 2007 expired on January 11, 2008 since January 12 was Saturday. Accordingly, the USCIS would deny I-140 petitions on the ground of expiration of the certified labor certification application. You may want to take whatever actions available to initiate alternative options such as overseas trips to delay the H-1B six-year limit and have your employer file another labor certification application as soon as possible. It is likely that your I-140 petition may be denied after wasting for months!
02/28/2008: FY 2009 H-1B Cap Filing and Bridge to Fill Gap Through 10/01/2008 Follow-Up
Question: I am another OPT like the previous case, but my OPT has already expired, but my spouse was in a F-1 status and I filed application for change of status from F-1 to F-2 before my OPT expired. Since on April 1, 2008, my OPT will already have expired, I am concerned whether the same option which you discussed earlier will work. Discussion: The answer is yes. The key is to enclose in the H-1B cap petition a copy of the Receipt Notice of your pending I-539 application for change of status to F-2 so that the H-1B adjudicator search and match the pending application and approve the F-2 application first and then approve H-1B petition. The Service Center will not do it unless you visibly note in your cover letter such request.
02/27/2008: FY 2009 H-1B Cap Filing and Bridge to Fill Gap Through 10/01/2008
Question: I finished a school in May 2007 and since then I have been working on EAD which will expire in May 2008. I am a single and unmarried, but my girl friend and I are scheduled to marry on March 5, 2008. She is in a Ph.D. program on a F-1 student status. My employer wants to file H-1B cap petition for me but does not know what to do. Please help. Discussion: There are so many people who are currently working on OPT employment that will expire in May 2008. Since the law requires that I will have to be in a nonimmigrant status as of October 1, 2008 for the H-1B cap approval, these people are considering the last minute options to bridge the gap between expiration of their OPT status and October 1, 2008 . Often two options are considered. One is to return to the school for additional academic program and with the new I-20 issued by the school, they file the H-1B petition to change status from F-1 student status to a H-1B status effective October 1, 2008. The second option is available for those who are married and apply for change of status to a dependent visa status. For instance, in your case your spouse is in a F-1 nonimmigrant status and you can file an application to change your status from F-1 OPT to F-2 status as soon as you get married. In that case, when your H-1B employer files a FY 2009 H-1B petition on April 1, 2008, your I-539 for change of status from F-1 to F-2 will be pending. In such case, if the Service Center would adjudicate your H-1B petition first, they will have to deny the H-1B petition because you will be not be in a valid nonimmigrant status as of October 1, 2008. Accordingly, in your case, it will be extremely important that when your employer files the H-1B petition, the employer attaches your Receipt Notice of appliation for change of status from F-1 to F-2 and requests the Service Center to approve your pending application for change of status to F-2 first so that they adjudicate your H-1B petition after they approve your F-2 application first. That way, when they adjudicate your H-1B petition, they can approve your H-1B petition because you will have a valid F-2 status on October 1, 2008. The USCIS suggests in a situation like yours that you note in the H-1B petition letter and the I-129 form the pending application for change of status to F-2 so that the adjudicator can search and match the pending application to the H-1B cap petition and decide the F-2 application first. Such bridge may be available for the spouses of any nonimmigrants that give a dependent visa status, such as L-2, E-2, Candian TD, M-2, H-4, J-2 who are not subject to two-year home residence requirement, etc. etc.
02/26/2008: H-1B in Parolee and Reinstatement of H-1B Status
Question: I am an Indian who is waiting for EB-485 application approval. I had kept my H-1B status which was valid until December 2009 until I made a trip this month to India for my parents' marriage arrangement for me. I had to use Advance Parole since I did not have a H-1B visa stamp in the passprot and the visa application took time in India. I am an old bachelor who is "DESPERATE" to marry and bring my wife to the U.S. to build our lives together in this country. My EB classification is EB 2 with an early priority date. Every EB-2 Indian is waiting for the visa number becoming available again but for me. I am scared of too premature availability of visa number for me as my I-485 can be approved before I marry and bring my other half here. The parents are arranging the wedding on April 15, 2008. I understand that I have to reinstate my H-1B status so that my bride can apply for H-4 and join me in the U.S. and as soon as my visa number becomes available she quickly files I-485 application before the agency approves my I-485. I am in a nervous break. What do I have do? Discussion: Wow, one of those Indian family arranged marriage stories! Well, a tradition is a tradition which has to be respected and complied, I suppose. Yes, you will have to reinstate your H-1B status before you go back to India for the marriage. You can achieve the reinstatement of H-1B status by filing I-129 H-1B extension petition. Currently, H-1B extension processing time is from two months to three months. You just do not have enough time to get approval timely. You should file the premium processing service within next two or three weeks, because the H-1B premium processing services can be suspended during the FY 2009 H-1B cap filing period that starts on April 1, 2008. At this time, we do not have any specific information as to whether the USCIS will suspend the PPS for the entire H-1B petitions or only H-1B cap filings. In your situation, though, you cannot take any chance. Please file it ASAP!! Once your H-1B extension is approved, the USCIS will automatically reinstate your H-1B status and terminate your parolee status. Run, run, run, old bachelor!
02/25/2008: EB-3 Labor Certification Substitution and Qualification Proof of Substituting Alien
Question: In July 2007, I filed concurrent I-140 and I-485 using the substitution of of EB-3 labor certification application for System Analyst position. The labor certification required a Bachelor's degree in Computer Science and two years of experience. The priority date of the labor certification is February 5, 2005. I graduated and earned a bachelor's degree in December 2004 and since January 2005, I have been working initially on OPT EAD and on a H-1B status afterwards for the employer. Before I came to the U.S., I earned a Bachelor of Computer Science degree (3-year program) in India and worked for two years for a job similar to the substituted labor certification job. What is my chance of the pending I-140 petition approval? Discussion: When the labor certification is substituted, the substituting alien must have the education and experience and other qualification required in the labor certification before the priority date (February 5, 2005 in this situation). Whether or not any experience which was gained before or during the Bachelor's degree program is acceptable depends on the specific language the employer used in the labor certification application. However, EB-3 has two different options: One is a "professional" position and the other is a "two-year skilled worker" position. From the perspective of the alien, it does not matter whether one gets I-140 petition approval as a EB-3 professional worker or a EB-3 skilled worker since both constitute a same EB-3 preference for the purpose of the visa number allocation. Accordingly, such qualification requirement in the original labor certification does not have to be a "professional" requirement. For this reason, when submitting the I-140 petition, your employer should have asked the USCIS the approval of the I-140 petition as a "professional or skilled worker" position. Since the labor certification did not specifically stated that the employer was seeking a "professional" candidate, this type of labor certifcation should be approvable either as a professional or a skilled worker petition. The famous case relating to this issue is so-called Grace Korean Methodist Church case in Oregon. The Board of Immigration sustained the appeal on the ground that even though the alien might not have been qualified as a professional because of defect in the professional qualification requirement, the alien should have been recognized being qualified as a skilled worker and EB-3 petition should have been approved. Since I do not know how your employer presented the I-140 petition, I am unable to tell you whether the foregoing argument will work in your case. However, even if there was a flaw in your employer's I-140 petition for not asking a professional or a skilled worker petition aternatively, you may still have some chance to make it. Generally, when a degree and certain experience is required, the USCIS has been accepting the experience which was gained before or during the school years. Most typical illustration is the internship experience during the school year. In your case, since have one-year of work experience with the type of job prior to the priority date of the labor certification application, there is a good chance that the experience may be accepted to meet the two-year work experience requirement in the substituted labor certification application. However, the experience which you gained after the labor certification priority date is absolutely not acceptable not because the experience was gained with the petitioning employer but because it was gained after the priority date. When it comes to recognition of work experience during or prior to a degree program, the rule is completely different in the context of EB-2 Bachelor's degree plus five years of progressive experience requirement. In the EB-2 context, the experience is acceptable only if it was gained "after" earning the required bachelor's degree. Accordingly, any experience gained during the school in the form of internship or any experience gained before the bachelor's degree program is absolutely not acceptable to prove the required five years of experience for the purpose of EB-2 petition. Please seek legal counsel.
02/24/2008: Non-GC Sponsoring H-1B Employer and Use of EAD with GC Sponsoring Employer
Question: I worked for an employer based on the employer-sponsored H-1B status which was valid until 2009. The H-1B employer was not willing to sponsor the green card. Fortunately, another employer filed PERM application of EB-3 and based on the approved PERM, I filed concurrent I-140 and I-485 application along with EAD and Advance Parole Application in July 2007. I received the EAD in November 2007. The green card sponsoring employer then requested to join the company on EAD. They did not want to file transfer of the H-1B because of the expensive cost as well as the complicated LCA/H-1B rule compliance. I had no choice but joining the new company on EAD and left the H-1B employer in November 200y. I-140 petition is still pending. The problem is that I have just learned that the company was financially in bad shape and there is a risk of the pending I-140 petition denied. If I-140 is denied, they will also deny I-485 application and EAD. My question is that since H-1B petition is valid until 2009 and the H-1B employer is willing to take me back, would I be able to rejoin the company in H-1B without leaving the country if I-140 is denied and I-485 is denied? The H-1B employer did not withdrea the petition. If not, may I be able to come back after obtaining H-1B visa stamp and rejoin the H-1B employer? Discussion: We discussed earlier the advantages and disadvanges of using EAD vs. H-1B for the I-485 applicants. In your case, by the time you joined the GC sponsoring employer using EAD, you lost your H-1B status no matter whether you also worked for the H-1B employer concurrently. In your case, you left the H-1B employer and using EAD, you joined the GC sponsoring employer. Since you are no longer in a nonimmigrant (H-1B) status, you cannot rejoin the H-1B employer within the country. However, it does not mean that the H-1B petition which is valid until 2009 is invalidated by your departure. Should you have been in a valid nonimmigrant status after you left the H-1B employer, you would have been able to return to the H-1B employer without filing a new H-1B petition since it remains valid. The problem is you are not in a nonimmigrant status by the time you used EAD and worked for non-H-1B employer. When you are not in a nonimmigrant status, you cannot return to the H-1B employer without leaving the country. Since the H-1B petition is still valid, you can go to your home country, apply for the H-1B visa stamp, and return to the H-1B employer.
02/23/2008: AC 21 Porting to New Employment and "Similar or Same" Occupational Classification Requirement
Question: I am a research scientist working with a university as a research associate. My EB-12 Outstanding Researcher I-140 was approved and I-485 has been pending for over 180 days. My wife is a Software Engineer working with a large IT consulting company. Her employer also filed a labor certification application and I-140 petition, which were approved. She filed I-485 application which has been pending for more than 180 days. Each of us is considering changing employment because of the location. Our current jobs are located in Minnesota, the coldest area in the United Sates, and we are sick of the cold weather. The cold weather has been killing me because I have been suffering from arthritis. We both have new job opportunities in Florida and are considering a move. Law appears to require that the new job must be a similar or same job with the current job. We think the new jobs are similar even though we will be paid about $10,000 higher salary because of the higher living expenses in Florida. We do not know how they determine similar or same job criteria in accepting the AC 21 porting to new employment. Please help. Discussion: I do not blame you. I also live in Minneapolis-St. Paul metropolitan area in Minnesota. Sometimes, the northern Minnesota is jokingly called an area where we see the eskimo igloos. With reference to your qurestions, let me first straighten out two points before we get to the issue of same or similar terms. Under the AC 21 porting, geographical area change is immaterial and does not affect the pending I-485 application if you are otherwise qualified for same or similar new employment issue. Secondly, you used the term of same or similar new "job," but the legal standard is not job but "occupational classification." Occupational classification is much broader than a job as each occupational classification include many similar jobs which are not the same when it comes to the specifics such as skills or otherwise. Therefore, you should first find out whether the new jobs which you will take in Florida belong to the same or similar occupational classification. The adjudicators in the Service Centers are working under the USCIS HQ guidance memorandum that set the criteria. They are instructed to determine same or similar occupational classification using the following criteria: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors: (A). Look at the description of the job duties contained in the certified labor certification application ETA 750A or ETA 9089 in the case of labor certification based EB case, and if the EB case is a labor certification waived EB petition, look at the initial I-140 petition, and then look at the job duties of the new employment to determine whether they are the “same or similar” occupational classification. (B). Since "occupational classifitions" are determined by the U.S. Departmenet of Labor, the guidance asks the adjudicators to go to the DOT code and/or SOC code number assigned in the approved labor certification application and the approved I-140 petition. If it is a labor certification waiver case such as EB-1 like yours, the adjudicator does not have such code number which has been assigned to the occupation by the DOL, but is required to study on his/her own what DOT and/or SOC code is appropriate for the position for the approved current I-140 that did not have a certified labor certification application Once such DOT and/or SOC code number is located or determined, then the adjudicators should consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification. Accordingly, should the adjudicator considers the current position and the new position fall under the same DOT and/or SOC code occupations, even if there is some difference in minor details, they usually take such new employment as same or similar occupational classification. (C). The adjudicators are instructed not to deny the AC 21 porting based on the wage difference unless there is a substantial discrepancy between the current and the new wage. In the event that the adjudicator finds such a substantial discrepancy, they are permitted to relook at the new employment to see whether it is indeed a same or similar occupational classification even if the position generally falls under the same or similar classification. For instance, if the current job is limited to duties of techinial performance, but the new job is a manager focused on managerial function performing administrative and manageral functions rather than technical duties, such new job may be classified as a different classification of a "manager" which generally falls under a separate DOT and/or SOC code. In such case, the adjudicator may deny AC 21 porting not because of the wage difference but because of the potential different occupational classification of the new position with the new employer. For the foregoing reaons, when one considers the AC 21 change of employment, it is essential and critical that he/she has a copy of the approved labor certification application and/or approved I-140 petition to make it sure that the positions before and after the change of employment fall under the same or similar occupational classification code. In your case, you should examine the job duties and responsibilities of the current position in the current approved petition and the same for the new position in Florida and check the positions in the DOT and/or SOC classification on the USDOL website. When it is a labor certification waiver case, since you lack any expertise in the occupational classifications, you may have to seek legal counsel and it may be risky to determine by yourself. In the labor certification based cases such as your wife's case, since the certified labor certification application assigned the code numbers, the job may be much easier to figure out whether the new position may fall under a same or similar occupational code with the current labor certification position. Even in this situation, you may seek legal counsel who has an expert knowledge on the occupational classification system.
02/23/2008: Period of Validity of Medical Examination Report Pending I-485 Application
Question: I filed I-485 application on March 5, 2007. As part of the initial documentation, I submitted the sealed medical examination report which was dated February 28, 2007. Do I have to take a new medical exmination and submit the medical report before February 28, 2008 since the medical report is valid only for one year? Discussion: The sealed medical report is supposed to be valid only for one year. However, for the last few years, the USCIS has been issuing a special memorandum extending the validity of the medical examination report each year considering the continuing processing backlogs in I-485 applications. This decision was announced in January each year. This year, the USCIS issued such memorandum on January 7, 2008 extending the validity again at least until January 1, 2009. What this means is that those who submitted such medical examination as part of the I-485 application which has been pending for years did not have to take new medical examination since the medical examination which was submitted years back remain continuously extended and valid every year. Accordingly, those whose I-485 is still pending do not have to retake medical examination again inasmuch as the USCIS continuously extends the validity of medical examination results in January each year. Accordingly, you do not have to retake medical examination even if the existing medical report on file reaches one year on February 28, 2008. For the details, please read the memorandum.
