17. Question(08/14/10) My labor certification sponsor was company A. The labor certification was certified, and based on the approved labor certification, I filed I-485 based on the approved I-140. The labor certification salary was $56,000/year. Now I took a new job with the Company B. When I changed the job, I did not invoke AC-21 since the Company A remains the sponsor of the pending green card proceeding. Current job pays about twice of the labor certification salary. The labor certification job title was Programmer Analyst, while the current job with the Company B is Senior Software Engineer. However, the duties are very similar. If the Service Center issues a RFE or schedules an interview at the local district office, would the salary difference between the Employer A and Employee B create a problem?

Answer: The salary difference between the labor certification and the new employment is relevant only if you invoke AC-21. In fact, the AC-21 law does not specifically require same or similar salary. It rather requires a same or similar occupational classification. A salary difference is however implicated in assessing whether the job is a same or similar occupational classification with the labor certification occupation since common sense would tell that a huge salary difference can take as an indicator that the two occupations should be different occupations. That is why the USCIS reviews the salary difference in adjudicating AC-21 issue. In your case, though, since you have not and will not invoke AC-21 for the change of employment, on the surface, the salary difference between the two jobs is not relevant. The real issue that can come up and the agency will focus when they issue RFE or schedule interview in your case will be whether or not the labor certification job either existed at the time of filing or still exists. Since basis of the labor certification application lies on the parties' intent to offer and accept the proffered job and such job must not be a speculative job and must exist at least at the time of invoking AC 21, they will focus on the issue of "existence" of the job offered, particularly when you do not invoke AC 21. Under the immigration law, the alien beneficiary of a certified labor certification application does not have to work for the sponsoring employer since the labor certification job is a "permanent" employment. Accordingly, inasmuch as the job continues to exist and both employer and employee intend to offer and take the job when the green card is approved, there should not be any problem. But it is not as simple as what you think. Typical illustration involves a situation where the U.S. employer sponsors a labor certification for an alien in a foreign country. The other illustration is an employer sponsoring a labor certification for an alien in the U.S. working for another employer and is not their employee. In such cases, such law will work fairly smoothly. However, the theory should not be taken as a rule with no variance. As one can imagine, there will be a huge difference between a case where employer sponsors a labor certification for its current employee and a case where employer sponsors a labor certification for somewone who is not its employee. There is also a huge difference for change of employment between a situation where an alien beneficiary of the same employer had an EAD or H-1B or other employment authorization at the time of changing employment and a situation where an alien beneficiary of the same employer had to leave the job because the alien no longer had an employment authorization. Or the alien decides to change employment invoking AC 21. If the alien beneficiary does not work for the sponsoring employer when the alien is authorized to work and the employer attested that it needed the alien and now the job is available for the alien, without doubt, it raises a red flag on the two issues: Firstly, whether the job continues to exist. Secondly, whether either the employer or employee had the required intent to offer and take the job of the company for a duration of indefinite period of time. Sometimes, the issues and evidence to deal with such issues can be tougher than AC 21. In your case, it appears that you still have an option to back up your change of employment either invoking AC 21 or without invoking AC 21 and you should give these options open. This is particularly true for a small company that sponsored the labor certification in that such company may not be able to prove that they have such job offered for the alien when they have only a limited number of projects in the area of the intended place of employment for the labor certification application. You should thus seek legal counsel. Your legal counsel should review and assess carefully and weigh the strength and weakness of each of these two options in your specific curcumstances and advise which option you should take. When it comes to the AC 21 option, you should look into two issues of difference in job titles and difference in wages. In old days when the government adopted the Dictionary of Occupational Titles (DOT) for the determination of occupations among almost 10,000 classifications, the programmer-analyst and the software engineer were two distinctably different occupations of two different codes. Besides, the programmer analyst was a SVP 7 occupation which usually required a bachelor's degree or less, but software engineer was SVP 8 occupation which usually required a bachelor's degree and upto 8 years of experience or master's degree and many years of experience. Fortunately, since March 2005, DOT is no longer used by the government for the occupations. It now uses O*Net system of SOC/OES classification system which has only less than 1,000 occupational classifications. In this process of merger of various similar occupations, the programmer-analyst was eliminated as its own occupational classification and became part of Computer Software Engineer, Applications or Computer Software Engineer, Software Systems. Accordingly, the difference in the names of titles in your case should not pose a huge threat. Besides, because of the occupational classification changes, the Service Centers have been lenient in interpreting "similar" occupational classification in the AC 21 Act and inasmuch as the overall description of duties and responsibilities are similar and classification is either same or similar, they accept such AC 21 change of employment. Usually Senior or Manager titles raise some concerns in determining same or similar occupational classification, but they understand that employers give all kinds of crazy titles. For instance, some companies uses Software Engineer job title when the job is barely a computer programmmer, while other company gives computer programmer titles when the job represents a software architect! The key is duties and responsibilities. As for the wage differences, double difference is something which you should be concerned with if you are forced to invoke AC 21. However, there are many factors that affect the wage figures, such as time difference between the labor certification was filed and now, physical location difference between large metropolitan areas, particularly where high tech industry is focused, and small rulral towns, and the difference of the size of employers' businesses between small company and Fortune 100 company. They look into all of these factors and your legal counsel should address such difference to the agency in response to RFE or at the interview if the case is transfered. Until you make this decision, you may want to open the door for these options. Good luck.

