Visa Retrogression Q&A

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• The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

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  • Q23(08-20-06): I am an Indian database administrator. My employer filed on March 1, 2001 labor certification application requiring a Master's degree in Computer Science with three years of experience or alternatively a Bachelor's degree in Computer Science with five years of work experience. This is a typical EB-2 labor certification application. I am qualified through the BE+5 years of progressive experience. I have just received the certification from Dallas Backlog Elimination Center. My employer quickly filed EB-2 petition which is pending. In September EB-2 visa number will not be available for Indians. However, EB-3 number will be available. In order to take advantage of the favorable EB-3 number for me, I would like to file concurrent EB-3 I-140 and I-485 application, using the same certified labor certification application. I wonder whether I can file PPS I-140 petition? A: In normal situation, your case would have been a typical EB-2 case, but it does not remove from you an opportunity to seek an EB-3 petition as the job required, as an alternative, a bachelor's degree plus five years of work experience. However, you have two problems in filing PPS. The first problem is that you do not have the original certified labor certification application since you have already submitted it along with the EB-2 I-140 petition. The second problem is the USCIS PPS processing policy that if one I-140 petition is pending, the alien will not be allowed to file another I-140 petition with PPS request. In other words, they will not entertain the second I-140 petition for premium processing. In fact, you have one additional problem. It is the change of the Service Center's policy. The USCIS used to permit filing of EB-2 and EB-3 petitions for the same employee based on a single certified EB-2 labor certification application. However, lately NSC and TSC apepar to have changed such policy and deny the second petition which was filed with a "copy" of the certified labor certification application on the ground that the original was not available and the original is being used for another petition. This change of policy is indeed troublesome, but people cannot ignore the reality. It thus appears that your EB-3 petition filing may not work for a number of reasons which are describerd above. It is likely that the USCIS may not allow PPS unless you withdraw the pending EB-2 petition. I don't know whether that will be a good idea or a good move as the EB-2 visa retrogression can change.
  • Q22(08-20-06): I am an Indian software engineer with over ten years of work experience and a bachelor of engineering degree from a university in India. I filed a EB-2 labor certification in March 2002, but it is still pending at the BEC. I found a new employer who has a certified labor certification application of EB-3 with the priority date of November 13, 2000. I am considering filing of concurrent substituition EB-3 I-140 petition and I-485 applications for myself and my children. One of my children is aging out. For the three reasons, I will have to move fast: One is potential elimination of substitution of the labor certification application. Second is the potential elimination of concurrent filing of I-140 and I-485. Third is aging out of one of my children. He will reach 21 in the next six months. Yesterday's news that the USCIS would launch I-140 petition (EB-3) on August 28, 2006 was a hard-to-believe good news for me. Would you please explain me how I fild such PPS request? A: The PPS requires that the USCIS adjudicates the I-140 petition "within 15 days." When there is any additional steps required for the agency to process I-140 petition, the agency will not be able to accept such PPS request. For instance, substitution of labor certification application requires the verification and consent of the labor department before the USCIS can approve the I-140 petition. Logistically, the agency cannot complete the processing and adjudication within 15 days and the USCIS has decided to exclude the substitution I-140 petition from the PPS. The other exception from PPS eligibility is the I-140 petition that requires a duplicate labor certification application from the labor department. Typically this happens when the labor certification has been approved but the employer failed to receive the application or lost application or the original had already been used before the substitution. Obviously, in such cases there is no way for the agency to adjudicate I-140 petition within 15 days as the USCIS must request and obtain from the labor department a duplicate labor certification application. When you have a child who will age out in six months, normally you should be eligible for "expedite" processing of I-140 and I-485 application under the current USCIS policy and practice, but such expedite is not available when your aging out is protected by the Child Status Protection Act (CSPA) or PPS is available. In your case, PPS could have been available, had the I-140 petition been based not on the substitution labor certification. There is an open question whether you will be eligible for the expedite on this ground since you are not eligible for the PPS. If I were you, I would advance such theory and request "expedite" with the USCIS. The visa number is currently available for you and you and your family members are eligible for I-485 filing. The agency's decision to expedite on the age-out basis will also help you in dealing with other potential two predicaments: One is elimination of substitution and the other is elimination of concurrent filing. Should one of these two take place, you will have to deal with addtional hurdles. Unless the final version of the substitution elimination regulation revises the proposed version, unless the substitution I-140 petition is approved before the final regulation is published, you will not be eligible for the substitution and the USCIS will have to deny your I-140 petition. Additionally, should the USCIS terminate the concurrent filing before you file concurrent I-140/I-485, you will be shut out for the concurrent filing, in which event unless the agency really expedite I-140 petition on the age-out basis in an extremely short period of time, your child may not have a good chance to obtain the I-485 before he reaches 21 years of age. That will be a breath-taking emergency experience. Fortunately, even though there is no known fixed date for elimination of substitution and elimination of concurrent filing, the educated guess indicates that both of them may take place around a similar time because of the required rule-making process for the changes. It may be around the end of the calendar year or early next next year. Please cross your fingers!
  • Q&A 21 Special Update (08-18-06): USCIS has annonced that the Preimum Processing will be launched for EB-3 I-140 petitions beginning from August 28, 2006. Only "skilled worker" and "professional worker" will be covered and "other worker" cannot file I-140 PPS in this first phase of I-140 PPS. Caveat: New version of I-907 must be used on or after 08/28/2006. Please visit Breaking News.
  • Q21(08-18-06): I am a Romanian born in Romania. My occupation is an ethnic chef. My EB-3 labor certification was filed by a Romanian food specialty restaurant in New York on December 19, 2001. After a long wait, I have just received the approval of labor certification application. In September 2006, the visa number will be available for me. We are thus putting together documentation to file concurrent I-140 petition and I-485 application for me, my wife, and three children and get ready for filing on September 1. But I heard that the USCIS might start the I-140 premium processing services towards the end of August 2006 and once the I-140 premium processing services become available, the government would at the same time terminate the concurrent I-140 and I-485 filing procedure. We are scared to death because if this happens, there is a risk of being stuck with the visa retrogresssion of EB-3 again after September 2006. Therefore, we want to file I-485 before the end of September 2006. When will the concurrent filing procedure be eliminated? A: The USCIS has been long considered elimination of I-140/I-485 concurrent filing procedure upon launch of I-140 premium processing services. However, lately the USCIS Ditrector announced that the USCIS would launch the premium processing services in late August 2006. Prior to such announcement, the Nebraska Service Center Director slipped out the inside information that the USCIS was planning to launch I-140 premium processing services and when it happens, the concurrent filing wiould be removed at the same time. However, this information turns out to be half correct and half incorrect. It was correct in that the USCIS was scheduled to launch I-140 premium processing services. It was incorrect in that the USCIS would not terminate simultaneously concurrent filing procedure. The USCIS will eventually terminate the concurrent filing procedure but it will take time. It may not take place either until the end of the year or early next year as such change of procedure requires a rule-making procecess. The concurrent filing was launched through enactment of a regulation and in order for the USCIS to terminate such procedure, they will have to amend the rule terminating such procedure. This was also confirmed by the USCIS leaders at the AILA Annual National Conference in San Antonio, Texas, in June 2006. The USCIS is currently poised to launch the I-140 premium processing services before the end of August 2006 because of the USCIS Director's announcement. Otherwise, the USCIS Director's credibility will be somehow damaged. There is a confusion as to what types of I-140 petitions will be covered in its first phase of I-140 premium processing services. One thing clear is that National Interest Waiver EB-2 will not be available for the PPS. What it means that all other I-140 petitions may be filed eventually on PPS. There is a question, though, as to whether EB-1 and EB-2 PPS will also be launched at the first phase along with the EB-3 cases. Clearly, the USCIS Director stated that the first phase might include only EB-3 cases, but some of the USCIS officials have expressed a different opinion. We will soon find out who was correct between the USCIS Director and the other USCIS officials.
  • Q20(08-17-06): My wife is a computer professional from India. Through her employer, my wife and our family filed EB-2 I-485 applications in September 2004. The job is a systems engineer. She is considering change of job which is locaed in San Francisco. Currently we live in a small town in Minnesota. Our daughter was born in Winnipeg, Canada when we lived in Canada before we moved to Minnesota. Currently EB-2 visa is not available for Indians but we want to keep this priority date and pending I-485 applications not affected by the change of employment. The new job is a Database Administrator. AC 21 allows him to change employment after 180 days of filing I-485 application. I am also wondering whether my child born in Canada can give us the benefit of cross chargeability to Canada so that the USCIS can finish up our I-485 applications now. A: AC 21 portability of approved I-140 petition after 180 days of filing of I-485 application does not require that the new job ought to be located in the same area. However, it requires that the new job must be a same or similar occupational classification with the labor certification job. Broadly, systems engineer and DBA are defined as computer occupations. However, the so-called Yates memo adopts a policy that "same" or "similar" be determined by the DOL's DOT or O*Net occupational classification system. Both DOT and O*Net classify these two occupations as separate occupations with different occupational codes. Accordingly your wife's change of employment has a potential risk of denial of I-485 applications by the USCIS. As for the cross chargeability of your child's native country of Canada, the parent can give such benefit to the minor children but not other way around. Child cannot give the alternate chargeability to the parents. Alternate chargeability is availabe between spouses only.
  • Q19(08-16-06): I own a software consulting firm. The company hired a systems engineer and filed the labor certification application of EB-2 category for her. She earned a Bachelor of Science degree and two years of post graduate diploma in India. The foreign credential evaluation agency wrote a report that this credential was equivalent to the U.S. master's degree in Computer Science. She finished school in 1994 and worked for six years actively participating in the Y2K projects using the IBM mainframe and Cobol and DB-2. We hired her for our client in Arizona for the Y2K project. We filed the labor certification application in December 27, 2000, requiring a Master's degree in Computer Science or in lieu of the Master's degree, Bachelor degree in Computer Scince and five years of experience. After a long wait, the labor certification was approved by the Dallas BEC in January 2006. She then immediately filed concurrent I-140 petition and I-485 application in January 2006. However, she quit our company and moved to another employer after she passed 180 days from the date of I-485 filing. At the time, I-140 petition was still pending, but she apparently relied on so-called Yates memorandum that stated the portability would be available even before the approval of the underlying I-140 petition inasmuch as the I-140 petition was "approvable" at the time of filing. Since AC 21 law deprived us of the authority to withdraw or revoke after 180 days, we were helpless. We want to substitute the alien beneficiary to replace her using the same labor certification application, but our hands were tied. Then, last week we received a letter from the USCIS that the I-140 petition was denied not because of the employer eligibility but because of her ineligibility to meet the requirements in the application. Now, the labor department and USCIS are planning to eliminate the substitution and I wonder whether we will be allowed to file a new I-140 petition substituting the beneficiary before too late. A. When an alien beneficiary changes employer using AC 21 and Yates memorandum, there is no guaranty that the green card process will successfully come through as the petition can be either denied or revoked by the USCIS for a good cause. When the labor certification was filed, there was no AAO decision which required a single undergraduate degree for the EB-2 I-140 petition. However, the situation changed afterwards after the AAO handed down, albeit unprecedent, decision requiring a single degree. Obviously, the Service Center denied the I-140 petition based on the AAO decision. Indeed, such decision is unfair to her in that the I-140 petition was approvable when it was filed but now not approvable because of the AAO decision. Obviously, she may want you to appeal the denial to AAO, which is not likely to happen because of your hard feeling and your need for the substitutuion. Alien beneficiary cannot file an appeal to AAO. Only the petitioner can file the appeal. If your company does not file an appeal within 33 days from the date of decision, the decision will become "final"and your company may not be bound by her portability privilege and may be able to file a new I-140 petition for substitution on behalf of other employee. She should hire a good lawyer!
  • Q18(08-15-06): I am a Chinese researcher in cancer research. I have a Ph.D. degree in Chemistry. I came to the U.S. in 2000 to work as a researcher at one of the private cancer research laboratory in the East Coast. In May 2001, the lab filed Outstanding Researcher I-140 petition for me. At the time, there was no concurrent I-140/I-485 filing available. The I-140 petition was approved. But the lab could not continue my employment as it lost the research funding. I had to leave the job in July 2002. I took a job with a phamaceutical manufacturing company in New Jersey that started a RIR labor certification application in March 2003. It was a low level job with EB-3 application. The application has been pending at Philadelphia BEC. However, In September 2005, I changed the employer, and the new employer immediately started the PERM labor certification process. After taking almost four months for recruitment, the company filed another EB-3 labor certification in January 2006. The labor certification was approved in April 2006. I then filed EB-3 I-140 petition. I have just learned from the lawyer that the I-140 has just been approved. My H-1B six year limit will reach in September 2006. What do I have to do? A: You have two issues which you will have to act on immediately. The immediate problem is extending your H-1B status beyond the six-year limit in September 2006. There are two ways to achieve it. One is filing 7th-year extension. Your labor certification application by the current employer was filed in January 26, 2006 and it itself would not have allowed you to file the 7th year extension for the two reasons: One is that you have not accumulated 365 days since you filed the labor certification application. Secondly, it was filed after you passed the 5th year in H-1B. But your previousl employer filed another labor certification in March 2003. Inasmuch as the application was pending at the time the new labor certification was filed on January 26, 2006 by the current employer, you backpacked the date of March 2003 for the purpose of satisfying the requirements of 365 labor certification pending and filing before reaching 5th anniversary in H-1B. It does not mean that you backpack the march 2003 priority date. It just lays a bridge to satisfy the 7th H-1B filing qualification.. However, you have a better choice than the option of 7th-year extension. Since your I-140 petition has been approved, you can apply for the H-1B status extension beyond the six year limit in three year increment since the visa number is not available for EB-3 category. One interesting twist in your case is that you are also eligible to amend the just-approved EB-3 I-140 petition from the priority date of January 26, 2006 to May 2001 as you can transfer the Outstanding Researcher petition priority date to your current EB-3 petition. Once this amendment is granted, you will be able to file I-485 application as the EB-3 visa number will be available for China with the cut off date of March 2002 beginning from September 2006. However, after the I-140 amended petition is granted, you will not be eligible for the three-year increment H-1B extension. Accordingly, the following course of action may work for you the best. You may want to file the three-year H-1B extension petition on a premium processing request using the current employer's EB-3 approved I-140 petition. Since the H-1B petition will be approved within 15 days, your current H-1B expiration problem can be quickly resolved. Such action should be followed by filing of I-140 amendment petition to change the priority date from January 26, 2006 to March 2001. Again, this one can be achieved very quickly as the USCIS is poised to launch the I-140 premium processing services within a month. As soon as the amended I-140 petition is approved, you may want to file I-485 application very quickly using the EB-3 priority date of March 2001. You can bypass the separate I-140 amendment petition process by filing the concurrent I-140 amendment petition and I-485 application, but there is some risk involved. Besides, you may experience some delays in adjudication of I-140 amendment petition. Since the future EB-3 movement is unpredictable according to the State Department, you may not want to take any risk that can cause delay of the proceedings. Following the foregoing suggestions will lead you two benefits: Extension of the H-1B for the next three years and filing of I-485 application before any future unpredictable retrogression for EB-3. Good luck.
  • Q17(08-14-06): My wife and I came from Russia as research scientiests. We have been in the U.S. for five years and eight months. We both tried the labor certification waiver immigrant petitions, including Outstanding Researcher, National Interest Waiver, and Extraordinary Worker. Initially I tried first but never made it. My wife's employer then tried the Outstanding Researcher petition. The petition took a long time and eventually ended up with denial. After wasting so many years to obtain a labor certification waiver immigration petition, I have decided to try EB-2 PERM application. Surprisingly, the PERM application has encountered a difficulty and turned into an audit process. My H-1B six-year limit clock is ticking so fast and I am in nervous break since there is no certainty that the PERM application would be approved before I reach the six-year limit. I only have four months to reach the six-year limit. My wife was teaching at a university in Moscow before we moved here. My wife was forced to come to the U.S. to accompany me as a H-4 dependent. One year later, she changed her status from H-4 to H-1B taking a consultant job. She worked for the U.S. employer in a H-1B status for one year and got laid off. In order to maintain her nonimmigrant status, she quickly changed her status to H-4 again. In order to carry on her professional career, she spent her time half and half in the U.S. and in Russia. One time she spent almost one year in Russia to work over there. Throughout the period, she maintained a H-4 visa status. In September 2005, she was offered a researcher job by a private research lab and converted her status to H-1B again. Accordingly, by now, she has worked in the U.S. in a H-1B status for approximately two years and for the rest of the period she maintained the legal status in H-4 dependent status. Out of the three and a half years in H-4 status, she worked in Russia for approximately two years.and one a half years staying home in the U.S. without a job. Her research lab employer is willing to file a PERM application but our H-visa time is quickly running out. Please help. A. It appears that your problem is that you have depended on only one option rather than trying to tap all the options available. It is sometimes very risk for anyone to totally rely on the labor cerification waiver immigration process as the denial rate of such petitions is very high. Accordingly, most people have been trying simultaneously labor certification waiver petition and the labor certification application. Anyway, you are facing a number of potential difficult problems. One is a potential unavailability of 7th year H-1B extension as your employer filed the PERM application only a month back. You can not go back to your home country for 11 months to recapture your H-1B absence time. From the employer perspectives, it is not a workable option. Another potential problem is retrogression of EB-2 numbers for worldwide. It is not certain at this point, but the State Department has been predicting that at some point of time, the EB-2 may also retrogress for worldwide category. Accordingly, your problem is to keep your nonimmigrant status running beyond your H-1B six year limit and hope that your PERM application be approved. Your wife may be of help to your case in your situation. Legally, she has been in a H-visa status for five years and eight months. For the purpose of the H-1B six-year limit, the presence in the U.S. in H-4 status is counted. However, out of five years and eight months, she spent more than one and a half years in Russia even though her status was H-4 during the time. For the rule of recapture of the overseas time, the USCIS one time adopted a restrictive rule of "meaningful interruption" and not all the time outside of the U.S. was available for the recapture. However, not too long ago, the USCIS issued a memorandum that for the H-1B six-year purpose, any period of absence from the U.S. was recapturable regardless of the purpose of the trip. Even though the memorandum did not specifically entend such decision to one's absence during the period of H-4 , our practice indicates that the Service Centers tend to permit the recapture of the absence during H-4 status for the purpose of determination of H-1B six-year limit. Besides, she is not subject to the annual H-1B cap as she has already taken out a H-1B cap number and did not spend for one year consecutively outside of the U.S. while she was is in a H-1B status. Accordingly, if you do not obtain the PERM application before you reach six year limit, you may have only two options to continue the green card process. The first option is that your wife files her H-1B extension recapturing the past absence for one and a half years and you apply for change of status to H-4. This option will be particularly crucial, should the EB-2 visa number be retrogressed down the road. The second option is to utilize the 245(k) relief in the worst situation. The 245(k) provision allows an EB-immigrant to file I-485 application inasmuch as the alien remained in the U.S. out of status for less than 180 days or worked without employment authorization for less than 180 days immediately prior to filing of I-485 application and since the last admission to the U.S. as a nonimmigrant. For this option, you need your employer's special support and help. However, this second option has a potential risk. Should the EB-2 number retrogress for worldwide, you will not be able to file I-485 application within six months of your illegal status or unauthorized employment. Not knowing whether the EB-2 worldwide will indeed retrogress and if yes, then when, it is very difficult to determine the depth of risk involved in the second option. You may want to go for the first option, and for whatever reasons, your wife's recapture is denied, then you consider the second option as the last resort.
  • Q16(08-13-06): I am an Israeli Software Engineer. I filed the EB-3 labor certification application on October 23, 2001. My I-140 petition was approved and I filed I-485 application before the EB-3 visa number retrogressed for the worldwide category. Since I-485 processing experienced a terrible delay, I decided to change it to a consular processing in Tel Aviv in Israel. Before the American visa post in Israel complete and schedule the visa interview, the worldwide EB-3 visa number started retrogression. After seven months from the date when I filed I-485 application, I changed employment with another company in New York for a similar occupation. All along, I have been maintaining H-1B status but my H-1B six-year limit will reach in January 2007. Beginning from September 1, 2006, the visa number will become current for me and hopefully the American Consulate in Israel will be able to complete the immigrant visa application process. However, I am very nervous because I do not have answers to a number of questions including availability of 7th-year H-1B extension and the three-year increment H-1B extension, impact of change of employment on the pending consular immigrant visa application proceeding, and consequences of retrogression of the EB-3 numbers for the worldwide again before the American Consulate in Israel completes the immigrant visa process. Would you please give me your insight into these issues? A. When the green card process takes a long time, people tend to encounter all sorts of issues and problems that are occasioned by the change of circumstances. As time passes, the laws, regulations, and government policies also can change affecting the pending green card process for an individual. Your case portrays vividly the circumstances people can experience in the green card process. Let me try to answer each of your questions as best as I can inasmuch as you understand that it does not constitute a legal advice and it is an opinion and not a rule. Firstly, your issue of 7th-year H-1B extension during the period of the consular immigrant visa application proceeding. Two issues are relevant here. First issue is whether 7th-year extension will still be available when your visa number becomes current. The answer is yes. AC-21 7th-year H-1B extension does not require that you are currently suffering from the visa retrogression. Accordingly, even if you will no longer be suffering from the visa retrogression from September 1, 2006, inasmuch as you passed 365 days from your priority date, you will be eligible for the 7th-year extension. However, the answer will be different for the three-year increment H-1B extension upon approval of I-140 petition under section 104(c) of the AC 21 Act. If the visa number remains current when you are required to file the H-1B extension, it appears that you will not be eligible for the three-year increment extension. Secondly, there is a question as to whether you will be eligible for the 7th-year extension when you are not in the immigration proceeding in the U.S. and you are in a consular immigrant visa proceeding. The answer to this question was one time unclear, but currently both the State Department and USCIS agree that the 7th-year H-1B extension is available inasmuch as an individual meets the AC 21 requirements. Accordingly, I do not anticipate that you will experience a denial of the 7th-year extension petition. Now, let's get to the I-140 portability question. This question involves the policy of the State Department rather than the USCIS policy. Currently, the State Department takes a position that the AC-21 portability of I-140 petition, 180 days after filing of I-485 application, is recognized by the visa posts and consular officials should not deny the immigrant visa application simply because you no longer work for the original sponsor-employer. Inasmuch as the alien establishes by evidence that the alien meets the threshold requirements of portability, the consulate is likely to issue the immigrant visa despite the change of employer. Now, the last question: The risk of continuing the consular immigrant visa processing. When it comes to September 1, 2006, you have two courses of action. One is to continue the consular processing and the other is to file I-485 application in the U.S. The risk involved in the first option is the potential retrogression of EB-3 for the Worldwide again before the visa post completes the process. As a matter of fact, completion of the immigrant visa application is not enough. You must "enter" the country before the date when the visa number becomes unavailable for you again. Issuance of the immigrant visa is not enough. On the other hand, if you decide to file I-485, you will have to experience delays in obtaining the green card as the two proceedings will be involved. The USCIS will not be able to adjudicate your I-485 application until their I-140 file is returned from the visa post to the USCIS. It usually takes time. Additionally, despite Bush's commitment to the 6-month immigrant benefit processing times, the USCIS still takes time and when it comes to the individual application, they are unpredictable. After all, it boils down to your character. If you are a risk-taking and liberal person, you may take a gamble and continue the consular processing. On the other hand, if you are a conservative person like me and opt to choose the safest route, you are likely to take the option of filing of I-485 application. It is unfair to ask you to make such a tough decision, but it is a fact of life. Decision could have been easier, had you been a single unmarried person, but you wrote me that you were married and had three children. Good luck.
  • Q15(08-10-06): I am an architect from Mexico. My wife is a software engineer. She has been working in H-1B status. I finished a graduate school in the U.S. last year and have been in a F-1 practical training status. As I could not find a job, I filed I-539 to apply for change of status from F-1 to H-4 to fill the gap. I then found a job with a reputable architectural firm. The firm filed I-129 H-1B petition before the FY 2007 cap ran out. Yesterday, my employer received the H-1B approval notice effective October 1, 2006. My OPT is expected to expire on November 2, 2006. My I-539 petition is still pending. What do I have to do? A: When it comes to change or extension of nonimmigrant status, the nonimmigrant's visa classification is determined by the last action of the USCIS or immigration inspectors. In this case, you have already received the approval of H-1B petition. If your application for change of status is approved now, your status will change to H-4. For you to get your H-1B status, you will have to either leave the country and return with a H-1B visa stamp or your employer will have to file another H-1B petition to amend the petition. In order to avoid such hassle, you may want to quickly withdraw the pending I-539 application so that no contradictory decision is made by the agency on your nonimmgrant classification.
  • Q14(08-09-06): I am a Canadian with a bachelor's degree in technology. I have been working for an employer in the U.S. for the past seven years in a TN-1 status. My employer is willing to start PERM application for me. I was told that before I start the PERM, I would first have to change the status from TN-1 to H-1B since TN-1 requires maintenance of permanent residence in Canada. The problem is there is no H-1B cap number available until October 2007. Therefore, if the rumor is true, I will not be able to start PERM process until 2008! Besides, I do not want a H-1B status as TN-1 is more flexible. Can you tell me what the rule is? A: It is true that the Canadian TN-1 visa requires that he/she maintains permanent residence in Canada and any act that contracts the nonimmigrant intent will subject him/her to denial of the TN-1 visa or renewal of the TN-1 visa status. Since TN-1 is good only for one year and has to be renewed every year either at the border or through the USCIS Service Center, he/she must change his/her status to either H-1B or L-1 at some point of time. In old days, the free-trade officer at the Northern border immigration inspectors at other borders denied TN-1 entry to Canadians if they learned that the alien had started the green card process, no matter what stage of the green card process one was in. However, this policy has been changed by the USCIS HQ. Current policy states that filing of a labor certification application should not subject the TN-1 Canadian to the denial of renewal of the TN-1 status. Neither will filing of I-140 petition subject such Canadian to denial of TN-1. However, once I-485 application is filed or an immigrant visa application is filed, the policy states that the Canadian's intent to abandon his/her permanent residence in Canada is presumed and his/her application for TN-1 extension should be denied. This new policy has been notified to the immigration inspectors, Northern border free-trade officers, and immigration adjudicators at the USCIS through the Adjudicators' Field Manual as well as Employer Information Bulletins, but from time to time these Canadians' TN-1 applications have been erroneously denied at the Northern Border. For these reasons, legal counsels usually advise TN-1 clients to change the status to H-1B first before he/she starts the green card process. However, from the foregoing USCIS's current policy, it is not necessarily true that you should first change the status to H-1B before you commence the labor certification process.
  • Q13(08-06-06): I filed concurrent I-140 petition and I-485 application when visa number was available. The I-140 petition has been approved. Currently visa number is not available for me, but I read on the website that the USCIS had decided to preadjudicate the I-485 application even during the period of visa retrogression. How come they are not adjudicating and approving my I-485 application? A: When the visa number is not available, the agencies do not have any authority to approve any I-485 applications or immigrant visa applications. Obviously, some people in the immigrant community misunderstood the USCIS announcement of preadjudication of EB-485 applications during the period of visa retrogression. Preadjudication does not mean a decision. In the announcement, the term preadjudication meant a continuous processing of the applications internally such that when the visa number becomes available, the agency will be able to decide the applications without too much delays.
  • Q12(08-06-06): I filed concurrent I-140 petition and I-485 application when visa number was available. Currently the visa number is not available for me. Last week, my I-14 0 petition was denied on the ground that my employer did not have a sufficient income to pay the proffered wage. At the same time, the Service Center also denied my I-485 application. My lawyer thought that the agency did not consider the assets which were sufficient to overcome the insufficient netincome in the employer's income tax return. Since denial of I-485 is not appealable to the AAO, my lawyer decided to file a motion to reconsider the denial of I-140 petiton. What happens if the motion is granted and the agency approves the I-140 petition? Would it automatically reinstate the denied I-485 application? A: Sometimes, the Service Center issues the decision of denial of I-140 petition without issuing denial of I-485 application in writing. In such situation, once the denial of I-140 petition is reopened or reconsidered and they subsequently approve the I-140 petition, the agency will continue to adjudicate the I-485 application. However, if the agency denied both I-140 petition and I-485 application, even though the practices of the Service Centers vary, the USCIS Field Adjudicators' Manual indicates that the party must include both I-140 and I-485 denials in the motion, implying that if the party files a motion to reopen or reconsider the I-140 petition, the denied I-485 could not be reinstated. Acoordingly, for safeside, your lawyer should file a motion to reopen or reconsider denial of both I-140 petition and I-485 application.
  • Q11(08-05-06): I am one of those EB-3 who filed concurrent I-140 and I-485 and are currently stuck with the EB-3 visa number retrogression. After I obtained EAD and Advanced Parole, I did not renewed my H-1B, even though I was eligible, and worked on EAD. I filed EAD extension application, and then pending the application I had to go back home in Korea because of the family emergency. After one month, I returned to the U.S. and resumed my employment with the same employer. For the unknown reasons, my EAD application has been stalled and I have been working with the employer for almost five months by now without a valid EAD. Since I did not renew my H1B nonimmigrant status , I came back using Advance Parole. What is going to be my future? A: Your case illustrates the reason why the EB-485 waiters may want to maintain either H or L visa status as long as possible pending I-485 application . Had you renewed H-1B status, you could have continued employment upon your return from the trip to Korea without EAD. Under the current USCIS policy, the I-485 waiters with a valid H-1B can travel on Advance Parole and resume employment without a valid EAD because the policy presumes that even though the alien is no longer in H-1B status, the alien is authorized to resume employment under the provision that gives an inherent employment authorization with the H-1B nonimmigrant status. This presumption is not available when the alien travels on an Advance Parole not in a valid H-1B nonimmigrant status. Your employment without EAD will subject you to a provision in the regulation that makes you ineligible for adjustment of status to a lawful permanent resident unless you are exempt from this provision. EB-485 filers are exempt from this provision under Section 245(k) if such unauthorized employment lasted less than 180 days since the last admission to the U.S. as a nonimmigrant. Here the actch word is the language "nonimmigrant." The only people who can benefit from the 245(k) provision is those who entered the country in a nonimmigrant status. When an alien enters the U.S. using Advance Parole, the alien is not entering as a nonimmigrant but as a parolee. The 245(k) benefit is not available to the parolees. It is thus likely that the USCIS may deny your EB-485 application as the 245(k) relief is not available for you. You should seek legal counsel to determine whether you should change the course and quickly depart and seek a consular processing. Once you accumulate six months of unauthorized employment and depart, you will be subject to the three-year bar from returning to the U.S. and the American consulate will deny your immigrant visa application. You will have another hurdle to seeking the immigrant visa processing immediately. It is the visa number retrogression. Since the EB-3 visa number is not available for you at this time, you will not be able to apply for an immigrant visa at this time. Please seek legal counsel immediately.