02/22/2008: Qualified Institution of Higher Eduction in the U.S. for the Purpose of 20,000 Special H-1B Cap Filing
Question: I have a master's degree awarded by a University that is nationally accredited but not regionally accredited. Will I be qualified to file the special 20,000 cap H-1B petition on April 1, 2008. Discussion: The statutory definition is governed by the Higher Education Act of 1965, 20 U.S.C. Section 1001(a) for the purpose of the special cap qualification, which provides that the intitution of higher education is one which is accredited by a nationally recognized accrediting agency or association, or if not so accredited, an an institution that has been granted preaccredition status by such an agency or association that has been recognized by the Secretary for the granting of pre-accredition status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accredition standards of such an agency or association within a resoanble time. It thus appears that a "nationally" accredited institution is sufficient. Here the Secretary means Secretary of Education in federal government. The statute also covers certain pre-accredited institution as well and people should contact their schools to learn, if the school is not accredited, whether it meets the defition of institution of higher education under this statute through the status of certain preaccredition as defined under this statute. For this reason, I have revised my discussion on this question of 02/21/2008.
02/22/2008: Negative Impact of Abuse of Information Hurting Other Immigrants
Question: USCIS recently posted on its website FBI Name Check Q&A but I do not see it any more. Any reason why they removed the information? Discussion: I have no specific information as to why the USCIS has withdrawn the Q&A. According to the AILA, the USCIS is likely to revise and post it again on its website. It was indeed generous for the USCIS to release such information for the immigrant community. Unfortunately, there is an unconfirmed information that the immigrants have been abusing the information and flooding the USCIS fax system in field offices with inquiries of individual 485 cases. One wonders how they obtained the field offices' fax numbers, but it is a clear sign of abuse of information that can negatively affect the normal operation and performance of officers in those offices. I have no information whatsoever whether the USCIS pull out the Q&A for this reason, but from the reliable sources of information, this could be a part, albeit not main source, of the problem. Please stop abusing the privilege. Please be patient and let the officers do their jobs. Continuing abuse of their privilege will negatively impact the interest of the whole immigrant community.
02/21/2008: FY 2009 H-1B Special 20,000 Cap Filing for U.S. Master or Higher Degree Earned Category
Question: Last year I earned a degree of Doctor of Chiropractic from a college in the U.S. but I am currently taking a graduate program in business administration to pursue MBA degree. I have one more semester to complete the MBA program. I wonder whether I will be able to file H-1B petition on April 1, 2008 based on 20,000 U.S. earned master or higher degree category. Discussion: Those who earned a Master's or Higher Degree from a U.S. Higher Learning Institution are eligible to file on April 1, 2008 a H-1B petition based on the general annual cap of 65,000 for Bachelor's or equivalent category or 20,000 special numbers for U.S Earned Degree category. In order to file the U.S. Earned Degree category, one must meet the two thresholds. (1) One is "Master's or Higher Degree" from a U.S. university. Master's or Higher Degree means an academic degree which is one level higher than a four-year bachelor's degree. Accordingly, the admission to such degree must be possession of a four-year college degree. Inasmuch as such conditions are satisfied, such advanced degree is acceptable. For instance, Ph.D. degree, M.D. degree, J.D. degree require a bachelor's degree for admission to such advanced degree program. Inasmuch as such conditions are met, the name of a degree is considered irrelevant. Good illustration is your Doctor of Chiropractic degree. Even though the name of the degree is "Doctor" in your case, admission to the Doctor of Chiropractic program does not require a four-year bachelor's degree. All it requires is a high school diploma or AA degree depending on the schools. Indeed, the Doctor of Chiropractic degree is equivalent to a bachelor's degree or less credential. Therefore, you cannot file the 20,000 special cap H-1B petition. (2) The second threshold is that the degree must be awarded by an accredited institution in the U.S. If the institution is not so accredited but granted preaccredition status by an agency or association that has been recognized by the Secretary for the granting of preaccredition status and the Secretary has determined that there is satisfactory assurance that the institution will meet the accredition standards of such an agency or association within a reasonable time, the such degree is qualified for the 20,000 special cap filing. There are a number of colleges or universities in this country that are neither accredited nor in pre-accredition status even though they award a master's degree. Such U.S. master's degree is not qualified for the special 20,000 numbers. In your case, you did not tell me whether your school was an accredited or pre-accredition institution. If not, then you may be ineligible for the 20,000 cap filing for the deficiency as well.
02/21/2008: Child Status Protection Act and Status H-4 Reaching 21 Year of Age
Question: I am Chemical Engineer who filed concurrent I-140 and I-485 last July. My wife and a child also filed I-485 applications as dependents. I am in a H-1B status and my wife and son are in H-4 status. We all have received EAD and Advance Parole. We are Indians suffering from the steep visa number retrogression. The problem is my son is reaching 21 years of age by March 15, 2008. I am not worrying about his pending I-485 application because he is protected by the CSPA and will be considered under 21 years of age even after he reaches 21 years of age on March 15, 2008. Problem is his nonimmigrant status. I wonder whether he can keep his H-4 status even after March 15, 2008 since he is considered under 21 years of age under the Child Status Protection Act. Otherwise, he will lose H-4 dependent nonimmigrant status. Does he have to change his status from H-4 to F-1 student status? Discussion: The Child Status Protection Act is intended to preserve family unity which can be forced broken as affected by the backlogs in the immigrant visa petition processing and adjudication. This law is not applicable to nonimmigrant visa proceedings. Accordingly, once he reaches 21 years of age, he will lose the H-4 dependent visa status. On the other hand, he is not eligible for change of nonimmigrant status from H-4 to F-1 student status because of the immigrant intent that is not acceptable for a new F-1 nonimmigrant status. I do not see why keeping a nonimmigrant status becomes such an issue in this case. Under the immigration law, the alien is authorized to stay in the country pending adjudication of I-485 application. Additionally, pending I-485 application, he will continuously obtain EAD renewal and Advance Parole. Please let him to carry on his life as an adult.
02/20/2008: Development of Primary for 2008 National Election and Looming Comprehensive Immigration Issues as One of the Strategic Wild Cards for November Election Campaign
Question: I have been watching the development of primaries in Republican and Democratic parties for selection of Presidential nominees and there was practically no mention about the immigration reform issues and I am very frustrated. I have been out of status and passage of comprehensive immigration legislation is the only hope for my future in this country. My grown-up daughter is a computer programmer who is going through the EB-3 immigration process and her future is bleak too because of the horrible visa number retrogression for India. We want to be united and live together in this country as our permanent home. I read in the meda, including your site, reporting that the comprehensive immigration reform legislation may not be brought back after the election in 2009. What is the prespectives at this point? Discussion: As we discussed earlier, at the primary stage, the primary audience for the Republican presidential candidates were ultra-right-wing evangelical Christian base, while the primary audience for the Democratic presidential candidates were progressive-left labor union middle-lower class power base. For these reasons, the issues of immigration reform have remained a political liability for the presidential candidates. However, as both parties are heading towards wrapping up of the primary and nomination process, the wind appears to be slowly moving towards other direction for the immigration reform issues. One critical development that people have witnessed is the Republican candidates disasterous failure to charge the ultra-right-wing power base in the primary process recording the poorest turn out in the caucuses and primary elections throughout the country. As the Republican candidate is winding down to Senator McCain who will have to reach out the people beyond the narrow ultra-right wing power base for his "national" election, the immigration reform is known to be one of the key issues that can reach the independents and middle-of-the-road audiences in the nation in order to win in the final election in November. This is particularly true because the Democratic candidates have charged the country and were successful in bringing out the people into the primary process at a unprecedent historical rate and unless the Republican nominee reaches out the people outside of the uncharged evangelical Christian constituents, report indicates that the chance for the Republican presidential candidate to win in November election is extremely dubious. For this reason, we will see more and more discussion of immigration issues in the upcoming debates between the Republican and the Democratic president nominees and potentially there are some chances that immigration reform legislations may be introduced during this Congress. It will be interesting how this change will unfold even though the chances of passage of such legislations may remain slim during this Congress. Any legislation that may be introduced will be strictly politically motivated and charged. In this regard, the prediction of the previous media including this site remains firm that the comprehensive immigration reform legislation may not be able to see any successful result until the new President and the new Congress move into the Beltway in early 2009.
02/19/2008: Change of Employment, H-1B Porting Pending Extension Petition of Current H-1B Status
Question: I have been working with a medical laboratory in a H-1B status for the last three years. Since I could continue employment pending timely filing of H-1B extension petition, the employer filed the extension petition at the last minute but before the current H-1B I-94 expired. This extension pending is pending but the I-94 has expired. The current employer cannot sponsor permanent residence proceeding because of their financial situation. I have been offered an employment by another company that promises to file H-1B transfer and sponsor the permanent residence proceeding. The new employer needs my services right away. I wonder whether they can file the H-1B transfer petition even if my current I-94 expired and whether I can join them rifght away upon the new employer's filing of the H-1B transfer petition. Please help. Discussion: This is a question that involves the distinction between the concept of "in status" and the concept of "period of authorized stay by the USCIS." "In Status" is determined by the expiration date on the I-94. However, when an extension is filed "timely" and before expiration of the current I-94, the alien is considered in a period "authorized to stay in the U.S." pending adjudication of the extension petition. In your case, your I-94 expired and you are not in status but under the rule of "period of stay authorized by the USCIS" pending extension petition, you are allowed to stay and authorized to work for 240 days. When an alien in such a period of stay authorized by the USCIS because of the "timely" filing of the extension petition, a new employer can file a H-1B transfer petition even if your I-94 expired because you are in a period of stay authorized by the USCIS through filing of the H-1B extension petition timely by your current employer. During this period of stay authorized by the USCIS, you can also port to a new employer upon new employer's timely filing of the H-1B transfer petition. "Port" means that you do not have to wait for approval of the H-1B transfer petition and you can join the new employer "upon filing" of the H-1B transfer petition by the new employer. "Upon filing" can be proven by the "Receipt Notice" of the H-1B transfer petition by the new employer. The new employer also can file a H-1B transfer petition on a premium processing basis so that you can have your H-1B transfer quickly approved within 15 days. For such porting, you should not have engaged in unauthorized employment.
02/18/2008: Acquisition of Employer Company and Amended I-140 Petition
Question: My employer is a medium-size IT consulting company that sponsored my labor certification and I-140 petition approvals. My I-485 has also been pending more than six months. After four months of filing I-485 application, my company started going through the corporate M&A process and my company was acquired by a fortune 500 company before my I-485 reached six months. Under the acquisition deal, my employer is expected to go through the changes in two steps. For the first three months, the acquisition will take the form of buy-out of the company as a subsidiary company. After two months, the company will be absolved into the fortune 500 parent company and my company will be dissolved. The new company is now preparing amended I-140 petition, but I do not want them to do it because I want to port to another company for a similar job and filing amended petition will affect the process causing a substantial delay in obtaining amended I-140 petition. What do I have to do? Discussion: Apparently there is a confusion and misunderstanding about the immigration on the part of the new company. First let me see whether the new company needs to file amended petition at the first stage of acquisition. From the perspectives of the employment law and corporate law, your employer remains a separate corporation with the same corporate employer identification number. Acquisition of the corporation through buying out of the entire shares without the coporate structure changes and without dissolution of the acquired company does not affect the seprate corporate entity of the subsidiary company. Your employer remains the current employer and at least legally, the parent company has nothing to do with you. Consequently, your current employer does not have to file an amended I-140 petition at all. Now as far as the second phase of the acquisition plan is concerned, your current employer company will be dissolved and the acquiring fortune 500 company will become a successor-in-interest entity to your current employer. In such situation, depending on the other details, the new company may need to file amended I-140 petition to see whether the USCIS will consider such acquisition as qualified change that makes the new employer a successor in interest to your current employer. However, in your case, the second phase of change will not take place until after you pass 180 days of I-485 filing and as we previously discussed on this site earlier, your new employer may not need amendment of the approved I-140 petition. They may rather use AC 21 I-140 portability law in that the new company is "new employment" under the AC 21 portability provision, which does not require amendment of I-140 petition. It thus appears that you may also use the same logics taking the second phase of the corporate change as the first AC 21 I-140 porting and the new employment with another company which has offered you a similar job as your second porting of the employment under AC 21 law. However, since there can involve other issues, you may not want to jump and change employment right away without first seeking legal counsel.
02/18/2008: EAD Application, Name Check Delay, and Employment Authorization
Question: I am a 485 waiter who passed 180 days from its filing. I-140 has been approved. I have been working on a H-1B status. Now there is a new employer who offers me a stable and attractive job which is a similar job to the labor certification application job. The new employer does not want to file a H-1B transfer petition and ask that I use my EAD. The problem is I filed the EAD about two months ago but it has been going nowhere. The Congressional inquiry indicates that my EAD adjudication has been delayed because of the delay in name check and it would take some time before the name check can be completed. Why do they go through the name check process? Discussion: Nowadays, all the petitions and applications go through the name check process, including I-140 petition and EAD application. When the record shows anyone with a same or similar name, the name check clearance takes a long time. Once you reach 90 days of EAD application filing, you can apply for the Interim EAD card at the local office in most jurisdictions. You should go through the Infopass appointment sytstem. At this time, you will not be able to port the approved I-140 petition since you do not have employment authorization unless your new employer is willing to file the H-1B transfer petition.
02/18/2008: FY 2009 H-1B Cap Filing on April 1, 2008 and Cap Selection Process
Question: The information is going around in the immigrant community that the FY 2009 H-1B cap petitions must be received on the first day, April 1, 2008 and otherwise, the cap petitions fail to make it because the USCIS is likely to receive more than the cap number on the first day. I also understand that since they are likely to receive more than cap number, they will select the numbers by the computer random selection process. Please give me the information on the process within the USCIS. Discussion: There is no fixed rule on the selection process under the regualtion when it comes to the details. For instance, they can designate one Service Center for such cap filing or permit such cap filing with the California Service Center or Vermont Service Center depending on the jurisdiction which is determined by the job location. Additionally, they can cut off the total numbers for the lottery process including only the first day filings or include the next day filings as well. Accordingly, the USCIS usually releases the detailed instructions and procedues when it comes to close to the date of April 1 each year. People should religiously follow the instructions which will be released in the near future. The last year's experience worked like this: Since the two Service Centers received plane loads of petitions on April 1 including overnight delivery packages that contained more than one petition, in each packet there was no way they could determine the total number of petitions which they received at the end of the first day, April 1. For that reason, they also accepted the cap petitions on April 2. When they considered that they had received cap petitions much more than the cap numbers, they announced the reach of the cap numbers with the additional announcement that all the cases that had been received on April 1 and April 2 will go through the random selection process by computer regardless of the specific order they received each petition. The computer random selection process then followed such announcement and took some time before the complete cap numbers were selected. Accordingly, unless the petitioners received the Receipt Notices, the petitioners had no means to learn whether they were successful in being selected other than their banks. Once any cases were selected, the filing fee checks were deposited and before the deposit, the USCIS printed or wrote the file numbers on the rear side of the filing fee checks. Through the online banking system, the employers could check the luck or unluck of their filings through checking their filing fee check clearance on their online banking system. Those who paid the filing fees by the bank certified checks or money orders or bank account without online banking had no means to learn the status until they received the Receipt Notices. Since those whose cases were not selected did not receive the Receipt Notices, it indeed took a long time before they received the rejection packet for failuire to make it in the lottery and during the period, both employers and the aliens went through emotional nightmares. For this reason, it is critically important that when the petitioner files cap cases, they should cut their own checks (not money order or certified checks) and have online banking registration. In cutting checks, they should follow the detailed instructions of writing checks. Otherwise, the filing could have been selected in the lottery but rejected for the flaws in the filing!! For the helpful information on preparating the filing packed, you may want to check our Breaking News which posted some helpful information.