16. Question(08/06/10) I am a native of India and a citizen of Canada who has been working for a Fortune 500 company for ten years (initial four years in TN and six years in H-1B). My H-1B status will expire at the end of September 2010. I would like to continue my employment with this employer. Can I extend H-1B third time? If not, what do I have to do?

Answer: Since H-1B is limited to maximum of six years, unless you are eligible for 7th year extension pending labor certification for more than 365 days or three-year increment extension based on an approved I-140 petition, you should look for another employment-based nonimmigrant status to continue the current employment. The 7th year H-1B extension is out of question in your case since your employer has never filed a labor certification or I-140 immigrant petition. Accordingly, only option is the three-year increment extension based on an approved I-140 petition. I do not know what your occution is, but if you are eligible for any labor certification waiver immigrant visa classification, then you can file such I-140 petition on premium processing basis. Most likely, labor certification waiver immigrant category falls on EB-1 (extraordinary worker or outstanding researcher/teacher or multinational corporate executive or manager). Currently, premium processing for EB-1 is limited to the first two categories. It means that if you are an executive or manager of the company and consider third category, it will not work. On top of all of these, the current Visa Bulletin blocks any opportunity for EB-1 beneficiary to file for three-year increment H-1B extension under AC 21 because such H-1B extension is available only when the visa number is not available. EB-1 is wide opened for any countries in the world at this time. There are a couple of EB-2 categories of labor certification waiver. Exceptional ability, Schedule A, and National Interest Waiver. Since you are a native of India and EB-2 visa number is retrogressed for Indian natives, once you get this type of EB-2 labor certification wavier I-140 petition on premium processing basis, there is some possibility for you to extend H-1B in three-year increments. Currently, National Interest Waiver EB-2 I-140 petition is not eligible for premium processing services. Accordingly, it narrows down only to two options - exceptional ability or Schedule A. I do not know whether any one can jump that fast to put together all the required evidence and file so quickly enough to meet your needs. From the foregoing analysis, it appears that only feasible option is for you to return to a TN visa status. Currently, TN visa status is given in three-year increments for Canadian citizens and more importantly "indefinitely." Until you start and move on to the certain phase that will give you an I-140 approval, I would go back to TN status a while. TN requires your maintaining permanent residence in Canada, but starting and pending labor certification or I-140 petition is not considered a bar to extension of TN visa status. For the reasons, as soon as you return to a TN status, I would immediately start the labor certification process and once I-140 is approved on premium processing basis, three-year H-1B option to deal with the forthcoming I-485 application. Application or pending I-485 application will make you inegilible for extension of TN visa status. Fortunately, nowadays, permanent labor certification does not take a long time. Some straitforward cases are approved even in less than two months.

15. Question(08/06/10): My wife and I are Indians. My wife has been going through the employment-based green card process and obtained I-140 petition approval. I myself have been working in the U.S. for the past five years in H-1B status. Since my wife's I-140 petition has been approved and there is a visa number retrogression for her priority date, I should be able to extend my H-1B in three-year increment under AC 21 as derivative beneficiary of her approved I-140 petition. Accordingly, I filed H-1B petition for three years. Yesterday, I received my H-1B extension approval notice but they extended only for one year. I think they made a mistake and am considering an appeal. Your opinion, please.

Answer: It appears that you have a grave misunderstanding of AC 21 three-year H-1B extension rule. It is true that when I-140 is approved and visa number is retrogressed for the beneficiary of the petition, such beneficiary is eligible for H-1B extension in three-year increments indefinitely pending visa number availability and adjudication of I-485 applications. Accordingly, your wife will be able to extend her H-1B in three-year increments inasmuch as the approved I-140 remains valid. You yourself will also be eligible for extention of H visa status in three-year increments under the law but not in H-1B status but in H-4 status. When you want to extend your own H-1B status, you are subject to your own H-1B six-year limit and not beyond the six-year limit unless you yourself have an approved I-140 petition. For the reasons, the USCIS has made a right decision in extension of your H-1B only for one year rather than three years and any consideration of appeal of the decision is out of question.