  • Q10(08-02-06): I am a Chinese research scientist. My wife and I have M.D. degree. We have chosen research career rather than clinical career and we are currently employed with nationally prominent research institutes in the U.S. in H-1B nonimmigrant status. My wife started the labor certification process early in 2003 and was stuck at the Backlog Elimination Center. I filed National Interest Waiver I-140 petition concurrently with I-485 application for myself and my wife when the EB-2 visa number was available. The EB-2 number has retrogressed since then. My wife's labor certification was approved by the Dallas Backlog Elimination Center three months ago and the Texas Service Center also approved her I-140 petition. Now we would like to take advantage of her priority date for our pending I-485 applications. We are confused by all the discussion on transfer of priority date or transfer of I-140 petition or transfer of I-485 application. Please help us to understand the right procedure that we should follow. A: I do not blame you why you are confused by all the discussion of transfers relating to the prirority dates. Let's start looking at each of these so-called "transfers" one by one. (1) Transfer of Priority Date: The employment-based immigrant priority date can be retained once I-140 petition is approved. If one person has multiple I-140 petitions approved, no matter whether they were obtained through the same employer or different employers and no matter whether they belong to the same category or different categories, he or she can choose one of the approved I-140 petitions that has the earliest priority date and transfer that priority date to another approved I-140 petition for which the visa number is available. Even though this second approved I-140 has a low priority date and he would not have been able to file I-485 application based on this I-140 petition, he or she can file I-485 application based on the priority date which is borrowed from another approved I-140 petition. The priority date itself can not be transfeered to another individuals, no matter whether they are family members or not. In substitutution labor certification situations, the substituting alien beneficiary picks up the priority date, but it is not because of the transfer but because of the substitution of the alien beneficiaries. (2) Transfer of I-140 Petition: The approved I-140 petitions cannot be transferred for an individual or between individuals. Accordingly, the term "transfer of I-140 petition" is a misnomer. There is the term "portability of I-140 petition" which allows the alien beneficiary to take one approved I-140 petition from the original sponsoring employer to another new employer if the conditions are satisfied after 180 days of filing of I-485 applications. Under AC 21 Act, the law assumes that the approved I-140 petition remains valid even if the alien leaves the employer and changes the employer when the conditions are satisfied. Since underlying I-140 remain valid even after the change of employer, the pending I-485 is also considered valid and not affected by the change of employer. In this context, there is no transfer of I-485 applications to the new employer proceedings. (3) Transfer of I-485 Applications: When one has filed I-485 application based on a given I-140 petition and such I-485 applications are pending for him/her and his/her family members, these I-485 applications can be transferred from one approved petition to another approved petition, no matter whether the new petition belongs to same individual or it belongs to the spouse, provided that the visa number must be current for the new approved I-140 petition. If such transfer of I-485 takes place from one petition to another petition for the same individual, it gives the impression of transfer of the petition, but it constitutes transfer of pending I-485 applications from one petition to another petition. If it happens with the same individual, the individual continously remains "direct beneficiary" of the approved I-140 petition and the spouse continuously remains "derivative beneficiary" of the husband/wife's approved I-140 petition. If the I-485 applications are transferred from one individual's approved I-140 petition to the spouse's another approved I-140 petition, the spouses roles change: The original direct beneficiary turns into a derivative beneficiary of the spouse's approved petition, and the spouse's derivative beneficiary status turns into a direct beneficiary of his/her own approved I-140 petition. In the transfer of I-485 applications, the pending I-485 applications are moved from one approved I-140 petition to another approved I-140 petition. Your situation is the transfer of pending I-485 applications asking the Service Center to move the pending I-485 applications from your approved I-140 petition to your wife's approved I-140 petition. Your request should be addressed to the Service Center that issued I-485 Receipt Notice.
  • Q9(08-02-06): I am a Chinese waiting for EB-485 approval. I married to a Chinese woman four months ago. She is in a F-1 student status. She could not file I-485 because the my visa number was retrogressed. But beginning from August 1, 2006, my visa number became available. I wonder whether she is eligible and where she should file her I-485 application. A: Your wife is eligible to file her I-485 application as accompanying derivative beneficiary of your employment-based petition, provided that she was married to you before your I-485 was approved and the visa number is current for you. Accordingly, even if the Service Center approves your I-485 tomorrow, she will still be able to file her I-485 application based on your approved employment-based petition and your priority date. This would have been unavailable, had you married her after the Service Center approved your I-485. As for the USCIS office where she should file her application, since last monh, July 2006, the USCIS has centralized the employment-based I-485 filing for the derivative beneficiaries into Nebraska Service Center. Accordingly even if you filed your I-485 application in Vermont Service Center, your wife should file her I-485 application with the Nebraska Service Center attaching your approved I-140 petition and I-485 Receipt Notice. Within the USCIS, your I-485 and your wife's I-485 files will be inter-filed and processed together. The bi-specialization process is currently causing a lot of confusion as related to the filing procedure, but you will have to live with it until the USCIS filing system is more stabilized.
  • Q8(07-30-06): I and my wife are Indins. I am a software engineer and my wife is a M.D. I started a EB-3 labor certification through an Indian IT consulting company in Texas on March 2, 2001. Both of us are in H-1B status. We filed concurrent I-140 petition and I-485 application. in April 2005. However, the employer was angry at me for my intent to work with another employer and withdrew my approved I-140 petition. Based on the withdrawal, the Texas Service Center revoked my I-140 and denied our pending I-485 applications. My MD wife started a EB-2 labor certification in September 2005 which was approved in November 2005. I am still within H-1B six year limit and my wife also maintains her own H-1B. EB-2 visa number has been retrogressed from October 2005 and from day after tomorrow, EB-2 number will be completely unavailable. We are so frustrated. We have two children born in the U.S. Her medical practice has been working well and she is really looking foward to her medical career in the U.S. I understand that the priority date is locked and backpacked by the alien beneficiary once I-140 petition is approved. I do not see why my wife can not use this priority date of March 2, 2001 and we file I-485 applications again. What do you think, sir? A. It is true that a priority date is locked and backpacked by the alien beneficiary once I-140 petition is approved unless the approved I-140 petition is revoked for fraud, revoked by invalidation of the underlying labor certification application or revoked by the Department of State for failure to apply for the immigrant visa within one year from the notice of immigrant visa application by the agency. Otherwise, the alien carries the prioriy date for life in his backpack. Accordingly, the priority date is controlled by the employer until the I-140 petition is approved, but once the I-140 petition is approved, the employer loses control over the priority date and the alien keeps the priority date. Accordingly, if you start a PERM application now and quickly obtain a EB-3 I-140 petition based on the approved PERM, you may be able to file I-485 applications again soon as the USCIS is poised to launch the Premium Processing Services of EB-3 I-140 petitions next month. However, the priority date is not transferrable to your MD spouse and you cannot file I-485 application as a derivative beneficiary of your wife's EB-2 petition based on your priority date. The PERM labor certification nowadays takes a little bit longer, but it is do-able in a fairly limited period of time. Unfortunately, in your case, you cannot extend H-1B beyond six years as one-year increment extension is not available because your I-485 denial became "final." Once denial of labor certification or I-140 or I-485 becomes final, your cannot apply for the H-1B extension beyond six year limit in one-year increment. You cannot apply for H-1B extension in three-year increment because your I-140 petition has been revoked and there is no longer adjustment of status proceeding pending for you and your family. Besides, the Indian EB-3 visa number is availalbe and when you are not suffering from the visa retrogression, you cannot apply for the three-year increment H-1B petition using the AC-21 Act. It appears that your new employer should run fast to develop and file a PERM application. For your purpose, you do not have to be bothered by the issue of EB-2 or EB-3 as the visa number is available for your EB-3 India. Good luck.
  • Q7(07-29-06): My father filed the EB-3 labor certification in 1997 when I was a 17 year old student. I was a derivative beneficiary of the I-140 petition of my father. When my father filed I-485 based on the approved EB-3 labor certification and I-140 immigrant petition, I was already 21 years old and could not file my I-485 application. My nonimmigrant status expired in December 2000. Accordingly in order to take advantage of the 245(i) relief, I started EB-3 labor certification on my own before April 30, 2001. After waiting for four years for approval and working so hard on miserable wages paid by the employer, the employer betrayed me and substituted the beneficiary of the labor certification application by his cousin. Since I-140 was never filed, I understand that my 2001 priority date was lost. In December of 2005, I filed a PERM application through my new employer which has been approved. Now EB-3 visa number is retrogressed helplessly, I wonder whether I can survive during the period of long wait for the visa number.. My current employer may sell his business. He is also taking advantage of me and I am really scared of my future. Can I recapture my father's EB-3 priority date and file I-485 application now? Unlike men, we women are more vulnerable to being taken advantage of by the employers because of our visa status. Please help. A. I feel very sorry to hear your story. I am afraid that I may not be able to give you much help other than explaining the rules and laws that can affect your immigration journey. First, as you understand correctly, even if you are illegal, you are grandfathered by the 245(i) benefit. What it means is that when you obtain certain immigration opportunities of your own, despite your illegal status, you will be able to file I-485 application because of the 245(i) benefit, which would not have been available otherwise. Immigration opportunities can include not only the employment-based immigrant petition but also family-basaed immigrant petition, immigration lottery, investment immigrant petition, asylum, religious worker special immigration, etc. However, it is one thing that the 245(i) will allow to file I-485 based on your own immigrant petition, but it is other when it comes to a question of whether you can retain the priority date of your father's EB-3 immigrant petition of 1997. Your father's priority date is not transferrable to you unless you are eligible for I-485 adjustment of status as the derivative beneficiary of your father's EB-3 labor certification application. Additionally, your vulnerability of abuse by the employers or people around you because of your illegal alien status will continue to exist as the 245(i) benefit does not protect you from immigration enforcement until you file I-485 application. I am not in a position whether you are protected by the Child Status Protection Act from your father's petition, but it is likely that the opportunity disappeared because of lapse of time from the date when you had an opportunity to file the I-485 application at the time your father filed I-485 application even if you passed the age of 20 at the time. This issue should have been closely looked into at that time to determine whether you were eligible for CSPA law. As for your own labor certification which was filed before April 30, 2001, unless it was a frivolous or meritless labor certification application which was not approvable at the time of filing, it grandfathered you for the 245(i) benefit and once your PERM based EB-3 visa number becomes available, you will be able to file I-485 without leaving the U.S. unless you are arrested and deported by the immigration agent for your illegal status. The sad thing in your case is that the crook employer changed the beneficiary of the labor certification application before I-140 petition was filed for you and you were not able to retain the priority date of pre-April 2001. Accordingly, your priority date will remain the date of your PERM application filing in 2005 and you have a long and rocky road ahead to complete the immigration journey. What happens if the employer's business is sold? Unless the buyer of the business meets the legal standards of successor-in-interest entity and more importantly will be willing to continue the approved I-140 petition, your green card opportunity based on this employment will disappear as the I-140 portability does not apply to you until after you file I-485 application and 180 day passes. Neither is available the 7th-year H-1B petition in either one-year increment or three-year increment as you have not been in a valid H-1B status. You are also not eligible for any nonimmigrant status because you can not change your illegal status to a nonimmigrant status after you faill into an illegal alien nor can you apply for such a nonimmigant status through the American consulate in your home country because of the law that makes you subject to 10-year bar from returning to the U.S. once you leave the U.S. You did not tell me when you fall out of status and whether you were one time a F-1 student status. If you were one time a valid F-1 student and fell out of status but never caught by the government, you will not be subject to the 10-year bar and your opportunity to legalize your status through the consulate will remain open. However, there is another hurdle to achieve such legal nonimmigrant visa. The only nonimmigrant visa one is available after starting green card process in the U.S. is either H-1B or L-1. L-1 is out of quesion in your case. H-1B is practically only nonimmigrant visa you can apply through the consulate, but unfortunately, the annual cap of H-1B visas reached long time ago and no H-1B visa opportunity will be availble until October 1, 2007. Unfortunately, you may continue to be potentially left to the abuse by some crooks or sharks out there. I sincerely hope that Congrress passes either SKIL Act or one form or another of immigration reform legislation to increase the employment-based numbers such that you will not have to suffer too long. I wish you the best.
    
  • Q6(07-27-06): Mr.Oh, my situation is more or less idential to the Indian genteman in Q5, except that my I-140 petition was denied by the Service Center on the issue of multiple degrees including a three-year Bachelor's degree. It is an issue of Master's degree equivalency without counting any experience. The denial was appealed by my lawyer last month and I am awaiting the decision of AAO. My six-year H-1B will run out just like the other gentleman. What about me? Do I have a chance of 7th-year extension of H-1B? A. This is one of the hot issues in the immigrant community at this time. In fact, it hss remained an unsettled hot issue within the USCIS HQ as well. There is some chance that this issue may be revisited by the General Counsel of the USCIS sooner or later, but at this time, there is no specific time set for such potential revisit. However, currently, the H-1B aliens who face the six-year limit can file H-1B 7th-year extension until the USCIS decision including denial becomes final. The USCIS decision of denial is not considered final until the AAO hands down its appellate decision. Currently, AAO is experiencing a substantial delay in I-140 appeals and you may not hear from the AAO for quite a while. However, pending the appeal, just like the other gentlman, you can file your 7th-year extension petition attaching a copy of the Appeal Receipt Notice. Your case is a good reminder for your Indian colleagues who are or will be in a similar situation that when the I-140 petition is denied on this issue, they may want to explore two options. One is to file an appeal of denial and wait out for the potential revisit of the issue by the USCIS and at the same time take advantage of the H-1B 7th-year extension at least while they wait for the decision. At the same time, they should not neglect to start a new labor certification or refile an I-140 petition at the lower level of petition, to wit, EB-3 petition using an occupation requiring two-year experience and a federal court decision in Grace Korean Church which ruled that when the labor certification application required a bachelor's degree plus two years of experience and the alien fails to prove a bachelor's degree unless the alien combines either two degrees or degree plus experience, the USCIS should still approve EB-3 petition as "skilled worker" qualification. Approval of this petition may give another opportunities to extend H-1B extensions in the future, should the appeal fail. One may then file EB-2 PERM afterwards and use transfer of the priority date. Additionally, they may want to relook at their labor certification to see whether they can file another I-140 petition using the same labor certification applicatiopn as the denial of I-140 does not automatically invalidate the underlying approved labor certification application. They may, in such situation, have to go through a lot of hussling and juggling, but as an old saying goes, only a fool will sit on a single solution failing to tap all the potential available options and knock every available doors to open. Remember the Yogi Bera's saying, "It ain't over till it is over!"
  • Q(07-27-06): I am a late-starter of the labor certification application. I came to the U.S. on a F-1 student visa to study a graduate MIS degree program. I finished the school in May 2000 and started OPT employment. and changed my student status to a H-1B status on August 2, 2000. By August 2, 2006, I will reach the 6-year limit of H-1B in this country. My employer filed the PERM application on August 2, 2005 which has been approved on October 10, 2005. I am an Indian and I could not file concurrent I-140/I-485 because of the EB-2 visa number retrogression on October 1, 2005. However, I filed I-140 petition in October 2005, but this petition hss been stalled and yet to be adjudicated by the Service Center. I cannot apply for the 7th year H-1B extension now because the labor certification application was filed after I reached the 5th year in H-1B and I will reach 365 days of labor certification filing only on August 1, 2006, Tuesday. It is July 27, 2006 today. I am desperate. Please help. I have not left the U.S. since I came to the U.S. and I have no time to recapture H-1B time. A. My God, you are in a breath-taking situation. It is unfortunate that the Service Center has been delaying adjudication of your I-140 petition this long. Had they approved it, you could have filed the three-year exension even if you had not accumulated 365 days after filing of the labor certification application. It is true that you have not reached 365 days since you first filed the labor certification application on August 1, 2005, which is about five (5) days away. But please do not panic. There is always a door open for people like you who come forward and knock the door for help. The fact that you have not reached 365 days of labor certification application now does not mean that you cannot file the 7th-year H-1B extension petition now. Inasmuch as you file the 7th H-1B extension (1) while you are in a valid H-1B status and (2) the starting date of 7th-year H-1B extension is earlier than the date when you reach 365 days from the labor certification filing, you can file the 7th-year extension petition even now and today. Obviously your 7th-year H-1B extension petition must be received by the Service Center by August 1, 2006 because that is the date when your H-1B six year will expire at the end of the date. In your H-1B extension petition, you must make it sure that the extension starting date is not earlier than August 2, 2006. In fact, even if you put earlier starting date, the Service Center should approve it as you are seeking a few days of extension within the 6th-year limit and attempting to seek 7th year extension after August 2, 2006, but this may confuse the adjudicator and you may either receive RFE or denial by the confused adjudicator. It is thus prudent for you to seek the 7th year H-1B extension petition with the starting date of August 2, 2006 and not any earlier date. Once such 7th-year H-1B extension is "timely" filed, you are allowed to stay and work for 240 days pending the decision of 7th year extension. Howver, please do not travel outside of the U.S. until the extension petition is approved. Without doubt, your I-140 petition will be approved sooner or later. Once your get I-140 approval, then you will be able to extend your H-1B in three-year increment while there is a EB-2 visa number retrogression for your priority date. Please get set and run!
  • Q4(07-23-06): I am an Indian software engineer who came to the U.S. in October 1999. I came to work with a consulting company in the Silicon Valley. The employer filed a EB-2 labor certification application on March 25, 2000. This case has been stuck at the Philadelphia BEC. Another company was interested in me and filed a EB-3 PERM in September 2005 which was approved in January 2006. The EB-3 employer then filed I-140 petition which has been approved. I understand that PBEC will pick up the speed of processing backlog cases and I may get approval of the EB-2 BEC application of my current employer in the near future. I intend to file the EB-2 petition swiftly upon approval of the PBEC EB-2 application. I hope that the USCIS will have started the Premium Processing Services for I-140 petition by that time so that I will be able to obtain the I-140 approval within 15 days. I do not know how long EB-2 will remain unavailable for India and I am just preparing for the worst. Unless something is done, I will not be able to file either EB-2 or EB-3. What options will I have assuming that the current visa retrogression will continue for a while. The new employer really needs my services as soon as possible and will pay me in excess of $100,000 a year. Please help. A4: A I-140 immigrant petition and its underlying labor certification remain valid indefinitely unless it is withdrawn by the employer or revoked by the USCIS or DOL for fraud. Besides, the I-140 will remain continuouisly valid even after the employer's withdrawal if the withdrawal is filed by the employer after 180 days of I-485 application under AC 21. Besides, the priority date is locked unless the petition is revoked for fraud by the USCIS or revoked by the State Department for failure of immigrant visa registraion within one year from the date of notice. Besides, borrowing a priority date from one of the two petitions will not invalidate the I-140 petition and underlying labor certification application until either immigrant visa is granted by the visa post or I-485 application is granted by the USCIS. Accordingly, you may want to discuss a strategy with your legal counsel filing a EB-3 concurrent I-140/I-485 as soon as the EB-2 140 petition is approved. Without doubt, should the EB-2 number be available at the time, you should file EB-2 concurrent I-140/I-485 application. However, should EB-2 number remain continuously "unavailable," you may be able to file EB-3 concurrent I-140/I-485 using the priority date of March 25, 2000. You may want to consider such strategy for the following reasons: (1) You will be able to obtain EAD and Advance Parole. (2) Your AC-21 portability clock can start ticking. (3) The Service Center will continuously process I-485 application including namechecks and other security clearnaces. This option may be considered becauset you wrote me that these employers were remotely related and the EB-2 option would remain open until the EB-2 India visa number would start progressing. Once EB-2 number becomes current for you, you may be able to request the USCIS to transfer the pending I-485 for yourself and your family to the EB-2 petition without discruptions. This option needs a thorough review of your employers and your own fact situation by your legal counsel and you should not jump and take an action on your own as it can involve a huge risk depending on the facts and circumstances of an individual.
  • Q3(07/22/06): I am a Chinese with a Ph.D. degree in Mechanical Engineering from a University in California. I have been working with the University as a Research Associate conducting research on a defense department project. I have published more than 10 articles in the international journals, a published review of my achievement by a leading scientist in my field. I thought I deserved a National Interest Waiver EB-2. I filed EB-2 I-140 petition concurrently with the I-485 application in September 2005, immediately prior to the EB-2 visa retrogression for Chinese in October 2005. It was a self petition. To my total surprise, last week, I received a denial of I-140 petition from the Service Center. Along with the decision of denial of National Interest Waiver petition, they also sent me a letter denying my I-485 application. I do not have a H-1B status as I have been working on EAD. I am totally crushed. What will happen with me? A3: When one files concurrent I-140/I-485, the underlying proceeding for I-485 application is I-140 petition. If EAD and Advance parole applications are also concurrently filed, the underlying proceeding for the EAD and Advance Parole applications is I-485. What this means is that once the underlying legal proceeding of I-140 faces denial, all the concurrently filed proceedings of I-485, EAD, and Advance Parole applications also collapse as they lost the underlying legal foundation. This is what happened in your case. When one faces such denial of I-140 petition, one considers three options: (1) Refiling of I-140/I-485 or (2) Motion to Reopen or Reconsider or (3) Appeal to the AAO of the USCIS. Here, refiling of the concurrent I-140/I-485 is not available as the visa number is not available for your EB-2 priority date for China. Motion to Reopen or Reconsider is available within 30 days of I-140 denial, but decision of the motion can take months or even years. Pending the motion, you will not have any legal status and your unlawful presence clock will keep ticking from the date of denial of initial I-140/I-485 concurrent filing, subjecting you to either three-year bar or ten-year bar from returning to the U.S. once you pass six months or one year from the date of denial. Besides, pending the motion, you will not have any work permit. Neither do you have an advance parole. As for the option of an appeal to AAO, appeal is available only for I-140 denial. The denials of I-485, EAD, Advance Parole are not appealable. Pending the appeal, neither will you have any work permit. The unlawful presence will also keep running pending the appeal to the AAO. The processing times of AAO appeal are substantially backlogged at this time. If the Motion or Appeal is denied, one literally faces the end of a rope for the immigration journey. If the Motion to reopen is filed for I-140 petition and not I-485 application, the approval of the motion may or may not reinstate the I-485 proceedings depending on the discretion of the agency. There is no firm rule or policy as to the consequence of grant of Motion to Reopen of Denial of I-140 Petition on the denied I-485 applications. If the agency exercises a discretion and reintate the I-485 application, the agency will continue processing of the I-485 application. On the other hand, if the agency declines to exercise discretion and require the alien to refile I-485 application, the alien will not be able to refile I-485 application as the visa number has retrogressed. The same is true with the AAO appeal. The AAO does not have any jurisdiction to rule on the denied I-485 application and its reversal of the Service Center's I-140 petition denial will return the I-140 petition with approval. It has been a reality that in most of the cases of grant of motion to reopen or grant of appeal, the Service Centers have exercised a discretion and continued processing and adjudication of I-485 application. But it is a matter of discretion rather than a mandate. Retrogression of the visa numbers pending I-485 thus results in the harsher consequences than the situation where I-485 is denied when the visa number is available. You should immediately seek legal counsel.
  • Q2(07/21/06): I am an Indian Microbiologist. I came here on H-1B status to work with a University in New England. I have seven years of outstanding research experience both here in the U.S. and in England. The University filed the EB-1 Outstanding Researcher I-140 petition concurrently with the I-485 applications of myself and my family. The I-140 petition has been approved and our I-485 applications are pending. Unfortunately, the University lost funding sources for the research project and I was asked to leave the employment by August 25, 2006. A small medical lab that I worked with for the University research project offered me a researcher position and filed a EB-2 PERM application which has been approved. The lab could not file another Outstanding Researcher petition for me because the lab did not hire at least three outstanding researchers in the staff. The lab filed EB-2 stand-alone I-140 petition which is expected to be approve either before the end of July or right after the end of July 2006. I wonder whether I can continue I-485 proceedings by transfer of I-485 applications to the new EB-2 I-140 petition. A2: It apepars that you may have a number of problem to continue the green card process. First and foremost, for you to take the lab job, the lab should file H-1B petition for you. Problem is there are no H-1B cap number available for you until October 1, 2007. Even though you earned a Ph.D. degree in India, you are not eligible for the special 20,000 H-1B numbers for those who earned an advanced degree in the U.S. Secondly, there are two distinctively different issues which are related to your case in connection with the EB-1 and EB-2 petitions. One is transferability of Outstanding Researcher EB-1 priority date to your new EB-2 petition. Answer is yes, provided that the EB-2 petition is approved. The other and separate issue is whether the pending I-485 application be transfered from EB-1 petition to EB-2 petition. The answer will also be yes, provided that both EB-1 and EB-2 petition remain valid, EB-2 petition has also been approved, and mostly importantly the visa number is available. Assuming that your visa number is available for the priority date which was retained by the EB-1 petition in July 2006 for the purpose of EB-2 petition, you will be able to request transfer of pending I-485 applications of yourself and your family to the newly approved EB-2 petition using EB-1 priority date. This will work only when the EB-2 petition itself will be approved before the end of July 2006 and your request for transfer will be timely filed before the end of July 2006. However, should the EB-2 petition be not approved before the end of July 2006, even if you can transfer the priority date from EB-1 to EB-2, you will not be able to transfer the pending I-485 applications to the new I-140 petition for the two reasons. First, beginning from August 2006, EB-2 visa number will not be available for Indians no matter how earlier priority date one will have. Secondly, under the policy and rule of the USCIS, the transfer of pending I-485 applications is available between two immigrant petitions only if (1) both petitions have been approved and remained valid and (2) priority date is available. If your petition is approved after the end of July, you will be able to meet the first condition, but fail to meet the second condition. Accordingly, unless the change of employment meets the AC-21 180-day portability rule, your pending I-485 applications are likely denied and you and your family members will not be able to file another I-485 applications until EB-2 number for India becomes current for your priority date in the unknown future.
  • Q1(07/20/06): I am an indian who had a labor certification application pending with the priority date of April 5, 2001. Surprisingly, today I received the approval notice of the labor certification application and I consider myself one of the luckiest guys in the immigrant community. Now I have completed documentation and am ready to file the application by mail using the Service Center's PO Box for I-485 filing. Since my employment-based nonimmigrant status is about to run out in a month or so, I intend to file EAD application online as separately from the I-485 filing. The I-485 will have to be filed before the end of July 2006 as the EB-3 India will move back to April 1, 2001 for EB-3. What is the chance that I will be able to obtain EAD approval quickly? A1: You are indeed one of the luckiest persons in town. When it comes to filing facing deadlines or certain critical date, using U.S. mail will turn out to be a big mistake. In the first place, you will not have any proof that your application was indeed shipped out. Besides, even if you file it via U.S. Express Mail, since you used P.O. Box, it stays with the PO Box until the Service Center picks it up. Remember that a case is considered not filed until it physically reaches the Service Center facilities and date stamped. The U.S. postal service is not the best services when you face such deadlines. Additionally, using a P.O. Box will turn out to be another mistake. The packages delivered to the P.O. Boxes are picked up by the Service Center mailroom crew, usually in the morning, and any mails that go into the P.O. Boxes remains there for the next day pickup the Service Center. People may as well use street address and commercial overnight delivery services which also give the evidence of shipment and delivery. As for the issue of electronic filing of EAD application as separate from the I-485 applications, you should know that EAD application is called an "ancillary" application to I-485 application in your case and unless the filing of I-485 is confirmed, the Service Center will outrightly reject such ancillary applications and you will face a big problem. Online filing EAD raises another issue as related to the processing times. At the Service Centers, online filing and paper filing go into the same queue. While paper filing does not require any additional steps to obtain the approval, the online filing requires "biometric" collection at the ASC of the USCIS which involves your trip to the government office. Besides, you are also required to submit the supporting documentation by mail, which is another step. When the EAD is about to expire in a short period of time, it will be a big mistake to file the application online. It is thus imperative in your case that you should file the EAD application concurrently and in the same packet with the I140/I-485 application filing.
  • Q-103 (07-03-2006): I am a F-1 student working for pharmaceutical store on an Optional Practical Training status. My job is located in St. Louis, Missouri. I have a master's degree in the U.S. Using the FY 2007 special cap number, I have just submitted the H-1B petition to start from October 1, 2006. This petition is pending. However, my OPT and EAD will expire on July 31, 2006. What do I have to do during August and September without employment authorization? Will my legal status be considered legal during the period? A-103: When I-129 petition is filed either to change of nonimmigrant status or extension of nonimmigrant status, it includes the two legal proceedings. One is the employer's petition requesting the government to give a permit to employ the nonimmigrant in the petitioned nonimmigrant status. The other proceeding is the alien beneficiary's application for change of current nonimmigrant status or extension of nonimmigrant status. In old days, the law required the employer and the alien to file two separate forms concurrently to make it clear that it involves two separate legal proceedings. However, under the current law, one form I-129 incorporated both proceedings. Consequently people often misunderstand that there is only one legal proceeding involved when an employer files a H-1B petition. Truth is that two proceedings remain intact and completely separate. Accordingly, USCIS either can approve the employer's petition and at the same time approve the alien beneficiary's application for change or extension of nonimmigrant status or approve the employer's petition but deny the alien's application change or extension of nonimmigrant status. The reverse situation is not available since the employer's petition is underlying legal proceeding for the alien's application for change or extension of nonimmigrant proceeding. In the instant case, there is no difficulty anticipated in obtaining the employer's H-1B petition as the employer is a bona fide business and you also have a temporary state permit for internship. However, there is a question whether your application for change of nonimmigrant status from a student to a H-1B worker is approvable. F-1 student has a grace period of 60 days afer completion of F-1 program or OPT training. Your 60-day of grace period will run out on September 29, 2006 as August has 31 days. During the H-1B cap gap, the rule requires that the alien's nonimmigrant status must remain valid on October 1 of that year, which is October 1, 2006 in this case. Since you will not be able to remain in an authorized period of stay on September 30 and October 1, 2006, it is likely that the USCIS may deny your application for change of status to a H-1B status effective October 1, 2006. What this means is that since the USCIS will approve the H-1B petition, you will have to apply for a H-1B visa at the visa post in your home country and return to the U.S. to work for this employer. Once the H-1B petition is approved for the employer, a H-1B cap number will have been taken out and even after October 1, 2006, you will not be subject to the H-1B cap and will be able to obtain the H-1B visa in the passport. F-1 student is also not subject to the three-year or ten-year bar from returning to the U.S. for unauthorized stay for three years or ten years unless the DHS or DOS or Immigrant Judge decided that the student violated the F-1 status.
  • Q-102 (07-03-2006): Bi-Specialization 2nd phase announcement indicates that all the I-140 immigrant petitions should be filed with the Nebraska Service Center which then ships the half of the volume to the Texas Service Center either the same day or the next day. I am about to file my EB-2 I-140 petition with the potential issues of financial ability to pay the salary by the employer and Indian three-year bachelor's degree. The PERM has just been approved. I heard that the Nebraska Service Center had been taking very restrictive and narrow standards on these two issues and I want to have my petition processed by the Texas Service Center. Any suggestion? A-102: It appears that the Nebraska Service Center and Texas Service Center had split the I-140/I-485 workloads half and half. The way they achieved the split was that the Nebraska Service Center and the Texas Service Center reportedly alternated each day. Accordingly, all the I-140 petitions received certain day were kept by the NSC and all the petitions which they received next day were shipped to the TSC. It appears, though, that this has created a problem in that by choosing certain fixed date, the filers could more or less pick and choose between the two Service Centers. The information which was announced a few days ago by the USCIS in the 2nd phase of the Bi-Specialization procedure was obviously intended to diffuse the issue and correct the problem which was apparently unintended and not anticipated. For these reasons, the filers can no longer pick and choose one of the two Service Centers when they file the I-140 petitions. There is one other interesting twist to the issue of choosing a Service Center. According to the NSC sources which were released on June 27, 2006, all the electronic filings, obviously including electronic filing of I-140 petitions had been routed to the Texas Service Center. Since the electronic filing is available for I-140 petitions, obviously some filers must have been able to choose a Service Center by choosing "e-filing" as opposed to "paper filing." However, this practice may not last long once the USCIS learns that this information has been made public, for instance, by this web site. Very soon, the employers and the alien beneficiaries will face a new issue as related to the Premium Processing of I-140 petitions. Without doubt, one of the two Service Centers is likely to handle all the I-140 Premium Processing Cases, even though it remains a speculation at this time. We really hope that the USCIS eliminates the foregoing problems and confusions by taking one of the two actions as soon as possible. One option is to subspecialize the I-140 petitions into one of the two Service Centers. This option will be able to remove at least the confusion and also bring about the fairness among the I-140 filers. The second option, which is a better option, is to finalize the USCIS uniform policy on these two issues either in the form of HQ memorandums or USCIS regulations. In fact, the USCIS initiated the rule making initiative on the financial ability to pay issue years back, but this rule making process has been held back for unknown reasons. As for the Indian three-year degree issue in the context of EB-2 I-140 petition filing, the USCIS leaders have been considering release of its firm policy in the form of a memorandum, but again, this policy making process has been held back for quite some time by now. We strongly urge the USCIS to look into these two options and to endeavor to achieve the true intended goal of the Bi-Specialization Program, "UNIFORMITY," by taking a bold action as soon as possible.