02/18/2008: Legality of Work Pending EAD Extension Application
Question: I am waiting for the visa number to obtain I-485 application. I used to have a H-1B status but opted to work on EAD. My current EAD is expiring at the end of February, 2008. I filed the EAD renewal application on December 20, 2007. I thought I would be able to get the extended EAD in about two months. But I have yet to receive the extension approval and the extended EAD card. In the H-1B extension, we were able to continue employment with the Receipt Notice of H-1B extension filing pending approval of the H-1B petition. May I assume that the same rule will apply and I will be able to continue the employment with the extension Receipt Notice pending adjudication of the extension petition? Discussion: It is true that in the extension of the employment-based nonimmigrant petitions including H-1B, the alien is authorized to continue employment for 240 days from the date of extension petition filing upon "timely" filing of the extension petition pending adjudication of the extension petition. "Timely" means receipt of the extension petition by the USCIS before the current H-1B status expires. However, there is no such rule for the EAD renewal. The alien's employment authorization expires on the date of expiration of EAD card and timely filing of EAD extension application does not authorize the alien to continue employment pending approval of the EAD extension application. Consequently, should the alien fail to receive the approved extended EAD card before the current EAD card expiration, the alien should immediately cease work until the EAD renewal is approved and received. The alien can then restart the work with the renewal card. During the gap between the two EAD cards, there will be a gap in this situation, but inasmuch as the alien did not work during the period of the cap, it does not affect the alien's authorized lawful stay pending adjudication of I-485 application. Continuing work during the period of gap will be considered unauthorized employment and depending on the period of unauthorized employment or out of status since the last admission to the U.S., it will affect the eligibility of I-485 application if such violation lasted more than 180 days. The USCIS has thus been recommending the EAD renewal applicants to file the extension application as early as 120 days before the current EAD expires for the safeside. Under the current policy, the renewal application cannot be filed before the 120 days from the date of current EAD expiration. Accordingly, the applicant should make it sure that extension be filed within this 120 days period and not earlier. The premature extension application will be rejected by the USCIS.
02/17/2008: EB Visa Retrogression and Various Confusing Tools for Survival
Question: I am going through a PERM application process. I am an Indian. The EB-visa numbers for India are so much retrogressed that I may not be able to obtain a permanent resident status many and many years to come. Worse yet, there is a rumor that the EB-2 for India may not move for the rest of FY 2008. This has led the Indian community to various discussions on tools and means to more or less overcome the retrogressed visa numbers. Can you please explain what these tools and means are? I am confused. Discussion: You are not alone when it comes to the discussion of available tools to overcome the retrogressed visa numbers. They all sound similar and lay people have a difficulty to distinguish among these tools. Let me go over a few things here. (1) Priority Date Retention and Transfer: This is a situation where same or different employers have "two" approved I-140 petitions of same preference (EB-1, EB-2, EB-3) or different preferences. Priority date is the date when the labor certification is first received by the labor certification application. In the labor certification waiver cases, it is the date when I-140 petition is filed. When the substitution of labor certification was available, people sometimes took over other person's priority date through substitution. This substitution route is gone now. Once I-140 petition is approved, the alien beneficiary retain the priority date unless the petition is revoked for fraud or meritless petition which has later been detected. Once the approved I-140 petition is revoked, he/she loses the priority date. However, simple withdrawal of the approved I-140 petition by the employer does not deprive the alien of the retained priority date. Once the priority date is retained such, the alien can transfer the priority date to another approved I-140 petition if it is favorable because of different preferences or different priority date. This is done by filing amendment of one of the approved I-140 petition to change the priority date of that I-140 petition from unfavorable priority date to the favorable priority date of the second approved I-140 petition. The transfer of priority date from one approved I-140 petition to another approved I-140 petition does not automatically invalidate for the approved I-140 petition which gives its priority date transferred to another approved I-140 petition. However, once the alien obtains I-140 petition through such amended I-140 petition. another approved I-140 will be invalidated when I-485 is approved since a same I-140 petition can support only one I-485 application and produce one green card. In the priority date transfer, you absolutely have to have "two" approved valid I-140 petitions. (2) AC 21 Approved I-140 Petition Portability: This is a situation where you have only "one" approved I-140 petition which supported filing of I-485 application and the I-485 application has been pending for 180 days or longer. Under the law, I-485 application is valid only if it is supported by a valid approved I-140 petition. Assuming you change employment from the employer who filed labor certification and I-140 petition, this approved I-140 petition should be no longer valid and consequently the pending I-485 application which is supported by this petition should also be denied since it loses the foundation for the application. However, AC 21 law provides that inasmuch as the alien changes employment after 180 days of I-485 filing to take a similar or same occupational classification, the approved I-140 petition will be remained valid to keep supporting pending I-485 application. In the AC 21 portability context, there is no transfer of I-140 petition or no transfer of I-485 application. It just leads to removal of the original petitioner (original employer) from the legal process. In this context, the only legal proceeding that continues after the porting is I-485 application proceeding of the alien. The new employer is not a petitioner and party to the alien's immigrant petition proceeding. Withdrawal of the approved I-140 petition by the original employer after 180 days of I-485 filing will not affect the pending I-485 application. Since there is no transfer of petition or priority date in AC 21 porting context, change of employment under AC 21 will not affect the visa priority date one way or another. (3) I-485 Transfer from One Approved I-140 to Another Approved I-140 Petition: This is a situation where you have two approved I-140 petitions just like the situation of Priority Date Transfer situation. However, the alien is not asking to transfer the priority from one petition to another petition by filing amended I-140 petition. Rather the alien is asking to transfer the pending I-485 application from the I-140 petition which supported the I-485 filing to another approved I-140 petition. Here it is I-485 and not I-140 that is transferred. Such transfer of I-485 application may result in the same consequences of priority date transfer between the two approved I-140 petitions in gaining an earlier priroty date, but the two proceedings are clearly distinguished. However, similar to the priority date transfer, there must be two approved I-140 petitions for this option. (4) I-485 Transfer from Own Approved I-140 Petition to Spouse's Approved I-140 Petition: This is a situation where the alien is married and the spouses filed I-485 applications based on the approved I-140 petition of one of the spouses. Accordingly, the other spouses filed I-485 application as a dependent derivate beneficiary of the direct benefiary spouse. Here, if the dependent spouse also has his/her labor certification and approved I-140 petition through his/her own employer either before filing I-485 application or post filing I-485 application, the spouses can switch the approved I-140 petition that supports their pending I-485 applications from one spouse's I-140 petition that originally supported for their I-485 applications to another spouse's approved I-140 petitions. When such transfer of I-485 applications takes place from original spouse's approved I-140 petition to the another spouse's approved I-140 petition, the original spouse is changed from the principal direct derivative beneficiary of his/her own petition to the dependent derivative beneficiary of the other spouse's approved I-140 petition. Here the spouses change their roles. This tool is used when other spouse has an earlier priority date, different classification of EB preferences, or different country of chargeability. This switch-around can not take place unless the visa number is available for the new I-140 petition that will support the pending I-485 applications. Again, there must be "two" approved petitions, but not for the same alien but for the two different aliens who are spouses. (5) Alternate (Cross) Chargeabilty of Dependent Spouse Country for Visa Number Availability: This is the situation where an alien filed labor certification with a certain priority date and obtained I-140 petition. But because of the visa number retrogression, he cannot file I-485 application or even if I-485 was filed, cannot obtain approval of I-485 application because of the visa number retrogression. Here if he/she is married and the spouse was born in a country other than his own coutry of birth (here India) which is heavily retrogressed in visa number, both spouses can use the dependent's country of birth using the same priority date but visa cut-off date for the spouse's country of birth. Here, principal spouse is borrowing other spouse's country of birth just to determine the visa number availability in the Visa Bulletin. The spouse can have the same country citizenship with the principal alien. The only requirement is a different country of "birth." Here, unlike other foregoing tools, there is only one I-140 petition is involved and there is no transfer of I-140 petition nor transfer of pending I-485 application. I suppose you are still confused. I urge you read over and over this discussion and you will definitely understand the differences among the foregoing five tools.
02/16/2008: PERM Labor Certification System: Past, Present, and Future
Question: We are an IT consulting firm that offers IT consulting services to the U.S. businesses through the Indian IT professionals. Ever since the DOL had implemented the reengineered PERM labor certification sytem in 2005, we were able to process the labor dertification applications in a fairly short period of time. But beginning from August 2007, we have been experiencing a substantial delay along with the massive audits of our applications by the DOL. In order for our business to plan our future business direction, we need some perspectives for the PERM applications hereon. Discussion: Before the DOL implemented the reengineered electronic filing system of PERM program on March 28, 2005, there were backlogs of over 360,000 cases and the employers had to wait over one year or longer to obtain the approval of the labor certification applications. The PERM changed the picture totally. The statistics reflect that between 2005 and 2007, 73.8% of total labor certification applications were adjudicated within six months. In fact a number of cases were even certified from two days to two weeks. However, beginning from mid-2007, the employers started witnessing a substantial delays in the PERM applications. The sources of information indicate that these delays were caused by two factors. One was the need for switching PERM staffs to the H-2B program which runs under legally mandated timeframe. The second factor is related to the enactment of PERM Fraud Prevention Regulation on July 16, 2007. In order to implement this fraud prevention rule, the National Processing Centers had to focus on mornitoring the PERM filers to implement the fraud prevention rule. The tool they started using was "audit." Through the audit, they intended to collect the information of the employers practice and existence of jobs, etc. towards the intended purpose of "integrity" of the labor certification applications. Accordingly, the employers started seeing changes in the PERM processing beginning from August 2007 receiving massitive audit notifications. DOL thus continues its program focus on achievement of integrity and monitoring of the fraudulent activities of the employers. For this reason, the employers are likely to face continuously massive audit notifications throughout the FY 2008. However, there is one small positive change that is taking place in the foreign labor certification program. As the DOL started witnessing reduction of backlogs in H-2B programs, they have started switching back the processing resources to the PERM program. Eventually, the temporary labor certification programs will be centralized in the current Chicago National Processing Center during the summer, totally separating the temporary application processing from the permanent application processing in the structures. This has sort of offset the impact of integrity related delays and the DOL expects that 76% of applications will be adjudicated within six months. FY 2009 which starts from October 1, 2008 will witness another changes in two aspects. The DOL is scheduled to introduce a legislation to charge filing fees for the labor certification application within the FY 2008 which ends on September 2008 and start charging $650 for each PERM application beginning from FY 2009. This legislation will allow the labor certification programs self-supporting based on the fee revenue and also to increase the funding for program enhancement. One program enhancement the DOL is planning is development of database sharing system within the DOL and with other visa related agencies such as DHS and DOS. Once this is fully implemented, the labor certification program will offer a mechanism for the achievement of integrity as well as efficiency and effectiveness of professional foreign workers management. According to the sources, 80% H-1B workers have been filing permanent labor certification applications. This trend is likely to continue in the future. Through the linkage of the electronic filing of the H-1B labor condition application data of an employer to the electronic filing of PERM application for the same alien employee, the new system may develop an account for the employers and the aliens and the data in the account can be shared for different foreign labor certification applications including permanent applications, H-1B labor condition application etc. The concept appears to be somewhat similar to the transformation program of the USCIS that will focus on the account concept. The data will be share between the ETA, the DOL arm that administer the foreign labor certification applications, and ESA, the DOL am that enforces the violation of labor certification application laws. Additionally, the data will eventually be shared with the DHS H-1B nonimmigrant as well as immigrant petition program as well as the State Department's visa application processing and adjudication sytem throughout the visa posts. The DOL predicts that such initiatives in FY 2009 is not expected to affect the processing times too negatively and is targeting to keep the processing times at the FY 2008 level. As time moves on, the DOL may gradually reduce the random selection audit process, but the development of electronic data sharing system may create fact-specific audits in large numbers together with the increased enforment activities by the DOL and other related agencies. The employers shold keep close eye on the new phase of the labor certification policy that may unfold in FY 2009.
02/16/2008: Change of AC 21 Employment and New Employer Position in Pending I-485 Proceeding
Question: My current employer is a fortune 500 company with a solid basis for the approved labor certification and the approved I-140 petition. Now I am eligible to AC 21 portability of the approved I-140 petition to take a similar job with a small company. The company is a legitimate doing business with the good financial standing at this time, even though it experienced a big finanal downturn last year. What is the new employer's obligation to prove its eligibility for the ported I-140 petition and its legal relationship with the USCIS? I am concerned with the financial instability of the new employer that can lead to denial of porting on that basis. Discussion: There is a fundamental and pervasive misunderstanding of the new employer's relationship with the ported I-140 petition in the employment-based immigrant community. The porting provision in the context of portability of I-140 petition does not mean that the change of employment using AC 21 should substitutes or replaces the petitioner for the approved I-140 petition. The portability, for the purpose of pending I-485 applications of the alien, means that the law assumes that the approved petition remains valid after 180 days of I-485 filing if the "alien" finds and takes a similar or same job with "an employer." The new employer will have nothing to do with the approved I-140 petition as well as the pending I-485 application of the alien. Accordingly, the new employer is not a party to any proceedings involving the alien and has no legal relationship with the USCIS in one way or another. It is the alien to whom the law requires that he/she proves that the new employment is same or similar occupational classification to the labor certification job and the new employer's role is to provide such proof to the alien who has to submit the evidence to the USCIS to prove eligibility of AC 21 portability. Accordingly, the new employer does not have any obligation whatsoever to prove the eligibility of the original I-140 petition as its petitioner including financial ability to pay the proffered wage to the alien. The USCIS cannot demand nor deny AC 21 porting of the alien on the ground that the new employer failed to prove the financial ability to pay the wage by one of the three evidence which the current USCIS requires to the I-140 petitioning employer. This is particularly true with the new employer's business record and history prior to the alien's employment with the new company. This point is made clear in the so-called Yates AC 21 Memorandum. Obviously, the new employment cannot exist when there is no bonafide doing business and no such position in the new employer. Consequently, the agency may request the alien (not new employer) to submit the evidence that the bonafide job exists with the new company paying the level of salary. Inasmuch as such salary is paid, it will be immaterial whether the new employer is in a financial bad shape. It thus appears that you will be all right and you should not be prejudiced by the agency for the reason that you changed employment from a fortune 500 company to a small business.