14. Question(08/05/10): I am an Indian finance professional who has an Indian three-year Bachelor's degree, two-year post graduate degree in my speciality, and seven years of work experience in the finance profession. I have EB-3 I-140 approved with a priority date of January 2005. Considering a huge retrogression of EB-3 visas for Indians, my employer is considering an option of filing EB-2 labor certification and later try to capture EB-3 priority date once EB-2 I-140 petition is approved. I understand that both NSC and TSC are not recognizing my education as equivalent to a U.S. master's degree. I thought I should be eligible for the EB-2 route through a Bachelor's degree plus five years of progressive work experience in the specialty. Your thoughts, please.

Answer: Your understanding is correct that your educational credential itself may not be well accomodated by the Service Centers to prove EB-2 through education alone. For a master-degree equivalency, they tend to require a combination of three-year undergraduate degree in the specialty and another three-year graduate degree in the specialty or sufficient post-graduate credits that are evaluated by a USCIS recognized credntial evaluation authority with the additional substantiation of such evaluation by U.S. higher learning institutions to be equivalent to a U.S. master's degree program. For the latter option, they usually require more than two-year foreign post-graduate education. As for the alternative of going with the bachelor's degree plus 5 years of progressive experience, the Service Centers tend to stick to the AAO decision that refused to recognize this option when one has a three-year undergraduate degree in India, no matter whether he or she continued to pursue a post graduate program. The AAO based its decision on the specific language in the relevant regulation which stipulate "a" bachelor's degree plus five years of progressive experience in the specialty to satisfy EB-2 qualification through this option. For the reasons, the Service Centers insist that one should have a "single" 4-year degree to meet "a bachelor's degree" in the regulatory language. For this reason, your employer's consideration of another labor certification of EB-2 category requiring a bacehlor's degree plus five years of progressive experience may face a serious challenge and eventual denial at the stage of I-140 petition proceeding. I agree that it is not fair that the agency is sticking to a language of "a" in the regulation for this option. It is hoped that either AAO overturns its own decision or the USCIS changes its regulation. I also want to alert the employment-based immigrants that the requirement of a "professional" or "equivalent" varies between nonimmigrant visa and immigrant visa programs and between EB-2 and EB-3 programs in the immigrant program. I realize that it is extremely confusing for lay people to understand these differences but unfortunately that is the law in the U.S. immigration system.

13. Question(08/03/10): I have an EB-3 prirority date of 01/2003 and filed I-485 during the period of July 2007 Visa Bulletin fiasco using EB-3. The employer also filed EB-2 labor certification in January 2005 but it was approved after I filed I-485 based on approved EB-3 I-140 petitiion. After I filed I-485, the EB-2 labor certification got certified. Since the I-485 was pending, we ignored the second certified labor certification of EB-2 and failed to file I-140. I have two questions. Firstly, whether I can still use EB-2 labor certification and file EB-2 I-140 and recapture EB-3 priority date. Secondly, what happens if the employer starts a new EB-2 labor certification and files EB-2 I-140 petition based on the new EB-2 labor certification. Can I capture EB-3 priority date and ask the local district office where my I-485 is pending after interview to approve my I-485 now using EB-2 priroty date of January 2005? By the way I am an Indian.