  • Q-101 (06-24-2006): I am an Assistant Professor with a small college in New Jersey. I have been teaching Computer Information System since 2001. My H-1B has been granted until December 2006. Through the Faculty Special Handling labor certification process, I obtained my labor certification in September 2004. I then filed I-140 and EB-485 for me and my husband concurrently. I am a Chinese and our I-485 applications have been held up in the security clearance for more than a year. Last month, I visited France for a conference and returned to the U.S. using the Advance Parole. Even though I had a valid H-1B approval, I did not have a valid H-1B visa stamp in the passport and I had to return to work on Advance Parole. Shockingly, I received a mail from the Texas Service Center last week that my I-485 has been denied and EAD and Advance Parole have been revoked. However, I understand that I still have a H-1B status until December 2006 and can apply for extension of the H-1B and I do not have to leave now. What will happen with me? A-101: When an H-1B alien travels on Advance Parole rather than H-1B visa, the USCIS has been applying certain interim policy for the last few years that such alien can resume employment until end of the H-1B approval period and apply for the H-1B extension. This interim rule has been expected to be changed by enactment of a regulation, which has yet to happen and the policy is still in place. However, the policy is applicable only if your I-485 is pending. While you remain in a valid H-1B approval period, by applying for extension of H-1B status, you would have been allowed to resume your H-1B. There should however be no mistake about the legal status of a H-1B alien who enters country on an Advance Parole. Such alien does not have a nonimmigrant status until the H-1B status is reinstated through the H-1B extension process and the legal status of such alien remains a "parolee." Such alien is considered not a nonimmigrant status and is considered not admitted. Any parolees pending I-485 application are subject to removal proceeding upon denial of the underlying I-485 application. Either the USCIS or ICE can initiate the removal process by serving Notice to Appear (NTA) immediately. The proceeding was called "exclusion" proceeding and not even "deportation" proceeding under the old law as such alien was not considered "admitted" and not a nonimmigrant and the country could remove such alien from its territory after taking the exclusionary proceeding. From now on, the 485 applicants will growingly receive such NTA when their I-485 is denied and the alien is not in a valid nonimmigrant status. In your case, you remained not, repeat not, in a H-1B "nonimmigrant" status after you returned on an advance parole and your status was a parolee. It appears that you have not received the NTA from the Texas Service Center when you received the I-485 denial notice, but the ICE can initiate the removal proceeding any time. The risk of working on Advance Parole will continuously hightened, especially when the alien has a record of criminal violation or security risk.
  • Q-100 (06-23-2006): Back in December 2000, my employer in telecommunication business filed a labor certification application for me. After a long delay, this labor certification got finally approved in February 3, 2005. I thought I would apply for the immigrant visa through the American Consulate in Chennai, India rather than going through I-485 proceeding. I 140 petition was filed for consular processing, which was approved in April 2005. In May 15, 2005, I received a notice from the National Visa Center to submit payment and start collecting papers for the immigrant visa application. In January 25, 2006, I changed my mind and filed I-485 with the Vermont Service Center. Visa number is current for me and my family. Then last week, I received a notice from the State Department that my registration for the immigrant visa application has lapsed because I did not start the immigrant visa proceeding. I just ignored and neglected the NVC advisory that I should initiate the immigrant visa proceeding within one year. The notice also advised that the approved I-140 petition had been revoked. I almost fainted at the shocking news. Revocation of I-140 is devastating not because of the I-140 itself but the loss of priority date. What will happen with my priority date? A-100. Under the immigration law, when an alien commence the immigrant visa application proceeding and the state department starts the visa application processing, the alien must "initiate" the immigrant application process within one year from the date of notice of the State Department. The notice has an advisory that unless the alien acts in response to the NVC notice within one year, the registration will be terminated and the underlying immigrant visa petition will be invalidated. Once the I-140 petition is thus "automatically" terminated, the alien "loses" the priority date as well. However, in your case, you filed I-485 application within this window period of one year with the USCIS. In that case, I-140 petition is not automatically revoked and neither the underlying priority date is lost. In order to avoid this type of confusion and procedural mess, you should have filed I-824 concurrently with I-485 application to keep the state department noticed of the request for termination of immigrant visa application proceeding or at least you should have contacted the NVC with the withdrawal of the immigrant visa application. It appears, though, that both the State Department and the USCIS are aware of people's failure to take care of such notice from time to time. From the perspectives of the USCIS, once I-485 application has been receipted and is being processed, the approved I-140 petition is considered not automatically revoked. Internally, they usually send a request to the State Department to return the I-140 approval file back to the USCIS for continuing processing of I-485 application. Your case gives a good notice to your colleagues that when one changes mind from the consular processing of immigrant visa to the I-485 application proceeding, for the purpose of the notice, they should at least file I-824 and/or send a notice to the State Department that they changed their mind and they are going through the I-485 proceeding. This way, the State Department can save their time and energy from being wasted. Your case also reminds your colleagues of the warning that unlike your situation, should the immigrant visa applicant fail to initiate the immigrant visa process within one year from the date of notice from the State Department, both I-140 and priority date will be automatically invalidated.
  • Q-99 (06-20-2006): I am a I-485 waiter who needs to wait a long time to get it approved because of EB-3 retrogression. I am an old bachelor (?) who missed my girl friend back home in Venezuela. I have been working on EAD and maintained the love escape with her using Advance Parole. I used to have a H-1B but have given up after I filed I-485. My girl friend had a visitor's visa in her passport and recently arried here to reunite with me. The old bachelor of 43 years of age cannot stand any physical separation from this lady. Spending one month with her was like a dream. I am thinking about marrying her immediately. What will happen? A-99: There are miles of difference between marrying while in H-1B status and marrying while the other partner is visiting this country in a visitor status. When you are in I-485 proceeding and marry your partner, no matter where it took place, if she tries to enter the U.S. to allegedly to visit you, her "immigrant intent" appears to be too evident to repute it. However, if she enters the country in H-4 status, she will not experience any problem both at the time of entry or in applying for her green card even if her immigrant intent is too obvious because H-4 alien enjoys the dual intent of temporary and permanent residence just as much as the H-1B aliens does. Accordingly, as soon as she enters the country, she will be able to file I-485 application as your spouse, literally in less than two or three days after the entry. However, the rule is completely different when an alien enters the country on a visitor status which is subject to the nonimmigrant intent rule. If the immigrant intent is detected, she is supposed to be denied the entry into the U.S. and if she was successful in entering the country without revealing the immigrant intent, this issue will haunt at the time of adjudication of her I-485 application. If the adjudicator detects that she had a preconceived intent to marry you at the time of entry, her application will be denied for the misrepresentation at the time of admission to the U.S. Since the immigration officers can not go into her mind, they determine the immigrant intent or misrepresentation by certain circumstantial evidence. Timing of marriage and filing of I-485 after the entry are two most important evidence and weapon the officers can use to establish such misrepresentation. Her prior entries into the U.S. and returns to Venezuela are also very relevant. Using these two yardsticks, they may or may not be able to establish the preconceived intent. Let's look at the timing of marriage and time of application. The sooner that happens, the persuasive the evidence is that she had preconceived intent. Accordingly, adjudicators generally use the established "rule of 60-day presumption of misresentation." When these things happend in 60 days of entry, the USCIS would use this rule and the burden of proof that there was no misreprentation lies with the alien. Once 60-day period passes, the USCIS no longer enjoys the presumption and they will have to prove that the alien had such immigrant intent at the time of entry. In other words, the burden of proof shifts to the USCIS. Proof of one person's "state of mind" is not necessarily easy to establish and in this regard, who has the burden of proof can be very critical in dealing with the misrepresenatation issue. When it comes to the timing issue, the farther you and your lover stay away in tieing knots and filing her I-485 application after passing the 60-day cut-off date, the harder the USCIS adjudicator to establish convincingly that she had a preconceived intent at the time of entry. Secondly, in interpreting one's mind, the record of past visit and return can be very crucial to establish that she did not have an immigrant intent on this trip as well at the time she entered the country this time around. Combination of these two evidence will make her I-485 application stronger in refuting the potential USCIS argument that she committed misreprentation at the time of entry. It must be too hard for the loving couple to stay separated each other for a prolonged period of time, but you will have to also understand the job the USCIS officials have to undertake as sworn-in officials to enforce the law according to the spirit and intent of the laws. Both the government and the couple must work within the rule of evidence.
  • Q-98 (06-20-2006): I am a German accounting professional. I finished a business school in Texas earning a bachelor's degree in accounting. I passed and obtained Certified Public Accoutant (CPA) license. I have been working with a national accounting firm in Dallas, Texas in OPT status. My OPT will expire in May 2007. The employer has just filed for me the PERM application for green card for the Accountant position with a requirement for a bachelor's degree in Accounting and CPA license. I have two problems. One is I will have to change my status from F-1 OPT to H-1B so that I can continue the employment after May 2007. The second problem is the EB-3 for worldwide is heavily retrogressed. Since CPA is professional license, I am wondering whether the CPA will make it as EB-2 for the purpose of I-140 petition. A-98. Congratulations for your CPA license. In a number of professional occupations, such as lawyers, medical doctors, clinical psychologists, etc., the States in this country requires a so-called "professional degree," for their license to practice their profession. They do not require a master's degree. In fact, the statutory language in the H-1B 20,000 special quota and EB-2 immigration uses the term "Advanced Degree." The USCIS, in implementing these statutues, has defined the term "Advanced Degree" to mean a Master's or Higher degree. Since these professions did not specifically ask for a Master's degree for licensing, there was a confusion in the immigration law community for a while. However, the USCIS recently clarified the term of Advanced Degree to include a post graduate degree that requires a Bachelor's degree to be admitted to the post graduate degree. Under this definition, the lawyer's juris doctor degree or medical doctor's M.D. degree or psychologist's clinical practice degree, are considered an "Advanced Degree." However, the definition of Advanced Degree is totally restricted to the education. It has nothing to do with the professional licenses. The reality is that these professional "licenses" are more prestigeous and respected in the community than their educational degrees. However, the Advanced "Degree" is "statutory language" which the Congress legislated and the agencies can not expand the statutory language. If they do, the courts will strike down such regulations or rules. It is unfortunate that despite your very esteemed professional license, you will not be able to apply for a H-1B status before October 1, 2007 using your CPA license. Neither can you use the CPA license to file a EB-2 I-140 petition once your PERM labor certification is approved.
  • Q-97 (06-19-2006): I am a Software Engineer working for a large IT firm in India. I joined this company in September 1998 as a Senior Software Engineer. In June 1999, I had to leave this company to work for another firm in New Zealand for an important short-term project. In December 1999, I rejoined the old employer. In May 2000, I came to New York to help install the employer's proprietary softwares for its subsidiary in New York. The U.S. subsidiary company then needed me on a long-term basis, and my Indian company transferred me to the New York subsidiary. The New York subsidiary filed L-1B petition for me in June 2000 on a premimum processing basis which was approved at the end of June 2000. In August 2004, I was promoted to the IT Manager by the U.S. subsidiary company in New York. In March 2005, the company filed a petition to convert my status from L-1B to L-1A on a premium processing basis, which was approved in early April 2005. I have been working with this company for the last one year and two months. Now, another Indian company that has a subsidiary in Chicago wants to hire me as a IT Manager but the H-1B cap has run out and they cannot file H-1B petition. Is there any way I can transfer my L-1A status from the current employer to the new employer in Chicao in L-1A status and file EB-13 I-140 immigrant petition without the labor certification application? A-97: You have raised a number of issues which need in-depth analysis and discussion. As the FY 2007 H-1B cap reached, more and more employers are currently seeking L-1 visa petition as an alternative to the H-1B in order to deal with the vaccuum in supply of foreign professional workers by India and China. The law requires that for a U.S. subsidiary company to hire a foreign worker in L-1B status, the company must prove that the foreign worker worked for the Indian parent company for at least one year during the past three years immediately prior to filing L-1B petition. When you left the company to work for another employer in New Zealand, you were not eligible for L-1B as you had been working for the Indian company for less than one year. However, by the time when you rejoined the old employer and came to New York to visit the company's subsidiary in New York, you had accumulated at least more than one year employment with the Indian company and you were eligible for L-1B petition. The New York firm was thus able to convert your status from B-1 business visitor to L-1B in 2000. The L-1B maximum limit is five (5) years and by June 2005, you would have reached the L-1B limit in the United States. However, in August 2004, you were promoted to a Manager position by the New York firm and filed a change of status from L-1B to L-1A in March 2005. L-1A maximum stay in the U.S. is seven (7) years. Under the law, inasmuch as a L-1B alien is promoted to a managerial position for a period of six-month or longer, the alien can convert the status from L-1B to L-1A. Your L-1A maximum 7 year limit will reach in June 2007. Accordingly you have one more year to go to reach the L-1A maximum limit. For the purpose of L-1A seven-year limit, it includes the period in L-1B as well. Now, you should have understood that you are not eligible for H-1B at this point even if the H-1B cap number is available as you have remained in L-1 status for six years. For the purpose of the H-1B cap, the L-1 stay in the U.S. is counted as part of the H-1B six-year limit. Accordingly, your change of status from L-1 to H-1B would have been out of question. The second question is whether your L-1A status can be transferred to another employer just like H-1B. The answer is "no," unless you are eligible for L-1A or L-1B with the another company. You are not because you have never worked for the Indian parent company in India previously. Besides, even if you did, it was more than three years ago and you are not eligible for L-1 visa status with the new company. The question remains whether your New York employer can file EB-13 Multinational Corporate Manager Immigrant Petition without a labor certification. Normally, L-1A Manager is eligible for the labor certification waiver and EB-13 immigrant petition. However, the law requires more than L-1A type of work in the U.S. You should also prove that you had worked with the Indian company in India at least one year in "managerial capacity" before you were transferred to the U.S. Since you were not a manager in India for one year, even if you are eligible for L-1A visa status by promotion to a managerial position in the U.S., you are not eligible for the EB-13 immigrant petition. In your case, you need a labor certification.
  • Q-96 (06-17-2006): I am a Russian physicist with a Ph.D. with seven years of research experience. I have been working with a university as a Research Associate for the past five years. Research is funded by the U.S. government annually, even though it is a long-term project involving the nation's defense issue. In September 2005, the employer filed EB-12 Oustanding Researcher Petition with one of the Service Centers. The I-140 petition was denied on May 29, 2006 on the ground that my employment contract was valid only for one-year and even if it was renewable, the government funding commitment was on a yearly basis and the employer could not sign an employment contact other than "at-will" or subject to termination without good cause upon the expiration of the annual contract. I have been thinking about filing I-140 again for National Interest Waiver, which is EB-2. However, there is a rumor that the EB-2 visa number for Worldwide including Russia can retrogress sometime in the future, even though the exact time is not predictable. I have been anciously watching the legislative activities including Comprehensive Immigration Reform, PACE Act, SKIL Act, etc., which would have given me a relief. But now I lost faith in the Congress and do not even follow the news on the legislation any more as it just keeps forcing me to ride a roller coaster and I cannot take any more the stress and frustration. Is there any future for me? A-96: You are not alone. It all started from S. 1932 last year and we have been riding an extremely rough roller coaster since then. People are sick of politics. However, I may have a good news for you. Your case was denied based on a unprecedent AAO decision that at-will or termination without a good cause terms in the employment contract constituted "not permanent" position in the context of Outstanding Researcher Petitioons. The universities and public and private research institutions, particularly pharmaceutical labs, throughout the country have suffered from this decision for not being able to recruit or retain the brightest researchers or scientiest. Since then, however, the USCIS has changed its policy that such annual terms of contract alone should not be a ground for denial. Accordingly, even if the contract states that the employment can be terminated without good cause after expiration of one year term and the funding contract with the government states that the project is funded only for one year, the position can still be considered permanent position inasmuch the employer can show a good prospect and potential for extension of funding and other financial resources. It appears that your case fits into this new policy. Your employer has three options: (1) The new policy was released in the form Memorandum on June 6, 2006 and the university may want to file a Motion to Reopen based on the Memorandum. The Motion must be filed within 30 days or 33 days if the decision was sent out by mail. In your case, the time has not expired yet. (2) Your employer can also file a new I-140 petition for the same Outstanding Researcher position. This option will work as good as the Motion to Reopen. (3) Your employer can also file an appeal to AAO, again within 30 days or 33 days, whichever the situation may be. The best options are either (2) or (3). The option of Motion to Reopen sounds the best in that it would not involve an extensive legal process. However, one problem of Motion to Reopen is that once 33 days are passed after receiving the denial and the motion is still pending, the option of "appeal" is unavailable under the rules. For some reasons, should the agency then denies the motion after the 33 days, you lose both opportunities. However, if the employer files an appeal to AAO, at the same fee, you enjoy both the Motion to Reopen and Appeal because of the agency practice that the agency reviews their denials on their own before they decide to forward the appeal to AAO. If they change their mind after the review, they will just approve the denied I-140 petition without forwarding the appeal to AAO. Since it preserves the right to appeal, this is also safest option when the employer wants the agency to revisit their decision. Sometimes, the agencies can take time to decide motion to reopen. If the employer does not want to deal with such delay, the employer might as well refile I-140 petition. Denial of one I-140 petition does not preclude the employers from refiling the same I-140 petition second time. Good luck.
  • Q-95 (06-17-2006): I am a portfolio manager of a leading U.S. international investment services firm. I have a MBA degree earned in India working with the employer for five and a half years in H-1B status. The employer filed the PERM application on July 5, 2005 which was approved in September 2005. The I-140 petition has also been approved. My six year H-1B limit will reach on November 3, 2006. The employer advised me yesterday that I would be transferred to its overseas operation in Tokyo, Japan. The employer said that since EB-2 India was likely to take a long time to reach my priority date of July 5, 2005, it would be better off that they transfer me to the Tokyo operation pending the visa number availability. Maintaining a H-1B nonimmigrant status under the circumstances would raise the issue of double texation and complicated compliance with the H-1B regulation. They are suggesting that pending the visa number availability, I travel back and forth between the U.S. headquarter and the job site in Tokyo using my visa of B-1 (Business Visitor) which will be valid for the next three years. I thought it would not be a bad idea and I have accepted the company decision and plan to leave for Tokyo in one month. I will return to the U.S. after my priority date becomes available in the Visa Bulletin to file I-485 applications for me and my wife. Do you anticipate any problem for me? A-95. The Comprehensive Immigration Reform legislation can be rocked and people, especially Indians, are considering to move out and work at home country or abroad while they wait for the priority date either voluntarily or involuntarily. It appears that you are one of those, albeit involuntarily. However, unless you and your wife are willing to accept the route of consular immigrant visa proceeding rather than I-485 adjustment of status in the United States, I see that you may have a number of problem, including but not limited to the following: (1) Under the immigration law, a nonimmigrant other than H-1B/H-4 or L-1/L2 cannot enter the U.S. with the "immigrant intent." When an alien obtained a I-140 petition approval, the immigration inspectors at the airport will clearly see your immigrant intent whenever you try to enter the U.S. on a B-1 visa if they learn that your employer filed and obtained approval of I-140 immigrant petition on your behalf. In old days, when the visa regression period included years, the inspectors sometimes exercised a discretion and allowed such a B-1 visitor to enter the country for the business purposes. But now the environment has changed. Accordingly, there is a good chance that you will be stopped at the airport in one of your future trips on a B-1 visa. (2) This does not preclude you from applying for H-1B petition for the balance of six months in your H-1B six year limit. Unlike other visas, the H-1B alien can have a dual intent of temporary as well as permanent resident intent and the immigration inspectors cannot stop you from returning to the U.S. on a H-1B visa status. When you file such H-1B petition for six months, you are not subject to the H-1B annual cap and you will be able to return on a H-1B for six months. However, in your case, your employer is insisting that you abandon H-1B and not willing to file the H-1B petition pending the visa number availability. Should your stay last for a year or longer in Tokyo, it will then make you subject to the H-1B annual cap, and you will not be able to return to the U.S. on another H-1B status if the H-1B cap number is not available. You will then be stuck abroad. (3) Abandoning H-1B for a year or longer also deprives you of the opportunity to apply for the 7th-year extension since you will no longer be in a H-1B visa status. The three-year increment extension of the H-1B may also not be available when you cease to be an H-1B alien. Blocking out of the I-485 adjustment of status opportunity is indeed a huge risk when years of period are involved. Firstly, as time passes, the company or the employment can change as well. Unlike the I-485 situation, you will lose everything since you cannot take advantage of the opportunity to change employment under AC-21 pending I-485 application after 180 days of filing or even restarting the green card process with another employer while you remain in the U.S. Besides, should the visa number retrogress again pending the consular immigration visa application process, you can be stuck abroad depending on the H-1B cap situation. Your legal counsel will also be able to give you additional information on the benefits that are attached to the I-485 adjustment of status proceedings which may not be available in the consular immigrant visa proceedings, particularly when the immigrant visa numbers are unpredictable. Think twice before you jump into a cab and drive over to the airport.
  • Q-94 (06-12-2006): You reported that the old Chief of Foreign Labor Certification would return to the leadership today. Since the leadership changes in most cases bring with it policy changes, I would like to learn what critical issues could be revisited. I have a EB-3 backlog case with the priority date of June 23, 2004 which is still pending and the employer just filed a PERM of EB-2 last week. A: I do not kinow what changes we can expect from the leadership change. The only thing I can tell you is what changes took place before and after his departure in August 2005. On August 8, 2005, he released FAQ Round 5 which brought an uproar in the immigrant community. Basically in order to prevent fraud, to discourage multiple filings, and to remove the backlogs and workloads in a limited time, he announced that multiple filings pending on or after August 31, 2005 would be denied. Pending filings included both PERM and Backlog cases. For the details, you may want to revisit my report on August 11, 2005 in the Breaking News. Before the end of August 2005, the DOL announced that there would be a change in the leadership. The new incoming leader then announced that this part of FAQ Round 5 was revisited and removed. It happened before August 31, 2005. The DOL is currently under a tremendous pressure to eliminate all the backlogs in 16 months and a rumor or speculation has been going around that unless something is done, the DOL may not be able to achieve the goal before the end of September 2007. When the new leader removed the policy on this issue in FAQ Round 5, the DOL just stated that it would announce a new policy. Part of the answers have since been released involving mulple filings in the same type of cases (PERM vs. PERM or Backlog vs. Backlog), but the multiple filings involving Backlog vs. PERM still remain unanswered. The immigrant community will have to watch very closely how this issue can pop up again. Without doubt, this issue may be brought up in one form or another at the AILA Annual National Conference in San Antonio later part of this month. Please stay tuned. The other issue that may be affected in one way or another is the pending rule making of the Final Rule of Elimination of Substitution Labor Certification and Imposing a 45-Day Cap on the validity of the certified labor certification application. The proposed rule received a large number of comments involving very serious issues that would affect the pending substitution cases. His office is currently at the juncture of formulating the final policy on very sensitive issues which have been raised during the process of ruling making. Without doubt, the final rule may be affected in one way or another. This is another critical issue which the AILA Annual National Conference may want to bring up to learn his view on the pending final rule making. Unlike a past few years, this year the AILA annual conference is scheduling participation of a large number of government officials from the stakeholder agencies in and outside of the Beltway and it is hoped that the AILA can achieve some level of productive dialogues to lead the government agencies to adopt policies in favor of the immigrant community.
  • Q-93 (06-10-2006): I earned a biology bachelor's degree in 1998. I have been working as a food technologist that requires a bachelor's degree in biology or agriculture since 1998. The employer filed a traditional labor certification application of EB-3 which is still stuck at PBEC. The employer did not engage in recruitment before filing and once PBEC starts processing my case, the employer will have to engage in the recruitment process. After I join the company, I started taking a master's degree program in 2004 and just earned the master's degree. I want the employer to file a PERM application of EB-2 requiring Bachelor + 5 years of progressive experience or Master + 2 years of experience. Will it work? A-93: You have three hurdles ahead of you. First, if the employer files a PERM for the identical occupation and requests withdrawal of the pending labor certification in order to keep the priorty date, unless you are 100% qualified for the PERM application, you will lose both - denial of the PERM and withdrawal of old application. Accordingly, unless the employer files a new PERM application without tieing it to the pending application, the result can be a suicide. Second, you should know whether you are qualified for Bachelor + 5 years of progressive experience. You gained all the experince throuh this employer and the duties and responsibility remain same since you joined the company. You have never been promoted and you are not performing different job. In such cases, any experience gained with the sponsoring employer is "not" considered an experience for the purpose of proving the alien's experience. You are thus not qualified for the Bachelor+5 years of EB-2 option. Third, you should then find out whether you are qualified for Master's+2 years of experience. From the foregoing analysis, you cannot prove two years of experience as all of these experience was gained with this employer. As for the Master's degree requirement, the DOL will argue that when they hired you, they did not require a master's degree for the job and you did not have a master's degree. Accordingly, even if you now have a master's degree and two years of experience, you may not be qualified for this job and regardless of what the labor department decides on your labor certification application, your EB-2 petition is likely denied by the USCIS.
  • Q-92 (06-10-2006): I thought that the State Department would release the July 2006 Visa Bulletin yesterday, Friday. They did not. I have been anxiously waiting for the Visa Bulletin release because my EB-2 priority date is April 23, 2003 and I will really have to file I-485 before July 20, 2006 because my unlawful status will reach six month on July 20, 2006. I am an Indian dentist. Once the EB visa cut-off date passes April 23, 2003, I intend to file I-485 applications for me and my family on July 1, 2006 using 245(k) that permits filing of I-485 applications if I stayed without authorization to stay or employment for less than six months. My labor certification application was just approved and I will have to file a concurrent I-140 and I-485 application. What is going to happen? A-92: You are indeed in a desperate situation. In your case, two developments are at stake. One is the new visa cut-off date for EB-2 India in July 2006 Visa Bulletin, and the other is potential termination of the USCIS concurrent I-140/I-485 filing procedure. Accordingly, two events should develop in your case. First, the July 2006 Visa Bulletin must pass April 23, 2003. Second, the USCIS should not terminate the concurrent filing procedure before you file I-140/I-485 application in July. No one knows what new visa cut-off date will be in July 2006 Visa Bulletin, even though we will soon find it out. The cut-off date did not move for EB-2 India in June 2006 Visa Bulletin. It is hoped that the cutoff date will progress and pass April 23, 2003 to save you. As for the concurrent filing procedure, there are a large number of people who are waiting for the USCIS to start taking in the Premium Processing of I-140 petitions. The USCIS announced that it would expand the I-140 petition as one of the proceedings that would qualify for the Premium Processing but they would not accept the I-140 Premium Processing request until they would announce the actual commencement with the Premium Processing for I-140 petitions until such new procedure would be published in the USCIS website. God knows when this announcement will be published in the agency's website. However, not everyone is anxious and excited about the implementation of I-140 Premium Processing procedure as there was an unconfirmed sources of information within the USCIS that once the I-140 petition becomes available for the Premium Processing request, the USCIS may cease the current concurrent I-140/I-485 filing procedure. If the concurrent proceeding is terminated, the filing of I-140 and I-485 will be bifurcated and unless I-140 is first filed and approved, the agency will not accept I-485 applications. Should this happen, you will indeed face a crisis. The swift approval of I-140 petition will bring the benefits of eligibility for the H-1B extension in three-year increment if one cannot file I-485 because of the visa number retrogression. They are the ones who are anxiously waiting for the I-140 Premium Processing services. The swift approval of I-140 petition will also benefit some of the I-140/I-485 concurrent filers who need to change employment using AC-21 180-day rule because of the current employer's situation. The people in this group are another group who want to see the I-140 Premium Processing services launched as soon as possible. Well, here we go again. There are always conflicts of interest among different groups in the immigrant community when a change in policy or law is involved. It is ironic that one group has to suffer for other group to benefit. Part of this has also been reflected in the comprehensive immigration reform movement between the legal immigration community and the illegal immigration community. Sad reality in life!
  • Q-91 (06-08-2006): My mother filed the family-based petition for the married daughter (Me) on March 29, 2001 as a U.S. citizen. The petition was approved but the visa number is hopelessly backlogged. Besides my mother passed away in December 2003. In 2004, I finished a master's degree program and my employer filed the PERM application in June 2005 which was approved in October 2005. I-140 petition was filed and also approved in March 2006. Now, the EB-2 priority date for India is expected to progress and my priority date may arrive sooner or later. The problem is I am an illegal alien. I have been out of status for nine months in the past. When the priority date opens for EB-2 case, I should be able to file I-485 for me and my husband 'but for' the illegal alien status. I cannot leave the country because, if I do, I will not be able to return to the U.S. for three years. What is going to be my future? A-91: It sounds that you are not eligible for 245(k) to file the EB-485 when the visa number becomes current for you. However, you are eligible for 245(i) benefit. The family petition which your mother filed for you on March 29, 2001 cannot transfer the priority date from the family immigration to the employment-based immigration, but the 245(i) benefit which has been grandfathered can be used for any immigration proceedings for you including the employment-based I-485, even though you will have to pay $1,000 and file I-485A form when you file I-485 application. This is true even though your mother died and the family-based petition has been automatically revoked by her death. Revocation does not take away the 245(i) benefit inasmuch as the revocation was not related to fraud or meritless petition. Your spouse and children are also all grandfathered and they can submit I-485 applications when the time comes. One big cabeat is that you should not be detected and deported by the DHS until you are ready to file I-485 application. Good luck.