02/16/2008: Employer's Corporate Change, I-140 Amendment, and Transferability of Pending I-485 Application
Question: Last July 2007, I filed concurrent I-140 and I-485 application with the Nebraska Service Center. My employer is a small IT consulting company. Since then, the company has been sold to a fortune 500 company and my company has been dissolved. The new employer is planning on filing I-140 amendment petition along with its request to transfer the pending I-485 application to the amended I-140 petition filed by the new company. Can they do it? If they can, what are risks involved? Discussion: As it was discussed earlier, the current USCIS policy permits transfer of pending I-485 application from one I-140 petition to another I-140 petition with the same employer or with a different employer. There are a few fundamental thresholds for such transfer. Unless every single of these thresholds are satisfied, the pending I-485 applications cannot be transferred to another I-140 petition. Condition 1: Both of the I-140 petitions must have been approved. Accordingly, it your concurrently filed I-140 petition is still pending, you cannot request transfer. In the same token, unless the new I-140 petition is approved first, the pending I-485 application cannot be transferred to the new or amended petition. Condition 2: The visa number must be available at the time of filing as well as at the time of request for transfer of I-485 application. Accordingly, if the visa number is not available at the time of request for transfer, pending I-485 application cannot be transfered to the new or amended petition even if the petition has been approved. Condition 3: Both underlying I-140 petitions do not have any adverse factors in terms of merit, fraud, or other circumstances which might lead to a revocation. Accordingly, the agency will relook at the both petitions to assure that there were no deficiencies or lapse in the process of adjudication of these two petitions before they approve transfer of the pending I-485 application. Consequently, it is apparent that your pending I-485 application cannot be transferred at this time to the new employer's yet-to-be-filed amended I-140 petition for one or more of the above listed threshold problems.
02/16/2008: Naturalization Backlog and Options
Question: I filed N-400 naturalization application in June 2007. Naturalization is important for me because my wife is out of status in this country and unless I become a U.S. citizen, she is destined to be deported and physically separated from me across the ocean. However, it appears that nowadays, N-400 is going no where. For the I-485 applicants, the USCIS has taken an action to adjudicate applications even if the FBI namecheck is yet to be cleared inasmuch as six months pass after the FBI name check request. What is the situation for the naturalization applicants? Discussion: The USCIS adjudication of applications before the FBI name check clearance involves a sensitive political implication. Since the country's primary task is national security and homeland security, the anti-immigration political forces can attack the agency's action to adjudicate applications before the name check clearance as a serious security lapse jeopardizing nation's security fight against the international terrorists. In this regard, the late USCIS decision to adjudicate certain 485 applications before the name check clearance was a bold move politically. In taking such a bold action, the USCIS excluded the naturalization applications and these cases cannot be processed and adjudicated until security clearance is completed. N-400 is currently experiencing a tremendous delay because of the two factors, among others. One is a huge surge of applications in 2007, particularly surrounding the period of July 2007 Visa Bulletin fiasco. The other cause lies with the FBI name check backlogs. At this point, the total backlog exceeds one million applications and the USCIS announced that the processing times will take about 18 months. However, one publication indicates that the USCIS prediction is too optimistic and it can take even nearly three years in the future! The USCIS Director testified before the Congress recently where he disclosed that he was taking an action in two ways: One is centralization of filing of N-400 to the one Service Center, National Benefits Center in Missouri, through Chicago Lockbox filing. Currently N-400 applications are filed at each Service Center that has jurisdiction over the applicant's residence. The other action is recruitment of new immigration staff, which will take a substantial amount of time because of security clearance requirement for the federal employee recruitment. Other than that, there is no other remedy the agency intends to take. The Director made it clear that the agency would not take any action that could compromise the integrity of the naturalization processing and adjudication. Accordingly, there is no foreseeable action on the part of the USCIS to take a similar action to the readjustment of FBI name check clearance requirement in the naturalization area. It is unfortunate to say that currently there is no option other than seeking a relief in federal district courts through filing a lawsuit of mandamus action. The federal courts have been continuously handing down mandamus orders regardless of the security arguments of the agency.
02/14/2008: Follow-Up to USCIS New Policy of I-485 Adjudication Aftrer 180 Day Passage of FBI Name Check Request
Question: I have a follow-up question to the previous Question and Discussion. My I-485 is a family-based application based on the immigrant petition filed by my husband. Would the USCIS implement the same policy in the family-based I-485 applications as well? Discussion: The policy is applicable and implemented in the all the field offices of the USCIS. I-485 cases which are handled by the local district offices are also currently undergoing the same internal process of search and locating of the eligible pending I-485 applications. The local district offices will also attempt to adjudicate these I-485 cases, if approvable, by April 30, 2008. Obviously, this does not mean that every single case will be approved by the date as there may be a number of other issues they will have to resolve other than FBI name check delays.
02/14/2008: USCIS New Policy on I-485 Adjudication After 180 Day Passage of FBI Name Check Request
Question: As you know it, the USCIS released a policy memorandum to the effect that they would adjudicate I-485 applications which have been held hostage pending the FBI name check reports once 180 day passes. My I-485 has been stuck for a long time. What is the chance that this new policy will be implemented and I receive any good news of approval of I-485 application? Discussion: The memorandum was posted on the USCIS site on February 7, 2008. Sources of information indicates that the Service Centers have already started their efforts to search and locate such EB-485 applications to implement the new policy guidelines and people may see some results by April 30, 2008. However, this new policy is already under fire by CNN Lou Doubs commentator and it is recommended that the immigrants remain low key on this subject. The agency will not respond to any inquiry about the status of implementation of the mermorandum. You should keep patience such that the agency perform their jobs to the satisfaction of the agency and the immigrants soon.
02/13/2008: Choked EB Visa Bulletin for India, H-1B Six-Year Limit, and I-140 Premium Processing
Question: The March 2008 Visa Bulletin will be a disaster for Indian foreign workers who face H-1B six year limit. Considering the fact that the picture may remain bleak for the rest of the FY 2008, those who completed labor certification process and going through I-140 petition process are likely unable to file I-485 together with EAD application for a while. In my case, I approach the six-year H-1B limit and EB-2 labor certification application has been approved. I am ineligible to file one-year increment H-1B extension under AC 21, and the only hope to remain in the country and legally work is one of the two options: Either the visa number becomes current for my priority date or I-140 petition is approved so that I can obtain the H-1B extension in three-year increment while I wait for the visa number in the future. However, the Service Centrers are currently experiencing such a backlog and processing delays, my chance for either of these options is practically nil unless the USCIS reinstates the I-140 premium processing services. What is the chance that the USCIS will reinstate the I-140 premium processing services? Discussion: The latest USCIS statistics reflect that the USCIS has over 140,000 I-140 cases to process and adjudicate. This is indeed a huge backlog. Because of the backlog, the USCIS appears to be under the pressure to consider reinstatement of the premium processing services. Recently, Mr. Aytes, Associate Director of Domestic Operation, disclosed that once the July 2007 Visa Bulletin fiasco backlog of front-end receipting processing was eliminated, the agency might consider reinstatement of the I-140 premium processing services. Now, the receipting backlog has been eliminated but the agency has still yet to reinstate the PPS. The latest sources of information indicates that the USCIS is working on the reinstatement and it may be announced in the near future. Without doubt, one issue they may have to deal with is the Service Centers' capacity to meet the legal deadline of PPS to adjudicate within 15 days when the flood gate of PPS filing is opened. There has been some rumor that they were considering several options, one of which could be to restructure the PPS to two different layers with the different mandatory deadlines and different filing fees. The other option they used in the past was to open PPS only for certain types of I-140 petitions. The details have yet to be released, but the upcoming announcement of reinstatement of I-140 petition may include some changes to the current PPS. We hope to see such announcement as soon as possible. Maybe not early for your immediate needs, but soon enough to give a relief to other colleagues of yours in the near future.
02/13/2008: July 2007 Visa Bulletin Fiasco Anniversary and Multiple EAD/AP
Quesion: I filed I-485 together with EAD and Advance Parole applications during the July 2007 VB fiasco period. I paid the old filing fee of $395 for I-485, $180 for EAD, and $170 for Advance Parole. I have five family members and just extending EAD and AP for one year extension beyond August 2008 is going to be extremely expensive for our family if we have to pay the increase new filing fees. I want to know whether we need to file extensions with fees or without fees under the new fee rules of 2007 and we do, are they going to implement multiple-year EAD/AP document in the near future? Discussion: Under the new fee rules, those who files the July VB fiasco cases needed to pay previous low filing fees and the post July VB fiasco filers were given a benefit of the fee waiver for EAD and AP instead of paying expensive I-485 application fee. According to the USCIS, the July VB fiasco filers pay the new EAD and AP filing fees every time they file EAD renewal or new Advance Parole, while the post July VB filers are waived of EAD/AP permanently until their I-485 applications are approved. Accordingly, issuance of multiple year EAD/AP document will save a tremendous extense for the July VB filers at the cost of the USCIS revenue. While issuance of multiple year EAD/AP will give practically no special benefits in terms of the cost, which will instead give a tremendous workload and cost saving for the USCIS. The USCIS recently disclosed that the agency was considering the multiple year EAD/AP to those who were suffering from the visa number retrogression. In other words, all those whose visa numbers are not retrogressed are likely required to file a single year EAD and AP every year. Sources indicate that the USCIS may publish a rule for multiple year EAD/AP implementation sooner or later. As far as the timing is concerned, considering the cost savings and fee revenue point of view, it may be most likely this new policy may not be implemented until probably three or four months prior to the anniversary of the new fee rule or July VB anniversay. It probably means May-July 2008 at the earliest. Implementing the single and multiple year EAD/AP close to the anniversary of new fee rule will serve a tremendous cost saving in that the EAD/AP for these filers are fee waived and the USCIS will collect no revenue from these applications, which they will have to issue every year, EAD and AP separately, unless they implement the single, multi-year EAD/AP document issuance. It appears that implementation of a single document EAD/AP for certain 485 filers is more or less "given," and it is matter of time. Let's wait and see.
02/12/2008: 04/01/2008 FY 2009 H-1B Cap Filing and E-Filing Advantage
Question: My employer is also preparing FY 2009 H-1B cap filing. Considering the potential risk involved in overnight delivery services that can experience delay for the weather or other contingencies, the employer wants to file it online (e-filing). When the cases are randomly selected, how would the efiled cases be included in the random selection pool? Discussion: People will remember that the USCIS suspended e-filing during the cap filing period because of the problem. Informed sources indicate that the same is likely to happen in the coming FY 2009 cap filing. Please stay tuned.
02/12/2008: 04/01/2008 FY 2009 H-1B Cap Filing and Premium Processing Services
Question: My employer is currently preparing for the FY 2009 H-1B filing for me. There is a lot of rumor about last year's H-1B cap filing using Premium Processing Services to the effect that it had a better luck to get the cap number. Will the premium processing be available for FY 2009 H-1B cap filing? Discussion: Common sense should dictate people should not get a different treatment because of paying more filing fees. This is particularly true when all the filed cases should be randomly selected by the computer. The rumor is baseless. Considering this rumor and confusion, the USCIS has made it clear that there will be no special services for paying extra $1000 premium fee until the case is selected by the H-1B cap lottery. When there is a lottery involved, the agency will be unable to keep the legal mandate to approve the case by April 15, 2008. For the reasons, the USCIS is reportedly preparing a regulation which will be published in the near future. The informed sources indicate that they are considering two options. One is to suspend PPS during certain period of FY 2009 H-1B filing. The other option is to permit PPS only to those H-1B filers who have been selected in the lottery and who will have received "Receipt Notice" which is issued only to the winners in the lottery. Whichever option the USCIS eventually adopt and publish, it is clear that considering filing of PPS on April 1, 2008 FY 2009 cap filing to receive a preference treatment will turn out to be a day dream which is far from the reality.
02/12/2008: Pending I-140 Petition, March 2008 Visa Number Current, and Concurrent Filing
Question: I am an Indian engineer waiting for the EB visa number for my EB-3 labor certification with the priority date of December 28, 2004. My I-140 petition is still pending. The just released March 2008 Visa Bulletin shows that the visa number will be available for the rest of the world people beginning from March 1, 2008. My wife is an Indian but was born in London, U.K. What do I have to do? Discussion: Isn't it exciting? It is like a dream world dropping from the sky. The I-485 concurrent filing is available not only for the concurrent filing of both I-140 and I-485 at the same time but also for the concurrent filing of I-140 and I-485 at separate times. Once your visa number becomes available for your priority date, you can file I-485 application for yourself and your family members using alternate chargeability to your wife. You can go one of the two ways. One is you file a new I-140 petition with the I-485 application simultaneously with the evidence of alternate chargeability. The other option is just to file I-485 applications with the request to interfile with the pending I-140 petition and request for alternative chargeability. The second option may sometimes face a problem because of unfamiliarity of contract workers of the mail-room at the Service Center with the detailed procedures in such cases. Congratulations!
02/12/2008: Visa Number Availability Change Pending Three-Year Increment H-1B Extension Petition
Question: I have been working on a H-1B status for almost six years. I am one of those unfortunate foreign workers who have failed to complete the labor certification applications successfully. I tried three times with the unsuccessful results. Finally, the current employer obtained the PERM application recently with the priority date of April 2007. My employer then immediately filed I-140 petition which was apparently approved yesterday. My employer has yet to receive the hard copy approval notice. Currently the visa number is not available for my priority date and for my nationality. My H-1B six year limit will reach in less than a month and my employer intends to file the three-year increment H-1B extension as soon as we receive the I-140 approval notice. However, I am in a nervous break not knowing what will happen with the H-1B extrension petition if the visa number becomes available for me in the coming month Visa Bulletin. Willl the USCIS deny the pending H-1B extension petition? The news of the visa number availability for March 2008 Visa Bulletin will bring with it a mixed bag in my case: Good news for filing I-485 application and loss of employment authorization if the pending H-1B extension is denied. Discussion: I am confused with your question. I cannot imagine how the visa number can be current for the priority date of April 2007 in the March 2008 Visa Bulletin. Granted that such miracle can take place, let's get to your question. The three year increment H-1B extension is available regardless of the priority date inasmuch as the visa number is unavailable and the I-140 petition has been approved. Accordingly, even if you filed the labor certification application only in April 2007 and you cannot apply for the 7th year H-1B extension at this time, you will still be able to file the three year increment H-1B extension petition as soon as you receive the I-140 approval notice. Assuming your employer successfully files the H-1B extension within this month, even if the visa number becomes available under the shortly released March 2008 Visa Bulletin, the agency will approve your H-1B extension petition. Under the current USCIS policy, the point of visa number unavailability is determined not by the date of adjudication of the petition but the date of filing of the petition. Accordingly inasmuch as the visa number was not available at the time of filing, no matter what the new Visa Bulletin will show for your priority date, they are likely to approve the H-1B extension petition. Under the H-1B extension rule, once the H-1B extension petition is filed "timely," your employment authorization and authorized stay will automatically be extended for 240 days pending the adjudication of the petition, and you will not experiernce a gap between the expiration of your current H-1B I-94 and the extended H-1B status. Additionally, for some reasons, should your H-1B petition is denied and you fall out of status, you may still be able to file I-485 application along with EAD and Advance Parole applications assuming that the visa number becomes available for you for your priority date in the March 2008 Visa Bulletin inasmuch as you have not engaged in unauthorized employment or out of status six months or longer since you were last admitted to the U.S. under the section 245(k) of the immigration statute. All in all, there is no reason for you to panic in your fact situation. However, for your peace of mind, I would file the Premium Processing H-1B extension petition so that you obtain the H-1B extension approval before the end of the month.