Answer: Immigration rules are very technical and laymen do not understand these technicalities. As for the first question, it was a huge mistake that the employer did not file EB-2 petition when EB-2 labor certification was certified. The priority date is "retained" only, repeat, only when I-140 petition is filed and approved. Accordingly, you failed to retain the EB-2 priority date of 2005. Question then remains what happens with the certified EB-2 labor certification. It is gone and invalid. The certified labor certification is valid only for 180 days. Only exceptions include filing amended or new I-140 petition after lapse of the 6-month cap after the initial I-140 is either denied or withdrawan or revoked. In the exception cases, the employer can file another I-140 petition using the expired certified labor certification under the USCIS memorandum. This chance is also gone for you. Let's get to the second question. The answer is "yes," but there is a technicality involved to achieve it. There are two different transfers that confuse people a lot. One is transfer of the approved I-140 petition to a pending I-485. The other is transfer of pending I-485 to another approved I-140 petition. Obviously, in your situation, the new EB-2 I-140 transfer to pending I-485 is infeasible because of the priority of the approved I-140 petition for which the visa number may not be current. For the reasons, you can not even transfer the new approved I-140 petition to the pending I-485. In this option, you may first have to amend the newly approved EB-140 petition to recapture the old EB-3 priority date. Once the EB-2 approved I-140 petition is amended, you can ask the officer to transfer pending I-485 application to the newly approved and amended EB-2 I-140 petition with the priority date of January 2003 in EB-2 category in the Visa Bulletin. Nowadays, the USCIS, from time to time, recaptures the old priority date on their own and approve the new I-140 petition with the old priority date from other previous petition. But if this does not happen, your employer will have to seek amendment of the new petition to capture old priority for the newly approved EB-140 petition. And then, ask the agency to transfer pending I-485 to the new EB-2 petition. As for the second option of transferring pending I-485 from one approved I-140 petition to another approved I-140 petition, it is possible only when the approved I-140 to which you want transfer your pending I-485 is EB-2 and visa number is current for the I-140 petition. Otherwise, you cannot transfer pending I-485 from one I-140 petition to another I-140 petition. Usually, pending I-485 application transfer is considered for dependent spouse whose I-485 is pending through the other spouse's approved I-140 petition. When they are caught up with the visa number retrogression, sometimes it happens that the spouse is also a professional and through his or her own employer started EB-2 labor certification early on, earlier than the other spouse's approved I-140 petition. If the derivative spouse's own priority becomes current, then he or she can ask the agency to transfer pending I-485 to his/her own approved earlier-priority-date approved I-140 petitiion which became current without filing a new I-485 application. Then the other spouse who was previsously a primary alien for his/her own petition for which I-485 applications initially filed can ask the agency to transfer his/her pending I-485 application to the other spouse's earlier-priority-date I-140 petition as a "derivative" beneficiary instead of "direct" beneficiary of his or her own petition. In other words, they change the roles. That way, both spouses transfer their pending I-485 applications without filing new I-485 applications. Or if she or he decides to stick to his/her original I-140 petition filed by his or her own employer, he or she can stay with the petition without transferring pending I-485 application to the other spouse's case. This decision will depend on consideration of various factors which I am not going to get into here, because by now the readers got dizzy with technicality of all of these rules and may not want to read any more details. Let's put into another chances of Questions and Answers Sessions.

12. Question(08/03/10): It has taken several years for me to receive the I-485 approval yesterday based on the employment-based petition filed by my employer. I have never changed employer. Neither have I invoked AC 21 change of employment. Since the 485 is approved, I am seeking new employment and started sending out employment applications to various employers. Is there any law that forces me to work for the green card sponsoring employer even after the green card is approved?

Answer: The green card employment is "permanent" employment. "Permanent" means the employment term is not temporary and must be for a period of "indefinite" duration. Inasmuch as there is no ending date, it can be considered a permanent terms of employment. The employer sponsed employment based immigration requires both the employer and employee to retain "intent" to offer such permanent employment and accept such permanent employment on or before the I-485 is approved. If the employer does not maintain such "intent" and file a labor certification and I-140 petition, It can be construed a fraud. If the employee does not have such "intent" and sign the labor certification application and and file I-485 application based on the employer-sponsored I-140 petition, it can also be considered a fraud. The issue is "intent" which is a mental state as judged from the actions of the employer or employee. AC-21 portability of approved I-140 petition changed the picture and both the employer and employee are freed from such obligation if two conditions are met. One is that until AC-21 is invoked, the employer and employee retain such intent. Practically, in the context of AC-21, such oblication is limited until the alien invokes the AC-21 change of employment after 180 days of filing of I-485 application in similar or same occupational classification. There is a grey area where the alien does not invoke AC-21 and change of employment. In such context, it may be assumed that both the employer and the employee retain such intent at the time I-485 is approved. In old days, the legacy INS was active in initiating a revocation of green card proceeding before the immigration courts to stip off the approved green card and launch a deportation proceeding based either on the ground that there was a fraud on the parties or the INS approved the I-485 application without the knowledge of such fact of ill-conceived intent of the parties. The theory of the law is that "had the agency known the true facts." the agency would not have approved the employment-based I-485 because the I-485 could have been ineligible without such intent. Intent is proven in most cases by the circumstantial evidence since no one can go into the state of mind of other person. The evidence they used to use was the evidence of search of another employment immediately before or after I-485 was approved. For the reasons, even though there is no fixed period of time for a new green card holder to work for the sponsoring employer, legal counsels advised the employees not to send out employment application in writing to other employers immediately prior to the approval of I-485 application or at least for certain period of time like two months not to change employment, because such behavior can be construed as relection of the true state of mind and intent of the employee not to work for the sponsoring employer before or on the date of approval of I-485 application owing to short period of time that lapsed when they changed employment. This problem used to pop up during the naturalization proceeding when the agency learned that the alien changed employment immediately before or after the green card is granted. The foregoing inent issue can be overridden when the alien left the job because of employer's decision to terminate the employment or because of change of circumstances which are beyond the control of the parties such as slow-down of business and layoffs. Again AC-21 affected this issue, and it appears that the agency may no longer actively look for this issue. But theoretically, the issue still exists and a law is a law. Accordingly, there is always a potential risk of this issue popping up after green card is approved, especially when there is a grudged sponsoring employer who obtained and possessed such adverse evidence and contact the agency to revoke the green card. Just beware.