  • Q-90 (06-07-2006): I am a software engineer in a H-1B nonimmigrant status. My employer filed labor certification application which has been certified. My employer also filed I-140 petition, which has also been approved by the USCIS. However, my category is EB-3 and visa number is not available and I will have to wait for quite a while before I can submit I-485 application for me and my wife and children. I am a fairly high-wage eaner making about $100,000 a year. Last week, however, I received a pink slip from the employer that I would be laid office in 14 days from the date of the pink slip. This is devastating. I have a wife and five kids to support and expensive mortgate to pay every month as I purchased a house. After paying income tax, the net income just covered our living expenses including kids college school expenses. Now I am thinking about claiming unemployment compensaton which I am entitiled to under this state's law. I have been paying a lot of taxes and I deserve it to survive during this period of challenge for my life. How will it affect my green card process in the future? A-90: Some states do not permit the unemployment compensation benefits to nonimmigrants and undocumented aliens, but some states do. Even in the latter states, the eligibility for the benefit is that you are "unemployed." However, your visa status is H-1B which is conditioned upon being employed in compliance with the terms and conditions of Labor Condition Application. In order to claim the unemployment benefits, you will have to volunteer to report your violation of H-1B nonimmigrant status to the state office. Some states do not report such claims to the immigration enforcement agencies, but some do. They will love to commence a removal (deportation) proceeding as you are in violation of the nonimmigrant status. This is your immediate problem. You will also have a long term damage. The USCIS requires your tax papers as part of the supporting documentation for I-485 application. Unemployment compensation is not a welfare payment or government's financial assistance and may not raise the issue of "public charge" which is a ground for deportation. However, such claim information in the tax returns will alert the I-485 adjudicator that you violated H-1B status and can deny I-485 application unless you are eligible for 245(k). It is not just denial of your own I-485 but your entire family's I-485 applications. You may want to review carefully the foregoing short-term as well as long-term consequences before you drive over to the state unemployment compensation office and file the claim.
  • Q-89 (06-06-2006): I am working for the current employer in a H-1B status. My H-1B approaches the six year limit. The labor certification was filed one year ago. Based on the certified labor certificaton application, the employer filed I-140 petition. The employer had a fairly good financial record but the I-140 petition was denied on the financial ability to pay issue. Currently, the processing time of EB-3 appeal with AAO is almost a year and a half and the employer and I agree that we should rather file a motion to reconsider the decision rather than an appeal to AAO. The processing time of a motion should be much shorter. The I-140 petition was denied about 20 days ago and we will have to make a decision as soon as possible. Am I going a right track? A-89: Whether or not one should try a motion to reopen or reconsider should depend on each individual situation. In your case, considering a motion rather than an appeal is extremely risky. Assuming that it was the agency's error to deny the petition in your employer's opinion, the agency can disagree. Besides, the appeal has to be filed within 30 days or 33 days if the decision was received by mail. Otherwise, the decision becomes "final." In your case, you are approaching the H-1B six-year limit. Motion does not allow you to file and work on the 7th-year extension pending the motion. Accordingly, once your current H-1B reaches the sixth year, you will have to stop the employment. Besides, your unlawful presence clock will start ticking from the time your H-1B expires, no matter whether the motion is still pending or not. Under the current policy, the USCIS takes a position that until the USCIS decision of I-140 denial becomes "final," the alien will be allowed to file the 7th-year extension if the alien is qualified for such 7th-year extension. As stated earler, pending the appeal to AAO, the Service Center's decision will not become "final" and until the appeal is decided, you will be able to keep extending H-1B status. Additionally, you may also quickly try another labor certification or another petition by different employer pending the appeal. Time is of essence in your case. The processing delay in AAO appeal may actually work for you rather than against you.
  • Q-88 (06-06-2006): I filed the concurrently 140 petition and I-485 applications for me and my family. It was EB-3 case and we are suffering from the EB-3 visa number retrogression. My wife has just obtained EB-2 PERM application approval and I-140 petition approval through her own employer. For the Chinese, EB-2 number has been moving along fairly in a good pace and we are thinking about transferring our pending I-485 applications to my wife's approved I-140 petition. My wife's priority date is not current as of June 2006. But by transferring the pending I-485 applications to her EB-2 I-140 petition, the Service Center will be able to pick up our I-485 cases as soon as her priority date becomes available in the coming Visa Bulletins for EB-2 China rather than waiting and requesting such transfer after her priority date becomes available. What do you think? A-88: Under the USCIS policy, the pending I-485 application can be transferred between the spouses using derivative beneficiary's favorable immigrant petition. However, there are certain conditions that people will have to satisfy before such transfer can be requested. (1) Both direct beneficiary's and derivative beneficiary's I-140 petitions should have been approved. If one of the two petitions has yet to be approved, then such transfer is not available. (2) Visa number must be available for the derivative beneficiary's approved I-140 petition. (3) The two petitions must be the employment-based (I, II, III) petitions to take advantage of the transfer of the pendng I-485 applications to the spouse's approved I-140 petition and the spouse's favorable priority date. It appears that in your case, your spouse's priority date is not available at this time and you will not be able to request such transfer until the number becomes available for her.
  • Q-87 (06-05-2006): My question is related to the previous Q&A 86. I am also an Indian professional who earned a bachelor degree in science which is a three-year program. I earned more courses and the foreign credential evaluation agency has given me a report of "equivalent to a U.S. bachelor's degree." I had 12 years of education before I was admitted to the Bachelor of Scienece program in India. Indian education system in part adopts the British education system. The three-year Bachelor of Science degree in Britain is evaluated by the foreign credential evaluation and the universities in the U.S. as equivalent to a U.S. bachelor's degree. Because of this background, some graduation programs in the U.S. universities accepted the Indian BS degree satifying the requirement for admission to the graduate program. Additionally, some Service Centers accepted such three-year Indian BS degree being equivalent to the U.S. bachelor's degree. In this regard, the Indian single BS degree should satisfy the regulatory requirement. Why is the Indian BS degree rejected by the USCIS? A-87: Indeed there were some commercial foreign credential evaluation businesses that advertised such credential evaluations. In a very few cases, the Service Centers were confused and accepted such evaluation. Lately such evaluation is generally rejected by the agencies, particularly after the release of a recent memorandum by the USCIS HQ. The memorandum distinguished the European three-year BS degree program from the Indian three-year BS degree program in that the admission to the European BS degree program generally requires 13 years of education before admission to the BS degree program. Obviously such education system allows additional specialty programs in the BS degree program, which make it closer to the U.S. BS degree program. Accordingly, the memorandum clarified that such European three-year degree would continuously be accepted as U.S. bachelor degree equivalency. Accordingly the holders of similar bachelor's degree in Britain and India will be treated different in the EB-2 green card proceedings. Some disagrees to the USCIS views which is enunciated in the said memorandum, but until the memorandum is struck down or the USCIS HQ revisits the issue, the immigrants are stuck with the standards in the memorandum.
  • Q-86 (06-04-2006): I am an Indian Financial Manager working for a large corporation in Los Angeles. The news on the comprehensive immigration reform legislation frustrates me very much and I will have to live with the current situation of employment-based immigration proceeding. Considering the visa retrogression, I will have to file EB-2 PERM application. I earned a three-year business degree and two-year post-graduate diploma in business administration in India. A foreign credential evaluation agency gave me the credential evaluation report for the purpose of H-1B filing that my credential is equivalent to a bachelor's degree in business plus a master's degree in business. I have eight years of work experience as a financial manager in India before I joined this company in LA. The employer is thinking about requiring a MBA equivalent or Bachelor in Business equivalent plus five years of work experience as a financial manager in the PERM application. I suppose this will do for the EB-2 track in the immigration petition once the PERM application is approved. Any comment? A-86: The USCIS launched the bi-specialization program effective April 1, 2006. Under this program, all the I-140 petitions are filed with the Nebraska Service Center and these I-140 petitions are divided between the NSC and TSC half and half. Accordingly, even if your job is located in LA, your I-140 petition will be ended up with either NSC or TSC, meaning that the chance of your I-140 petition being adjudicated by the NSC under their standards is at least 50:50. The NSC standards on these issues are known to be most restrictive and narrow and have produced massive I-140 denials for Indians in the past. They religiously follow the non-binding precedent decision of the USCIS appeal unit of AAO. Thus NSC has been taking a position that for the purpose of EB-2 petition, Master's degree requirement must be proven by the alien with a single bachelor's degree and a single master's degree. Combination of two or three different educational degrees have generally been rejected by the NSC. The AAO decision is based on the specific language in the regulation that EB-2 requires an advanced degree or "a" bachelor's degree plus five years of progressive experience. The decision did not accept combination or multiple-degree equivalency evaluation. This leads to the second question of requiring bachelor's degree plus five years of work experience in the labor certification application. For the purpose of EB-3, the NSC accepts "bachelor's degree" or "equivalent credential by combination of multiple degrees or combination of a degree and work experience" inasmuch as the labor certification application specifically stated that the employer would accept such equivalency in lieu of a bachelor's degree. Besides, even if the employer did not state that the employer would accept such equivalent combination, the employer could still get approval of EB-3 I-140 petition inasmuch as the I-140 petition stated that the petition was for a position of "professional or skilled worker." Since EB-3 is qualified by either a professional "or" skilled worker, from the perspectives of the alien, it did not matter whether one got EB-3 I-140 petition either through a professional position or skilled position. Both professional and skilled worker also belong to the same EB-3 category for the purpose of the immigrant visa number allocation. However, this does not work with the EB-2 situation. Even if the employer stated in the labor certification application such, the NSC will not take such application for EB-2 category for the purpose of I-140 petition. Since a job in the labor certification application should require a bachelor's or equivalent foreign degree plus five years of progressive experience to make it a EB-2, combinational of multiple degrees for a bachelor's degree equivalency or combination of degree and experience, no matter whether the employer stated in the application that it would accept such combination, will be rejected by the NSC. AILA has repeatedly asked the USCIS HQ to address this issue but no memorandum has been released by the USCIS HQ on this critical issue thus far. VSC started adopting the NSC's narrow view recently, but this does not matter any more as VSC has no jurisdiction over the I-140 petitions. TSC has been taking a liberal view on this issue. TSC is also taking a liberal view on the employer's financial ability to pay the proffered wage issue which the NSC also took a very narrow view and has denied en masse I-140 petitions on this issue as well. Because of these differences, some people started tracking down so-called "TSC-day" vs "NSC-day" and timed the filing of I-140 petitions such that the case is handled by the TSC. At this time, once the I-140 petitions are received at the NSC, it splits the files every other day. Accordingly, if this is NSC-day, then all the I-140 petitions which are received on that day are handled by itself and all the I-140 petitions which are received the next day are shipped to the TSC. Wise guys and gals were successful in figuring out the NSC-day and the TSC-day. But no one knows how long this arrangement will last. Additionally, these Service Centers can adopt different policies and making TSC standards tougher than that of NSC! The best policy is to try to meet the narrower standards and views of the NSC as best as you can to get the I-140 petition approved. In the instant case, the chance of getting EB-2 I-140 approval for your credential background is not too promising if this case is handled by the NSC.
  • Q-85 (06-01-2006): I have a bachelor's degree in accounting from a university in Iowa and a master's degree in Music from a university in New York. I am taking OPT using the Music education. My OPT will run out on Nemver 13, 2006. I read a news that the FY 2007 H-1B cap would reach in the next few days. A CPA office in Chicago is willing to file H-1B petition for me to work as an accountant. The job requires a bachelor's degree in accounting with the annual salary of $25,000. I wonder whether I can still file H-1B petition based on my education and graduate degree in Music for the accounting position if it is too late for me to get my H-1B petition filed within the FY 2007 cap. Please help. A-85: For the purpose of 20,000 special H-1B numbers for U.S. earned Master or higher degrees, the law does not require that the degree should be in a field related to the H-1B job. Thus, inasmuch as one obtained a master's or higher degree in any field, the individual is eligible for 20,000 cap numbers regardless of the type of H-1B occupation. However, it is one thing that one is eligible for 20,000 special number and it is the other that one is qualified for the H-1B petition. For the second issue, one has to prove that he/she is qualified for the H-1B petition, no matter whether it is special 20,000 numbers or regular 65,000 cap numbers. For the second issue, I see two problems in your case. Your major of Music in the graduate program is so apart from the occupation of accounting that deals with the numbers, and the USCIS can raise a question as to whether you will be able to perform a professional accountant duties considering the period of vaccuum you had since graduation from the undergraduate education in accounting. This suspicion may be reinforced by the evidence that you will be paid a very low wage. Adding these two evidence up, they may suspect that this is not an account's job but rather accounting assistant or accounting clerk or book keeper. These these occupations do not need a bachelor's degree, and the USCIS may challenge and deny the H-1B petition. Accordingly, when one uses a U.S. master's degree in a specialty which is very remote from the H-1B job, the employer should carefully document the alien beneficiary's continuing education or training or work experience in the H-1B occupation post graduation. Obviously the body of knowledge changes and moves over the period of time, especialty in the specialty such as accounting, and unless the alien beneficiary has kept up with the specialty knowledge including practices and rules, the USCIS may wonder why the employer is hirng such a person when the person may not be able to perform the duties at the required professional level. To answer your question, you are eligible for 20,000 special numbers, but the approval of H-1B petition with this job is very doubtful at best.
  • Q-84 (05-21-2006): My EB-2 labor certification and I-140 petition have been approved. I cannot file I-485 because the visa number is not available. I am in a H-1B status working for the current employer as a contractor. I have been paid on hourly basis. I am currently paid at the rate of the labor certification application, but I want to work in other location at the lower rate for the personal reasons. What is the rule for maintaining the labor certification salary pending the green card process? A-84: You have a number of problems. You said you were working as a contractor. If you work as a contractor, you get 1099 rather than W-2. Independent contactor is not eligible for a H-1B status in the first place. Your employer and yourself have been violating the H-1B regulation. As for the issue of paying less while waiting for the I-485 approval, there is no law that you should be paid the labor certification salary while you work on an employment-based nonimmigrant status and the wage for the nonimmigrant employment is lower. However, paying different wages can raise two issues: First, the employer must prove that the temporary job and the permanent job are the two different jobs and the permanent job indeed exists. In most cases, the first issue is fairly well handled by the employers. The second issue is related to the employer's financial ability to pay the proffered wage. It is not a question of whether employer had financial inability to pay the proffered salary because of the evidence that the alien has been paid less than the labor certification salary, but it is a question of potential denial of I-140 petition when the employer has a poor net income, much less or minus net income and will have to prove the financial ability to pay by the evidence of the employer's payment of salary at a rate which was equal or higher than the labor certification salary ever since the labor certification application was filed. In your case, though, you have already obtained I-140 petition approval and this may not be a serious issue, at least for now. There is another issue of change of job location but I will not touch on this question as the answer to the question has been well publicized in the community.
  • Q-83 (05-21-2006): I filed EB-2 I-140 petition and I-485 concurrently using 245(k) as I violated the H-1B status for five months since the last admission into this country before I filed I-485 application. Three months after filing I-485 application, I stopped working on H-1B and used EAD and Advance Parole. I visited India and married a bride and returned to the U.S. on Advance Parole. My H-1B is about to expire and I was planning on filing H-1B extension to reinstate my H-1B status so that I could bring my bride over on H-4 visa. However, before I could do it, I just received a denial of I-485 application from the Service Center for violation of nonimmigrant status pending I-485 application. I am thinking about quickly filing another I-485 application as violation of nonimmigrant status is still less than 180 days. What is the chance for another I-485 based on 245(k)? A-83: The fact that you have already filed I-485 application using 245(k) benefit does not block you from filing another I-485 application inasmuch as the underlying approved I-140 remains valid and your violation for nonimmigration status or unauthorized employment is still less than 180 days. However, in your case, I see two problems. Firstly, you have abandoned the H-1B status and worked on EAD. Accordingly, at the time your I-485 application was denied, you were not in a nonimmigrant status and were immediately removable. Secondly, you traveled on Advance Parole and returned to the country, again without a nonimmigrant status. Under the I-485 law, you were entitled to return to the U.S. once you have an Advance Parole, but such return to the U.S. on Advance Parole results in the two consequences: One is that you are returning to the country not, repeat not, as a "nonimmigrant" but as a "parolee." Second, your returning to the United States is not, repeat not, considered "admission" to the U.S. Unfortunately, the black law of 245(k) requires that your violation of nonimmigrant status or unauthorized employment be for less than 180 days since the "last admission." When you returned to the U.S. on Advance Parole, you were "not admitted" to the U.S. as a nonimmigrant and there is no place for the 245(k) relief. This is a good warning to the I-485 waiters that maintaining nonimmigrant status pending I-485 applications has a number of benefits over working on EAD/Advance Parole in certain circumstances. When there is likelihood of violation of H-1B status after filing I-485, it may make sense that one would rather start working on EAD not to violate the H-1B rule. However, if the H-1B employment is fairly solid, the I-485 waiters may want to maintain a H-1B status for certain benefits including 245(k) which is discussed here.
  • Q-82 (05-21-2006): I am an Indian programmer Analyst. My EB-3 labor certification and I-140 have been approved with a priority date is July 1, 2003. I am on my 7th year H-1B. Since the visa number is not available, I am currently unable to file I-485. I have to file another H-1B extension soon. Am I eligible for the 3-year extension this time around? I am also thinking about the EB-2 PERM application through another employer for the same job title and description. Am I eligible to file another labor certification application thru PERM without affecting the approved labor certification application? A-82: The three-year increment H-1B extension requires that per country limit visa number is not available and H-1B petition is pending. If thus appears that you are eligible for filing H-1B extension for three years. In the extension petition, you should submit a copy of I-140 approval notice and certified labor certification application Part A. As for the second question, the DOL has been allowing multiple applications by different employers for the same alien, no matter the job title and job desription are identical or similar. This is applicable between the old labor certification of ETA 750 and the new labor certification of ETA 9089, PERM. Currently, the DOL is in the process of making a multiple filing policy when mutiple ETA 9089 applications are filed by the same employer for the same employee. Your situation is not affected by the ongoing policy review for the two reasons: (1) Two different employers are involved. (2) The labor certification applications are processed under the two different systems, ETA 750 and ETA 9089. In such cases, you are assured that the new application will not affect the old application and the certified old application will not result in denial of the new PERM application.
  • Q-81 (05-14-2006): I am an Indian Database Analyst. My labor certification and I-140 were approved on October 15, 2004 and I filed I-485 on Aubust 1, 2005. Because of the retrogression of the visa numbers, my I-485 is still pending. When I filed I-485, I did not file EAD application since I had a valid H-1B and though I would work on H-1B. However, my company's busines was going downhill and I thought I needed EAD. I then applied for EAD on March 13, 2006. Yesterday, I was given a pink slip by employer that my last day will be May 27, 2006. Am I required to change status to H-4 to maintain a legal status pending I-485? My husband is in H-1B status. I have a minor child who is in H-4 visa status as my dependent. How will we be affected by the layoff in our legal status and pending I-485 application? I may not be able to find a job for some time. A-81: It sounds you have three legal issues. One is whether your I-485 will survive without a new job. Second is whether you and your child will fall out of status as soon as you lose the H-1B job as it can be a violation of H-1B status. Third, whether 245(k) can save you from I-485 application denial. As for the first question, you are eligible for AC-21 I-140 petition portability and even if you lost the green card job, your I-485 would not have been affected inasmuch as you should find a same or similar job to the green card job. Ideally, you should find a same or similar job upon losing the green card job, but the USCIS has been lienient inasmuch as you are employed in a similar or same occupational classification as soon as you lose the job. There is indeed no law that you should be employed all the way pending I-485 applications. It thus boils down to the question of two options. Option A is to prove that even if you are not employed, the petitioned job "continue to exist" at the time of I-140 petition filing and will "continue to exist" at least until you find a same or similar job, which will then take over the legality by the force of AC-21 portability provision. Option B involves a situation that there was a bona fide job at the time of I-140 petition filing but the petitioned green card employment no longer exists at the time of unemployment but you are employed by another employer in a similar or same job. If the original green card employment offer either no longer exists nor is taken over by the new employer in the form of AC-21 portability, one then faces a crisis. This can happen when the original employer withdraws and revokes the I-140 petition or the employer goes out of business or is acquired or merged by another company that refuses to take over the I-140 petition liability, and in the meantime, one fails to find a similar and same job to take advantage of AC-21. It appears that in your case you can prove neither Option A nor Option B. Regardless of the answers to your question 2 or 3 above, you should try hard to find a new employment in similar or same occupational classification. Now, let's go to your second question as to whether you will fall out of H-1B status when you are unemployed. Alien does not have to maintain a nonimmigrant status pending I-485 application, assuming that the green card job offer continues to exist. Accordingly, if you stop working, you will lose the H-1B status but it will not turn you into illegal alien. The three-year bar or ten-year bar which is triggered by out-of-status is tolled during the pendency of I-485 application and the alien remains in lawful presence in the United States even if the alien abandons the nonimmigrant status. However, it is one thing that one can remain lawfully in the United Status until I-485 is approved even after losing the nonimmigrant status, and it is other whether one can keep working after losing the H-1B nonimmigrant visa status without employment authorization. Accordingly, inasmuch as one does not engage in unauthorized employment after losing H-1B status, one is not violating the immigration law and will keep remaining in a lawful status until the I-145 application is approved. Of course, the answer to Question One above must be positive. What happens if one engages in unauthorized employment after losing H-1B status in this context? That leads us to the Third Question of availability of 245(k) relief. Under the immigration statute Section 245(c)(8), if an alien has engaged in unauthorized employment, such alien is ineligible for I-485 application. However, this statute is exempted when the alien has an approved EB-140 petition and has engaged in unauthorized employment "since last admission" for a period less than 180 days in aggregate both before and after filing of I-485 application. This exemption applies only to the employment-based immigration and no other categories of immigration. Now, if one violates the employment authorization law after filing of I-485 and for a period of less than 180 days at the time of adjudication of I-485 by the immigration offier, one of three things can happen. (1) The officer just applies 245(k) provision and approves I-485 application. (2) The officer denies I-485 application erroneously using Section 245(c)(8) but does not take any further action. (3) The officer denies I-485 application and turn the alien over to BICE that commences a removal (deportation) proceeding. Should the officer take the second action, the alien can just refile I-485 application using 245(k) provision inasmuch as the original green card employment continues to exist at the time of refiling of I-485 application. Since denial of I-485 is not appealable, one can only file a motion to reconsider as an option to the I-485 refiling. However, this alternative action is very risky in that the clock of unlawful presence will keep ticking accumulating 180 days pending the motion. The worst situation develops if the office takes (3) action above and the alien is placed in the immigration court removal (deportation) proceeding. Once this happens, the alien will be in a dead-trap because of the different rule that applies to the deportation proceeding. Not too long ago, the Board of Immigration Appeals under the U.S. Department of Justice, that governs the immigration courts throughout the country, ruled that 245(k) does not apply to the deportation proceedings and the immigration court and the BIA will not accept a new I-485 application before the immigration court using 245(k) relief. In other words, the immigration court must order deportation of such alien regardless of eligibility of 245(K) relief under the immigration statute. Since the I-485 jurisdiction has moved from the DHS/USCIS to the USDOJ/BIA/Immigration Court, even if the USCIS wants to reconsider, unless the BICE moves for dismissal of the removal action before the immigration court, the alien is likely to be ordered a removal (deportation). All in all, in your case, you will have to learn a couple of things from the situation. It was a big mistake that you did not file application for EAD when you filed I-485 applications. People should always apply for EAD even if he/she has a valid employment nonimmigrant status against the situation like yourself. Since you do not have EAD, you cannot take any new employment and take advantage of AC-21 even if you find a job! Since the green card job with the original employer no longer exists, without AC-21 employment, your I-485 is likely denied. Besides, the 245(k) is either not available or risky even if available. The 245(k) cannot save you because there no longer exists the petitioned job nor AC-21 alternative. I urge you to keep looking for a same or similar job. The sooner, the better.
  • Q-80 (05-09/2006): I am a Chiropractor holding a degree of Doctor of Chiropractic earned from a University in the U.S. which has yet to obtain accredition. I have been working on OPT which will expire at the end of September 2006. My employer is about to file a H-1B petition for me and confused whether it should file "U.S. Master's or Higher degree earned" category or "Bachelor or equivalent" degree category. A-80: As of October 1, 2006, both categories will be available and your employer can file either of them, if it is qualified. However, for the employer to file a U.S. Earned special 20,000 number case, it must meet the two requirements: One is "Qualifying U.S. School." Two U.S. schools are qualified: One is the school that has already been granted "accredition," and the other is the school that has yet to be granted accredition but received "pre-accredition" status. Accordingly, if a school has not received either accredition or pre-accredition status, even if one earns a Master's degree, one will not be able to obtain a special 20,000 number H-1B pettion approval. The USCIS is likely to check the accredition status before they decide the "U.S. Earned" degree cases. The second requirement is "Qualifying Master's or Higher degree." This requirement is measured not by the name of the degree but by determination as to whether the degree is at least one-level higher than a Bachelor's degree. For instance, in your case, you earned a degree of Doctor of Chiropractic which is the first-level degree after post-secondary school education (high school). The degree is either equivalent to a Bachelor's degree or less depending on the number of years of education. Thus it is not considered a Master's or higher degree. Another examples are a Medical Doctor degree (M.D.) and Juris Doctor degree (J.D.). These degrees are not equivalent to a Ph.D. degree but one step higher than a Bachelor's degree as admission to these degree programs requires a Bachelor's degree education. For the purpose of the H-1B 20,000 number proceedings, these degrees are considered equivalent to a Master's degree and eligible for the special 20,000 number H-1B cap. However, these latter two degrees are treated somewhat differently from a master's degree in the labor certification application proceeding (PERM) in determining prevailing wage and education requirement for the entry-level. These degrees are taken highest. In your case, you are not eligible for U.S. Earned 20,000 cap number and once the regular 65,000 H-1B annual cap number is exhausted, even if there are still numbers available for the 20,000 "U.S. Earned" Master or Higher degree holders, you will not be eligible for these special cap numbers and you may have to wait until October 1, 2007 to be qualified for the H-1B petition. Your employer may want to file the H-1B petition at least within the next two months or so not to face such crisis.
  • Q-79 (05-05-2006): I filed the concurrent EB-2 I-140 petition and I-485 application. I-140 was approved but I-485 was denied for a defective birth evidence. I then obtained the perfect proof (birth certificate) of birth which was not available at the time of filing and filed a motion to reopen the decision of denial of the I-485 application. The USCIS then agreed to exercise a discretion and to reopen the decision and reinstate the I-485 application proceeding. The problem is that at the time of I-485 denial, the USCIS revoked my EAD and pending the motion to reopen, I continuied to work without a valid EAD or any nonimmigrant status for seven months. Motion took seven months. Shockingly, I have just received a RFE to provide the upto-date Federal Income Tax Return and W-2, which will prove that I worked without a valid employment authorization during the period. What do I have to do? A-79: This is one of the areas the field offices of the USCIS and the involved employer and alien are often confused with. The rules are clear, though. Generally, reopening of the I-485 applications in its discretion does not automatically reinstate the revoked ancillary proceedings such as EAD and Advance Parole. Accordingly, two provisions of the immigration statutue tend to come into play. One is 245(c)(8) which makes an alien ineligible for I-485 application if the alien engaged in unauthorized employment both before and after filing of I-485 application. Second is 245(k) which provides that notwithstanding the ineligibility of I-485 for the reasons provided in 245(c)(8), the alien would still be eligible for I-485 application if the alien meets the requirements in 245(k). An alien is eligible for I-485 application under 245(k) if the unauthorized stay relating to the overstay and the unauthorized employment did not last 180 days or longer "since the last admission" to the United States. Accordingly, had the unauthorized employment lasted less than 180 days, the USCIS may approve the I-485 application based on 245(k) provision. However, in your case, the unauthorized employment lasted more than 180 days since your last admission to the United States, and the 245(k) relief would not be available and the USCIS can deny the I-485 application despite their reopening of previous denial of I-485 application unless they exercise discretion. Tough! I will cross my fingers for you. Your case tells a good lesson to your colleagues. When one files a motion to reopen of I-485 decision, unless he/she is in a valid employment-authorized nonimmigrant status such as H, L, O, P, E, etc., the alien should immediately stop employment upon denial of I-485 application and during the period of motion to reopen. Another lesson is that waiting out for decision of motion to reopen for over six months is very risky in that once the motion is denied, he/she would have accumulated unlawful presence for over six months and will be deprived of the opportunity to utilize an alternative of applying for the immigrant visa at the visa post of his/her home country since it will subject the alien to the three-year bar from returning to the U.S. once the alien leaves the U.S. for the immigrant visa interview.
  • Q-78 (04-29-2006): I am an Indian Software Engineer. On July 14, 2005, my employer filed a PERM application of EB-3. The case is still pending. On January 25, 2006, my employer was acquired by another company, which absolved the entire employees of my employer company, but the old company still exists. The new company then filed EB-2 PERM application on March 28, 2006 for the same job with minor changes in job duties and requiring a Bachelor's degree and five years of progessive experience. I want to save both PERM applications so that I use the old case for priority date and the new case for EB-2. What are chances? A-78: There are several issues involved in your case. Currently, DOL does not allow multiple "PERM" applications if (1) the employer is same, (2) the employee is same, and (3) the job opportunity is same. If the two applications meet these three standards, depending on when the two applications were filed, different consequences will take place. If the first case was filed before January 19, 2006 and the second is filed after January 19, 2006 without withdrawing the first case, the first case will be denied and the second case will be processed. On the other hand, if both cases were filed after January 19, 2006, the result will be opposite in that the DOL will deny the second case and the first case will be processed. Your case falls under the first group. Accordingly, if the two cases are considered meeting the three standards, you will lose the first case and the second case will be processed. Consequently, you will lose the priority date of July 14, 2005 as that case will be denied. The second group will suffer different consequences. They will be able to save the old case and its priority date but will lose the opportunity for EB-2. However, the key to all of these depends on the tests of the three standards. Let's look at each of them. First "same employer." From the perspectives of the USCIS I-140 petition, your new employer is considered a successor-in-interest to your old employer and if the July 14, 2005 EB-3 PERM application is certified, the new employer will be able to file EB-3 I-140 petition using the old employer's labor certification application. On the other hand, from the perspectives of the PERM regulations, the two companies are considered "two different employers" since the "same employer" is defined in the PERM regulation those with the same Federal Employer Identification Number (FEIN). In your case, the two companies have two different FEINs and should be considered not the same employer. Now, let's go to the test two: "Same employee." There is no question about that you remain the same employee. For the third test of "same job opportunity," just changing slightly the job duties and experience requirement will not make different jobs for the purpose of this test. The job title will also not necessarily control. They will look at closely the nature of the work, specific duties of the work, and specific responsibilities of the work. DOL may use the PERM regulation that defines "dissimilar jobs," which require more than 50% difference in the duties, responsibilities, and otherwise. In your case, it is doubtful whether you can pass this test as the new employer just changed the job title, years of experience requirement without a substantial change in duties, responsibilities, and the types of work. Good news is that such test in third standard may be immaterial as the two employers may be considered not the same employer and the DOL should not deny any of these cases based on their policies of disallowing multiple applications by the "same employer" for the "same employee" and for the "same job opportunity." In your case, you met the DOL's two standards of "same employee" and "same job opportunity," but failed to meet the "same employer" requirement to trigger the DOL policy. Otherwise, your new employer should have changed the job opportunity "substantially" not to trigger the DOL denial policy.