02/10/2008: National Election and Perspectives of Immigration Reform
Question: I am one of the so-called high-tech worker from India. For the last two years, I have experienced an emotional roller-coaster, frustration, and torture relating to the immigration reform legislation. The broken immigration system shows no prospects for any fix and I do not see any light at the end of tunnel. I am confused and depressed because of the emotional dead-end that has been constantly haunting me. The economic recession news adds the fear and frustration as it may affect my long journey for years and years to come considering the hopelessly retrogressed immigration visa numbers. Can you give me some perspectives for the future of immigration? Discussion: You are not alone when it comes to the immigrants who are undergoing the emotional frustration. However, I must assure that the future of the immigration reform may not be as bleak and pessimistics as what you see on TV and electronic tubes nowadays. To get the right picture, you must have some level of understanding of American political process, American politics, and major players for building a future landscape of American immigration system. First let me tell you that what you see and hear on TV and cyberspace does not reflect the reality of the American landscape. In the national election, the American political process goes through two different phases at two different stages. The American politics are formed by the two major political parties, the Democrats on the left and the Republicans on the right. The first phase of the election process in the American politics is for the candidates to get "nominated" within the party through the parties grass-roots caucuses and primaries of his/her party. Therefore, at this stage of nomination, the candidates's audience remain the party members and continuents in the community. Consequently, the political process is extremely polarized as their audience is limited to the party's platform and party ideologies. In other words, these candidates are addressing not to the independents or other party members at this stage as their goal is first to get nominated within the party. At this stage, the term "immigration" is taken as a political liability in both parties. However, once the candidates are nominated, the audience of these candidates swifts drastically because of the change of their audience. The audience in the final voting process is not only the party members but the independents and middle-of-the-road members and supporters of own party, other party or parties. In American political landscape, either independents or middle of the road members in each party tend to play a key role in the poll booth and each party candidates must soften their polarized views of their nomination process to address to these independents and middle of the road members and supporters in the final voting procress. Naturally, immigration turns a platform to reach these voters. It is thus expected that the debates and positions of the candidates will move more towards left for the Republicans and towards right for the Democrats to accomodate these key-player group. Consequently, from the perspectives of the immigration reform, it is crucial that the supporters of the immigration should also ride the tide of politics in participating in the election process. By now, all the immigrants know that the conservative Republicans oppose illegal immigration but support legal employment-based immigration, while the progressive liberal Democrats support illegal immigration relief but take restrictive position on employment-based legal immigration. When it comes to international trade, the Republicans support free trade and open doors to outsourcing of businesses, while the Democrats oppose the tree trade and oppose outsourcing of businesses. The Congress and American politics have failed to achieve the immigration reform because of the failures for the two parties to reach a compromise in the legislative process since the Congress and the parties have been so polarized leaving little room for the middle of the road to play any immportant role in the parties and the Congress. Accordingly, from the perspectives of the immigration reform, the more candidates of less far-right and less far-left "ultra-wings" are elected, there will be a better chance to achieve the immigration reform when the new government comes back to the Hill early next year. At this time, the country is so overwhelmed by the primary process for the Presidential candidates that people tend to ignore another important elections that are involved including Senators, Congressmen and women, governors, etc. etc. Most importantly, the Congress is also going through the election! There is no question about that the coming Congress will have much better opportunity to pass a comprehensive immigration reform legislation early next year. But one thing we should not ignore is the players that can help the "compromise" process. We learned from the 2007 CIR that the product of compromise between polarized "ultra-right" and "ultra-left" is not workable and not desirable. This leads to the conclusion that it may be in the best interest of immigration community to see that more number of the candidates in the middle of the spectrum be elected in the Congress and other elected offices. This should also give a perspective to the immigration lobby activities not to work only with either ultra-right or ultra-left leaders in the American politics neglecting importance of the middle-of-the-road candidates. It was tragic to see that there was a tendency for the so-called legal immigrants working with the right-wing Republicans while the so-called illegal community working with the left-wing Democrats. The immigration reform will be shaped in the form of a "comprehensive" bill whether they like it or not and comprise of two extremes will lead to nothing but another failed legislative process. The so-called legal immigrants and the so-called illegal immigrants are destined to be bed-fellows and unless they work together to elect more elected officials of middle-of-the-road leaders, earlier resolution of the next immigration reform legislation will remain a matter of long haul. To answer your question, please do not give up your hope. The change will be coming next year.
02/10/2008: AC 21 I-140 Portability and Sources of Required Information on Same or Similar Occupational Classification
Question: My labor certification has been approved and I-140 has also been approved, according to the company lawyer. I filed the I-485 application through the company lawyer. Now it has been more than 180 days since I filed the I-485. I am considering the change of employment, but the company lawyer has never given me a copy of the labor certification application that was filed or approved. The lawyer also failed to give me a copy of the I-140 petition or I-140 approval notice. The only information I have is the labor certification case number and I-140 case number. I understand that AC 21 porting requires porting to the "same or similar " occupational classification. Since I do not have a copy of the labor certification application and I-140 petition, I have no idea whether the new employment will be considered a same or similar occupational classification. The employer and the company lawyer are refusing to release the copy arguing that they are employer papers and cannot be released. Is there any way to collect some information on the occupational classification and other information on the labor certification application? Discussion: When one attempts to change employment, some employers resist to release any information about the labor certification application and I-140 petition. It is true that the labor certification application and I-140 petition are considered the employer documents, and unless the employer agrees to release a copy, the company lawyer will have a serious problem to release the documents because of the conflict of interest. This is particularly true before March 28, 2005 when the labor certification form consisted of two parts: Part A for employer and Part B for alien qualification in ETA 750. The alien signed only on the Part B and some employers refused to show the Part A. Consequently, a substantial number of alien beneficiary had no information whatsoever about the job title, occupational classification, prevailing wage, actually wage offered, job duties and descriptions, and specific qualification requirement of education, experience, and special skills. This problem has been more or less removed after the DOL changed the labor certification filing system into online filing system of ETA 9089 because the PERM regualtion requires that the alien attests to the truth of the information in ETA 9089 before filing. Additionally, once the application is certified, the alien is required to sign on the certified form. Accordingly, one tends to make and keep a copy of the certified application, not to mention the case number. When it comes to the old labor certification application of ETA 750 before March 28, 2005, the DOL mailed an certification notice to alien beneficiary without the certified application. The careful aliens should have kept this notice because it is an evidence of the certification of application that includes the priority date, certification date, occupational classification, and more importantly case number. Accordingly, people should look for either this approval notice of ETA 750 in their persoanl possessions or a copy of ETA 9089 which they should have kept when they signed and returned it to the employer or company lawyer. Some applicants might have neglected to make and retain a copy of ETA 9089. However, once they know the filing numbers of labor certification application and I-140 petition, there are some ways to search the information about the job the employer filed. Firstly, if one has a I-140 file number, he/she can check with the USCIS case status site and print out the approval confirmation. As for the ETA 750 or ETA 9089 labor certification information, he/she can check with the FLC Data Disclosure Center that contain all the labor certifications which have been filed since year 2000. The data includes case number, employer name, job title and either DOT or OES occupational classification, prevailing wage including wage level, offered wage, alien's nationality, nonimmigrant status, etc. Accordingly to the USCIS, similar or same occupational classification is determined by DOT codes for ETA 750 filing and SOC/OES codes for ETA 9089. He/she may thus want to print out this data which also confirm "certification" and date of certification. The foregoing data do not constitute a primary or direct evidence of certification, but can be taken as a secondary evidence that offers a valuable information to determine whether the new employment is considered a same or similar occupational classification.
02/09/2008: FY 2009 H-1B Cap Filing and H-1B Dependent Employers
Question: I am one of the partners owing and running a IT consulting services. We specialize in medical ITsolutions for the healthcare provider industry. We have 12 IT professionals working at the client sites. Six are U.S. citizens and six are H-1B nonimmigrants. We like to file four FY 2009 H-1B cap petitions on April 1, 2008. Would we have any problem? Discussion: Under the H-1B regulation, a U.S. employer cannot file a H-1B petition if the company is defined as a H-1B dependent employer unless they first engage in the recuritment to look for U.S. workers for the jobs and attest that there are no qualified U.S. workers available in the job market plus additional attestation that no U.S. workers have been layed off during the past 90 days and future 90 days. Employers hiring total of 25 employees out of which seven or more are H-1B aliens are defined as the H-1B dependent employer. The rule excludes those who are joffered and paid $60,000 or higher salary or who possess a master's degree in the specialty either from a U.S. college or a foreign college. Accordingly, if you offer and pay a salary of $60,000 or more, you can file the H-1B petitions on April 1, 2008 for the new employees. Additionally, even if you pay less than $60,000, but all or some of them have a master's degree in the specialty, again you can file H-1B petitions for the new employees on April 1, 2008. The position does not have to require a master's degree. The requiement is not qualification requirement for the job but qualification of the employees themselves. Besides, the master's degree does not have to be obtained in the U.S. Any foreign master's degree which is equivalent to a U.S. master's degree is sufficient.
02/09/2008: FY 2009 H-1B Cap Filing Without a Bachelor's Degree
Question: I have a two-year Associate of Arts Degree in Drafting. I do not have a four-year college degree. But I have worked in the architectural industry for 15 years initially as a drafter and afterwards as a architectural designer. I understand that I am eligible for the H-1B petition using my experience. Discussion: A specialty position is eligible for H-1B petition. Specialty position includes those that requires at least a four-year college degree in the specialty or the degree equivalent progressive experience. Three year progressive exprience in the specialty is considered equivalent to one-year in the college degree program. Accordingly, those who do not have a four-year degree but have 12 years of progressive experience in the specialty can obtain a foreign credential evaluation for U.S. bachelor's degree equivalency and file a H-1B petition. This rule applies only to "unlicensed" occupations. As far as licensed occupations are concerned, the H-1B petition requires more than a four-year college degree. Some licensed profeesion requires a license to start as an intern, while other occupations allow internship without a license inasmuch as the internship work is strictly supervised by a licensed professional in the specialty. Architecture falls under the second category. However, the details of the internship qualification are regualted by each state and different states require different academic preparation as a condition for "intern" practice. It is thus imperative that you immediately contact the licensing board in your state to see whether you will be eligible for practice as an intern without a four year college degree in architecture or related fields. The USCIS will require such evidence. If the State requires a four-year college degree in architecture or related field, you may not be eligible for the H-1B petition.
02/09/2008: FY 2009 U.S. Master Degree H-1B Cap and U.S. Master Degree Equivalent
Question: I graduated from a U.S. University earning a bachelor's degree in computer science in 2000. I then return to my home country and worked as a software engineer until 2007 when I returned to the U.S. to take an advanced degree program at a university in Alabama. I understand that my background is Master's degree equivalent under the immigration law in that I have a U.S. bachelor's degree plus five years of progressive experience. Shouldn't I be eligible for the U.S. Master Degree H-1B cap filing? Discussion: Good try, but no. The U.S. Master Degree special 20,000 cap number is applicable only to the U.S. Master's Degree holders and not to the Master's Equivalent Professional. For the purpose of "immigrant" proceeding, a bachelor's degree plus five years of progressive experience is equivalent to a master's degree, but it has no application to this special law that governs the 20,000 special cap. Your question was creative and cute, though. I loved it.
02/09/2008: AC 21 Porting Pending H-1B Extension Petition
Question: I am in I-485 proceeding. I have been working for the current employer in a H-1B status. My H-1B was about to expire and reach the six-year limit and my employer thus filed the three-year increment H-1B extension petition before expiration,. This petition is still pending but my I-94 has expired. I want to change employment since 180 days have passed and I-140 petition has been approved. I also want to keep my H-1B status. after porting. My new prospective employer is willing to file the H-1B transfer with the extension request for three years. Can my H-1B status be ported? Discussion: It appears that your question is related to the issue of H-1B porting in the context of AC 21 I-140 porting. The answer should be governed by the Yates AC 21 Memorandum. Under the Memorandum, H-1B porting does not require the alien beneficiary "in-status" inasmuch as the alien is "in a period of authorized stay by Attorney General." When a H-1B extension petition is filed timely and before expiration and the extension petition is approvable, the alien turns into a period of authorized stay even if the I-94 expired after filing such extension petition. When another transfer petition is filed by a new employer within this period of authorized stay but after expiration of I-94, the H-1B can be ported to the new employer under the Yates AC 21 Memorandum, no matter whether it is one-year increment or three-year increment extension. However, you should seek legal counsel in such porting rather than handle the petition on your own.
02/09/2008: AC 21 I-140 Porting Pending I-140 Amendment
Question: I am a research scientist working a pharmaceutical company in Connecticut. The company filed and obtained the labor certification and I-140 petition approval in December 2006. I could not file I-485 application because the visa number for my country was not available. This company was acquired by another company that is my current employer in May 2007. When the visa numbers became available in July 2007, I filed my I-485 application concurrently with the amended I-140 petition. Owing to the backlog in the USCIS I-140 petition, I have yet to receive the approval of the amended I-140 petition. However, since 180 days have passed after I submitted I-485 in July 2007, I am considering change of employer located in Florida. My wife is a physician who has been going through the green card process of her own based on the National Interest Waiver with the job located in Florida. The circumstances have forced us to live physically separated. I am sick and tired of traveling every once a while to travel to Florida to reunite with my wife. Worse yet, my wife has just delivered our first baby and I am currently separateed from my new-born baby girl. What would happen if I just take the offered new job and move to Florida? Discussion: Your story is one of many that I have heard in my law practice, a couple being physically separated because of the separate careers or immigration issues. I hope your journey for the immigration is completed as soon as possible. With reference to your question, there are many different types of merger or acquisition. Some are considered a successor-in-interest to the old company and some are not. This issue has to be determined and adjudicated by the Service Center. In your case, I-485 was filed concurrently with the amended I-140 petition which has yet to be adjudicated. This situation more or less falls under the rules on porting pending adjudication of underlying I-140 petition. It thus appears that you can port but once the amended petition is denied after porting, your I-485 is likely denied based on the rule that the pending I-140 petition must be "approvable." In my opinion, this presents some risk. I would recommend that you wait until the amended I-140 petition is approved before you port to new employment.
02/08/2008: Change of Job Location and AC 21 I-140 Portability
Question: I am a software engineer employed by a fortune 500 company. My labor certification and I-140 has been approved for the current job in New York. I filed I-485 about eight months ago. Now, the company is closing down the New York operation and they are about to transfer me to its operation in Austin, Texas. My job will remain the same except the job location. They have already filed H-1B amendment for reassignment in Austin. Since the labor certification was filed for the job in New York, I am scared to death. What do I have to do? Discussion: The AC 21 180-day portability applies to "new employment." Besides, such portability is available regardless of the new job location inasmuch as the new job is a similar or same occupational classification. This rule should apply to the change of locations within the same company as affected by closing of the labor certified office or transfer of the applicant to a new site or transfer to a company's subsidiary or affiliate or branch. When such relocation of the applicant is necessary, the employer must keep a good record and evidence that at the time of filing the labor certification application, I-140 petition, and I-485 application, the company had a "permanent" position, at least through 180 days of filing of I-485 application. They may also keep a good evidence on the circumstances that required such transfer or reassignment in the applicant employee's file in the company. When the nation's economy slides the slipper y slope, it is anticipated that more M&A or other changes may take place affecting the alien employees jobs but who are eligible for AC 21 portability. Indeed, the AC 21 portability will serve a "powerful" means to survive through the economic recession.