11. Question(07/29/10): I am one of the I-485 waiters. My priority date is EB-2 June 13, 2006. I am a Chinese engineer. My 485 is currently pending. I have been maintaining H-1B status but also keep extending EAD since October 2007. My H-1B will expire in about two months. I have been thinking about using EAD instead of extending H-1B since the employer does not pay cost other than ACWIA fee. I see that my priority date may become current soon and I see no reason why I should extend H-1B. Your thought, please.

Answer: I see what you mean. I suppose the best way we talk about is what would potentially happen at the last stage of adjudication from the perspectives of the adjudicator at the Service Center. Maybe, you can put yourself into his/her shoes, and figure out what the officer will finally check. Probably, the officer may want to know whether you are still employed, no matter in H-1B or EAD. Or something else has been happening with you. Since the officer has no information about what you do, to make it sure that you are not violating the status or lawful presence in the U.S., the officer may want to check your H-1B validity and EAD validity. If you do not extend H-1B but the record reflects that you have a valid EAD, they may assume that your employment is authorized. But they will not know who your employer will be at the time of final review. You could have invoked AC 21 and changed employer but yet to be reported or you continue to work with the same employer. The officers have a job to do to confirm that you are eligible for 485 at the final stage. Depending on the officer in charge for your case, the officer may or may not issue RFE or in worst case, even transfer to local office for interview. Some of our clients had to go through this process at the preadjudication stage even though they worked with the same employer but discontinued exending H-1B. It is not a question of whether you are eligible for 485 but it is a question of potential delays, should a cautious officer issue RFE or file transfer to local office. I do not have any statistics or information on the number of incidents where the RFE have been issued in this situation, but assuming I were one of the adjudicators, I might have explored this issue to do my job as a public official living on taxpayer's tax money. Our experience also included some RFEs at the last minute when H-1B traveled on Advance Parole and returned to the job. Under the USCIS current policy, such alien can continue employment without EAD inasmuch as the H-1B approval remains valid on the paper, even though the alien was no longer in H-1B status. Such case was transferred to the local office for interview since the alien did not extend EAD. Legally no problem, but the officer had to know what was going on since EAD was no longer extended and return I-94 record of CBP showed Advance Parole. If you think saving a few bucks is so important to you, no one would tell you what to do. Again, you will not have any legal problem, but you may have to face practical problem in terms of timing of obtaining green card. It does not mean that such situation will in most cases end up with RFE, but even if the per centage is less than 10%, you can be one of those in 10%! I alway recommend the people to keep up with what they have been doing, legally updating the status or other documents until you receive the "Wecome to America" notice in the mail box.

10. Question(07/29/10): My employer is willing to file labor certification for me. Currently, the company's tax return shows a net income that can meet labor certification salary. However, for whatever reasons, the company may not be able to retain "black" income and may show "red" net income in the future. However, they will have enough cash in the bank without debt to cover my salary. Would this be good enough to prove financial ability to pay?

Answer: Some businesses experience profit problem and the net income figure can fail to meet the requirement. But the net income is not the only evidence that can establish a financial ability to pay. The regulation, as interpreted by the USCIS Memorandums, lists three evidence. One is "net income." The second is "net current asset." The third is your "W-2." Accordingly, inasmuch as your company can keep paying your labor certification salary, they satisfy the financial ability to pay requirement. Assuming that they fail to pay you the labor certification salary, but they have very limited debts (liabilities) and a lot of assets, it will also work too. Net Current Asset is derived by substrating current liabilities from current assets in the tax return Schedule L or audited financial statement (Balance Sheet) of the company. If the net current asset exceed the labor certification salary, even if the company's net income is minus and you have been paid less than labor certification salary but at least H-1B salary, then your employer will be able to meet the financial ability to pay evidence. It sounds your employer will be in such situation because of some business operation strategies. Sometimes, employers fail to meet one of these three standards, but still prove the financial ability to pay by showing the company's business history, the trend of income in the past and prospects for future of the business, etc. This additional standard has been recognized by the appeal decisions rather than regulations. It is thus risky to rely on this non-regulation standard unless an experience attorney makes a decision before starting the process. You may as well ignore this when you are about to start the labor certification process for safe side.