  • Q-77 (04-22-2006): I am a Filipino registered nurse who entered the U.S. on April 25, 2004. I filed Schedule A I-140 petition and I-485 concurrently on February 1, 2005. The I-140 petition was approved but I-485 is still pending. When I entered the U.S., my status was a B-2 visitor which was valid until October 23, 2004. At the time of filing, I was thus not authorized to stay in the U.S. My EAD was issued March 1, 2005 vailid until March 1, 2006. I did not realize that my EAD was expiring and I filed EAD renewal on February 27, 2006. My EAD has yet to be issued. Since I have been working on EAD, I am extremely nervous about my pending I-485 application. What will happen to me? A-77: Your last date of entry was March 24, 2004 and you have never left the United States. When you filed I-140 and I-485 concurrently on February 1, 2005, you had stayed in the U.S. in unauthorized status for about 100 days. Your lawyer was able to file your green card application using 245(k) benefits which allowed the alien to file I-485 unless they worked without employment authorization or stayed in unauthorized stay for 180 days or longer. Under the current USCIS policy and practice, however, the period of unauthorized stay or unauthorized employment of 180 days aggregates even after filing of I-485 application. In your case, for you to be continuously protected by and eligible for 245(k) benefits, you only have 80 more days of violation of employment authorization or unauthorized stay in the U.S. Pending I-485 application, you remain continuously in authorized stay, but the same is not true with the employment authorization. If the gap between the two EADs last more than 80 days, you will no longer be eligible for 245(k) benefit and your I-485 application may be denied. The processing times of EAD vary and are unpredictable. Since you are not eligible for the Interim EAD as the EAD application would have been pending less than 90 days, you really have to pray that the Service Center issues the renewed EAD before May 19, 2006, the date when you will accumulate 80 days of additional unauthorized employment. It is indeed risky. You may as well stop working immediately to stop the clock from keep running. Oh boy, oh boy!!
  • Q-76 (04-21-2006): I have applied for my EB-3 labor certification application in April 2002. My labor certification application was approved in July 2005. I then filed I-140 which was approved in September 2005. My wife is a medical doctor, who has recently got into admission into a medical program which offers a J-1 visa. I wonder whether my wife will be able to file I-485 with me when the visa number becomes available for me. If this is not possible, when can I start GC procesing for my wife? A-76: International Medical Graduates (IMG) in clinical practice program are subject to the foreign residency requirement and unless J-1 home country residency requirement is waived, the IMGs cannot apply for the green card. Most of the IMGs take the route of serving in the medically underserved areas under the federal or state waiver sponsorship programs to get a waiver. Generally, the immigration law offers four options to obtain a waiver: (1) Hardship on U.S. citizen spouse; (2) No Objection Statement from the home country; (3) Fear of persecution when they return to the home country; (4) Government sponsorship. Unlike other J-1 exchange visitors, the option two of no objection statement is not available for the IMGs. Option 3 rarely involves IMGs and Option 1 is extremely difficult to establish. It is way insufficient just to prove that the spouse is a U.S. citizen. Accordingly, most of IMGs are stuck with the state or federal sponsorship and servises in the medically underserved areas for years, enduring the difficult life until they meet the requirement and obtain approval of the green card on their own. It appears that your spouse is stuck with such problem and even if your visa number becomes available and you can file I-485 application, your spouse will not be able to obtain permanent resident application without getting a waiver. It is tough. This reporter first came to the U.S. on a J-1 program because of the Fulbright fellowship and was not able to obtain a waiver even though this reporter had a U.S. citizen spouse and U.S. citizen child. This reporter returned to his home country and came back to the family after two years. The life was difficult under the forced separation from the loved ones. This reporter's spouse is in the healthcare field. It appears, though, that unlike this reporter, in your case, your spouse may not have to comply with the two-year foreign residency requirement and undergo a forced separation from you for two years as your spouse may be able to get a waiver through the government sponsorship. It is just that your spouse will take longer time to obtain the green card. Welcome aboard!
  • 
    Q-75 (04-16-2006): I am a graduate of certain Business School in Florida earning a degree of Master of Hospitality in September 2000. Since then I have been working in the tourism related national Hotel chains as the floor manager. My undergraduate degree is Bachelor of Arts in Business from another University in Florida. Most of my life in this country, other than initial F-1 student status during the Bachelor's degree program, I have been out of status and worked without work authorization. My employer really likes my work ethics and want to hire me permanently. They just told me they filed a so-called 245(i) eligible labor certification application on April 30, 2001 which was approved. The original beneficiary married a U.S. citizen in 2003 and became a lawful permanent resident. The employer wants to file a substitution for me. The labor certification application required a Master's degree in Business with a major in Hospitality and six months experience. I think I am qualified for the substitution and 245(i). The Graduate School in Florida that I graduated from was a new school and even though they award a master's degree, the school had yet to receive the accredition. Can I substitute EB-2 labor certification? A-75: On the surface, you appear to be qualified for EB-2 substitution as well as 245(i) benefits. However, you are qualified for "neither" of these benefits. I have already clarified the issue of 245(i) in the context of substitution of labor certification. I will repeat it here again. The substitution of labor certification allow the new beneficiary to take over the original priority date but not 245(i) benefits. The 245(i) benefit is transferable to other aliens under "no circumstances." Accordingly, even if you get substitution-based EB2 I-140 petition approval, you will not be able to obtain I-485 approval because of your undocumented alien status. As for the EB-2 substitution eligibility, the EB-2 requires a Master degree from an accredited school. For a graduate education at an unaccredit school, no one will be able to obtain credential evaluation that the education is equivalent to a Master's degree awarded by a regionally accredited school in the United States. Accordingly, even if you have a master's degree, the degree will not make you qualified for EB-2 petition and you will not be able to substitute the beneficiary of the application using this education. You have more than five years of progressive experience in the relevant Hospitality industry and this qualification could have made you qualified for EB-2 substitution, but only if the labor certification application specifically had stated that the employer would accept Bachelor's degree plus five years of experience in lieu of a master's degree. This is not the situation in your case. For this reason, you are not eligible for the substitution. You may want to file a fresh EB-2 PERM application. Once the labor certification application is granted, you should file a EB-2 I-140 petition with the request to forward the approved I-140 petition to the American Consulate in your country through the National Visa Center for the consular immigrant visa application. Even though you are not eligible for I-485 application within the U.S., you are still eligible for the immigrant visa application through an American Consulate as you are not subject to the three-year or ten-year bar from returning to the United States. D/S alien is not considered in unlawful presence even if the alien violates the legal status inasmuch as the alien is not determined to be out of status by the U.S. government authorities, including immigration and consular offcials and immigration judges. Until the visa interview is scheduled, though, you should not be arrested by the Immigration. The other potential chance is enactment of Comprehensive Immigration Reform legislation which is still being debated, even though the legislation is currently stalled in the Congress. I will cross "my ten fingers" for you.
  • Q-74 (04-15-2006): I had a pending RIR (EB-3) labor certification with priority date of October 2004. In November 2005, I filed PERM (EB-2) which was approved in February 2006. I filed I-140 (EB-2) right away. Now, my RIR was approved. I plan to file another I-140 based on RIR (EB-3). Can I carry over the priority date of October 2004 to EB-2? What should I do to carry over the October 2004 priority date? A-74: The immigration regulation provides that when an alien has multiple "approved" I-140 petitions with different classifications, the alien can use the earliest priority date. This carry-over of the priority date is available regardless of difference in the occupational classifications, preference categories or employers. Unlike common misunderstanding, one cannot seek amendment of the approved I-140 petition to change the priority of a given petition. In your case, once your EB-2 I-140 petition is approved and the visa cut-off date for EB-2 for your country moves to October 2004, even if your EB-2 priority date is November 2005, you can file I-485/I-765/I-131. In filing I-485, you should attach EB-2 I-140 approval notice (original) as the underlying I-140 petition and submit a photocopy of the approved EB-3 I-140 approval notice as an evidence to prove the priority date of October 2004. Thus, EB-3 approval notice serves the sole purpose of proof of the priority date and nothing else. Once EB-3 approval notice is attached, the agency will pull out the EB-3 proceeding file to determine whether the EB-3 petition has been revoked for fraud or error. Unless such revocation is detected, the agency will keep processing your I-485, I-765, and I-131 based on the approved EB-2 I-140 petition and using the priority date of October 2004 for the purpose of determining availability of a visa number to approve I-485. This priority date transfer should not be confused with the rule of transfer of pending I-485 from one approved I-140 petition to another approved I-140 petition. Soon, the popular substitution of labor certification is expected to be eliminated, which provided a valuable means to pick up earlier priority dates. In its place, it is likely that more and more people may file multiple petitions with the same or different employers and for same or different occupations in different preference categories to take advantage of the current rule of transferability of earliest priority date among different classification of the approved I-140 petitions.
  • Q-73 (04-14-2006): I have done MBA in E-Commerce from USA university. I am currently working as a system analyst. I have recently submitted documents for H-1 under advanced
    degree holders category. I have received the letter from USCIS that they have received my documents. I am on OPT and my OPT expires in June, 2006. I have a grace period of two months which will end in August 2006. I just want to know that I will be able to get H-1B before that grace period and what would be the starting date of that H-1B. I don't want to be out of status between the period of OPT, grace period, and H-1 issuing date. If I pay special fee of $1,000 for premium processing, will I be able to get H-1B before the expiry date of my OPT
    or grace period? A-73: It sounds that you are not upto-date on H-1B situation. The USCIS started accepting FY 2007 cap H-1B petitions for both regular H-1B cap cases as well as special 20,000 cases for U.S. advanced degree holder cases beginning from April 1, 2006. They are doing this because under the H-1B immigration regulation, the USCIS has to accept and process the H-1B petitions which are filed within six months of the start date of the H-1B petition. Since FY 2006 H-1B numbers ran out a long time back, the earliest starting date for the new H-1B visa petition can be October 1, 2006 and not earlier. Accordingly, the easiest way to understand the procedure and requirement during this period is to assume that the petitions are decided by the USCIS on October 1, 2006. In that way, people can avoid confusions on the rules and procedures. Under the rule of change of nonimmigrant status in the immigration regulation, he/she is not eligible for approval of such change of nonimmigrant status unless the alien is in a "valid" nonimmigrant status on the starting date of the proposed nonimmigrant status. Since the starting date of change of nonimmigrant status from other classification to a H-1B is October 1, 2006, the alien has to prove that as of October 1, 2006, he/she will be in a "valid" nonimmigrant status. In your case, your nonimmigrant status will run out before October 1, 2006 and you are not eligible for change of nonimmigrant status to other classification including H-1B. For this reason, those whose nonimmigrant status will run out before October 1, 2006 must take care of their current nonimmigrant status or other nonimmigrant status valid through October 1, 2006 before they can submit the FY 2007 cap H-1B petitions. People often call this a "stop-gap" measure to maintain a nonimmigrant status during this period of gap. Premium processing or filing H-1B petition earlier than October 1, 2006 does not help at all when it comes to the available start date of FY 2007 H-1B petition. Earlier or special premium processing just speeds up processing times but not the available H-1B starting date of October 1, 2006.
  • Q-72 (04-13-2006): My labor application requires a BS + minimum 5 years of experience. Would I qualify for EB-2 category when the "progressive" word is missing on the requirement on years of experience? A-72: The language in the immigration regulation requires the language of "progressive" for the alternative qualification of EB-2 through the Bachelor's Degree education. However, the USCIS has been accepting the labor certification application which failed to use the specific word of "progressive." This was specified in the USCIS (formerly INS) memorandum. However, it is one thing that the labor certification does not necessarily have use the language of progressive, and it is the other that the alien has to prove that he/she had a "progressive"five years of experience. Therefore, even if the labor certification did not use the word of progressive, if the alien fails to prove "progressive experience," he/she cannot use such labor certification to support the EB-2 I-140 petition. However, it does not mean that such labor certification is no good for him/her. The labor certification can still be used for EB-3 I-140 petition. Accordingly, if the alien cannot prove the "progressive," he/she should file both EB-2 and EB-3 petitions such that even if EB-2 I-140 petition is denied, he/she can still survive with the benefit of three-year H-1B extensions beyond six years once such EB-3 I-140 petition is approved. "Progressive" is proven by the former employer letters. It is not the language "progressive" which the USCIS adjudicators will look for in the letters but the overall description of duties and responsibilities during the five years. Promotion is certainly a proof of "progressive." So is the change of occupational classfications from the lower level occupations to higher level occupations. For instance, from the computer programmer to Software Engineer. Obviously certain specific words in the job title or description of responsibilities should reflect a "progressive" experience, such as "lead" "supervisory" "manage" "direct" "oversee," etc.
  • Q-71 (04-09-2006): In the mid-March 2006, I got my PERM certified. On March 31, 2006, I shipped out I-140 petition through Federal Express to the Nebraska Service Center under the new procedure. My job is located at San Jose, California. I tracked the Fedex delivery on April 3. My employer checked the company's cancelled checks with its bank and learned that the check has been cleared and returned. On the rear side of the check, the check showed the file number, which was LIN, meaning Nebraska Service Center. The company missed a critical supporting documents in the I-140 petition and wants to send out the documents to the Nebraska Service Center tomorrow, Monday. How the new procedure works? A-71: It is amazing that both your company and the Nebraska Service Center handled the front-end processing so swiftly. I suppose the cancelled check will be an additional source to learn which Service Center will process your I-140 petition. However, you have two problems. The first problem: The Service Centers are normally unable to match the incoming mail with the supporting documentation which are not requested by the office. In most cases they ignore the documents which are proactively filed by the petitioners. They ask employers to wait until the employers receive RFE from the office. The second problem: Under the Bi-Specialization Program which went into effect on April 1, 2006, the Nebraska Service Center plays the role of a front-end "window" to receive the I-140 filings. Once it is receipted, the NSC determines which Service Center will process and adjudicate the specific I-140 petition, NSC or TSC. The fact that the check showed LIN number can be taken as a sign that the case will be handled by the NSC rather than TSC. However, it would be safe to wait until the paper Receipt Notice is received from the handling Service Center. The Bi-Specialization announcement instructs the I-140 employers to address all the communication and the follow-up or related filings with the Service Center that actually processes and adjudicates the cases, which are shown on the Receipt Notices. Accordingly the instruction states that even if all the I-140 petitions are filed with the Nebraska Service Center, some employers will receive the Receipt Notice from the Texas Service Center. We will learn more about the new procedure in a few weeks.
  • Q-70 (04-09-2006): I graduated from University of Texas at Austin earning a degree of Master of Computer Science. I am a Canadian national. After finishing school, I tool OPT and worked with a company as a software engineer. OPT and the two-month grace period expired before October 1 and I could not change my status to H-1B and fell out of status. Then I filed I-140/I-485 concurrently as soon as the labor certification was approved. I 140 was later approved, but the Texas Service Center denied my I-485 for violation of nonimmigrant status and working illegally for over six months without EAD. I received the decision on March 10, 2006. After spending so many agonizing years, my immigration dream evaporated over a night. I am a so-called illegal alien or undocumented alien. I have been out of status for two years. I am not eligible for 245(i) benefit. I am also not eligible for 245(k). I feel like sky is falling down. I was looking forward to a good news on the legislative bill legalizing illegal aliens, but now this legislation is stalled. I cannot sleep any more. Please help. My labor certification employer is willing to hire me if I can somehow salvage the green card process. A-70: I suppose you may not be alone to face this problem. However, unlike other people, you may have some hope for the future. Obviously, since you are not eligible for either 245(i) or 245(k), you will not be able to apply for I-485 again. However, you should know that denial of I-485 on the issue of I-485 proceeding does not invalidate the underlying approved labor certification or approved I-140 petition. What it means is that you can apply for the immigrant visa through the American consulate in your country. This is possible because even if you remained in the U.S. out of status for two years, you had never changed your status from F-1 to other nonimmigrant status. Besides, until the Texas Service Center determined that you were out of status in March 2006, no government official determined that your presence in the United States had been unlawful. F-1 and J-1 students are different from other nonimmigrants in that their permission to stay in the U.S. as memorialized on I-94 does not have an "ending date." They are in "Duration of Status" or D/S. Therefore until a government official determines that you are "not in duration of status," your unlawful presence does not accumulate and you are not subject to three-year bar from returning to the Unied States in any kind of visas, including immigrant visas. In your case, you still have the employer's support and the employer will keep this position open for you. You should immediately file I-824 with the USCIS requesting transfer of your I-140 file to the National Visa Center so that you can apply for the immigrant visa at the consulate in your country. Your two-year illegal stay in this country will not affect your eligibility for the immigrant visa. It is however critically important that you depart from the U.S. before you accumulate 180 days from March 10, 2006. The unlawful presence started and will keep running from March 10, 2006. If you depart from the U.S. after accumulating the unlawful presence for 180 days or longer, the American Consulate in your country will deny your immigrant visa application due to the three-year bar. Since the visa number is available for you and the U.S. Consulate immigrant visa processing is much shorter than other countries, you will be able to return to the U.S. with an immigrant visa in a few months. Good luck.
  • Q-69 (04-08-2006): I am a Chinese Biostatician with a master's degree in Statitics which was earned in May 2003. The University where I work at has a certified labor certification application with the priority date of November 25, 2003. The labor certification required a Bachelor's degree plus five years of progressive experience in statistics. The employer obtained I-140 petition for another employee but for the unpleasant reason, she was terminated from the employment. The University is willing to substitute the beneficiary for this certification labor certification application. The Visa Bulletin which was released yesterday shows EB-2 cut-off date of January 1, 2004 for China in May 2006. Can I file concurrent I-140/485 using the substitution petition? A-69: It is true that EB-2 certified labor certification beneficiary can be substituted by a "qualified" beneficiary who picks up the priority date of the certified labor certification application which is November 25, 2003. Accordingly, from May 1, 2006, he/she will be able to submit concurrent I-140/485 application along with the EAD and Advance Parole applications. To get the benefit the applications must be filed before the end of May 2006 if the June 2006 shows regrogression. Currently the labor department is accepting the comment until April 14, 2006 from the public for the proposed regulation to eliminate the substitution. After April 14, they will prepare an Interim or Final Regulation considering all the comments and enact the regulation after obtaining the OMB approval. Depending on the number of the comments received and the policies of the DOL, affiliated other federal departments, and the White House, the Interim or Final Regulation can be published sooner or later. No one can predict exactly how long it will take, but the considering the time required for review of the comments, coordination with other departments such as DHS and State Department, as well as the OMB review of the Interim or Final Regulation before it is approved and published, it may take at least three months or longer before the regulation is enacted and implemented. Accordingly, you have a sufficient time to file your case, "inasmuch as" you are eligible. However, you have a problem. You are not eligible for the subsitution. An alien can be eligible for EB-2 either through a master's degree required job or alternatively a job that requires a Bachelor's degree plus 5 years of progressive experience. There are three types of labor certifications the employers have been filing: (1) Master's degree or equivalent requirement; (2) Master's degree or Bachelor's degree plus 5 years of progressive experience; (3) Bachelor's degree plus 5 years of progressive experience. Under the law, the Master degree requirement and Bachelors plus 5 years of experience are considered the two separate requirements which cannot cross each other for the purpose of proof of eligibility of the alien, because these two requirements have separate and distinctively different U.S. worker labor markets and different prevailing wages. For these reasons, in (1) and (3) above, one has to satisfy the exact education and experience requirement in the labor certification application. For instance, if the labor certification application required a Master's degree only, those who do not have a Master's degree but possess a bachelor's degree plus 5 years of experience is not qualified for the EB-2 I-140 petition, including the situation of substitution. The same is true in the situation where the labor certification required a bachelor's degree and five years of progressive experience without the option of Master's degree as an alternative. In this case, a Master's degree is not qualified for the EB-2 I-140 petition using the labor certification application. Some employers were accepting both Master's degree as well as Bachelor's degree plus 5 years of experience in lieu of the Master's degree. The problem is such requirement opens a wider opportunity to the U.S. workers and more people can be qualified for the job. Your case falls under (3) in the foregoing illustration. Since you do not have a Bachelor's degree plus 5 or more years of experience, despite your Master's degree credential, you are not eligible for the substitution and you will not be able to file I-140/I-485 concurrent cases coming May 1, 2006.
  • Q-68 (04-03-2006): I am an architect from worldwide category. I have an approved EB-3 I-140 with Priority Date August 2005 through PERM. In March 2006, I obtained approval of another EB-3 Labor Certification from Philadelphia BEC, which has the priority date of March 2002. In my PERM application, my employer did not withdraw my old application, because the job title was no identical: In PERM, the job title was Architectural Designer, and in the backlog application, the job title was Architectural Designer. These two occupations are very similar. My 6th year of H1B will be expired on September 2006, and I will use approved I-140 for 3 years extension. Is there any chance to use my old Priority Date of the backlog application? I don’t think I can apply again I-140 with old P.D. and ignore approved I-140. A-68: In applying for PERM, your employer or the company lawyer did the right thing. Had the employer requested retension of priority date, you could have sufferred two things: First, you would not have been allowed to retain the old priority since the two jobs were "not identical." Second, you would also have lost the old case because the old case would have been considered "withdrawn." You could have suffered "double whack!" As for the approved old backlog labor certification application, the law does not prohibit your employer from filing another I-140 petition inasmuch as they can prove the job exists. Once you get the I-140 approval for the backlog case, you can retain the priority date and use the priority date when the date becomes current in the Visa Bulletin. I also do not see why your employer file a I-140 petition based on the old labor certification job, Architect, and use this I-140 petition for the green card track rather than using the new PERM labor certification. Inasmuch as you are stuck with the visa retrogression, you can keep extending H-1B petition in three-year increment based on either of these two "approved" I-140 petition.
  • Q-67 (04-01-2006): I have just received PERM approval and am about to file the I-140 petition. My job is located in Austin, Texas and I was supposed to file I-140 with the Texas Service Center. I read the news that from today all the I-140 petition must be filed with the Nebraska Service Center. I also read that when it comes to adjudication of I-140 petitions, some of them will be adjudicated by the Texas Service Center even though they are filed with the Nebraska Service Center. Can you tell me how it will work? There are a lot of speculation going around. One speculation is that even though I-140 petition is filed with the NSC, when the job site is located in the TSC jurisdiction, the NSC will forward such cases to the TSC for the adjudication and people will receive Receipt Notices not from the NSC but from the TSC so that people have a knowledge as to where the ancillary or dependants applications or any extension should be filed. The second speculation is that the NSC and the TSC will share the work of adjudications regardless of the worksite or jurisdiction. A-67: The USCIS has yet to disclose how it is going to work between the intake Center and the Satelite Center. In I-140, the intake Center is NSC and the Satelie Center is TSC. In I-129, the intake Center is VSC and the Satelite Center is CSC. All these Service Centers have different idiosyncracies and charaters. For these reasons, the customers prefer that certain Service Center handles their cases rather than the other Service Center. It is a matter of choosing between CSC vs. VSC in I-129 proceedings, and between TSC vs. NSC in I-140 proceedings. In I-140 proceedings, there are currently two critical issues, among others, that people are afraid of. One is the issue of employer's financial ability to pay the proffered wage and the other issue is definition of "Bachelor or Equivalent" or "Master or Equivalent" when the aliens can only prove eligibility by either combination of two degrees or combination of education and experience. Rumor goes that TSC has been somewhat more liberal than NSC and people start speculating as to how the actual adjudication works would be split between the two Service Centers. This rumor may not necessarily be true. Anyway, we have yet to obtain a word from the official sources, but the unconformed sources indicate that as of now, the two Centers may alternate in taking the cases each day. Thus currently the information on which date will be TSC day and which date will be NSC day appears to be a 64 million dollar question because of the rumor. Besides, once the USCIS learns that the customers start shopping around between the two Service Centers, it may quickly change the arrangement. Analogy can be found in the local district office practices. In some local USCIS districts, the interview notices were sent out with the designation of the interviewing office using a "code," rather than the name of the officer. The code was once fixed with a specific officer one time. Then soon the legal counsels learned which code represented which official and started requesting extension of the interview to avoid certain officers. Soon, the offices changed the tactics of shifting the officers for a given code so that the customers could not learn who the interviewing officer would be. Well, such tactic of shopping around does not work well. The record reflects that in the past 10 years, so-called tough Service Centers vs. lenient Service Centers frome time to time changed. One time "A" Service Center was a heaven, which then turned into the devillish Service Center. The history tells that the difference between the Service Centers has usually been levelled out over time at the intervention and pressure of the HQ and Congress people. We lawyers call such shopping "Forum Shopping." Unlike judicial branch, in the administrative agency, the need for forum shopping does not last long. Believe me on this.
  • Q-66 (03-23-2006): I came to US on 28th of March 2003 to work for an employer "ABC" on H-1B. But unfortunately that employer put me on bench and did NOT pay till the first week of August 2003. In the first week of August 2003 I changed to a new employer "XYZ" and still I am working for him. So my W-2 for 2003 has only $19,000(which is paid by second ). With this situation now my employer wants to file I-140/485 with a pre-approved labor for EB-2 with priority date Jan 2002. Can I go ahead with filing of I-140/485 with the partial W-2 for 2003 or will it cause any issues for I-140/485? A-66: Under the labor condition application for H-1B, there is no benching available under any circumstances. Employee can take an unpaid leave of absence, but employer cannot let H-1B employee sit on the bench without pay. The ABC employer violated the labor condition application and the H-1B regulation and can be sanctioned for such violation. You also violated the H-1B nonimmigrant status. Apparently you did not disclose such violation and obtained a new H-1B status with XYZ employer. This violation will haunt in the I-485 proceedings as the USCIS require proof of maintenance of nonimmigrant status throughout your presence in the U.S. as part of the I-485 proceeding, including federal income tax return and W-2. However, depending on when you last entered the United Sates, you may have a relief. It is called 245(k) relief. This law allows adjustment of status based on employment-based immigrant petition if the alien worked without work authorization or without permitted stay for a period of less than 180 days from the date of "last admission"to the United States. Unlike 245(i) relief, if you are eligible, you do not have to pay $1000 penalty. In your case, you entered on a H-1B status on 03/28/2003 and obtained another H-1B with another employer the first week of 2003. Obviously there is an issue of misrepresentation in obtaining the second H-1B, but as far as 245(k) relief is concerned, you may be protected unless you violated the law further afterwards. This protection, however, does not save your first employer, ABC, from the punishment under the employer sanction statute. Please seek legal counsel.
  • Q-65 (03-22-2006): My employer is offering a new position. Both my current job and my potential new job are located in the Philadelphia metropolitan area. So, I guess the location change will not be an issue. The job titile on my LC application is Senior System Analyst. The Occupation title per DOL is system analyst and the occupation code is 030167014. My wage on the application was much higher than the prevailing wage. The new job has a title of Information Management Senior Analyst. Will this be classified the same as my current job? The new job will definitely have a higher salary than what I am paid now, but I have no idea how much the difference will be. I understand there is risk involved with switching jobs during GC process. But I do not want to have it hold off my career advancement for too long. So, I am willing to face the risk. My question then is: what can be done to minimize the risk here? Should I amend my current H-1B to reflect the change in job responsibilities? Should I also amend my pending LC at PBEC as well? A-65: I suppose your question is a follow-up of Q&A 59. As I stated in the Q&A, the rule for H-1B and the rule for permanent labor certification application are different. Generally, the rule for H-1B Labor Condition Application is stricter than the permanent labor certification application. It is more or less a question of labor condition application for H-1B. The labor condition application is ineffective to a specific case when the job does not match with the requirements in the approved labor condition application. When occupational title changes or the responsibility changes to a higher level resulting in a much higher wage, there is a question of applicability of the existing labor condition application for the current H-1B petition. If the labor condition application is not applicable, then the H-1B petition that is supported by the underlying labor condition application is also ineffective unless the H-1B is amended. When it comes to specific occupational classification, it is not the title per se that determines the occupation, but the job duties and responsibilities that control the determination of the occupation. In your case, it is uncertain whether Information Management Analyst falls under the occupational classification of "Systems" Analyst or Programmer Analyst or Quality Assurance Analyst or Database Analyst. These are all different occupations with different DOT codes. In the backlog cases, the occupation is still determined by the DOT codes rather than the O*NET System SOC/OES codes. O*NET classification is more flexible in the issue in the instant case in that the number of occupations have been reduced to a smaller number and in the IT occupations, several occupations which used to be in different occupational classification are now classified into a same occupational classification. Accordingly, when it comes to determination of same or similar occupation, the H-1B petitions filed after March 28, 2005 are more flexible. The same is true with the PERM labor certification application vs. backlog labor certification application. As for the permanent labor certification application, the issue gets to be slightly different in that the labor certification application does not have to be the H-1B job as labor certification job is considered a future job. Accordingly, even if it is somewhat different, inasmuch as the employer proves that the labor certification job will continue to exist and once your permanent labor certification is approved, you will be hired in that job, the employer is not violating the labor certification and immigrant petition. You also have a practical question of whether or not you can amend the labor certification application before the new DOL rule eliminating amendment and substitution will kick in.
  • Q-64 (03-17-2006): I am a software professional from India with MS degree and 7 years of experience. My EB-3 RIR labor certification was filed in Oct 2002 and got approved in Dec 2003. Applied for both I-140 & I-485 in Mar 2004 and I-140 got approved in March 2005. I-485 is pending. I am currently on H-1B and did not use my EAD yet. I am not married and maintaining H-1B status so that I can bring my wife here on H-4. Now my question is whether I can work on part time to some other employer using EAD while I still work fulltime for my current employer and maintain H-1B status and remain complete legal. A-64: The I-485 applicants have the options of working either on H-1B or EAD. Possession of EAD does not affect the H-1B nonimmigrant status. However, once EAD is used, particularly to work with a second or third employer, you are no longer considered a H-1B nonimmigrant. Since you will have to maintain a H-1B status to invite your future spouse to the U.S. on a H-4 nonimmigrant status, you only have two options. One is not to take any second job and do not use EAD. Second option is to file and obtain a second H-1B petition approval to work with the second employer for a concurrent employment. Obviously, this will have a part-time employment and should not create any breach of non-compete clause in your employment contract with the current employer. From the perspective of the second employer, the expense is unbearable in that they will have to pay in full either $1,500 or $750 American Worker Training Fee plus $500 Fraud Prevention Charge plus $190 H-1B petition fee plus attorney fees, just to hire you for part-time services! Probably, I should have said you had three options. The third option would have been to ask your parents to find your spouse quick and marry quick and bring her quick!! It appears that third option may be the best workable option. What do you think?