02/08/2008: EB-485 Pending at California Service Center
Question: Before the USCIS initiated I-485 bi-specialization program mandating filing of I-485 application with either NSC or TSC depending on the locations, I filed EB-485 applications with the CSC. I understand that all of the EB-485 applications which had been pending were transferred to either NSC or TSC. However, the CSC monthly processing times report still shows EB-485 processing time. Why is that? Discussion: According to the USCIS, it is true that pending EB-485 applications have been transferred to either NSC or TSC under the bi-specialization initiatives. However, the CSC reports that appximately 100 EB-485 cases were not transferred and are currently at the CSC. Reportedly, these cases are held at the CSC for investigation or to resolve certain issues and will not be transferred to TSC. It sounds that your case is one of those 100 cases that are held at the CSC.
02/08/2008: AC 21 Change of Employment on EAD vs. H-1B
Question: I have an approved I-140 petition and I-485 application is pending for more than 180 days. My employer's business has however been experiencing a down hill. I want to take a new job with another company. I have been working on a H-1B status. I know that I can take a new job either using EAD or H-1B transfer. What is the advantage and disadvantage of using EAD or H-1B for the purpose of the AC 21 portability? Discussion: Again when we discuss a set of two alternative options, the advantage of one option turns into a disadvantage of the other option. One disadvantage of porting on EAD is that the I-485 applicant loses any "nonimmigrant" status and his/her stay in the U.S. is considered "lawfully authorized" pending adjudication of I-485 application. In other words, such alien is considered not "in status." Accordingly, he/she cannot apply for change of status to other nonimmigrant status because one is not in any nonimmigrant status. For the same reason, once pending I-485 is denied, since the alien is not in any nonimmigrant status, the alien becomes "out of status" and is no longer in a lawful stay and remains subject to removal from the U.S. Additionally, he/she cannot apply for any nonimmigrant status within the country unless he/she first leaves the U.S. The advantage of H-1B is exactly opposite. The 485 applicant remain a "nonimmigrant" in the U.S. and eligible of extension or change of status inasmuch as the nonimmigrant visa status permits dual intent. Additionally, the denial of pending I-485 will not directly affect the legal nonimmigrant status and he/she can continue the employment and legal stay in the U.S. based on the nonimmigrant visa status. The advantage of EAD is that since he/she is not in "any" nonimmigrant status, he/she is not subject to any rules and restrictions that are attached to each specific type of a nonimmigrant visa. Accordingly, there arises practically no issue of violation of nonimmigrant visa status. The alien is allowed to go into an open market for employment inasmuch as he/she keeps the main employment that supports the approved labor certification and I-140 petition, no matter how many second jobs they want to take. The flip side of this coin is H-1B. Since the alien is a H-1B "nonimmigrant" status, the alien must strictly comply with the very restrictive and complicated H-1B regulations and conditions of employment including the location of the work and amount of salary paid. Any violation of the H-1B rule will jeopardize his/her pending I-485 application because of the violation of a "status," and unless the alien is eligible for certain relief such as 245(k), the pending I-485 will be eventually denied. It is incumbent upon the 485 applicants to quickly change the basis of employment from H-1B status to EAD when there is a risk of violation of H-1B conditions for either his own fault or employer's fault to save his/her pending I-485 application. Lastly but not least important is the right preservation of the required evidence in the event of AC 21 change of employment in a H-1B visa transfer. The first and foremost important is the meticulous drafting of the H-1B transfer petition by the new employer. AC 21 allows change of employment for a "similar" or same" occupational classification. In other words, the position must belong to the similar or same occupational classification with the position in the permanent labor certification application. If the employer inadvertently files a new transfer petition for a job of different occupational classification, surely enough, the USCIS will approve the petition without any objection. The problem is that in the USCIS records, there is the evidence that the alien is working in a different occupational classification and the new employment fails to support the AC 21 portability, which can jeopardize the pending I-485 application because the approved I-140 petition cannot be ported with the new employment. This last point is often neglected when a new lawyer handles the H-1B transfer petition for the new employer with no knowledge of the terms and conditions of the position in the approved labor certification application. Very important to remember.
02/07/2008: Employer Withdrawal of Approved I-140 and Portability of Pending I-485 to Another Employer's Approved I-140 Petition
Question: My I-140 was approved in November 2007 and I filed I-485 based on the approved I-140 petition. Unfortunately, there has since developed disagreement between me and the employer who has just withdrawn the approved I-140 petition. However, I have another approved I-140 petition through another employer with visa number current now. Can my pending I-485 be ported or transfered to the latter I-140 petition? In fact, this employer filed I-129H porting and I am ready to move to the new employer anytime using AC 21 H-1B portability. Discussions: Under the USCIS policy, the pending I-485 can be transferred to another I-140 petition either filed by same or different employer when certain conditions are met. At the time of request for transfer of I-485, the underlying I-140 petition must have been approved and remains valid. Secondly, the priority date must be current for the new employer approved I-140 petition. In your case, the priority date is current for your new employer's approved I-140 petition, but your current employer's approved I-140 petition is no longer valid because of the withdrawal. Therefore, you cannot transfer your pending I-485 to your new employer's appproved I-140 petition for you. Under the circumstances, you may have two options. First, if the priority date is current for your new employer's approved I-140 petition, you may want to refile I-485 quickly paying all the new filing fees. With reference to the priority date, please remember that even if your old employer withdrew the approved I-140 petition, this priority is retained for you and you can request the USCIS to transfer the old employer's priority date to your new employer's priority date by filing I-140 amendment petition by your new employer. The retained priority date is invalidated only when the underlying labor certification or I-140 petition approval is revoked by the DOL or USCIS or DOS for fraud or misrepresentation. The retained priority date is not automatically invalidated simply by the employedr's withdrawal of the approved I-140 petition. If there was a lapse of nonimmigrant status in terms of unauthorized employment or I-94 validity since your last admission to the U.S., inasmuch as it did not last longer than 180 days, just refile I-485 application using the new employer's approved I-140 petition under the 245(k) provision. The 245(k) provision of the immigration statute will forgive such violation and allow you to file I-485 application despite the foregoing violations. Remember that the rule of transfer of I-485 to a new I-140 is distinguished from the AC 21 portability and not related to the AC 21 Act. The AC 21 180-day portability rule involves the portability of approved "I-140" to the existing and pending I-485 application which the approved "I-140" petition supports, while the rule of I-485 applications involves transferring pending "I-485" from one underlying I-140 petition to another underlying I-140 petition for the support of the pending I-485 application.
02/07/2008: Order of I-485 Application Processing and Adjudication Within Service Centers
Question: I filed my labor certification application in May 2002. It is EB-2. The labor certification took a long time because it was a traditional application. The application was subsequently certified in May 2006. Based on the certified application, I filed concurrent I-140 petition/I-485 application in May 2006. The I-140 has been approved since then, but my I-485 has been stuck with the FBI name check. Because of the name-check delays by the FBI, the USCIS has been dragging adjudication of my I-485 application. Today, I heard a good news that the USCIS changed its policy and would adjudicate I-485 applications for which the FBI name check had been delayed for more than 180 days and the case is approvable. Now, I understand that since this obstacle for I-485 has been removed and I started the green card process in May 2002, out of the name-check problem cases that have been delayed longer than 180, the Service Center will handle my case first because of the early priority date. Please correct me if I am wrong. Discussion: Good shot, but you are wrong! The priority date is relevant only to the determination of visa number availability, but when it comes to the Service Center processing of visa number available I-485 applications, it is processed and adjudicated on the FIFO (Fist In First Out) basis regardless of who has earlier priority date. In other words, once all the visa number available cases are pooled together, the cases are processed in the order of the date of I-485 application receipt. Consequently, even though you have a priority date of May 2002, since you did not file I-485 application until May 2006, they may have some number of cases of I-485 which were filed earlier than you did. One caveat, though. This does not mean that every single case is adjudicated and come out of the adjudication pipeline in the order the I-485 was first filed. Because of a host of different issues, including RFE, internal investigation, cross check with other agencies and records, etc. etc., even though the same receipt day cases are processed in the same queue, the final back-end adjudication will be made in all different dates. In other words, depending upon the number of I-485 cases which had been filed earlier than you did but delayed because of all of these different issues and processes, your cases can be approved earlier than these earlier Receipt Notice date cases. Only God knows when it comes to the details of the cases which remain in the pipleline for adjudication.
02/07/2008: U.S. Master's Degree 20,000 Special H-1B Cap Filing from 04/01/2008
Question: I studied and obtained a bachelor's degree in business with a major in accounting in my home country. However, I came to the U.S. as a student to attend a Seminary and obtained a Master's Degree in Theology after being in the U.S. for five years. During the school year, I worked for churches as a intern misionary. Now, I want to go back to a secular career of a professional accountant and join a small CPA office in California. I understand that I will be eligible to file either FY 2009 H-1B cap case using a bachelor's degree in accounting and without using a U.S. master's degree or alternatively file FY 2009 U.S. Master's Degree H-1B Specialty Cap of 20,000. Is my understanding correct? Discussion: It is true that come 04/01/2008, those who hold a U.S. master's degree will have options of filing the regular FY 2009 H-1B cap petition or alternatively special 20,000 U.S. Master's Degree cap H-1B petitions. In the event that the later option is taken, inasmuch as one has a master's degree from an accredited U.S. higher learning institutions, regardless of the major, the degree can be used to pass the threshold for the special U.S. Master's degree cap filing. That much it is clear. However, it does not mean that a U.S. Master's degree holder with a major which is remotedly related to the specialty occupation the employer is filing will get approval of the H-1B petitions under any circumstances. This question is related not to the issue of whether such employer will be able to "file" the petition but to the issue of whether the petition which is accepted will be approved. It is one thing whether one is eligible to file a H-1B U.S. Master's degree cap case to take out the cap number and it is completely other whether the petition will be eventually approved. In the instant case, it appears that both options have advantage and disadvange. The advantage of one option will constitute a disadvantage for the other option. The disadvantage of a bachelor's degree cap filing is potential failure to get the cap number in the anticipated lottary since the USCIS predicts that they may receive much more petitions than the annual cap this year just like last year. On the other hand, since 20,000 U.S. master's degree special cap did not and may not run out on the first day, 04/01/2008, such option will more or less guarantee a successful filing within the annual cap. However, in the instant case, U.S. master's degree cap filing may face some issues in obtaining approval. It appears that the past experience reflects that when one files 20,000 special cap case using a U.S. master's degree which is totally not relevant or even remoteldy relevant to the job, the adjudicators appear to intensively scruitinize the professional nature of the position or even existence of such professional position with the petitioning employer. A good illustration is the facts involved in the instant case. The applicant studied accounting but never practiced or worked in the fields that require accounting knowledge or expertise for the past five years. Just like any other specialties, as time passes the body of the specialty knowledge changes, not to mention the practice and experience to continuously keep up with the specialty. For the reasons, the adjudicator can question the existence of the professional staff accountant position in the instant case. The adjudicator can suspect that the employer is hiring the alien for a low-level book keeper or accounting assistant rather than a professional accountant. When the employer files a regualr bachelor's degree cap filing, there will still exist such underlying issue but this issue may not surface as a primary issue in adjudication of the H-1B petition. This question is discussed here to alert the U.S. Master's Degree special cap filers to present a case more meticulously in the event that they will have to use a U.S. Master's Degree with a completely different specialty major.
02/06/2008: EB-2 Immigrant Petition for Professional Without a College Degree
Question: I am a well known woman in the Wall Street and for that matter, in the world. I am a sort of guru in Merger and Acquition area. My name is reported in the Wall Street Journal and Financial Times from time to time. I have been in this trade for 25 years. I make a high six-digit annual salary. But I do have a secret of my own. I did not go to college and do not have a college degree. I am a self-motivated hard-working businesswoman. I met with a high-profile immigration lawyer who advised that I was eligible for EB-11 Extraordinary Worker petition. I am a Japanese. My employer can file labor cetification for EB-3 without requiring a college degree, but the EB-3 immigrant visa number for the Rest of the World (ROW) has been hopelessly retrogressed. I looked at the EB-2 opportunity, including Advance Degree (Mastrer's degree) case and Exceptional Ability Schedule A Labor Certification Waiver case. They all require at least a bachelor or higher degree. I looked at the National Interest Waiver, which is also practically impossible without a degree. I also looked at the Worker Shortage special occupation labor certification waiver case. That does not fit either for EB-2 and without a college degree. Is the door for EB-2 completely shut for me? Discussion: It sounds that you are one of successful female Bill Gates. Unfortunately you did not reach the level of EB-1 Extraordinary Worker. It is true that generally EB-2 requires a minimum level of college or higher degree. Obviously, you cannot go for Advance Degree option or Schedule A Exceptional Ability Worker option as these options require educational degrees. However, often confused is another option of Exceptional Ability Worker EB-2 petition. This option is confused with the Schedule A EB-2 Exceptional Ability Worker option that does not require a labor certification but requires minimum of a college degree. Close examination of the immigration law will tell you that there is another Exceptional Ability Worker EB-2 option that requires a labor certification but does not require a college degree. However, you should meet the threshold to prove "exceptional ability" level of national/international acclaim, which is not that easy. But it is do-able for non-degreed professionals who have reached the top level in your field. Please seek legal counsel.
02/06/2008: H-1B Cap Annual Starting Date of April 1, 2008
Question: The fiscal year for the federal government starts on October 1 each year. I wonder why the H-1B cap filing opens on April 1 of a year prior to the involved fiscal year. Why not earlier or later? I am in a bachelor's degree program now and will not graduate until sometime May 2008. By the time I graduate, there would be no cap number available to apply for a H-1B visa status. Discussion: There is nothing magic about the starting date of April 1 for H-1B cap filing. Firstly, under the immigration regulation, a H-1B petition cannot be filed six months before the employment starting date in the petition. Since the earliest employment date available for the next fiscal year will be October 1 when the new H-1B annual cap number is allowed, the earliest the USCIS can accept the next fiscal year H-1B cap cases is April 1, 2008. The other reason is that the labor condition application which the employer must file prior to the filing of the H-1B cap filing also has a time limit. It is six month prior to the starting date of employment in the labor condition application. Accordingly, if the employer says that the starting date of employment in the LCA is October 1 or later date, the LCA cannot be filed before April 1 of the year since it will exceed six month. In order to deal with the conflict between the USCIS H-1B rule and the DOL LCA filing rule, the employers usually asks the starting date of employment in the LCA a date earlier than October 1 so that they can file the LCA before October 1 and timely file the H-1B cap petition on April 1 when the cap number will run out. The question then remains why the USCIS does not start opening H-1B cap filing any date later than April 1. They cannot do that in that when the H-1B cap number is available (October 1), they cannot refuse to accept the H-1B cap petitions inasmuch as the petitions are filed within six months of the proposed employment starting date. That is why they start taking H-1B cap petitions each year on April 1 and no earlier or no later date.