9. Question(07/29/10): The employer filed a labor certification for me on 04/13/2006. In Januaary 2007, I-140 petition was approved. In August 2007, I filed I-485 which is currently pending. At the time the case was filed, I was not working for the employer but currently am working for the employer. Last year, I realized that my I-140 petition was approved for EB-3 even though I had a 4 year degree and 5+ years of experience prior coming to this country in H-1B. At my request, the employer refiled I-140 requesting EB-2, which the USCIS denied on a different issue of employer inability to pay the proffered wage. I changed employment with a fortune 500 company on H-1B transfer. However, the former employer is still supportive of my green card process. I wonder whether the former employer can refile I-140 petition for EB-2 again.

Answer: The certified labor certification is currently valid only for 180 days, but under the latest memorandum of the USCIS, when the I-140 petition is denied and another petition is filed by the same employer using the same certified labor certification application, the 180-day LC expiration rule does not apply. In this regard, the employer can refile it. Additionally, under the immigration rules, the employers are not barred from submitting I-140 petition after another I-140 petition using the same labor certification has been denied. That much it is clear. However, in your case, there are some facts missing. The fact that your academic credential and experience meet the EB-2 is just one of the several threshold for EB-2 eligibility. More important is whether the labor certification required such qualification for the job. If the labor certification did not require such qualification, you are not eligible for EB-2 petition regardless of your EB-2 qualification. Inasmuch as the labor certification required EB-2, the employer can still refile EB-2 I-140 petition since the agency did not adjudicate the issue of EB-2 eligibility and denied the petition strictly on another issue of employer's financial ability to pay the salary. However, even if you overcome the issue of EB-2 eligibility, you have more deadly issue which may lead to another denial of I-140 petition. It is the employer's financial ability to pay the salary from the date of labor certification filing. The agency adjudicated this issue and concluded that your former employer failed to meet the requirement and denied the petition on the issue. I wonder how you are going to prove that the same employer had and still has financial ability to pay the salary when the evidence appeared to prove that it did not. Whether you now work for a different employer of fortune 500 business is totally irrelevant for this issue. The sad thing is that since the I-140 petition has never been approved, you have failed to salvage and retain the priority date for another try with a different employer.

8. Question(07/28/10): I am an Indian. My EB-3 I-485 is pending since June 2007. The priority date is January 2003. I am not too far away from the current Indian EB-3 visa cut off date, but it will still be a long wait for me and my family. My wife's employer also filed labor certification on October 2006 and EB-2 I-140 has been approved. My gut feeling is that the EB-2 visa number may become current for her, earlier than my EB-3 visa number. Her I-485 is currently pending through me as a dependent. Can she recapture my priority date and we get approval of the pending I-485 applications for us?

Answer: No, EB visa number cannot be transferred from one spouse to another spouse. Cross-chargeability for different countries of birth for each spouse is a completely different question. However, there are two ways to deal with your sitution. When your wife's EB-2 visa number becomes current, your wife can request to transfer her pending I-485 application without filing a new I-485 application. You can also tag along transferring your pending I-485 application, this time, as a dependent beneficiary of your wife's approved i-140 petition. This transfer is available only when her visa number becomes current in the Visa Bulletin. The other option is for your wife to transfer her I-485 alone to her own approved I-140 and you stay with your current I-485 based on your EB-3 petition of your employer. The benefit of the second option is that should the EB-3 visa number become current earlier than EB-2, you both can use EB-3 option to get I-485 approvals. The USCIS is hostile to I-485 applicants transferring back and forth between the spouses or between different preferential categories and in this regard, both option will have this type of glitch if you decide to move back to the EB-3 of your employer. You can not carry with you EB-3 priority date when you transfer your pending I-485 application in the capacity of a dependent beneficiary of your wife.

7. Question: My EB-3 priority date is March 2005 and I-140 and I-485 was filed during July 2007 Visa Bulletin fiasco. I-140 petition has been approved and I-485 has been pending. I have an Indian three-year BS degree and a two-year Indian master degree. I wonder whether I should try anew EB-2 labor certification process without changing employer and can capture EB-3 priority date.