  • Q-63 (03-17-2006): I am a Chinese national. My company submitted RIR EB-2 Labor Certification application for me in November 2002 with SWA in Pennsylvania and it is now pending at PBEC. I have been working for the current employer at my current job since I joined the company in 2001. Now I would like to explore opportunities with other groups within the company, if possible. My H-1B is going to expire beginning of next year so I need to extend it within the next few months. There is one internal job posting I am quite interested in and believe I am quite qualified for. However, I am not sure whether I should apply for it. I am currently working as a systems analyst and the new job is a very similar IT job with a different group at a higher level. So, it will be a promotion for me. The job is based at a different satellite location, but it is very close by. It is in the same county, same state as my current job location. Will taking this new job within the same company have any implications on my Labor Certification application, H-1B extension and overall GC process? A-63: The key concept in both H-1B and the permanent labor certification is the legal requirement for payment of either prevailing wage or actual wage whichever is higher in the area of intended employment. Once any change brings about the wage requirement by change of employment, it is considered a material change which will affect the H-1B or labor certification application. The wage is determined by occupational classification and location of intended employment. Consequently, even if the job change takes place within the same company, if one of these two factors change, it will affect the requirement of payment of specific wages and the H-1B and Labor Certification Application process. Both H-1B and permanent labor certification application are "employer specific" as well as "location specific." Location is determined by the commuting distance and usually the metropolitan area within the commuting distance is considered a same location and the same prevailing wage applies. Location is not determined by the administrative unit such as county or state. For instance, when a metropolitan area is located between the two states, even if the new job crosses the state boundary, inasmuch as it is located within the metropolitan area, it is considered a same location for the purpose of wage determination and material change. The wage is also determined by occupational classification and level of responsibility. When there is a change in occupational classification, it is considered a material change as well. When there is a material change by change of employment, it affects the H-1B status and labor certification-based green card process. In H-1B, employer is required to file an amendment of H-1B petition. In the labor certification application, if there is a material change because of change of location, the employer has to refile an application and cannot save the priority date. The same consequences take place if the new employment falls under a different occupational classification. The priority date can be saved and the ongoing labor certification application can be saved only if the amendment is permitted. When change involves a material change, the rules do not allow amendment of pending application and keeping the priority date. Judging from these rules, you will learn that you have presented your question in an open vacuum. As for the location, "same county" does not mean anything to answer your question. "Satellite" location does not mean anything either. As for the job classification, "similar IT job" will not give any clue to the specific occupational classification. As for the responsibility, "higher" level or "promotion" does not give any clue to the determination either. Generally, change of location outside the area of intended employment is "deadly" in both H-1B and permanent labor certification application. Change of occupational classification is also deadly such as change from Systems Analyst to Database Administrator or promotion to a manager position. When it comes to the impact on the labor certification application, however, it is somewhat flexible in that the job for the labor certification application is "not" current job "but" future job. Accordingly, an employer can file a labor certification for you not for the current job of H-1B but for another future job of different occupational classification and different location. In this case, employer must make it sure that it indeed has such a job opened. Accordingly, in the context of permanent labor certification application, one can "temporarily" change the job with the material change in location and occupational classification inasmuch as the employer can prove that the labor certification job indeed "existed" and "will exist" at the time permanent resident status is granted, or at least until 180 days passes after filing of I-485 application. For instance, if your labor certification job is located outside of the metropolitan area and classified as a different occupation under the labor department occupational classification system, you can still temporarily work in a different area and a different job "inasmuch as" your employer proves that the labor certification job continues to exist and remain open. I hope this message gives you enough information to determine whether your potential job change will affect the H-1B and the pending green card process. Overall, a job change can result in a serious consequence in the employment-based immigration matter. You should never jump and change the jobe without first seeking legal counsel. You will turn out to be a fool if you make decision based on open-ended internet information such as this Q&A as the internet information cannot fit to your hair-thin specific fact situation. Please seek legal counsel. This is a St. Patrick's Friday. Please enjoy your weekend!
  • Q-62 (03-15-2006): My PERM was approved on Nov. 2005 with Priority Date of Oct. 2005. I filed my I-140 (EB-3 Category) in Dec. 2005. I get paid more than the prevailing wage amount. I submitted the last four pay stubs since my W-2 for 2005 was not ready yet. Also, we didn’t submit the company’s tax return. Now, there are two issues: 1.) Will my last four pay stubs showing that I get paid over the prevailing wage satisfy the adjudicator? 2.) My company is in financial trouble, but they have good plans for the future. In the mean time, their tax returns show negative, but they always make our payroll. Would this impact my green card process? A-62: Nowadays, employers face serious challenges by the Service Centers on the issue of their financial ability to pay the proffered wage. The current standard is unreasonably rigid and stiff and the USCIS was planning to loosen up somewhat the standard, but this rule making agenda has been delayed for the unknown reasons. Because of the rigid standards, the employers have been receiving a massive denials of I-140 petitions on this issue. In proportion to the I-140 denials, the appeals of the denial have surged tremendously recently. Currently policy requires the employer to prove the financial ability by one of the three evidence: (1) Net Income equal to or in excess of the labor certification salary from the date of labor certification filing until I-140 filing; (2) W-2 or Payroll Record showing salary payment to the labor certification alien in the amount equal to or in excess of the labor certification salary from the date of labor certification application filing until the date of I-140 filing; (3) The net worth of the company which is five times of the labor certification salary from the labor certification application filing date until the I-140 filing date. In your case, since the labor certification was filed on October 2005, your company is required to submit either tax return and audited financial statement and W-2 and Paryroll covering from November 2005 to the date of I-140 RFE. Since your company has yet to file 2005 tax return, the record of IRS 941 Employer Quarterly Report for the last quarter of 2005 and first quarter report have to be submitted along with the W-2 and payroll record.
  • Q-61 (03-15-2006): I am a software professional from India with MS degree and 7 years of experience. My EB-3 RIR labor certfication was filed in Nov 2002 and still pending in DBEC. What impact this comprehensive immigration reform bill will have on my case in case my labor gets approved? When will this bill come into effect and how it will impact my case? When will the bill be tabled to vote? when will it come into effect assuming it passes the senate on that day? A-61: EB-3 is terribly retrogressed for India at this time. The Sen. Specter's mark on Comprehensive Immigration Reform can give a substantial relief to EB-3 because of the two proposals, among others, to increase the EB-3 immigration annual quota and per country limit. One is increase of overall EB-quota from 140,000 to 290,000 and increase of the share of EB-3 to about 65% of this annual quota. Secondly, the so-called Brownback amendment proposes to take out Schedule A (Nurses and Physical Therapists) cases from the EB quota system, practically adding the numbers for Schedule A to EB-3 quota. At this time, there is no information available about exact impact of this bill on the retrogressed visa numbers, particularly for China and India, but without doubt, a substantial change may take place once this bill is enacted into law. The question is whether or not this part of the bill will eventually make it into a law, and if yes, then when. The Senate Judiciary Committee is currently accelerating the process and the latest news reflects that the full Senate may also accelerate the debate of this bill within the next three weeks. If everything goes as scheduled, the Senate may see the resolution on the comprehensive immigration reform within April 2006. However, the story does not end there. Once the Senate passes a bill, it will have to go through the idential process in the House of Representatives which is much more hostile to any kind of immigration relief other than the border security and tightening of immigration enforcement. The real battle is expected to be witnessed in the House after the Senate passes the bill. At this time, it is anybody's guess when it comes to the timetable. The midterm election (November 2006) politics and development of the Iraq war will play a big role. The focal point of battle is not employment-based immigration but relief of undocumented aliens in the form of so-called Temporary Guest Worker Program and Earned Adjustment of Status. The latter two issues will determine the course, fate, and timeline of this legislation. The country hopes to see resolution of comprehensive immigration reform before the November Midterm National Election. Educated guess indicates that it may not see the resolution before the Summer 2006! But WHO KNOWS!! People should add pressures on the political leaders by keeping calling and sending e-mails and staging other pro-immigration lobbying.
  • Q-60 (03-09-2006): I have been working in H-1B status for several years. When I started H-1B status, two different companies filed and obtained H-1B petitions on my behalf. Out of the two companies, I chose Company Poor and worked with the Poor company. In March 2005, I left and returned to the U.S. and resumed my employment with the Poor company. H-1B was valid until January 2006. Unfortunately, I was laid-off by the Poor company and joined the Second company based on the existing approved H-1B petition which is valid until November 2006. I wonder whether I am out of status. What is my course of action at this time? A-60: Your question involves two issues: One is whether you can continue a H-1B status when you change to a new employer that has already obtained H-1B petition for you simultaneously with your current employer. This often happens when you have two approved H-1B petitions and take one of the two jobs and move to the second job or after you move to the second job and return to the first employer. There is no specific regulation on this issue, but this issue has been handled by the opinion of Effren Hernandez, Director of Business Division of USCIS in Washington, D.C. who opined that no matter how many approved petitions an alien has by different employers for the same alien, all of these approved petitions remain valid and the alien can change from one of these employers to another of these employers without filing a new H-1B petition. Accordingly, there are many H-1B aliens who changed the job to the second H-1B employer and moved back to the first employer without filing a new H-1B petition. This rule applies when you remain in the United States. However, you have a different issue involving your overseas trip and returning with a new I-94. This is an issue of so-called "last action theory." According to this theory, I-94 status is determined by the "last action" taken by the DHS. For instance, if a H-1B alien departs with the Service Center approved H-1B approval notice with a new I-94 at the bottom changing from L-1B to H-1B or F-1 OPT to H-1B and returns from the overseas trip with a new I-94 issued by the immigration inspector at the airport giving L-1B or F-1 because of a number of issues, the I-94 which was issued at the airport is the "last action" of the DHS and it determines the alien's nonimmigrant classification as well as the duration of permitted stay in the United States. This last action theory has been strictly enforced for years by the legacy INS and the current USCIS or DHS when it involved a change of nonimmigrant status. However, they applied somewhat different standards when it involved not change of nonimmigrant classification but extension of the same nonimmigrant status or just change of employment in the same nonimmigrant classification. In these cases, the INS or USCIS have opined in various situations that such last action would not affect change of employment using a valid H-1B petition after returning from the overseas trip. The typical opinion involves John Brown letter which was written in response to this reporter's letter. This opinion appears to be followed by the agency. It appears that you case falls under this category. There is, however, still lingering unresolved issue as to how different officials will take it differently when the I-94 which was issued by the inspector at the airport constituted the "last" action of the government agency. Accordingly, just for safeside, you may feel comfortable by leaving and returning to the U.S. obtaining a new I-94 at the airport or port of entry. This can be achieved if you have a valid H-1B visa in your passport. If you do not, then you can still travel to Canada or Mexico and return within 30 days with a new I-94 issued at the time of returning. This should happend within 180 days before your Poor company's H-1B petition expiration date. There are some aliens who are not eligible for the automatic visa revalidation when one visits Canada and returns to the U.S. within 30 days. But India is not one of those ineligible nationalities. For the unsettled second issue, lawyers would recommend you to make such trip as soon as possible. Good luck.
  • Q-59 (03-06-2006): I am a Pakistani working for a fortune 100 company in California. I joined the company about four and a half year ago and my H-1B journey started with this company in JUne 2002. My employer filed RIR application on April 26, 2004 for the current job of SAP System Administrator and EB-3 category. Prior to June 2002, I had SAP work experience for three years. My case is stuck at the Dallas BEC. Besides, the EB-3 visa numbers for worldwide are terribly retrogressed. However, I heard an exciting news today from the company that they will promote me to a Lead/Manager position where job description and responsibilities will be significantly different (more than 50%). I am considering re-applying my labor certification for EB-2 under the PERM program based on the new position. As the job responsibilities will be significantly different, I should be able to use my latest 4 and half-year experience with my present employer and make it a EB-2 case by requiring a Bachelor's degree plus five years of progressive experience. Please confirm that my understanding is correct. A-59: It is true that the experience with the same employer in occupation dissimilar from the labor certification application job for 50% or more can be used under the PERM regulation to meet the experience requirement for the labor certification application. However, there is no clearly defined yardstick to measure the difference of 50% or more.Accordingly, employers tend to look back the DOL's traditional rule that allowed experience with the sponsoring employer in the occupation "dissimilar" to the labor certification application job. Under the traditional DOL rule and practice, the most typical illustration of "dissimilar occupation" was considered a promotion to a Manager position. However, in determining the dissimilarity, the DOL looked beyond the job title. Generally, the DOL recognized dissimilarity of the occupation for a manager position because of general definition of manager that focuses on management, including policy making, personnel management with the authority to discipline, hire and fire the subordinates, recommendation of budget for the department or division or an essential corporate function. This definition should cut accross any industries. In your case, you stated to you will be promoted to a "lead/manager." It thus appears that your new job may be either a project lead or project manager rather than department or functional manager. Unlike departmental manager, when it comes a technical project lead or project manager, the duties and responsibilities of such occupations tend to focus on technical responsibility over the administrative management responsibility that cuts accross the different industries and the "extent" of dissimilarity between technical position and technical project lead tends to be blurred. Usually "technical lead" is not necessarily considered a dissimilar occupation as it just involves higher technical responsibility rather than administrative responsibility with the authority to discipline, hire/fire, and budgeting responsibility. Under the traditional DOL practice, the black-and-white dissimilar occupation of managerial position thus typically included department/division manager rather than project lead, project manager, etc. I realize that the 50% dissimilar standard under the PERM regulation has broadened the horizon of the availability of the same employer experience in the PERM labor certification application, but the new standard has yet to be tested and defined by the DOL. In practicality, one thing appears to be clear: These cases will have to go through the "audit" track, and the farther it drifts away from the traditional standards of "dissimilar occupation," it will probably take a longer time to obtain a positive decision. Finally, most of the manager occupations fall under Job Zone 5 that allows the experience over four or five years, and inasmuch as you can establish that the new job is a dissilimar job in 50% or over, you may not have too much problem in making it an EB-2 case. One last note. Currently, the DOL does not have any policy that does not allow multiple applications filing by the same employer for the different occupations, even though it can change in the future. Considering the fact that eventually the worldwide EB-2 may also retrogress in the future unless the Congress acts on the employment-based immigration system reform soon enough, your employer may consider filing it as a new case rather than "refiling" with the request for preservation of priority date as it will kill the pending application because of "unidential" job. Please be careful.
  • Q-58 (03-02-2006): I am an Indian accountant working as a consultant. I work at the client site. My client is a national accounting firm. Through my employer I filed concurrent I-140 and I-485 in June 2004 with the priority date of November 2002. I-140 was approved in October 2004. The fingerprint was taken in April 2005. I have been working on EAD. I am in EB-3. My client is offering a similar job. Currently the client's business looks O.K., but I am afraid that when its business go slow, I may be laid off. My current employer is about to go out of business and will release me if I want. Please help. A: When one changes employment after 180 days of I-485 filing under AC 21, one should be conscious of the potential breach of employment contract other than immigration law issues. This is particularly true when the new employer is a client. Such breach of contract will end up in the court litigation. However, it appears that in your case, the employer is about to go out of business and release you. Under the labor certfication law, the labor department can invalidate the certified labor certification application when the employer goes out of business. The same is true with the approved I-140 petition. Going out of business is ground for automatic revocation of the approved I-140 petition. It thus appears that in your case, you may want to change the employment as soon as possible, certainly before the current employer goes out of business. It appears that you are eligible to port to your client. Once I-140 is approved and ported, the USCIS usually do not revisit the I-140 issue unless the petition was meritless or fraudulent. Besides, even though there is an unresolved issue involving invalidation of labor certification when the original employer's business shuts down, the fair reading of the AC-21 portability indicates that once you ported after I-140 is approved and 180 days is passed after filing of I-485 application, the revocation of I-140 should not affect your pending I-485 application. As to the potential lay-off by the new employer, the law does not require that you stay with the first ported employer. Inasmuch as you legiminately ported and the employment was not "temporary" in nature, change of employment to a similar or same job next time around will not affect your pending I-485 application. When you need to change employment more than one time using AC 21, you should keep a good record of "similar or same" employment by preserving payroll or paystubs and if available, the letters from these employers while you work with these employers. Your last question: Likelihood of getting I-485 approvals if the visa bulletin is current for you in the next two months. Your fingerprint will expire in July 2006 as the fingerprint is valid for 15 months. There is no likelihood that EB-3 for India would progress to "current" in the near future. The U.S. Senate has just started debating the Comprehensive Immigration Reform legislation. Once this bill is enacted into law, the people like you will get the benefit as the bills propose substantial increase of EB visa numbers. However, the Comprehensive Immigration Reform legislation will take a long time. The Chairman of the Senate Judiciary is targeting at wrapping up the bill in the Judiciary Committee by the end of March 2006 and hopes to present the Judiciary bill to the Senate floor in April 2006. However, the schedule may not work well as the Chairman hopes. Additionally, even if you assume that the Senate will act swiftly in the next two months, we have the House of Representatives which we will have to deal with. You may remember the frustrating experience involving S. 1932 at the end of 2005. You may not want to keep your level of expectation too high as it will lead to unhappiness and frustration. It will come but will take a little bit of time. Keep your patience and manage your "legal" status meticulously until the end of the journey. Good luck.
  • Q-57 (02-24-2006): I am an Indian software engineer whose I-140 has been approved. My H-1B 6-year limit will reach in the next nine months, but I understand that I can apply for the H-1B extension in the three-year increment and file such application even before reaching the six-year limit. I also understand that I can add the remaining nine months when I file such extension petition and request the H-1B extension for a period of three years and nine months. Am I right? A-57: Your understanding is right that you are eligible for H-1B extension in three-year increment when there is visa retrogression and your I-140 has been approved. You are wrong in that you are not allowed to file any H-1B petition for a period in excess of three years at a time. Accordingly, the maximum you can request in this petition is extension of three years and not three years and nine months. Additionally, it is current practice of the USCIS that the H-1B extension petition should not be filed unless it expires within six months. Accordingly, to file such petition beyond the six-year limit, you should wait at least for three months. The situation is different if you file the H-1B extension beyond six year limit in one-year increment after passing 365 days from filing of a labor certification application. In this case, you can add the remaining period of the six-year limit to one year extension. Consequently, should one file the 7th-year H-1B extension petition six months prior to reach of the six-year limit, the USCIS will grant the H-1B extension for a period of one year and six months. However, under no circumstances, one will be able to obtain longer than one year and six months in the situation of one-year increment provision of AC 21 as one cannot file such extension petition before the expiration of the six-year limit H-1B within six months. People should remember two rules. Rule 1: H-1B extension with the same employer cannot be filed before expiration of the current H-1B within six months. Rule 2: The maximum period one can apply for H-1B extension is limited to three years at a time and not longer, no matter what kind of H-1B extension one seeks.
  • Q-56 (02-22-2006): I know that once the substitution elimination final rule is enacted and implemented, the opportunity for substitution of alien beneficiary will affect not only for the certified application but also pending backlog applications. My employer filed a labor certification application for the job in Los Angeles for the Programmer-Analyst in July 2000 which is still pending. It was EB-2 requiring a Master's degree. I am qualified for the substitution and my employer intends to request the BEC to amend the application substituting the alien name from the original beneficiary to my name. The amendment includes Software Engineer, requiring SQL Server instead of Sybase and changing location to San Diego, increasing salary from $60,000 to $80,000. Employer has alreay requested and received ETA 750 applications from the Backlog Elimination Center for the amendment. Since this may be the last chance to try a substitution, we cannot afford making any mistake. Please help. A-56: Substitution pending an application is somewhat different from a substitution for the already certified application. In the substitution for the "certified" application, the employer must meet all the required educational, experience, and special requirement as provided in the original labor certification application as of the priority date. In the substitution for beneficiary "pending" application, the employer is allowed not only to substitutte the name of the beneficiary but also some terms or requirements, provided that the amendment does not affect the occupational classification and job site. For instance, the proffered wage can be amended if the change would not bring a change in occupational classification. Besides some list of skills or technologies can also be changed. In your case, the employer intends to change the job from Programmer-Analyst to Software Engineer. These two occupations fall under the same occupational classification code under the current O*NET/OES/SOC occupational code system that took effect on March 28, 2005. However, these two occupations fall under two distrinctively different occupational classifications under the old DOT code system. For the backlog cases, the rule requires that the cases be processed under the laws and rules prior to March 28, 2005 and the DOL must apply the DOT classification which was the rule and practice prior to the reengineering of the labor certification named PERM on March 28, 2005. It is thus likely that such request for the amendment will be denied on the basis of change of occupational classifications. Your employer wants to replace the requirement of Sybase to SQL Server since you do not have work experience with Sybase. This will not affect the nature of the occupation and the basis of prevailing wage determination and the DOL is likely to allow such amendment. Thirdly, your employer wants to change the salary from $60k to $80k. Sometimes, salary change can affect the occupational classification depending on the amount of increase. The intended amendment may not affect the occupational classification. Lastly, your employer wants to change the job site from Los Angeles to San Diego. This is absolutely "not do-able." The labor certification system relies on the labor market test considering the available qualified U.S. workers and the prevailing wage in each area of intended employment. San Diego and Los Angeles do not belong to the same metropolitan area or the same commuting zone, reflecting completely different labor markets. Such change is absolutely not permitted. Finally, the foregoing discussion applies only to the amendment of a "traditional" labor certification applications that needs to go through the supervised recruitment process in the future. If the labor certification application that your employer wants to change involves a RIR application which has already completeed the labor market test, the DOL will not allow your employer to amend the application other than the name of the alien as changes in the terms of employment including the skill sets would have affected the availability of qualified U.S. workers in the area. Since your question did not lay out the type of application that your employer intends to amend for the substitution, this is as far as I can go to give you some ideas about the workable amendment. Remember that there is a difference between the traditional regular application and the RIR application when it comes to the amendment.
  • Q-55 (02-18-2006): What is the relationship between the H-1B job and the four-tier prevailing wage determination? If the employer set the prevailing wage at level 1, can the USCIS challenge that the job does not need the Bachelor's degree but just an Associate degree? Can we say the employer had better to set at least level 2 prevaling wage in order to have the H-1B approved? A-55: It appears that there is some confusion on your part with respect to the H-1B eligibility and the four-tier prevailing wage system. Under the immigration regulation, the employer must establish that the job belongs to a "specialty occupation." Specialty occupation is established by the bachelor's degree which is attained after being in schools for 16 years from elementary school and taking certain special major field of study during the last four years. The rule is different in the green card process, but in the H-1B rule, those who do not have a four-year college degree can still establish eligibility for the specialty occupation through evaluation of his/her progressive work experience. Three years of progressive work experience is considered equal to one year in college. Thus, those who just have a high school education can establish the special occupation if they have 12 years of progressive experience in the specific field of specialty. The government prevailing wage system is predicated on the occupational classification. In the occupational classification system, each classification of occupation has a more less pre-set of rule as to how much specific vocational or educational preparation is required to enter the occupation and gives a guidance to the users the required level of education, training, and experience in general. Accordingly, an occupation is generally determined to require minimum of a bachelor's degree at the entry level, which conforms with the level 1 in the wage system. The labor department's occupational classification system thus generally gives a guidance as to which occupation is a professional job that requires a bachelor's degree regardless of the responsibility which affects the different levels of wage system. However, there are certain borderline occupations that may or may not require a four-year college degree depending on the complexity and the responsibility involved in the specific job. In these borderline occupations, offered wage can "indirectly" affect the USCIS in determining whether the job should require a bachelor's degree. For instance, when employer files a H-1B petition for an Accountant for a small business, they look at carefully the description of the job to see whether it is indeed a bookkeeper job or an accounting assistance job that does not require a college education. For these jobs, the small business employers usually offer a very lower level of wage such as $20K or 30K. USCIS denies such H-1B petition. Another example is computer programmer. If the employment involves a more or less data entry or simple processing of data on the inventory, shipment schedules, billing system, journal entries, salary payment processing, etc., USCIS tells the employers that such job should not require a college degree and vocational school training should suffice. Again, the employers usually offers for these jobs a very low level of salary. The other end of the spectrum is traditional professional occupations such as medical doctors, lawyers, teachers, architects, engineers, etc. All in all, the offered wage should not be a factor in the determination of specialty occupation. Rather it is the occupational classification and the duties and responsibilities of the position that determines "specialty occupation." For instance, the researchers in the universities and colleges that even require a Ph.D. degree are paid a very limited salary and in some cases, not even close to any entry level salary for any professional occupations. In this case, the offered level of wage has no affect on the determination of specialty occupation or professional occupation which is qualified for the H-1B petition. Since I do not know which occupation you are referring to, I am unable to answer your question. You also have another misconception about the H-1B eligibility. It is not the employer who determines whether the job is a specialty or professional occupation. It is the nature and type of job that determines the specialty or professional occupation. Thus, no matter what kind of fancy job title the employer gives for you, the labor department and the USCIS ignores such job title. They rather focus on the description of the duties and responsibility of the job. For instance, there are a plenty of employers who give a job title of "software engineer" to any new employees of entry-level to compensate for payment of low wages. Software Engineer is one of the highest occupations in the information technology field. These employers want to give such title to these entry-level employees to help these employees' resume for their future. The USCIS scrutinizes such H-1B petition by analyzing carefully the job description, duties, and responsibilities of the job to assure that the jobs are indeed a specialty occupation job. In the H-1B petition, the job description and size of the employer's business are two key factors which the USCIS adjudicators take into consideration. General rule: The smaller and the newer start-up business requires much more convincing evidence than the larger and established business to establish H-1B eligibility. In the latter case, submission of a limited number of evidence suffice, while in the former case, the employers need to carefully put together voluminous evidence to establish the specialty occupation eligibility. When it comes to building up an H-1B case, generalization of standard documentation requirement ignoring the aforementioned differences is a numero uno enemy leading to the USCIS challenge in the form of RFE or even denials. Your question indicates that you are trapped in such misconception. Social events are not that simple to allow generalization. Indeed, number one enemy for the lawyers is lack of skill to disect the facts and easily trapped into generalization. Lawyers should be able to disect the facts the same way the sergeons use scalpel to reach the sources of ailment.
  • Q-54 (02-17-2006): I am a Chinese mechanical engineer with a Ph.D. degree in Mechanical Engineering and two years of work experience in my field. My employer has a certified labor certification with the priority date of November 4, 2000. He is willing to file a substitution petition for me. The labor certification required a Master's degree in Mechanical Engineering and 1 year of work experience or Bachelor's Degree in Mechanical Enginnering and 3 years of work experience. I suppose I am qualified for the substitution since I obtained my Ph.D. degree in August 1999 and have one year of experience. Question is whether I can get EB-2 substitution. A-54: You are correct that you are eligible for the substitution. However, you can get EB-3 substitution and not EB-2. When the job required a master's degree and the employer was willing to accept a candidate with a bachelor's degree with 3 years of experience, the qualification requirement for this job is considered bachelor's degree with 3 years of experience. Since the immigration regulation requires that EB-2 alternative qualification must require a bachelor's degree plus 5 years of progressive experience, this certified labor certification application is not qualified for EB-2. Again, the problem stemmed from the two sources. In 2000, the INS did not have a clear position on the "Master's degree equivalent" and employers could get EB-2 I-140 approvals with this type of labor certification requirement. However, since then the USCIS has firmed up its stance and sticked to the language of the regulation. Why then the lawyers drafted the labor certification like that? Because there is a conflict on the definition of Master's degree equivalency between the Labor Department and the USCIS. For the purpose of the labor certification processing, the DOL considers that Master's degree is equivalent to a bachelor's degree plus two years of experience or training or additional education, while the immigration services required five years of experience for the job that required a bachelor's degree. Immigration lawyers drafted the labor certification with the requirement of three years of experience for fear that if the employer requires five years of experience on top of bachelor's degree when the employer also stated that it would accept a people with a master's degree with one year experience, the labor certification applicaction might be challenged or denied by the DOL for the unduly restrictive requirement. Consequently, this remained a predicament for the immigration practitioners. However, things have changed since that time. The DOL has rarely challenged a labor certification application even if the application required a master's degreee or bachelor's degree plus five years of experience. Besides, the so-called Yates memo states that the employer can just require a bachelor's degree plus five years of experience without stating the alternative requirement of a master's degree to make an EB-2 case. Indeed, time tells!
  • Q-53 (02-17-2006): I am a software engineer working with a Fortune 500 company. My employer filed a labor certification for a software engineer working at the site of San Jose, California back in March 2001. It has been certified, but because of some misconduct of the employee, the employer discharged him. The I-140 petition was filed and approved for him before he was discharged. The employer is now willing to file a substitution I-140 petition for me. The labor certification required a bachelor's degree or equivalent in Computer Science and five years of work experience in the job offered or alternatively in the software design and development using E-Commerce technologies. The occupational classification was determined to be a Software Engineer. I am an Indian with Bachelor of Science in Computer Science degree from one of the prestigeous universities in India, post graduate diploma in Computer Science for two years from another institution in India, and nine years of work experience at this time. Am I qualified for the substitution? A-53: The rule of substitution requires that the substituting alien must have all the required education and experience before the date of priority date, the date of filing of the original labor certification application. It is March 2001 in this case. The job required 5 years of experience which is gained prior to March 2001 and from an employer other than the sponsoring employer. Your facts did not specify where you gained the nine years of experience. If part of the qualified five years of experience was gained with this sponsoring employer, unless it is a dissimilar job, you are not qualified for the substitution. Additionally, it appears that you did not gain the 5-year required experience before March 2001. Since this is year 2006, probably you started your employment in 1997. The period from 1997 to 2001 is four years. For this reason, you are also not qualified for the substitution. The job also required a "Bachelor's degree or equivalent in Computer Science." Your degree is equivalent to a Bachelor's degree in Computer Science in the United States in one of two ways. One is combination of your two educational degrees and the other is combination of education and work experience. As you know, your Bachelor's degree in Computer Science in India is a three-year program and it, standing alone, is not considered a bachelor's degree in the United States. Besides, to use the equivalency evaluation, you have a number of problems at this time. First, when the labor certification application required Bachelor's degree or "equivalent," without any further qualified statement, it is considered a equivalent "foreign degree" by the USCIS. Accordingly, they are currently not recognizing establishment of Bachelor's degree either through combination of two or more educational degrees or combination of education and exprience. Unfortunately, you are trapped in this USCIS policy. When the labor certification was filed in 2001, you could have been qualified as the labor department and the INS used to accept such combinations. Unfortunately, the immigration agency has changed its position as affected by the non-binding decisions of its appeal unit, Administrative Appeals Office (AAO), which they have handed down afterwards. This is currently hotly discussed and debated between the immigration lawyers community and the USCIS leaders in Washington, D.C., but until there is an official announcement of policy change, the Service Centers will stand by their current practice of denying such substitution.
  • Q-52 (02-16-2006): My employer in Los Angeles filed labor certification for me on April 25, 2001. It was a medical technian job for a laboratory. Everything was going O.K., but later I changed the job and the employer withdrew the application afterwards before it reached the San Franciso Region VI office. Now I have a labor certification substitution available by the current employer with the priority date of January 15, 2004. I have two questions. First, can I use the priority date of the old labor certification application which has been withdrawn. Second, I live and work illegally now. Am I grandfathered by the old labor certification which was withdrawn at the stage of the State office processing? A-52: For the question one, the answer is "no." Priority date can be retained when one changes employment only if the labor certification was approved and more importantly I-140 was also approved. In your case, the labor certification was withdrawn even before the labor certification was approved. For the second question, the answer can be "positive." The 245(i) benefit is grandfathered even if the labor certification is withdrawn and revoked "if the application was approvable" at the time of filing. If the application was meritless or fraudulent or had a serious defect such as lack of signature of the parties which make it unapprovable, then you do not get the 245(i) grandfathered. In your case, inasmuch as your employer filed the application in good faith for the job existent and the application was otherwise approvable, you are protected by the 245(i) provision. You will carry this precious benefits in your backpack for your life, unless you are arrested and deported before you file the I-485 application. If you were married and had children, all of them are also protected, even if they stayed illegal. There is one practical question, though. Question of proof. Without doubt, your employer is hostile and will not assist you. You do not have the file. State offices do not keep the alien labor certification files any more. You may have two sources to tap to collect the evidence. If the case was filed by a lawyer, no matter whether the lawyer was hired by the employer, that lawyer is also obligated to give you a copy of the case file after taking out the employer documents. Obviously, the State office's receipt notice is issued to the lawyer, employer, and alien. The lawyer should have a copy of this notice in the file. The problem is Part A of ETA 750 form which was filed with the agency belongs to the employer and the lawyer cannot release the document without the consent of the employer client. Part A of ETA 750 is a key document for the USCIS to determine whether it was an "approvable" application at the time of filing. Second sources is freedom of information request filed with the State office. I wish you a luck!