02/05/2008: Follow-Up of Pending EB-485, EAD, and H-4 Extension
Question: Just like the previous situation, my I-485 and my wife's I-485 are pending. But unlike the previous situation, I have never worked even if I had EAD and Advance Parole. My husband had not used EAD either until there was an emergency in the family back home and he had to use Advance Parole and returned to the U.S. on Advance Parole. I understand that the law presumes that I am in a valid H-4 status even though I am not in a valid H-4 nonimmigrant status until I file and obtain the H-4 extension application. My husband still has over two years valid H-1B and the employer is not willing to file H-1B extension for him just to reinstate his H-1B status. Can I file alone I-539 to reinstate the H-4 status? My H-4 I-94 is expiring soon since when I returned on the H-4 status last time, I was given a short period of time than my husband because my passport was expected to expire earlier than a valid H-1B period. Discussion: The current USCIS policy of presumption of H visa status for the returning Advance Parolee without recognizing the H-1B status until it is reinstated by filing H-1B extension has been raising a host of related questions. In this situation, there is no change about the law that H-4 is a dependent visa, which depends on a valid H-1B visa status of the spouse. Additionally, even though the agency policy presumes that the H-1B alien can resume the H-1B employment without an EAD and in this regard is considered in a hybrid H-1B presumption, such presumption stops right there and when it comes to other rules on application for change of status or extension of status or a host of other legal issues, the husband is considered in a parolee status and remains not in a nonimmigrant visa status until it is reinstated. For that reason, it is doubtful whether the USCIS would approve your stand-alone H-4 extension application unless it accompanies the H-1B spouse's H-1B extension petition for reinstatement of H-1B petition. Different lawyers may interprete differently on this issue and you should seek legal counsel rather than relying on the interpretation of an individual opinion herein.
02/05/2008: Pending EB-485, EAD, and H-1B Extension
Question: I filed concurrent I-140 and I-485 and my wife also filed I-485 as the derivative beneficiary. We received the EAD and Advance Parole. I did decide not to use EAD unless there is a special need or emergency and have been working the employer on a H-1B status. My wife is a college teacher and has been working for the college as an instructor using EAD. My employer has decided to file H-1B extension for me since it will expire in about two months. My wife, as affected by the increasing unemployment in the country, may lose the job and wants to file the H-4 extension with me. My employer also suggested to include her I-539 application to be filed with my I-129 H-1B extension petition. Isn't she eligible for H-4 status since I have been in a valid H-1B status? Discussion: The H-1B dependents have two ways to obtain or reinstate H-4 status. One is filing I-539 application for change of status (I-539) and the other is applying for the H-4 visa at the consulates using the H-1B alien's approved H-1B petition or extension and return to the U.S. With reference to the former option, your wife's use of EAD took away her H-4 nonimmigrant status within the U.S.. For that reason, she will not be eligible for extension of her H-4 status through the USCIS in the U.S. Accordingly, to reinstate her H-4, she will have to leave and return to the country using a valid H-4 visa and proof of her husband's valid H-1B status in the U.S. The latter evidence is necessaary because the H-4 is a "dependent" visa and remains valid only during the period when the H-1B principal alien's status is valid.
02/05/2008: Withdrawal of Approved I-140 Petition, Change of Employer, and Availability of H-1B Extension Beyond Six-Year Limit
Question: My labor certification and I-140 petition filed by the current employer have been approved but I could not file I-485 because of the visa number retrogression. I have been working for this employer in a H-1B status and even extended H-1B for three years beyond the six-year limit using AC-21 Act. I wonder what happens if I decide to change the employer and the angry employer withdraws the approved I-140 petition and the approved H-1B petition? Would a new employer be able to file a new H-1B petition for transfer of H-1B? Discussion: H-1B transfer beyond six-year limit is available in two different situations. One is the one-year increment extension when the labor certification was filed before one reached five-year in H-1B status and passed 365 days from the date of filing. The second option is the appproved I-140 petition regardless of the passage of post-labor certification application filing and there is a visa number retrogression for his/her priority date in the Visa Bulletin. Obviously, when the employer withdraws the approved I-140 petition, and the USCIS revokes the petition, the second option is no longer available either for the current employer or any other employers. As for the first option of one-year increment extension, since the withdrawal of the approved I-140 petition and USCIS revocation of the approved I-140 petition based on the withdrawal can be considered a "final" decision, even though the certified labor certification application has not been invalidated, the USCIS is likely to argue that even one-year increment extension would be unavailable because of the final decision, unless another labor certification application by the new employer has been pending meeting the AC 21 7th-year extension provision. However, you will be able to save the priority date from the current case since the priority date retention is lost only when the approved I-140 petition or the certified labor certification application is revoked for fraud or misrepresentation by the USCIS or DOL. You may want to review the Yates AC 21 Memo. Please seek legal counsel.
02/04/2008: Approaching FY 2009 H-1B Cap Filing and Time for Acting on Options for OPT Students
Question: I am in the Optional Practical Training after graduating from a college earning a Bachelor's degree. The OPT is scheduled to expire in June 2008. Would I be able to send in FY 2009 H-1B cap petition? Discussion: As discussed earlier, the FY 2009 cap number is again expected to run out on the first day, April 1, 2008. For the OPT students, the OPT students will not be able to seek the change of status to H-1B petition that will take effect on October 1, 2008 "unless" the petition packet includes a proof that the OPT student will be authorized to stay in the U.S. "as of" October 1, 2008. Of course, they can submit the FY 2009 H-1B petitions without such proof inasmuch as they seek a consular visa proceeding rather than a change of status to H-1B within the U.S. In fact, one of the options which will be popular will be to send in the cap H-1B petition without asking change of status within the U.S., and rather asking a consular H-1B visa processing before October 1, 2008 and return on or after 10 days before October 1, 2008. In November 2007, 20 leading U.S. Senators asked the DHS Secretary to adopt a stop-gap relief, giving a high hope for such relief. However, as the time passes without any clue as to the DHS action, the clock has indeed started ticking and these OPT students are getting nervous. The clock indeed ticks fast in that the options should be worked out "before April 1, 2008." One of the most popular options has been for these students return to the school for additional academic program and with the new I-20 for admission, they submitted H-1B cap petitions. Some of these students, however, had to make a decision as to when they should return to the school and depart from the current employment to take advantage of this opportunity. Here, involved is the SEVIS rule as to when the schools can issue I-20 with certain starting date of academic program. These OPTs should contact the schools as soon as possible to learn the details on this issue. Remember that you need a new I-20 before April 1, 2008 to file the H-1B cap petition on April 1, 2008, assuming you want to take advantage of this option. The other options the OPTs often used were temporarily changing the status from F-1 to other work-permit or non-work-permit nonimmigrant status such as B visitor, H-3 industrial trainee, J-1 exhange visitor, H-2B, L intra-company transferee, H-4, E investor or treaty trader status, etc. etc. However, each of these nonimmigrant visa status contains certain glitches that can affect their futures. For instance, once one takes a J-1 status, most of students will be subject to the two-year home residence requirement and will not be able to change status to other immigrant or nonimmigrant status. H-2B temporary worker annual cap also has run out. When it comes to the change of stutus is concerned, if their spouses are in other nonimmigrant status, they may as well change the status to a spouse dependent visa such as F-2, H-4, E-2, L-2, etc. Another risk involved in the option of a temporary change of status to other nonimmigrant status is that should the H-1B cap petition is approved first, followed by the approval of the stop-gap other nonimmigrant status, it may deprive him/her of the opportunity for change of status to H-1B within the U.S. coming October 1, 2008. They may have to apply for the H-1B visa and return after obtaining the FY 2009 H-1B cap petition approval. The OPT students should seek legal counsel as soon as possible to review and decide the options that fit for each of them.
02/03/2008: Follow-Up of AC-21 Porting Pending I-140 Petitions After 180 Days of I-485 Filing Under a Hostile Separation of Employment
Question: I filed a concurrent I-140 and I-485 application on 07/01/2007. On January 10, 2008, I changed employer using the AC-21 180-day porting provision of AC 21. I have yet to obtain the I-140 petiiton. However, unbeknownst to me, a RFE was issued to the employer, who immediately responded to the RFE that I was no longer working for the employer. The employer notice was filed with the Service Center after 180 days. Shockingly, learned on the USCIS status checking site, both of my I-140 petition and I-485 had been denied. I have never received from the USCIS that they intend to deny the application before I have just learned the denial of I-140 petition and I-485 application. What is going on? Discussion: As we discussed earlier, when the I-485 applicants port employment under AC-21 before I-140 petition approval, even if 180-day clock passed, there is a substantial risk of losing everything when the employer is hostile. There are a huge number of people who filed the current 140 petition/I-485 application during the period of July 2007 Visa Bulleting fiasco and who have yet to receive I-140 petition approval which has been delayed because of the ongoing I-140 petition processing backlogs within the Nebraska Service Center and the Texas Service Center. In this regard, these applicants should review the USCIS Yates AC-21 Memorandum of 05/12/2005. This still remains the guidelines for the agency's decision on AC-21. In the specific incident of present case, the relevant Yates' memoprovides that if a response to an RFE is received, and (1) the response does not adequately address the issues, or (2) the response is simply that the beneficiary no longer works for the petitioner, or (3) a response is not received at all, the pending I-140 petition can still be denied and simultaneously the Service Center can deny the pending I-485 application. In other words, even if it passed 180 days, the Service Centers are not obligated to issue NOID prior to the outright denial for the foregoing reasons. The risk of being under the whim of a hostile employer who has a power to kill one's immigration journey!
02/02/2008: Additional Helpful Tips for 04/01/2008 FY 2009 H-1B Cap Filing
Question: I am a human resources manager of a mid-size corporation with annual revenue of eight digits. What are the potential pitfalls for the large employer to process the H-1B filing? Discussion: Large corporations have a fairly perfect inhouse legal staff or human resources personennel system that is familiar with the H-1B processing. One problem, however, they sometimes experience is the filing fee processing system. The most typical grounds for "rejection" of the H-1B filing are missing forms, lack of signatures on the forms, and flaws in the filing fee checks or rejection of the checks by the corporate banks. Rejection means that the cases are considered not "filed" on the date of physical delivery of the petitions, a deadly consequence in the H-1B cap filing. Large employers tend to use mechanical processing of checks by outside business that is not flexible in customizing the cutting checks to fit all different purposes and needs. Sometimes, this creates problems. A few illustrations includes: (1) The checks are made payable to "Department of Homeland Security." Since the checks are deposited in the U.S. Treasury banking system, it has been the agency practice requring not to write the street address of the payee. However, the mechanical processing sytems of these corporation are programmed such that without the payee addresses, they could not issue checks. They then write the street addresses of the Service Center where the H-1B petitions are filed. These checks are often rejected by the government depository banks. (2) In FY 2008 H-1B cap filing, there were reports of large number of filing rejection because of the use of numerical numbers on the face of the checks which require describing the amount in the English alphabets. For instance, $320.00 checks are often written in below the numberical amount by alphabets, Three Hundred and Twenty. Often, though, their mechines are automatically programmed such that additional numberical numbers are added such as oo/100 or other numberical numbers to indicate that no "cents" are involved. These checks were in most cases rejected. This is a dilemma for check processing machines of large company that often cannot be customized. (3) The agency requires to specify the case type, name of the petitioner (employer), and full name of the alien beneficiary in the "memo" section of the checks. They require these to match the payment to a specific filing. However, the check processing machines are not flexible enough to accomodate such needs, particularly when the check processing is outsources to outside business. Accordingly, the required information is added and typed in on the processed checks by the company personnel or outside counsel's staff. There were some instants the large corporattion banks had returned the checks to the agency for the suspicion of tempering of the checks. Again deadly consequences, not to mention an embassment of large corporation checks being rejected in the agency record for failure of the banks to honor the checks! (4) Last but not less important is corrections on the checks. Last year, these checks were rejected, even if the initial was placed next to the correction on the checks. Consequenly, the employers should make it sure to write a new check rather than just correcting and inititaling on the checks. In large corporations, this tends to create a additional process. The employers should thus use proof-reading arrangement for the checks and forms to assure not experiencing the deadly consequences of rejection. On the face of the checks, they should check over and over again every item including (1) check writing date (2) name of the payee (3) numberical number of amount (4) entire alphabetical description of the amount without any numerical numbers (5) signature (6) completion memo section clarifying type of form for which payment is made, pletitioner name,. and alien name. Any inconsistencies on the checks including the amount will experience rejection. One other caution. For unknown reasons, and despite the agency's repeated recommendation to write a separate check for each form, some employers tend to resist such recommendation and cut checks, each check to pay all the forms for one individual or even family members. The problem is any flaw in the total amount or the names of the applicants can lead to rejection of the entire filing, a very deadly consequences. We have also recommended that the overnight delivery "tracking" number be visibly printed below the date of the filing cover letter for the purpose of proof of delivery of a specific case. Tracking number of Fedex or UPS or whatever means nothing without such precautionary action in that the tracking number is not a proof of any specific contents in the packet. This is particularly true for the employers who file multiple cases in the multiple packages. Eventually, should the agency misplace or lose any one of these packages, the employer will have no specific external verifiable proof that any specific tracking number contained the missed file. The only evidence they have will be a self-serving argument of company's internal record. Important to remember.
02/01/2008: How Do I Send General Questions for General Discussion on This Site?
Question: I would like to send some questions to this site for your discussion. What do I have to do? Discussion: Readers may send their questions to our email address: ohlaw@immigration-law.com. Please beware that a question similar to your own may be discussed on this site. You should not take any questions and discussions on this site as legal advice or specifics of your own case. The questions are our hypothetical facts which are not related to any specific individuals or any specific facts to the individuals. Those who seek answers or specific advice to their specific cases should not send us email as we cannot give legal advice over the electronic media. They should address such questions to their legal counsels.
01/31/2008: Consequences of F-1 OPT Not Joining the H-1B Employer
Question: I am a graduate of a school in the U.S. I took a Optional Practical Training (OPT) with one employer and another employer filed H-1B petition and obtained the approval. However, I did not join the H-1B employer. Now, I am considering the options of going back to school and resume F-1 status for an advanced program or alternatively have another employer file transfer of H-1B. The first H-1B was approved more than six months ago. Are these options available? Discussion: The rule the USCIS applies to the OPT students appears to be somewhat different from other nonimmigrants who obtain H-1B approval and not joing the H-1B employer. The Nebraska Service Center adopted and other Service Centers also generally apply the rule that the OPT who obtains a H-1B approval cannot return to the school in F-1 status unless they file change of status from H-1B to F-1. Additionally, they consider such OPT alien falling out of status when they fails to join the first H-1B employer who filed change of status H-1B petition for the first time. This position of the Service Centers is related to your second question. Since you never join the first H-1B employer, you may also experience a problem in H-1B porting to a new employer as the USCIS may demand you to prove that you have maintained the status. Please seek a legal counsel.
01/31/2008: F-1 Nonimmigrant Traveling Pending I-485 Application
Question: I am in a H-1B status and my husband is in a F-1 status. We filed I-485 applications which are pending. I have a two-part question on my husband. The first question is whether he has to change his nonimmigrant status from F-1 to H-4. Second question is whether he can visit our home country, China, and return on F-1 status. Discussion: The EB-485 applicant's nonimmigrant status other than H or L visa status is not automatically invalidated by filing I-485 application. However, if F-1 seeks extension of status, the USCIS will deny such application for extension and consequently he will lose the nonimmigrant status. The USCIS will deny such extension application because the F-1 students must maintain permanent residence in the home country and should not have an immigrant intent. Additionally, F-1 nonimmigrant pending I-485 application will have a problem in traveling outside of the U.S. Upon his return to the U.S., the immigration inspectors at the port of entry will deny readmission to this country once they learn that they filed I-485 applications. The problem does not end there. Assuming that he is mistakenly readmitted to the U.S. in a F-1 status, he will face a deadly consequence with the pending I-485 application. Under the immigration law, if the I-485 applicants reenter the U.S. without an advance parole or H or L visa and in other types of nonimmigrant visas, the pending I-485 applications are considered abandoned and at the final stage of I-485 applications, the adjudicators of the USCIS will deny the I-485 applications. Something to keep in mind.