Answer: With such EB-3 priority date, it can be a long wait to get the visa number current without any legislation. Your employer in your fact situation can start EB-2 labor certification without jeopardizing pending I-485 "inasmuch as" the new job is a different job requiring a master's degree or equivalent. However, your educational credential is not well accepted by the Service Centers for EB-2, particularly Nebraska Service Center, and new labor certification can end up with a waste of time with some unnecessary risks. If you have a BS in Computer Science and three post-graduate degree in computer science in India, it may work, but general science study 3-year BS in combination of two-year master degree in computer science may not be recognized for EB-2. As for the question of capturing earlier priority date through the approved EB-3 I-140, there is no problem in recapturing the number in EB-2 I-140 and pending I-485 application can be transferred to the new EB-2 I-140 with earlier priority date, if the new EB-2 visa number becomes current. In old days, TSC accepted your background for EB-2 without any problem, but since then the NSC disease infected the TSC and TSC also does not accept well such Indian educational credential for EB-2. Sorry for negative opinion about your case.

6. Question: I had EB-3 priority date of June 2006, and while I was single and unmarried, my lawyer filed I-485 application during the 2007 Visa Bulletin fiasco. I have maintained H-1B status and married in India and brought my wife from India in H-4 status. Over the natural course of married life, a child was born of the marriage. As a 485 waiter, I have two options to work for the sponsoring employer, either maintain the H-1B status or use EAD card. Because of my wife, I am forced to keep H-1B status so that she could stay with me until the visa number becomes available but the employer wants to work on EAD and refuses to file a H-1B extension, pushing me to the edge of clip since my wife will have to return to India and we will have to be separated. I blame the lawyer filing I-485 for me when I was not married for the current predicament. I also blame the USCIS and the State Department for making the visa number available during the visa number fiasco in July 2007. I believe the USCIS is responsible for destroying my family life and making my family into pieces. I want to know whether I shoud sue the USCIS to force it to accept I-485 applications for I-485 applicants's dependants who were allowed to file I-485 during the fiasco.

Answer: I share your predicament and potential disaster for your family. Indeed, there is an immigration attorney who has advanced such theory that employment based annual visa quota should not consider the dependents. Unfortunately, this theory needs a test in court and until it is materialized, the relief for dependents is currently unavailable. Rather than looking for blames, I would look for another employer to sponsor your H-1B portability without affecting pending I-485 application for you since it appears that you are eligible for AC 21 change of employment.

5. Question: My current employer sponsored labor certification and obtained EB-3 I-140 approval with the priority date of June 18, 2008. As visa number was not available, I could not file I-485 application but could entended H-1B visa status for three years beyond the six-year limit. Supposing I change employer and sponsor EB-2 labor certification and approval of EB-2 I-140 petition. Would I be able to capture earlier priority date for new I-140 proceeding? What about three-year H-1B extension through the new employer?

Answer: Unless you filed I-485, you cannot invoke the approved I-140 petition and with the new employment, your new employer will have to start all over again. However, unless the current I-140 petition is revoked by the USCIS for fraud or error in facts or laws, you retain the priority date which you will carry with in your backpack. Withdrawing of the approved petition by the new employer will not deprive you of the right to retain the priority date in your backpack. That is all bout you can salvage from the current approved labor certification and I-140 petition. As for the three-year H-1B extension, once your new employer obtains EB-2 I-140 approval, you can obtain another three-year extension. Currently, EB-3 visa numbers are hopelssly retrogressed for certain nationals including Chinese and Indians and trying new EB-2 with the same employer or different employer is something to look into to survive without special legislation for EB-based immigration system or comprehensive immigration reform. Since neither piecemeal EB-based immigration reform nor comprehensive immigration reform is likely to happen within this year or in the near future, people should consider this option very seriously.

4. Question: As visa number becomes available for EB-2 Indians, I see some EB-2 Indians within the July 2010 cut-off dates are being adjudicated, while there are others whose priority dates became availalbe and whose cases have yet to be adjudicated. Since visa numbers can move backward when one missed the chance during the visa number available period, I wonder there is anyway we can ask the agency to approve the cases in the order of priority dates.

Answer: You should refer to my prior discussion. Besides, assuming that the two I-485 waiters have same priority date and same I-485 filing date, it does not warrant the two cases must be approved on the same or similar dates because each case has different facts, issues, or other factors and some cases demand different level of adjudication. People tend to think that two same priority date and same 485 filing date should be a "same" case. That is a false or wrong assumption. In the legal proceeding, each case involves different facts. In adjudication of applications, the internal process within a Service Center is fairly consistent and uniform, pulling out those cases whose visa number become available and start working on the cases per the processing queue. People should not compare between apples and oranges.