  • Q-51 (02-09-2006): I just filed I-140 petition using labor certification substitution which has a priority date close to the current Visa Bulletin. This I-140 will take some time before it is adjudicated according to the Service Center's processing time report. What happens if the priority date becomes available in March 2006 and I-140 is not approved before the end of March 2006? Can I still file I-485 application in March 2006 even if the substitution I-140 has yet to be approved? A-51: Under the concurrent filing regulation, one can file a concurrent I-485 in two different ways. One is to submit the I-140 petititon and the I-485 application together. The other is one files I-140 petition first and files I-485 application later pending the adjudication of I-140 petition. In the latter case, the priority date must be available at the time of filing of I-485 application. In your case, once the substitution I-140 petition priority date becomes available in March, you can submit I-485 application for you and your family members. When you submit such subsequent concurrent I-485 filing, you should request the Service Center to "Inter-file" of the I-485 application to your pending I-140 file by giving the agency the specific I-140 petition file number. Good luck.
  • Q-50 (02-09-2006): My wife and I filed I-485 two years ago based on her labor certification with the priority date of 2002. She is the direct beneficiary and I am the derivative beneficiary. Recently I also got my labor certification and I-140 approved. I cannot file I-485 based on my own labor certification because of retrogression. My wife is unable to change employment using AC21 because of her unique circumstances. Can we simply swap her name with me as direct beneficiary applicant and herself as secondary applicant so that we do not have to worry about her losing the job and we face a problem with I-485 applications? My job is solid. A-50: You are asking whether you and your wife can transfer the pending I-485 applications from your wife's I-140 to your own I-140 petition. Under the USCIS policy, you cannot transfer pending I-485 applications from one I-140 to another I-140 unless the visa number is available for the new I-140 petition. Since visa numbers are not available for both of you, you cannot transfer at this time. Besides, once you transfer to your own I-140 petition, the priority date for I-485 for you and your wife will be not your wife's priority date but your own priority date. I wonder whether you want to do that. If AC 21 change of employment is your primary concern, there is not much you can do at this time assuming that for some reasons, she is unable to change employment under AC 21.
  • Q-49 (02-07-2006): I am an Indian Software Engineer. I have been working in this country for almost six years in H-1B status. After all of the struggle, I am expected to see a path to the immigration in about two months in that my employer may be able to give me the benefits of substitution of labor certification. I hope that this substitution will be able to solve both my 7th-year H-1B extension as well as visa retrogression problems. However, I am concerned that if the labor department and the USCIS implement the new regulation of elimination of substitution of labor certification, I will be deprived of all of these benefits. Your site reported that the DOL requested the White House OMB on February 2, 2006 to approve the proposed elimination of substitution regulation, which was shockingly approved by the OMB the same day on February 2, 2006. Please tell me what this means to me. A-49: Should this regulation be implemented within the nex two months, your dream may indeed evaporate. However, this is a "proposed" regulation which will not take effect until either an interim or final regulation is enacted. The proposed regulation alone takes at least from one month to two months to receive the comments from the public and stakeholders. There will also be a window period of time within when the agency will have to analyze the comments and formulate policies on various comments before they can even draft an interim or final regulation. Besides, even if they draft an interim or final regulation, the draft interim or final regulation must go through a new cycle of OMB review and approval before it can be published and implemented. The rule-making process under the OMB program mandates these processes. It will thus take a while before the DOL and the USCIS can start to eliminate the labor certification substitution opportunities for the immigrants like yourself. Just follow thourgh the news on this rule-making process closely. Sometimes, the specific rule making initiatives witness a surprise turn of course. We will closely monitor this rule-making process. Good luck.
  • Q-48 (01-31-2006): My initial H-1B was filed by an employer which was a cap-exempt non-profit research organisation. Afterwards, I changed the employment to my current employer, another cap-exempt non-profit organisation. My current H-1B will expires on June 30, 2006. Now I have a job offer from another employer that is not a cap-exempt organization. The new employer wants me to start the employment from July 1,2006. Can I continue to work irrespective of whether my previous employer was a non-profit organisation and my new employer is not? A: When you were granted a cap-exempt H-1B and you need a new H-1B with non-cap-exempt employer, you will not be any different from any other professionals who can file the H-1B petition beginning from April 1, 2006 but with the validity date of October 1, 2006. From June 30, 2006 through October 1, 2006, you will have to maintain a valid nonimmigrant status and otherwise, the USCIS will deny your H-1B employment change within the U.S. They will approve your new employer's H-1B petition, but the USCIS will deny your applicaton for extension of H-1B status within the U.S. Sometimes, people use a stop-gap measure to maintain a valid nonimmigrant status by applying for the change of status from H-1B to other nonimmigrant status such as B-2 or F-1, etc to fill the gap between June 30, 2006 and October 1, 2006. During the stop-gap period, you will not be allowed to work since you do not have an employment authorization. As for the filing fees for the new H-1B petition by your new employer, they will have to pay full American Worker Training fee of either $1,500 or $750 depending on the number of employees and $500 for the Fraud Prevention fee. For the fee determination purpose, this new employment will not be considered an extension of the H-1B status. Regarding your last question, the H-1B portability from your current employer to the new employer will not be available.
  • Q-47 (01-29-2006): I am currently on L-1A visa status and on my 7th year of stay in USA. I heard that L-1A does no need labor certification and is eligible to apply for 140/485 concurrently if the visa dates are available. Am I eligible to apply for EB-1 through my current company and file 140/485 concurrent , even if the EB-1 visa dates for my country of origin, India, are now sitting at Feb 2004? My last L-1A extension was approved during Jan 2004. Don't they consider my L-1A approval date(Jan 2004) as my priority date and make me eligible for the concurrent filing now? Or the visa dates should be current as of today? A-47: It is true that the corporate executive or manager of the multi-national corporations does not need a labor certification if they meet certain conditions. Visa classification is L-1A. There are two types of people who are currently in L-1A visa status in the U.S. One is those who were granted a L-1A status from the beginning because of their executive or managerial experience at least for one year with the foreign parent or subsidiary or affiliate company. The second group is those who did not meet this requirement at the time they first came to the U.S. but because of the promotion to an executive or a managerial position for six or months in the U.S. parent or subsidiary or affiliate company, they were allowed to change status to L-1A. Both L-1As can stay in the U.S. for a maximum period of seven years, but the latter cannot apply for a green card unless they go through a labor certification application. Your question does not give me enough facts to determine which group you belong to. Assuming that you are in the former group, the priority date is fixed at the time of filing of I-140 petition filing and not at the time of filing of L-1A petition filing or extension petition filing date. In all the labor certification waiver cases including the national interest waiver, the priority date is determined by the date of filing of the immigrant petition (I-140) since these are the cases that do not need a labor certification application. In your case, your employer apparently has not filed the immigrant petition for you and you do not have any priority date. I do not now soon you will reach the end of the 7th-year in L-1A, but your employer should immediately file I-140 alone to fix the priority date. You cannot file concurrent I-485 now as the India EB-1 is currently retrogressed. However, the State Department has just released a new prediction that the EB-1 visa numbers would progress very rapidly during the next several months. If you are close to reaching the end of your 7th year, you should work with your employer to send you back to the Indian parent or subsidiary or affiliate company to work in India for a few months to delay the reach of the end of your 7th year in L-1A. You can recapture your time in India to apply for extension of your L-1A time recapting your time abroad. When the EB-1 visa number becomes available, you should quickly file I-485 along with EAD and AP applications. You should watch closely the EB-1 visa number progression in the March and April 2006 Visa Bulletins.
  • Q-46 (01-27-2006): I am an Indian national. My PERM EB-2 was filed by my current employer and has been approved. My former employer had filed a LC petition (EB-2) for me in 2000. I am not sure of the status of that application after I left that company, but can get the information if I probe it. Is it possible to use the priority date of that application for my current petition and file for I-485 & 1-140 concurrently? A-46: A priority date is retained only if the I-140 petition is approved. If your former employer filed I-140 petition and obtained approval on your behalf, then you can use the 2000 priority date. However, since you left the former employer while the labor certification was pending, the chance is that your employer obtained the labor certification application and filed I-140 petition for someone else using the approved labor certification application. This is called "substitution of alien beneficiary." When this happens, you do not retain the priority date of the former employer's labor certification application.
  • Q-45 (01-24-2006): I graduated from one of the universities in the U.S. earning a master's degree in business administration. My current employer filed H-1B petition for me before the USCIS announced that the cap reached on January 17, 2006. My petition is pending. All of sudden, a terrific employer has approached me with the better career opportunity and better salary and work conditions, including the location. Since my H-1B petition is within the cap number, I am thinking about changing the employer by asking the new employer filing a new H-1B petition for me as I will not be subject to the cap. Your thought, please. Q-45: You are wrong. Your new employer will still be subject to the cap and the USCIS is likely to deny their H-1B petition. You are not subject to the H-1B cap only when you have taken out a H-1B cap number. The cap number is not taken out until the USCIS approves your current employer's H-1B petition. Pending cases remain "eligible" and "not subject" to the cap except the cases which were filed on January 17, 2006. It does not mean that these cases have already taken out the annual cap numbers. Under the circumstances, your potential new employer's H-1B filing is not eligible for the petition because of the annual cap. You may have to wait until the current H-1B petition is approved before thinking about changing employment. Think about filing Premium Processing Request. By the way, some of the filers on January 17, 2006 may face a lottery game again as the USCIS estimated that some of those cases might not come within the cap numbers.
  • Q-44 (01-21-2006): I filed a RIR labor certification application in California on April 30, 2001. The state office later forwarded the RIR application to the Regional Certifying Officer in Region 6. The RIR was denied by the Certifying Officer and remanded to the State Office in California to process as a "regular" labor certification application. There was a huge backlog with the regular labor certification applications, particularly 245(i) cases, in the Region 6, and at the time the cases were transferred to the Philadelphia Backlog Elimination Center, the State Office had yet to initiate the Job Order in most of the 245(i) cases. Currently, most of the cases which have been transferred to the Philadelphia BEC are not moving ahead and I am extremely frustrated for not knowing when I will be able to see the light at the end of the tunnel. You reported that the DOL would still allow conversion of qualified regular application to the RIR application. Please help me to understand (1) requirements for conversion; (2) availability of substitution; (3) impact of denial of the converted RIR in terms of the (a) priority date, (b) 245(i) granfathering, and (c) the fate of the conversion denied application; and (4) Advantages and disadvantages of such conversion over the PERM application. A-44: Wow, you are asking me to write an article rather than to answer a simple question. Let me see how much I can cover your questions here. First, (1) RIR Conversion Requirement: Basically, there are three requirements. One is that the jobs must be a same occupation. Second is that the labor certification application was filed "before 08/03/2001." The third requirement is that the State Office did not initiate the Job Order and the BEC has yet to initiate the Job Order to process the supervised recruitment process. Once the State or BEC initiated or initiates the Job Order, it is or it will be too late to request such conversion. Accordingly, inasmuch as these three conditions are met, the employer can still file request for RIR conversion even at this time. Further more, such conversion opportunity will continue even in the future inasmuch as the BEC has not initiated the supervised recruitment process by placing Job Order. There is no termination date for RIR conversion opportunities. RIR conversion is available to two different groups of applicants. One is those applications that had remained at the State offices without the initiation of Job Order, which have then been transferred to the BEC. The other group includes those whose RIR applications were denied by the Regional Certifying Officers and remanded to the State offices to process as a regular application. It appears that your case belongs to the second group. Inasmuch as the State office did not initiate the Job Order, this second group will be still eligible for the RIR conversion. In order to file the RIR conversion request, the employer will have to engage in the voluntary and unsupervised recruitment process under the old labor certification regulation within the six months before filing such request and submit the evidence of unavailability of a qualified U.S. worker as part of the request. Thus, any recruitment evidence that is older than six months at the time of filing of such request will have no value what-so-ever. RIR conversion will retain the original priority date as well as the 245(i) grandfathering benefit. Second, (2) Availability of Substitution of Alien Beneficiary: The RIR conversion rule has no affect on the DOL's traditional practice of allowing replacement of the alien beneficiary during the process of the labor certification application by permitting amendment of the application. Accordingly, the employer will be able to amend the pending application and also seek the opportunity to convert from a regular application to a RIR application. The amendment and replacement of the alien beneficiaries will however affect the original alien beneficiary and the substitution beneficiary differently in the priority date and the 245(i) grandfathering. The substituted original alien beneficiary will lose the priority date but keep the 245(i) benefit. On the otherhand, the substituting alien beneficiary will obtain the original priority date but cannot take over the 245(i) grandfathering benefits. Consequently, when the alien beneficiaries are substituted before the certification is granted, both of the aliens become a winner in one sense and a loser in another sense. The substituted alien remains a winner in the 245(i) grandfathering but a loser in the priority date. The substituting alien remains a winner in the priority date but a loser in the 245(i) grandfathering. Third, (3) Impact of Converted RIR Denial: Denial of RIR rather than the labor certification application itself will not result in the termination of the labor certification process. If the BEC determines that the RIR conversion had a flaw in the recruitment and denies the RIR processing, the case is likely to be continuously processed as a regular application. When the RIR processing is denied and reverted to the regulation application, it will go back to the "original" queue in the regular labor certification application and the alien will retain the original priority date and the 245(i) grandfathering benefit. The result will be different if the application itself is denied on other issues, particularly substantive issues, rather than the RIR procedural issues. If it is denied on other issues, the application ends there losing everything including priority date except the 245(i) grandfathering benefits. Fourth, (4) Advantages and Disadvantages of RIR Conversion vs. PERM Application: The RIR conversion eligible alien beneficiaries have an option to file a PERM application with or without requesting retention of the original priority date. At this time, the DOL is uncertain as to its policy on multiple applications in the BEC system and the PERM system. However, when one files PERM with the request to retain the priority date, currently the risk is still very high in terms of the priority date. The decision can end up losing priority date if the PERM application is denied or BEC application is considered withdrawn even if the PERM is approved in the event that the BEC determines that the two cases are "not" identical cases. In this case, the alien loses the original priority date. Considering the current steep visa number retrogression, such result can be literally devastating. RIR conversion will give an opportunity to preserve the priority date fairly safely unless the application has very serious flaws in the sustantive issues. The disadvantage of the RIR conversion as opposed to the PERM is the processing time delay and its impact on the unavailability of the opportunity of extending H-1B indefinitely in the three-year increment after obtaining I-140 petitions fairly quickly. However, since these applicants will be eligible for one-year increment H-1B extension, this may not be considered a serious disadvantage.
  • Q-43 (01-20-2006): I am a registered nurse from the Philippines. I am currently a permanent resident. My Schedule-A I-140 petition was approved under EB-3 category and using EB-3 visa number, my I-485 was approved. However, the EB-3 visa number for the Philippines has been retrogressed and my husband is currently unable to apply an immigrant visa in Manila since the EB-3 visa number is not available. Our lives are tough since we are separated over the Pacific Ocean. Please help. A-43: It appears that there is some confusion on the law. Schedule A nurses "and their accompanying or following-to-join" nurses are required to take out EB-3 number when the EB-3 numbers are available for their priority dates. However, when the EB-3 visa numbers are retrogressed and unavailable, they are entitled to the special recapture numbers of EX which are "current." It applies not only to the principal alien but also accompanying or following-to-join derivative applicant. Therefore, even if your green card was granted under EB-3 category, your family members are entitled to the EX recapture numbers now and eligible for the immigrant visas.
  • Q-42 (01-13-2006): I came to the U.S. in December 1997 on H-1B visa. In November 2001, my new emmployer filed EB-3 labor certification application, which was approved in May 2003. I then filed the concurrent I-140 and I-485 on October 17, 2003. My I-140 was approved on March 18, 2005. I am currently working on EAD. This is my 3rd EAD. When I was hired by the employer, my job title was "Senior Programmer Analyst" and right now I am working as "Business Analyst Manager." I have been promoted twice. I have gained a lot of work experience and now I am getting offers for similar position in bigger companies. I also get job offers for a project manager position. I tried to seek an advance from the company lawyer about the job offers and implication of change of employer on the pending green card process. The lawyer refused to talk to me. What should I do? A-42: Let me get to your last point first as it is very important for your colleagues to know it. The immigration lawyers are practising law under the lawyers' professional code. Violation of the code can lead to various sanctions, including loss of the law practice license. When an attorney represents the employer and the employee in immigration proceedings, attorneys sometimes face a situation of conflict of interest between the employer client and the employee client. In your case, you sought a legal advice from the company lawyer involving issues which go against the interest of the employer client. The lawyer cannot divulge to the employer client what he/she heard from you because of the attorney-client confidentiality privilege, but cannot provide a legal advice to you without violating the professional code. The company lawyer did a right thing under the circumstances. You should not have discussed such subject with the lawyer. The same rule applies to any lawyers inasmuch as the lawyers represent both employers and employees. It does not have to be a "company lawyer." Now, with reference to your question on AC-21 portability of the approved I-140 petition, inasmuch as 180 days have passed after filing of I-485 application and the I-140 petition has also been approved, the alien beneficiary is permitted to take a new employment of "same or similar" "occupational classification." The statute does not define what "same or similar" and "occupational classification" mean. One time, lack of guidance from the USCIS has caused a tremendous confusion among immigration lawyers and among the immigrants. However, not too long ago, the former USCIS Associate Director of Operations, Mr. William Yates, issued a memorandum giving guidance on these terms. The guidance states these terms will be determined by the U.S. Department of Labor's Dictionary of Occupational Title codes or O*NET codes which the labor department uses in processing the labor certification application. However, there still remains an unanswered question as to the "same or similar" code. Depending on how many digits of the code you look at, two jobs can fall under the same or similar occupational classification or different occupational classification. For instance, most of the computer jobs fall under the O*NET code of 15 followed by four or six digits. Accordingly, field adjudicators apply the definition of "same or similar occupational classification" either broadly or narrowly within the confinement of the first few digits. Some adjudicators may require the narrowest definition and demand that the new employment must be exactly same classification with the occupation in the labor certification application, while other adjudicators may take it broadly and accept a new employment liberally inasmuch as the two jobs fall under the broad classification. Accordingly, conservative lawyers will insist that the client takes a same or similar occupational classification in the narrowest sense, while the liberal lawyers will accept the change of employment even if the new job does not fall under same narrowest classification. In your case, regardless of liberal view or conservative view, the facts present two problems to determine the definition. Firstly, the job title that is relevant to the portability is not the current job title but the job title or occupation which is specified in the labor certification. Since your facts do not show the occupational title in the labor certification application, no one can tell you whether the offered new job falls within the same or similar occupational classification. Secondly, assuming that the occupational title in the labor certification was either programmer-analyst or business analyst, and you are offerred a managerial position, traditionally a manager position has been considered a different occupational classification from non-managerial position. Therefore, there may be a substantial number of adjudicators who may argue that the new employment does not fall under the same or similar occupational classification, even though there may still be some very liberal adjudicators to take it a similar occupational classification ignoring the Yates' memorandum. You may learn that even liberal lawyers may hesitate to accept your change of employment to a manager position from a non-manager position, because these two occupations have been considered by the DOL as two "dissimilar" occupations.
  • Q-41 (01-11-2006): I am an Indian computer professional. In February 2006 Visa Bulletin, I see that EB-2 for India crossed the April 2001 hurdle. I recently filed and obtained a PERM EB-2 labor certification application through a computer consulting company in New York. The work site for the labor certification application is located in Michigan. The New York company is not my current employer. My current employer is another consulting company located in Dallas, Texas. I have been working at the client site of the current employer for the past three years. The client site happens to be the same as the New York company's client. My current employer filed the EB-3 labor certification application in December 2002. The application was certified and the employer filed and obtained approval of I-140 petition for me. The EB-3 visa numbers are helplessly stalled. My future employer in New York intends to file the EB-2 I-140 petition. Would filing of two different petitions by two different employers for the same alien present any problem? A-41: It appears that by the time when your New York employer obtains the I-140 petition, your priority date may become either current or close to "current," since you can use the EB-3 priority date, which is December 2002. The priority date between the two approved I-140 petitions of same or different preferences and of same or different employers can be transferred to whichever is favorable to you. In other words, once your EB-2 petition is approved, the priority date for your EB-2 will become December 2002 (India). The USCIS cannot deny the two separate petitions by the two different employers inasmuch as both of these employers have a permanent employment offer in good faith. As for yourself, you do not have any preconceived intent not to work for either of these employers at this point of time. It is the employers who file the immigrant petitions on your behalf and you have a privilege eventually to take one of these two offers in the future. As for the New York company sponsoring your permanent resident status, there is no law that the alien beneficiary needs to work for the sponsoring permanent employer during the period of labor certification and I-140 or I-485 proceedings. You can easily find analogy in the U.S. employer filing labor certification and I-140 petition for alien beneficiary who is located outside of the U.S. and not working for the employer during the immigration proceedings. Unless there is any fraud involved, the agencies cannot prevent different employers from filing the immigrant petitions for the same alien beneficiary.
  • Q-40 (01-06-2006): I am a senior software engineer working with a big American company. The company filed my labor certification application in RIR in December 2002 which was approved in July 2005. I filed I-140 and I-485 concurrently before September 30, 2005. My I-140 has been approved since then. I also obtained the EAD card. The company now wants to promote me to a manager position this month. Will this in any way affect my I-485 process and jeopardize my I-485 approval? The new job will involve managing the it unit and also performing technical work. A-40: There are two issues involved in your question. First question is whether the current nonimmigrant job should be a same occupation with the permanent job of the labor certification application. The second question is whether a senior software engineer position can be considered in the same occupational classification as the IT manager. Let's look at the second issue first. Both under the previous DOT codes and the present O*Net codes, a manager position is considered a different occupational classification from a software engineer. Manager position focuses on managerial skill rather than technical skill and in the responsibility, there is a huge difference betweeen the manager position and a senior software engineer. Accordingly, whenever a manager title is used, the agencies have considered such position in a different occupational classification from technical position. This leads to the first question: whether the alien has to perform the permanent job while they work in a H-1B nonimmigrant classification and while they wait for the adjudication of I-485 application. The answer is no. However, the common sense will raise a question as to the existence of permanent job in this case when the permanent job is a lower level occupation and the present job is a higher level job and once the green card is approved, you will have to be demoted to lower level position with less amount of salary. Even though this issue may be something which can be overcome depending on the circumstances, your employer and yourself must be prepared to deal with such question when the agency raises such question in the RFE. For instance, if there arises a vacancy in IT manager position and the position has to be temporarily filled, such temporary change of job may be easily defended. However, if you are permanently promoted to a managerial position, then there can arise a question as to whether the senior software engineer position of the labor certification application still exists and whether there is still opening of such position in the company. There was a case involving a labor certification application filed by an international trading company for the position of marketing manager at the annual salary of $40,000 for an alien who owned a company with $2,000,000 salary for him. The agency raised an issue of existence of a bona fide job offered. The agency learned the income figures through the federal income tax returns which the alien had submitted as part of the I-485 supporting documentation. Why would a man making $2,000,000 a year take a job of an employee at the annual salary of $40,000? I heard that this case failed! When there is a huge discrepancy between the temporary job and the permanent job, which belong to two different occupational codes either in DOT or O*Net codes, common sense will dictate and lead the adjudicators to the question of existence of a good faith offer of the labor certification job or even existence of such position at all. Your promotion to a manager position may potentially face such quetions, should the Service Center learn such change of position. Remember they learn such changes through the income tax returns or W-2 or payroll records, which they can request in the form of RFE.
  • Q-39 (01-05-2006): I filed 140/485 with substituted labor. After few months, NSC denied my 140/485 allegedly in error. Since that was service center error, I was allowed to file the motion to reconsider. What happens during the period of the motion with respect to the AC-21 portability and my priority date? Will I be allowed to apply for advance parole pending motion to reconsider application? If I change my residence from NSC service area to Texas service area, will it affect my application processing time? A-39: When the Service Center erroneously denied I-140 and I-485, they usually reopen the decision on their own motion. In this case, apparently they denied I-140 and as a consequence of I-140 denial, they also denied I-485, and revoked EAD and AP. Legally, motion to reopen or reconsider does not give any right or privilege to the employer or the alien to stop running of unlawful presence nor they are allowed to apply for EAD or Advance Parole pending the motion. However, once they accept the motion and reverse their decision of denial, they revive the denied I-140 and I-485 without affecting the lawful presence in the U.S. and without affecting the priority date and related AC-21 benefits. In your case, you filed the motion to reconsider rather than the Service Center decided to reconsider the decision on their own motion. I would look at the situation closely to find out whether the denial was made on the agency's error. Motion to reconsider is different from motion to reopen. Motion to reconsider is allowed when there was an error in law or fact in deciding the case by the agency, while motion to reopen is not available unless one proves that certain evidence was not available at the time of filing of the petition or application and subsequently certain new evidence or facts have developed that makes the case approvable. One thing you will have to watch out is the deadline for appeal. I-485 is not appealable but I-140 is appealable to AAO. Unless the appeal is filed within 30 days from the decision of denial, you permanently lose the opportunity to appeal the decision not only before the AAO but also before the federal courts. People often file an appeal of the denial of I-140 before AAO. The appeal is filed through the Service Center that denied the petition. Then the agency relook at their decision of denial before they decide to forward the appeal to the AAO. Once they decide to reverse themselves, they will just approve the I-140 petition and continue to process the accompanying I-485 application as well. This may be sometimes very important to preserve a right to appeal. Just filing a motion alone may be sometimes very risky unless the case is not appealable. Once the motion is denied after 30 days, one permanently loses the opportunity to appeal the denial of I-140 petition. Appeal of I-140 petition gives one important benefit. Pending the appeal, the alien is eligible for the AC-21 H-1B extensions! Motion gives no such benefit.
  • Q-38 (01-05-2006): My I-485 has been pending since January 2005. My priority date is March 4, 2004. I am an Indian and affected by the retrogression. I have been living in apartments and moved around fairly often because of the job. I am unmarried. I have been sending in AR-11 religiously to report the change of address. I believe nowadays the USCIS database is shared by all the agencies within the USCIS and their record will reflect the address changes. However, I have not been receiving any communication from the Service Center on my case. What is going on? A-38: When you move from one address to another address, you tend to experience a sort of nightmare as the address change report is not properly updated within the agency. Besides, you have to file your address change report to the two different offices. These two reports serve different purposes for the U.S. government. AR-11 report is "mandatory" and failure to report it within 10 days can subject you to harsh consequences. The AR-11 is currently primarily served for the U.S. goverment to trace your whereabouts and for the security purposes. Apart from this report, you need to file G-731 form to the Service Center where your case is pending. This is not mandatory, but if you fail to file this report, the Service Center will send out very important communication and documents, including RFE and fingerprint appointments, to your old address. These USCIS mails cannot be forwarded to your new address by the U.S. postal services as the postal services are required to return to the Service Center as not deliverable even if you filed "mail forward request". The consequences can be very deadly. There is additional problem. Even if you file G-731 form, the contractors in the Service Centers do not necessarily properly update the data entry and their mails keep being delivered to your old address. It is thus encouraged that you also call 800 number and verbally report the address change. The report of your address change to the Service Center is incumbent upon you, and your failure to timely repond to the agency's communication because of the unreported address change does not constitute a good cause to contest the agency's adverse action against you. G-731 must be filed for "each" of the pending petition or application separately.
  • Q-37 (01-05-2006): I am a medical researcher from China. My I-140 was approved and my family 485 applications have been pending. If during our waiting period, my wife’s Canada citizenship gets approved, how should we inform USCIS and what effect does it have on our pending 485 application? A-37: In nonimmigrant visa proceedings, eligibility is determined by the citizenship/nationality of an alien. However, in the immigrant visa proceedings, the eligibility under the quota system is determined not by the citizenship but by the place of birth. Accordingly, even if she is naturalized into a Canadian citizen, it will have no affect on her pending I-485 proceeding or your family. All of your family members will still be subject to the visa numbers for the China. However, when the permanent resident is granted to your wife, the record, including the green card, will show her citizenship and she will be required to travel on the Canadian passport. Accordingly, she may as well send in the Canadian citizenship document with the request to correct the record in the Service Center. Whenever you send in such documents to the Service Center, you should make it sure that you write on the top of the letter as well as on the envelop "Interfile with A------------------, I-485 File Number (WAC or LIN or EAC or SRC number)." Otherwise, your mail will be lost in the mailroom.
  • Q-36 (01-04-2006): What happens if my employer is going out of business, who filed and obtained the labor certification as well as I-140 petition for me with a priority date of 2001. The employer has applied for a seventh year extension for me. What should I do when the employer completely shuts down its operations. Will I have any legal status to stay and work in US ? A-36: Under the labor certification rule, going-out-of business of the employer is a ground for invalidation of the labor certification application. Under the immigration statute, going-out-of business of the employer-petitioner is also a ground for revocation of approved I-140 petition. When such invalidation of LC or revocation of I-140 petition takes place, the alien loses the priority date and everything. Had you filed the I-485 application and 180 days have passed, you could have quickly ported to a new employer. It apepars, though, that in your case, you have yet to file your I-485 application. This is one of the potential fall-outs of the retrogression that protracts the green card process for years and years. As time passes, so are the circumstances which are beyond the control of anyone. I hope your employer rather sells the business to other business so that you can salvage your green card journey.
  • Q-35 (01-04-2006): I work for a consultant company and my client is one of the fortune 500 companies. The client is willing to take me as their employer and my consulting company is also willing to let me go. I have to invoke AC21 and use EAD to do so. My I-140 is approved and my I-485 is pending since April 2004. Lately I am seeing a lot of denials of similar cases once the original employer withdraws the I-140 even though the I-140 was approved and I-485 pending more that 180 days. What is my risk? A-35: People usually rely on the website immigration discussion boards to obtain some immigration information. However, these reports can be very misleading as each case is so different when it comes to the specific circumstances. I can only tell you what the law is and what the USCIS policy is. AC-21 allows the I-485 waiters to change employment after 180 days of I-485 filing to a same or similar occupational classification. We call this I-140 portability. Once the alien reaches this stage and I-140 has already been granted, the alien is "eligible' for the porting and any withdrawal or revocation of the I-140 petition by the former employer should not affect the pending I-485 application. However, there can be many different circumstances involved. For instance, some people changed employment after 180 days of I-485 filing during the pendency of I-140 petition. Other situation is people changed employment after 180days of I-485 filing and after approval of I-140 petition, and they even proactively reported the change of employment. Again, another situation is people changed employment ater 180 days of I-485 filing and approval of I-140 petition, but they have yet to file a report of the change of employment. In none of these cases, the USCIS should have denied the I-485 applications unless the USCIS first takes certain action. In the first case, the USCIS should have served a notice of intent to deny stating that unless the USCIS is provided sufficient evidence that at the time of I-140 petition filing, there was no flaw with the petition and the petition was approvable, the I-485 will be denied. Inasmuch as such evidence is provided, the USCIS is not allowed to deny I-485 application. In the second case, the USCIS has evidence on file that the alien ported and cannot deny I-485 even if they receives the revocation of the I-140 petition by the former employer. The third case faces somewhat challenging questions. Since the alien did not report the change of employment, the USCIS has no record of his/her AC-21 porting and when they receive the I-140 withdrawal and revocation request by the former employer, the USCIS will have to revoke the approved I-140 petition. In such situation, the USCIS usually serves the Notice to Deny I-485 Application for Revocation of I-140 petition, giving some time for the I-485 waiters to respond to the notice. Sometimes, however, the USCIS just flatly deny the I-485 application as they were not aware that the alien had ported using AC-21. The situation becomes more complicated if the old employer substitutes the alien beneficiary who then obtains the approval of I-485 application. Since one labor certification cannot create two green cards, the USCIS will have to either revoke the substituted alien's green card approval or permanently deny the ported alien's I-485 application. This remains a grey area in the AC-21 portability practice of USCIS. We have thus recommended people that considering the retrogression and protracted I-485 proceedings, people may proactively file report of AC-21 porting with the USCIS so that the aforementioned confusion be avoided within the USCIS. I-485 waiters will also have to go through a nightmare of filing motion to reopen or motion to reconsider or even an appeal in the federal courts once they receive such denials of I-485 applications. In your case, should you decide to port to the fortune 500 client company, you may want to report the change of employment early on so that even if the old employer will revoke the I-140 petition, the USCIS will have the evidence of portability and will not deny your I-485 application.