01/30/2008: Traveling on Advance Parole and Reinstatement of H-1B Status
Question: My EB-485 has been pending since 2006. Even though I obtained EAD and Advance Parole, I have always worked and traveled on H-1B. I have a H-1B approval until February 20, 2008, but I do not have a valid H-1B visa in the passport. Now I have a family emergency and will have to leave the country in the next two or three days. My AP will remain valid until May 2008 but my EAD has expired and EAD renewal application was filed about 20 days ago. Situation is such that I will have to travel on Advance Parole and attempt to file H-1B extension before the current H-1B expires. By that time, my EAD would have expired. What problem may I encounter? Discussion: EB-485 applicant in H-1B status can work and travel on a valid H-1B or alternatively EAD and Advance Parole. There is no regulation but the current immigration policy allows such H-1B to resume his H-1B employment after traveling on AP, even though his/her status will remain a Parolee. Additionally, such H-1B workers can also continue the employment even if the EAD has expired inasmuch as he/she has a valid H-1B notice. Besides, he/she can reinstate his/her H-1B status by filing and obtaining H-1B extension petition before his or her current approved H-1B expires. In your case, you do not have a valid EAD and it is not likely that you will receive the new EAD before your current H-1B expires. This presents a question which has not been clarified by the agency, to wit: Whether you will have an employment authorization after your EAD expired and your current H-1B expires pending the H-1B extension petition. In the normal H-1B rule (Section 248) of the USCIS, the H-1B alien's employment and authorization to stay in the U.S. is automatically extended for 240 days pending adjudication of the H-1B extension and inasmuch as the extension petition was filed before it had expired. However, it is not clear whether Section 248 will apply to a situation where you will be in. The policy just presumed that even though your legal status was a Parolee, the employment authorization that was inherent in a H-1B status would be transposed to such alien. The troubling question is that your H-1B will not be reinstated until the H-1B extension is approved. The related question is whether during the period of gap between the expiration of current H-1B status and the approval of the H-1B extension you will be authorized to work without a valid EAD and a valid H-1B. If you are conservative, you would rather file a premium processing H-1B petition as soon as you return so that you do not create a potential gap in the employment authorization. In fact, this question should be addressed to the USCIS HQ leaders for their clarification. Until that time, it may be prudent to take a conservative and precautionary action.
01/29/2008: AC 21 I-140 Porting After 180-Day of EB-485 Filing and Legal Representation
Question: My current employer filed concurrent I-140 petition on July 29, 2007 based on the certified labor certification application. The petition has since been approved. As of today, I may be eligible for AC 21 portability since my I-140 has been approved and 180 days have passed since I filed EB-485 on July 29, 2007. Unfortunately, the employer's business is going downhill and I am not sure whether the company can pay me the H-1B salary in the future. Since my service is very important for the company's business, the company is not willing to let me go to take a new employment that meets the threshold of AC 21 portability. Currently, I am represented by the company lawyer. What happens if I just port to new employment? Discussion: Under the AC portability provision, the employer's withdrawal or revocation of approved petition will have no impact on the pending EB-485 application. inasmuch as the alien has ported properly meeting all the legal thresholds. However, there is one precaution you will have to take in the event that the employer turns hostile. From the USCIS perspectives, your company lawyer remains the attorney of record for your I-485 proceeding and all the communication including RFE will be directed to the company lawyer without your knowledge. Worse yet, had the employer filed G-28 on your behalf in filing your EB-485 without a legal counsel, all the communication will be directed to your employer. Since the communication from the agency is critically important in that it usually has to be responded within a given and short period of time, you can be critically hurt. As far as the company lawyer is concerned, even though the lawyer is in dual legal representation situation, they face a conflict of interest in representing both the employer and yourself. Accordingly, the company lawyer should withdraw the legal representation of you once you leave the job in a hostile environment by filing the legal representation withdrawal notice with the agency, but a lot of company lawyers often neglect to do it and place himself or herself in predicament when they receive communications about your I-485 applications because of the conflict of interest. Accordingly, unlike the friendly separation from the employment, when the employer does agree to your departure, it may be prudent to retain a new lawyer who will then quickly file substitution of legal counsel for you so that all the communication of the agency be directed to the new lawyer. When you do not hire a lawyer, you should still give a notice of termination of the company legal counsel and ask the agency to direct all the communication to directly to yourself. Additionally, it may be prudent in such hostile separation that you file a notice of AC 21 porting proactively and quickly with the Service Center so that they handle your case properly and continously without issuing a notice of intent to deny I-485 application, EAD, and AP based on the employer's withdrawal. They are required to take such action as the agency was not aware that you had ported under the ACT 21 Act and under the circumstances of non-portability situation, the employer's withdrawal of the approved I-140 petition should lead to denial of I-485 application unless you submit AC-21 porting evidence in response to such NOID. In the latter situation, you are creating an unnessary risk in that things can go wrong in many ways. For instance, some employers and their company lawyers do not give a copy of the labor certification application and I-140 petition, not to mention the approved labor certification and the approved I-140 petition. Since AC 21 porting requires that the new employment must be in the same or similar occupational classification, porting without a copy of these legal documents can result in taking dissimilar occcupational classification which is different from the labor certification application jobs, and consequently the change of employment could turn out to be a mistake.
01/29/2008: FY 2009 H-1B Cap-Gap Needced for F-1 OPT Students
Question: I graduated from a college in the U.S. in June 2007 and have been working on OPT EAD. What are the chances of my H-1B filing in coming April 2008? Discussion: There are a large number of foreign students who graduated last year and working on OPT status. These students will be deprived of the opportunity to file FY 2009 H-1B cap filing on April 2008 because they will not be able to prove "in-status" as of October 1, 2008 at the time of filing such petition on April 1, 2008. Ever since the annual H-1B cap number was reduced to 65,000, the foreign students have experienced such predicament. In order to relieve the foreign students from such predicament, the legacy INS and DHS for a short time implemented so-called H-1B cap-gap policy which considered such student in an authorized status as of October 1 inasmuch as the foreign students were in status at the time of H-1B cap filing and the H-1B petition was timely filed before reaching the annual H-1B cap. However, this policy has been suspended for the last few years forcing the U.S.educated foreign student graduates to depart from the U.S. The tension involving this issue had turned acute in the later part of last year and twenty leading U.S. Senators wrote a joint letter to the Secretary of Homeland Security to reinstate the cap-gap relief policy. At the time of the Senators' action, there was some indication that the DHS was also considering some type of actions involving such aliens. Since then, the DHS has remained silent. Obviously, there are two hurdles for the DHS to take such action. One is the DHS internal jurisdiction problem. The cap-gap involves a relief for foreign students running out of status during the period of cap-gap which involves the jurisdictions of U.S. ICE and USCIS. Traditionally, the DHS had a problem in working such concensus. Another factor could be political environment facing the national election in November 2008. For these students, indeed time is running out in that since the FY 2009 H-1B cap will reach on April 1, 2008, they need the DHS action within next two months. Otherwise, their opportunity for the cap-gap H-1B filing will be totally disappeared. We really hope that the DHS exercises its discretion as soon as possible to prevent exocus of U.S. educated foreign brains.
01/29/2008: Upcoming Labor Certification Processing Policy and System Change and Impact on Processing Times
Question: I am currently attending school and expected to graduate in May 2008 with a Master's Degree in Computer Science. Accordingly, I expect to take a job and hope that the employer will start the PERM labor certification application process in July or August 2008. I have heard that the permanent labor certification application is taking a longer time now and because of the policy change, it is getting difficult to obtain certification. I wonder whether you can shed some light on the permanent labor certification situation when I will start the labor certification process. Discussion: It is true that since August 2007, the labor department has adopted narrow standards leading to increased denials and increased audits. Before August 2007, most of the PERM applications were certified from two hours to ten days in Chicago National Processing Center. However, as affected by the changed policy, such processing time has turned into a history. According to the DOL, currently even clean cases take from 45 days to 60 days. Besides about 44% cases are audited, experiencing much longer delays. The situation is expected to be deteriorated beginning from summer 2008 which is the time when you expect to start the PERM application process. The first change will be the change in the PERM application form. This new form is expected to be released and implemented beginning from the summer this year. Careful review of the current form and the proposed new form will show you that the new form will heavily focus on achievement of the integrity of the labor certification system and reduced flexibility in the adjudication. It is suggested that you review the following three documents for the proposed changes in the ETA 9089 PERM application form: (1) Revised PERM Form ETA 9089 ; (2) Instructions to the proposed revised ETA 9089; (3) Statement in Support of the Proposed Revision of ETA 9089. When the new form is implemented, the processing times may turn worse. Second change will include the structural change within the agency. In time with the foregoing change, the DOL will reshuffle the foreign labor certification processing system from the current two geographical National Processing Centers in Chicago and Atlanta to single processing PERM processing center. The current Chicago National Processing Center will handle exclusively "temporary" labor certification applications such as H-2A and H-2B, while the current Atlanta National Processing Center will handle all the PERM applications. Accordingly, from the perspectives of the PERM proceeding, the PERM processing will be totally "centralized" in one national processing center. The positive impact of such structural reshuffle will include elimination of disparity which has been experience between the Chicago Center and Atlanta Center and resulting achievement of uniformity and fairness in the adjudication and processing times regardless of the geographical location of the job sites. However, initially it is anticpated that the processing times may be further delayed until the PERM National Processing Center recruits sufficient resources. The third change that you may witness will be user fee charges for filing of the PERM application. Currently, the labor certification application is free of any filing fees. This is expected to be changed as soon as the DOL introduces a legislation to charge the fees. The DOL is poised to introduce such legislative bill. Along with all of these changes will come the increasing processing times. Earlier, the DOL predicted that the average processing times may turn into six months in FY 2008.
01/28/2008: Risk of Multiple Filing of FY 2009 H-1B Cap Cases
Question: We run an IT consulting business for the employers and are scheduled to file a number of FY 2009 H-1B cap cases in coming April 2008. I understand that in FY 2008 H-1B cap filing, employers filed multiple H-1B petitions for the same foreign worker for the same position and some were successful in obtaining H-1B in the lottery. What are the chances that the same opportunity may be available in FY 2009 H-1B cap filing? Discussion: The USCIS is predicting that the FY 2009 H-1B cap numbers are likely to run on the first day, April 1, 2008, Tuesday. It is also obvious that the agency may have to go through a random selection lottery process again this year. The USCIS recognizes the problem of multiple petition filing for the same employees by the same employers and has released an information that this year the agency intends to sort out such multiple filings and reject or deny all of them. It must be a challenging task for the Service Centers to undertake such work, but it is obvious that unlike the previous year, the risk of filing multiple petitions by the same employer for the same employee for the same positions will be substantially high since the USCIS has been developing so-called "account system" of immigration benefits processing and adjudication. No one knows how far the agency has gone to develop the account system. One of the accounts the agency was expected to develop was to develop the employer account databases. However, there is a legal issue as to whether the USCIS can either reject or deny the multiple H-1B petitions for a given alien by the multiple different employers for different positions. Such multiple filings will not give any benefit to a given employer, but from the perspectives of the alien employees, the chance of random selection may increase substantially. It is uncertain whether the agency will expand their policy against the multiple filings by the multiple employers, but in the event they adopt such policy, the agency may face legal challenge in courts by the U.S. employers. From each employer's perspectives, it may be construed an illegal deprivation of their rights to petition for a required foreign worker, particularly when each employer had no knowledge of other employers' filing of the H-1B petitions for the same employee. Interesting question to watch ahead.
01/28/2008: Validity of Approved Labor Certification: Amendment of Approved I-140 Petition for Former Employer's Retained EB-3 Priority Date
Question: My former employer filed labor certification application on April 20, 2001 and obtained I-140 approval in December 21, 2004. However, I left the employer and took a new job with the current employer. The new employer filed EB-2 PERM application in April 2005, which was approved only on January 15, 2008 after going through RFEs, Motion to Reopen, and other difficult legal proceedings. The approved labor certification passed 180 days from July 16, 2007, but I want to amend this petition to take up the earlier priority date of my former employer. Will such filing of the approved I-140 petition amendment be denied for the reason that the labor certification has expired? Discussion: No. Again, the USCIS is currently taking a liberal position allowing amendment of I-140 petitions inasmuch as the initial I-140 petition was filed before certified labor certification application had expired and not invalidated for the reasons of fraud or misrepresenation. See USCIS amended Adjudication Manual
01/28/2008: Validity of Approved Labor Certification: Abandonment of I-140 Petition
Question: My employer obtained PERM on August 2, 2007 and filed I-140 petition on August 7, 2007. On November 25, 2007, the employer withdrew the pending I-140 petition because of some misunderstanding on the part of the employer about my commitment to the business. Now, the PERM application has expired after 180 days. Now the misunderstanding has been cleared up and the employer is willing to file another I-140 petition using the expired labor certification application. Is it do-able? Discussion: The USCIS has been taking a liberal policy on the impact of the DOL's 180-day expiration rule of the certified labor certification application. The current USCIS policy allows filing of a new I-140 petition when the employer previously abandoned the I-140 petition inasmuch as the initial I-140 petition which has since been abandoned was filed before the certified labor certification application had expired and it has not been invalidated for fraud or misrepresentation. Obviously, in the present case, the employer should submit a proof of previous I-140 petition by the same employer for the same employee using the same certified labor certification application. See USCIS amended Adjudication Manual
01/27/2008: Validity of Approved Labor Certification: Follow-Up
01/27/2008: Validity of Approved Labor Certifications:
Question: My employer filed the EB-2 labor certification application on May 23, 2004 which was approved on January 13, 2007. The employer filed concurrent I-140 and I-485 on July 25, 2007. Even though I got EAD approval based on I-485 application, I have maintained H-1B status which is valid until January 10, 2010. After a long delay, last week the I-140 petition was denied on the issue of equivalency of Indian "Master's degree" to the U.S. Master's degree. The EB-2 labor certification required either a master's degree or equivalent foreign degree or alternatively a bachelor's degree plus five years of progressive experience. Unfortunately, employer requested EB-2 based solely on the Indian Master's degree and did not request to consider the alternative qualification requirement and failed to submit the bachelor's degree and the evidence of five years of progressive experience. Can I refile EB-2 I-140 petition using the certified labor certification application and the evidence of my bachelor's degree and five years of qualified work experience? Discussion: Under the new labor certification rule, a labor certification which was certified before July 16, 2007 would remain valid for six months from July 16, 2007. Once the I-140 petition is filed during the period, the certified labor certification application would not be affected by the new rule that provides expiration of certified labor certification application in six month. Since your employer filed the I-140 petition on July 25, 2007, you were not affected by the six-month cap rule of the certified labor certification application. Unfortunately your I-140 petition was denied after six months of July 16, 2007. Question remains whether you can refile I-140 petition using a bachelor's degree plus five years of experience evidence using the same certified labor certification application. The answer is "yes." Under the current USCIS policy, once an employer filed I-140 petition within six months from July 16, 2007 and the certified labor certification application has not been invalidated by the labor department due to material misrepresentation or fraud relating to the labor certification application, the employer is permitted to refile I-140 petition any time regardless of denial of the previous I-140 petition. Unfortunately, the USCIS denied your I-485 application along with the denial of I-140 petition and you cannot refile I-485 application since the EB-2 visa number is unavailable for India at this time. You are lucky that you have maintained a H-1B status. See USCIS amended Adjudication Manual