3. Question: I read the USCIS EB-485 inventory and learned that there were EB-2 or EB-3 cases with the priority date of 1997 for Indians. However, in July and August 2010 Visa Bulletin, Indian EB-2 cut-off date has moved to 2006 and EB-3 cut-off date has moved to 2002. How could it happen?

Answer: USCIS EB-485 statistics report pending cases by priority date. Priority date means a date when the labor certification was first filed by the employer. There are a large number of cases which were filed when there were no RIR proceeding and cases went through so-called supervised recruitment process in very early days of immigration history. Additionally, some cases took not months but years just to process at the stage of labor certification, not to mention further delays in I-140 proceedings. Besides some cases have been denied and appealed. On top of that, it used to allow so-called "substitution of alien beneficiary" for the certified labor certification applications with very early priority dates. Therefore some people used other's certified labor certification which was initially filed as far back as 1997 and filed I-140 and I-485 application before such substitution was eliminated in 2007. For the foregoing reasons, the priority dates in the EB-485 inventory is not a good yard stick to understand visa number cut-off date movement and I-485 processing time. You will be surprised to learn when I-485 applications were field by these people and what process they have been going thourh because of a number of issues involved. Generally, however, these numbers are very small as you learn from the inventory and should not affect the overall visa cut-off date progression within the annual allocated visa quota. One other thing people should understand is that when it comes to the processing time of I-485, the cases are queued in the order of receipt of I-485 applications and not in the order of priority dates, except certain exceptional circumstances. Since earlier priority date does not mean that it was filed earlier than other cases with a late priority date, when it comes to adjudication of I-485 applications, the agency tend to decide by the date of receipt of I-485 applications. Accordingly, when it comes to the USCIS processing time of I-485 applications, the Visa Bulletin is relevant only to determine the visa cut-off date and should not affect the USCIS queue of processing of visa number available I-485 applications, even though they give some consideration on priority dates in unusual situations.

2. Question: I am currently in I-485 proceeding based on employment. My nonimmigrant status is H-1B. When there was a boom in real estate market, I purchase my homestead property for our home. Now, there is a terrible real estate market bubble, and my house is about to be foreclosed for my inability to pay the mortgage. I wonder whether foreclosure will affect my H-1B status or pending I-485 eligibility. I am employed with the sponsoring employer for the H-1B work as well as labor certification job without any violation.

Answer: H-1B status as well as I-485 eligibility will be affected only if you fall inadmissible for certain conduct of yours. Foreclosure is a civil proceeding and it will not affect your H-1B status or pending I-485 unless fraud is involved leading to a criminal proceeding.

1.Question: I filed labor certification in June 2006 in EB-2 category. Based on the certified LC, my employer filed and obtained I-140 approval on August 2007. It was truly timely in that at the time, there was a Visa Bulletin fiasco and I was able to file I-485 application same month. Now I am at the juncture of deciding whether I should take a new employment as the current employer business is encountering some challenges, while I have an offer from a very stable business to hire me in a similar occupation at much higher rate of annual salary and fringe benefits. Besides, the curent employer is located in a remote small town, but the new employer is located in one of the ten largest metropolitan areas in the United Sates. I do not know, though, whether this will be right decision to change employment at this juncture.

Answer: When it comes to AC-21 portability and change of employment pending I-485 application, there are so many factors that should guide the applicant to make a decision other than the employment terms and conditions. One of the critical factors can be timing of invoking AC 21 portability. You appear to be an Indian born in India and your wife was also born in India. You and your spouse are thus subject to the Indian EB-2 visa cut-off date. The EB-2 Indian visa cut-off date will be March 1, 2006 as of August 2010 and your priority date is about three months apart from the August 2010 Visa Bulletin. As I reported on our Breaking News site, relocation to a different state or metropolitan area can trigger, even though not always, potential RFE or transfer of the I-485 to the local district office of USCIS to determine whether you will still be eligible for I-485 application. Since your priority date is only three months away, such action of the agency can potentially cause delay in I-485 application. Accordingly, if you have a choice not to move out of the employment site in the labor certification application in this set of facts, you may be better off not to relocate, no matter with a same employer or different employer. However, if the situation is such that you will have to move and take a new employment, it may be prudent for you to proactively report the agency invoking AC 21 portability such that the adjudicator is aware of the reason for your relocation and proactively review your eligibility for AC 21 change of employment. The opposte may be true for those whose priority date may be years apart from the current visa cut-off date and who may take time to report such change of employment invoking AC 21. This will be particularly true for those whose change of employment has some issues relating to the AC 21 portability.