  • Q-34 (01-03-2006): I am a physician on J-1 waiver. I was initially on H-4 for about 2 yrs untill 2000, and then on J-1 for about 3 yrs during my residency. Currently I am on H-1B from February 2004 (J-1waiver position). I wonder how many years I can apply for extension in the future. My priority date of the labor certification application is November 2004. It is still pending at Dallas BEC. Can I apply for the three-year increment extension? My 3-year J-1 waiver obligation ends in January 2007, and I am thinking of moving to a different place after the 3-yr commitment. Is it possible to move to a new job and retain my previous priority date? A-34: In counting the H-1B 6-year limit, any period of overseas stay or any period in nonimmigrant status other than H or L is not counted and such period can be recaptured. Your period of stay in H-4 is counted as part of the H-1B stay which was tacked on your wife's H-1B status. Assuming that you have only one year left to reach the six-year limit, you can extend H-1B indefinitely in one-year increment as your labor certification application has been pending more than 365 days. However, you will not be eligible for the H-1B extension in three-year increment at this time as you have yet to file and obtain the I-140 petition. Priority date is retained when you change employer only after you obtain the approval of I-140 petition. Accordingly, once you change the employer and the new employer files a new labor certification application for you, unless the current employer decides to continue the pending LC, your priority date will be lost. However, inasmuch as your new employer files a labor certification application while the current labor certification is pending, you will be able to apply for the 7th-year H-1B extension through the new employer inasmuch as the new petition is filed before the current employer withdraws the H-1B petition. It appears that you may be better off to stay with your current employer until you can take advantage of AC-21 180-day portability rule.
  • Q-33 (01-03-2006): I have been working in United States for around 7 years on H-1 B Visa and I am a citizen of India. I have got the approved I-140 [priority date March, 2001] under EB-3 classification but waiting for I-485 filing because of priority date. I substituted the Labor Certification, which was filled for someone who left the company even before the labor application was certified by DOL. The requirements on the Labor Certification were Bachelor in Computer Science and 5 years experience using various technologies. I had around 7 years progressive experience after Bachelor in Computer Science and Engineering until March 2001 so I qualified for the substitution and after great efforts in proving the paying ability of the company I got I-140 approval last year in August. There were issues in proving the paying ability because owner of our Consulting Company has one more sister company getting operated from the same place and by same people but different federal tax id and name. I used the LC from this sister company. The LC was qualified for the EB2 classification but Attorney filled in EB-3 because we thought there would not be any issues for March 2001 priority date. Could we request to change the classification on I-140? What happens if USCIS rejects this request? Would there be any negative consequences on already approved I-140 under EB-3? A-33: For the EB-2 qualified labor certification application, the employer can file EB-2 and EB-3 petitions either simultaneously or separately. Obviously, in the concurrent filing, one has to attach one of the two I-140 petitions to the I-485 application. In your case, you filed EB-3 I-140 petition concurrently with the I-485 application. Without affecting the pending I-140 petition and I-485 application, you can file a stand-alone EB-2 petition. Once the EB-2 I-140 petition is granted, then you can request the USCIS to replace the underlying I-140 petition for I-485 from EB-3 to EB-2. Until the EB-2 I-140 petition is approved, the current USCIS policy does not allow transfer of the pending I-485 application from one approved I-140 petition to another approved I-140 petition. Besides the policy also requires that the new approved petition must be "current" in the priority date for the classification, EB-2 for India in your case. Even if the new I-140 petition for EB-2 is denied, it will not affect your pending EB-3 approved petition and I-485 application. The original substitution labor certification has already been filed with the EB-3 petition in your case and your employer can just file a photocopy with the reminder to the USCIS that the original labor certification is filed in your pending I-485 file. Nowadays, when you want to file EB-2 I-140 petition using Bachelor degree plus five years of progressive experience, the USCIS requires a proof of "progressive" five years of experience from your former employers. Just proving five years of experience is not enough.
  • Q-32 (01-02-2006): Since my wife was born in Sri Lanka, I think I can request "Cross Chargeablility." My EB-3 priority date is March 5, 2001(correction). Since now the PD for all other countries is April 1, 2001, will they approve my case if I request now? If I request now, will this cause any issues? I'm the primary applicant and my wife is dependent. A-32: They call it "alternate chargeability" when the principal alien wants to be cross-charged to the accompanying or following-to-join spouse of different nationality. This alternate charge is available only when you and your spouse apply for the immigrant status "simultaneously" AND the priority date is available for your wife's coutry of birth, Sri Lanka at this time. It sounds that you meet both requirements. You should write and request to the Service Center with the proper evidence of eligibility of alternative chargeability and the pending I-485 applications. Your legal counsel will be able to assist you. Good luck.
  • Q-31 (01-02-2006): My employer filed the EB-3 labor certification in 2001. The application was transferred to Philadelphia BEC. After the agonizing and painful wait, the labor certification got approval in the middle October 2005. My employer filed I-140 petition immediately. It is expected to be granted in the near future. However, I have been working in this country in L-1B status which has a five-year limit. By March 2006, my L-1B will reach the five-year limit. I cannot change to H-1B because of the H-1B annual cap, at least not until October 1, 2006. Since I started the green card process, the USCIS may not approve application for change of nonimmigrant status unless it is either H-1B or L-1. Once I reach the five-year limit of L-1B, unless I stay outside of the U.S. for one year, I will not be able to apply for another L-1B. What do I have to do? I had worked for an Indian company initially as a senior Software Engineer for two years and six months as a manager of software consulting before I was transferred to its U.S. subsidiary in New Jersey as a software engineer. However, about eight months ago, I was promoted to a manager of IT department in the U.S. subsidiary, the current employer. Please help. Can I file EB-1C petition (multi-national corporate manager or executive petition) and avoid the current visa retrogression problem? A-31: At the time you came to the U.S., you were not eligible for L-1A visa which is granted only if the alien worked for a foreign parent company at least more than one year (prior to your transfer) in the capacity of a manager or an executive. Since you worked in a manager capacity in India only for six months, you were not eligible for L-1A visa. You were eligible only for L-1B. The maximum allowed stay in L-1A is 7 years, while the same for L-1B is only 5 years. When it comes to the immigrant proceeding (EB-1C), you are still not eligible for such petition as you fail to meet one-year managerial work experience requirement at the Indian parent company before you enter the U.S. However, there is some help available for you to cope with the L-1B running out of time problem in March 2006. Under the L-1A rule, once you have worked in a managerial capacity in the U.S. subsidiary for six months or longer, you are eligible for the L-1A visa status, which will give you at least two more years from March 2006. Your employer may file a Premium Processing L-1A petition on your behalf as soon as possible to change your status from L-1B to L-1A and extend your nonimmigrant status until March 2008. However, do not be confused with your eligibility for EB-1C immigrant petition after attaining L-1A status in the U.S. You will still be ineligible for the EB-1C immigrant petition because of your work experience with your parent company not in a managerial capacity for less than one year. I hope that the upcoming Comprehensive Immigration Reform Act early this Spring helps you to get additional EB-3 visa numbers and make you eligible to file I-485 application within the extended next two years. Good luck.
  • Q-30 (01-02-2006): In the severe immigrant visa retrogression climate, is it advisable to maintain non-immigrant status till we get I-485 approval? I am an Indian national. My PD is May 2005. My 140 (EB-2) was approved and 485 is pending. I have a valid EAD. My Current H1B status expires in February 2006. Some of my friends are advising me to file a 3-year H-1B extension due to visa retrogression and not to work on EAD. Is it advisable to extend 3 year H1B, based on the very lengthy waiting period due to my PD? Or is it a waste of money? What are the potential chances for the denial of 485? Will the 3-year extension of H-1B protect the legal status of any individual in case of I-485 denial? A-30: The EB-485 waiters have an option of working in either H-1B or L-1 or EAD. The benefits on working on H-1B or L-1 rather than EAD pending I-485 are evident for those who are eligible for extension of H-1B within the 6-year limit or in the 5-year limit of L-1B or in the 7-year limit of L-1A. The benefits includes, among others: Even if I-485 is denied, the alien can keep staying and working in H or L visa status and retry the green card proces. When one works on EAD and I-485 is denied, the alien instantly falls into unauthorized alien status. Besides, even if the alien has another opportunity to apply for H-1B or L visa status or green card, he or she will not be able to do it as the alien is no longer in nonimmigrant status. The second benefit involves those I-485 waiters whose I-485 has been denied not on the I-485 issues but because of the denial of underlying I-140 petition. In this case, if the alien has worked on H-1B rather than EAD, the alien can keep extending the H-1B or L-1 status pending the appeal of denial of I-140 petition before the AAO. Once the alien's employer wins in the I-140 appeal, the USCIS usually reopens voluntarily or on the motion of the alien the denial of I-485 application and continues the adjudication of the previously denied I-485 application. This second benefit is not available for those aliens whose I-140 has already been approved because in all likelihood, I-485 will be denied on the I-485 issues rather than I-140 issues. Denial of I-485 is not appealable and the alien falls into unathorized alien status instant to the denial of I-1485 application. There can one situation wherein such alien can still benefit from the maintaining H-1B status within the 6-year limit. If the alien is eligible for 245(k) benefit of eligibility for another I-485 application inasmuch as unauthorized stay was less than 180 days or unauthorized employment was less than 180 days since the lastest admission to the United States, the alien can try another I-485 application if the denial of previous I-485 can be overcome or the new I-485 is filed on a separate labor certification application or I-140 petition. Sometimes, people try a motion to reopen of I-485 denial, but another option is filing a new I-485 application inasmuch as one has maintained a valid nonimmigrant status or is eligible for 245(k) benefits. The aforementioned benefits are not available to the aliens who are in the 7th-year extension or three-year increment extension of H-1B as the USCIS is authorized to grant such AC-21 extension "only pending" adjudication of the underlying application (labor certification application or I-485 application) or petition (I-140 petition). Once such underlying application is denied, it loses the grounds for AC-21 H-1B extension benefits.
  • Q-29 (12-31-05): I have about 2 years left on my H-1B and my wife is on an H4 visa. She is due to get her own H1-B visa soon. My labor certification is pending at Dallas BEC, and the priority date is Nov 2002. I wonder whether my wife will be able to apply for her H-1B beyond six years in H-visa status either based in one year increment or three-year increment based on my approved I-140 petition. A-29: When it comes to the H-1B or dependent's H-4, the six-year limit counts both H-1B period as well as H-4 period. Assuming that your wife has been in H-4 status during the past four years just like yourself and she applied for H-1B status, she will be given a change of status to H-1B for only two years when she will reach the six-year limit. Under the AC 21, the spouse can either extend or apply for her H-1B status beyond your H-1B six-year limit only if she is eligible for such extension on her own. For instance, if your spouse's labor certification has been pending for more than 365 days or her own I-140 petition has been approved, your spouse will be able to extend her H-1B status beyond her H-visa six year limit in one-year increment or three-year increment under AC-21. Such extension will be granted regardless of your 7th year or three-year increment extension. In this regard, AC-21 does not entitle her either one-year increment or three-year increment extension of H-1B visa status beyond her H-1B six-year limit unless she herself is eligible for extension on her own H-1B extension rule. However, unlike the H-1B extension, your spouse will be eligible for extension of H-4 status indefinitely along with your H-1B extension beyond the six-year limit. The answer to your question can be yes or no depending on the specific facts.
  • Q-28 (12-30-05): My application for a green card was filed on Feb 02, 2004 (Priority Date = 02/02/2004) under EB2 and RIR category. It cleared the state level without any NOF and sent to Dallas region on Feb 20, 2005. Now it is at the Dallas Backlog Center (DBC) waiting for further action. I am hoping to hear from them soon. My question is about the proferred wages – my employer filed the application with a salary, after my green card approved, of $60,400.00. At this time my salary is $41,500.00 Would this be an issue during the I-140 stage or I-485 stage? What type of questions/queries DBC may ask regarding the difference in the proferred salary and actual salary (diff= $18,500.00)? How to handle any issues in this regard? A-28: When there is a large difference in the H-1B temporary employment salary and the permanent employment proffered salary, at the stage of I-140 petition adjudication, the USCIS usuallly looks into the two issues: (1) Existence of the proffered permanent employment position at the time of filing of the labor certification application and the I-140 petition, and (2) employer's financial ability to pay the proffered salary at the time of filing of the labor certification application and the I-140 petition. As for the question (1), the law does not require that the permanent employment position is the same position with the H-1B temporary employment position. In reality, these two positions are considered two different jobs for the reasons that the employer can offer a permanent job which is different from the H-1B job and the alien beneficiary cannot take the permanent job when the alien is authorized to take only a "temporary" period of employment. Accordingly, inasmuch as your employer can establish by the evidence that there was and is a bona fide job for the proffered position for the employer at the time of labor certification filing and at the time of I-140 adjudication, the USCIS cannot deny the I-140 petition. Usually it is easy to establish such evidence if the employer is in the business of consulting as the employer constrantly faces demands for such type of services by clients and the employer should have such a permanent employee to meet the different client's needs. The question (1) tends to boild down to question (2). The USCIS usually uses three standards to see whether the employer can prove the financial ability to pay the proffered wage: One is the record of the salary the alien has been paid for such position in the company; second is the employer's financial situation as reflected in the business income tax return or annual report; and third is the assets of the company. In your case, the employer will not be able to establish the financial ability to pay through the first standard as your W-2 will reflect an annual salary which is much less than the labor certification salary. Accordingly, the employer will have to prove either by an evidence that its net business income exceeded at least the amount of the proffered salary in the tax return or the company has a sufficient asset/capital that can be converted into the operating capital. A large number of small companies have been struggling with this issue as their CPAs have been filing the buisness income tax returns with minus (-) net income figure to reduce the payment of the income tax for their clients or they just do not have sufficent assets and capital for operation of business other than either a home-office or one rented small office with a small number of employees. When you have this problem, your employer will have to work with its legal counsel to cope with the issue, sometimes successfully or othertimes unsuccessfully. Nowadays, most of I-140 denials fall on this financial ability to pay issue. Your employer should work with its legal counsel "early on" not to waste its time, energy, and expenses and is ended up with the painful denial of the I-140 petition.
  • Q-27 (12-29-05): My employer filed a RIR labor certification application in May 2002 which is still pending at the Dallas BEC. My job is a financial manager/accountant. I have just learned that my company will be sold to another company in about ten days. I am totally devastated. What do I have to do? A-27: You should calm down and immediately do two things: Firstly, you should investigate the type of merger or acquisition. There are so many different types of merger or acquisition. Some merger or acquisition will result in a deadly consequence on your pending green card process and some will not. Secondly, once you learn that it is a type of acquisition or merger which will have no affect on your pending green card process, you will have to decide whether you should deal with such change at the stage of labor certification or at the stage of I-140 petition. Let's look at these two issues. (1) Company will be sold to another company in the form of "buy-out" of the total shares of your employer. The buying company can dissolve your company and merge the business into the buying company or keep as a division of the buying company rather than a separate company. In a number of cases, though, the buying company leaves your company the way it is. In the former situation, there will be a change in federal employer tax ID number and in the latter situation, there will be almost no visible change to outsiders, including the federal employer tax ID number. In all of the aforementioned cases, your pending labor certification will not be affected by the change of the owner. The new company is practically a same company taking over all the assets and liabilities of your employer. It is called "successor-in-interest" entity to your employer. When the change takes the form of successor-in-interest, the acquiring company can handle the issue of change of employer at the two different levels. They can either file an amendment to the pending labor certification application or wait until the pending labor certification is approved, and when they file I-140 petition, they submit the evidence of successor-in-interest to the Service Center along with the approved labor certification. In this type of the corporate change, there will be no change in the "priority date" and eligibility for the labor certification or I-140 petition. (2) If the company is sold to a new buyer in the form of "buy & sale" of assets only rather than shares, the buying company is not taking over the liability of your employer, including H-1B LCA liabilities. They will be considered a totally seprate company from your employer. When such change takes place, usually the DOL does not recognize "substitution of employer." Before there was a reengineering of the labor certification system, some Regions from time to time had accepted such substitution of the employer when the job remained same in the same location, allowing the new company file an amendment. However, in the majority of Regions, they refused such substitution of the employer. Accordingly, if your employer is sold to a new company under such transaction, the chance of survivability of your pending labor certification application and the priority date will be slim, even though the new company may attempt such opportunity to seek substitution of the employer. It is hoped that your employer is not sold in the second form. Considering the terrible retrogression and importance of the priority date, the consequences will be truly devastating.
  • Q-26 (12-28-05): I have applied for a green card in EB-3 category and my I 140 has been approved and my I-485 application passed 180 days. My wife is thinking about opening a company. She is a derivative beneficiary applicant for the green card. I have a good control on the contract and my client said they would issue the contract to any company that I name. Once my wife starts the company, I intend to port to her company. What are implications of working to start up company which is owned by derivative applicant and what kind of evidence USCIS can ask before they approve my case? Do you think my I 485 will be denied on ability to pay reasons? A-26: When you port after 180 days of filing of I-485, you do not have to prove that the new employer has a financial ability to pay the proffered salary. However, USCIS may turn around and indirectly pursue this issue by requesting evidence that the new employement was an "legitimate" offer of employment. It is a question of the existence of similar or same occupational classification and the financial ability to pay may be indirectly relevant. Such financial ability to pay issue may be overcome if the new employer establishes the existence of a legitimate job for the alien. USCIS cannot deny I-485 application on the new employer's financial ability of pay issue alone when there is an evidence that the new employer has a legitimate job for the alien. If you can enter into a good contract with the clients for your wife's or your own company, you can port to your own company. AC-21 portability is available even in the context of self-employment inasmuch as the following three requirements are met: (1) The new self-employment is in a same or similar occupational classification. (2) The self-employment is "legitimate" and there is indeed a bona fides job existent. (3) When I-140 petition was filed by your current employer, your employer truly intended to hire you for the offered permenent job once your green card is approved and you yourself also had the same intent to work for your employer once the green card is approved. When you have been working for the current employer for a number of years, it may be fairly easy to establish this requirement. However, when you are not currently employed by the petitioning employer, this third requirement will be a very challenging issue. All in all, if you can develop a solid business that requires your work similar or same to the I-140 occupational classification, you may be safe to port to such a self-employment type of business, provided that you should be prepared to provide all the aforementioned evidence once you receive RFE from the USCIS. For instance, if you are a computer consultant working at your employer's client site. For whatever reasons, the client does not want to continue doing business with your employer. The client is willing to give the contract to yourself for the same job. From the perspective of AC-21 portability, you may not anticipate too much problem. However, there is a potential issue of the breach of employment contract with your employer. Accordingly, unless either your employer consents to such change or there is no employment contract violation issue, such move will turn out to be very risky. Another illustration is an Interior Designer working for the current artichtectural firm that sponsored the I-140 petition. One can start his own interior designing business and provide a same or similar type of interior designing services to the clients.
  • Q-25 (12-27-05): I am currently on my eigth year of my H1B and my labor is pending with the Philadelphia Backlog center, 45 day letter received and responded sometime in March. When my employer applied for my eighth year extension, USCIS approved the application for three years and the from and to date was overlapping, ie the current seventh year ends on July 20, 2005 but they approved the H-1B extension from May 21st 2005 until May 21st 2008. My employer noticed this problem and he sent out a letter asking for a clarification on the same to USCIS but there has been no response. A-25: The real issue in this case is not the overlapping current 7th year period but extension of three years rather than one-year increment. The three-year increment extension is available only when the I-140 petition has been approved. When someone is still at the stage of labor certification application, he/she is not eligible for the three-year increment even if the visa number is not available for the alien's country which falls under a per country limit. Obviously, the three-year extension was a mistake. You should check the I-129 petition and see whether the employer had erroneously requested three years rather than one year. It appears, though, that the extension upto July 20, 2006 would remain valid even if the approval notice shows expiration date of May 21, 2008. It would be prudent that you file another one-year increment extension petition before July 20, 2006. Under the court decisions, agency's honest mistake does not justify the alien's violation of legal status.
  • Q-24 (11-26-05): I am an engineer working in a H-1B status. My employer filed the labor certification for me in 2002, which was approved in August 2005. I had to take a leave of absence and join my husband in New York because of the pregnancy and need for my husband's care through the pregnancy. The employer agreed that it would keep the labor certification position open for me until after I deliver the baby and green card is approved. I-140 and I-485 were filed concurrently in September 2005, and miraculously I 140 was approved in November 2005. I have yet to deliver the baby, but even after I deliver the baby, it would be hard for me and my newly born baby to be separated from my husband since my job was located in Los Angeles, thousands of miles away from New York where my husband works and lives. Yesterday, I learned from a friend of mine that a similar job might be available for me in New York after I deliver the baby around March 2006. I wonder whether I will be able to change the job in March or April 2006 using AC 21 portability clause. One concern I have is that when I worked for the employer in LA, my H-1B salary was lower than the labor certification salary. If AC 21 portability is available, will the new company have to offer a salary matching the prevailing salary stated in the LC? A-24: AC-21 I-140 portability after 180 days of I-485 is available under the two circumstances: One is that the alien changes the employment after approval of I-140 and after passage of 180 days from the date of I-485 filing. The second situation is that the alien changes the employment before approval of I-140 and after passage of 180 days from the date of I-485 filing but the original I-140 petition was approvable at the time of the labor certification filing as well as at the time of I-140 filing. Your case falls under the first sitution. Nowadays, I-140 is denied in most cases on the ground of employer's "financial ability to pay the proffered salary" issue. However, the fact that the I-140 has been approved in your cases indicates that your employer passed the test. The financial ability to pay the proffered salary is sometimes established by the evidence that the alien beneficiary has been paid a H-1B salary which is at least equal to or higher than the labor certification salary. Otherwise, the employer has to prove that it had either an enough "net" income or "net worth of assets" which exceeds the labor certification salary. Apparently, in your case, your employer was able to establish the financial ability by the evidence of income or assets. When the financial ability is proven by such evidence, the employer does not have to prove that the alien beneficiary has been paid a salary of either equal to or higher than labor certification salary during the period of H-1B employment inasmuch as the salary met the labor condition application for H-1B salary. Accordingly, even if the USCIS learns that you were paid H-1B salary less than labor certification wage, they will not be able to revoke the I-140 petition. The second issue is whether or not the job continued to exist at the time of I-140 petition filing. It appears that there was a job offer in good faith at the time of filing and for that matter, the employer has not abandoned their intent to hire you when the green card is approved. It thus appears that the proffered job (not the temporary H-1B job) appears to continue to exist in your case unless there are some other facts involved. It thus appears that you may not have any serious problem when it comes to I-140 petition portabiliity after 180 days of I-485 filing. However, you may or may not have a I-485 eligibility problem aside from the I-140 portability issue. For the pending I-485, you should prove that until your I-485 is approved, you will have maintained a lawful presence in the U.S. without violation of the immigraiton laws. Expiration of the non-immigrant status does not constitute an unlawful presence during the period of I-485 application, but unauthorized employment constitutes violation of authorized stay. In your case, apparently you are taking a maternity leave of absence under the H-1B regulation which is perfectly permissible. All in all, you may be in good shape to take advantage of AC 21 portability in coming April 2006 inasmuch as you do not engage in unauthorized employment and do not violate the H-1B regulation. As for the salary for the new employment, AC 21 does not specifically require that the new employer should pay the salary equal to the labor certification salary, but when the salary is lower than the labor certiication salary, the USCIS can raise a question of "same or similar" occupational classification issue, which you may or may not be able to overcome. It is better that the employer offers the same or higher salary than the labor certification salary. There may be a host of other issues which are specific to your individual circumstances, and I would not jump on making a decision unless your lawyer comples a thorough review of your specific case and gives you a go-ahead signal. The foregoing analysis is general statement of the rule and cannot be applied to individual situation.
  • Q-22 (11-19-05): My employer is a national software consulting company that has branch operations and large clients in major cities in the U.S. My employer filed EB-3 labor certification in October 2000 in California. My company's main office is located in Los Angeles and I also work for a client in Los Angeles at the time of filing and now. The employer filed the labor certification in California but the labor certification stated that I would be working for clients at undetermined locations. However, the job was advertised and the employer conducted recruitment in Los Angeles. The case was filed as a "regular" application and I am still stuck at the Dallas Backlog Elimination Center. I heard a rumor that my employer was about to conclude a contract selling its operation in Los Angeles to a different company and under the contract, my employer would not be permitted to do software consulting business in Los Angeles Metropolitan Area. Apparently sale of LA branch includes me. The current branch is not a separate corporate entity and just a branch. I am scared to death as my labor certification and, more importantly, my priority date may be affected. I am an Indian Network Analyst. What will be my future? A-22: You are really entangled in a mess. There are so many problems that I am afraid I do not know where I should start. Let's start from the impact of change of job location on the labor certification. In the labor certification case, if the location for the permanent job changes, the labor certification is invalid for you. However, the rule is different in roving employees, most typically computer consultants. For the consultant's job, the labor certification application be filed and recruitment may be done at the location of the company's main office even if you do not work at the main office location. The first issue in your case is whether your current employer can save the labor certification for you by transferring you to its other business site, let's say Atlanta. Even though your company cannot provide consulting services in Los Angeles under the deal, they are neither moving nor shutting down business. In that case, the company will be able to complete the green card process for you. The problem is the employer intends to sell you to a buyer as an asset. When a buyer takes over another company by purchase of the entire shares, or for that matter, purchase substantial assets and liabilities of your employer, the new company would be able to continue the labor certification even if the name is different as it is considered a successor-in-interest to your current employer. However, it appears that is not what is happening in the deal. Your new employer will not be successor in interest to your current employer and pending labor certification will be no good for you. In the past, depending on the Regions, the Certifying Officers sometimes allowed this kind of new employer to amend the application inasmuch as there is no change other than change of company, but even in old days, this was rarely accepted by the Certifying Officers. It thus appears that if you are sold in this context, your pending labor certification application and priority date may be seriously affected. Please talk to your current employer showing this message and ask the employer to save you from the business sale-purchase deal. Good luck.
  • Q-21 (11-18-05): My company filed 140/485 for me at the end of September 2005 using a LC Substitution which was filed in early 2001. My company later filed a PERM application in October 2005. Both of the applications are EB-2. I know there is an issue with multiple LC applications, and it gets complicated by the possibility of cancellation of LC substitution. I know it is very important to be able to acquire the priority date of LC substitution since I am a Chinese native. Will the filing of PERM potentially invalidate the 140/485 filing based on LC substitution? A-21: A certified labor certification cannot be invalidated unless the DOL or USCIS or State Department takes an action to invalidate the application, should they find a fraud or misrepresentation. The PERM regulation just considers a backlog old labor certification application withdrawan if the employer files a PERM application with the request to use backlog case priority date, no matter whether it is an idential job or different job. If it is an idential job, the priority date is retained, even though the backlog case is considered withdrawn. If it is not an identical job, the DOL will proceed with certifying the PERM application but the backlog case is still considered withdrawn and one loses the priority date. This PERM rule has nothing to do with the labor certification applications which have already been certified and are out of the pipeline. Those certifications cannot be invalidated without a good cause. The way I understand it, upcoming proposed regualtion to eliminate the substitution may not apply to those cases which are already with the USCIS system. However, regardless the PERM regulation or substitution regulation, I have a grave concern with what your employer did. The facts suggest no motive for filing a PERM application in your case other than the fraudulent purpose to file the application strictly to get another certification to use for someone else. The substitution elimination proposals are exactly intended to remove such fraudulent activities. It appears that the DOL and USCIS may charge you as a co-conspirator since you signed the PERM application under oath. Other than criminal charges, you may also face invalidation of the labor certification applications. Please immediately consult with a legal counsel.
  • Q-20 (11-18-05): I am an Indian Programmer-Analyst. My previous employer filed a labor certification application for me in October 2000, which was certified. It was EB2 RIR. My previous employer then filed a stand-alone I-140 petition which was approved. I opted for consular processing and got the interview date from American Consulate in Chennai. However, I was laid off by my previous employer and could not attend the interview at Chennai consulate. My previous employer then went out of business eight months after I was laid off. I have the complete copy of this labor certification application and the approval letter. I also have the complete copy of the I-140 application and the approval letter. Now my present employer filed my labor certification in March 2003, EB2 RIR, as Senior Programmer Analyst and it is in backlog center. I received the 45 day letter two months ago. I am expecting my labor approval anytime. Could I use my previous priority date of October 2000 when I file a new I-140 with my current employer? A-20: The question involves retention of priority date. Under the rule of retention of priority date, once the priority date is retained by the force of the approval of I-140 petition, the priority date can be used in another petition which is filed by the same employer or another employer for same classification or different classification. Accordingly in current situation of visa retrogression, retention of priroty date is extremely important. Unfortunately the retained priority date is lost when the original petition is revoked other than for the purpose of substitution of alien beneficiary. Under the immigration regulation, the approved petitions are revoked automacally in certain situations or by notice of revocation by the USCIS for fraud, misrepresentation, etc. The automatic revocation includes termination of the business of the employer. Accordingly, your old priority date is lost when your former employer went out of business since the petition was automatically revoked without any action by the agency. The reality is, though, that the USCIS would have no knowledge of the termination of the original petitioning employer's business and without doubt there must have some instances where the alien beneficiary filed I-140 petition and I-485 application using the revoked petition and obtained approval of I-485 based on the old priority date. However, once it is detected in the future, the agency may be able to revoke the green card approval for fraud.
  • Q-19 (11-17-05): I am a young Chinese medical scientist researching the role of gene and DNA on prevention of the brain injuries. My approach focuses on "preventive" device to the brain injury-related diseases including alzheimer diseases rather than "curative" device. I have five years of research experience after the Ph.D. and published approximately 15 articles in the international journals. I submitted 13 statements from experts in the field including my supervisors and research team members on the campus who are acclaimed top notch medical scientists in the world. I have never received any national or international awards, but received prestigious fellowships. I submitted list of 50 citations. I had one experience of review of peer articles on behalf of an interntional journal. The experts consistently claimed that my research had been recognized and influenced substantially this field of science and research. I received a denial of this NIW EB-2 I-140 petition. I am shocked that 13 nationally renowned experts opinions have been ignored by the Service Center. What seemed to be wrong? A-19: As EB-3 visa number gets worse, more and more people have been submitting NIW petitions to make it an EB-2 case and sometimes to obtain EAD and Advance Parole by submitting concurrent I-140 and I-485 when the visa number is current for their countries. Obviously this has led the Service Centers to scrutize more intensively the merits of the NIW claims. In this process, some meritorious NIW cases have been denied not because of the fault of the adjudicators but because of the fault of the petitioners. The most serious faults are related to the "number" game. In the NIW cases, most of the petitioners have no problem whatsoever in passting the prong I test (substantial merit) and the prong II test (national scope). But majority of cases are denied on the prong III test (past achievement). Obviously people try to demonstrate the achievement by submitting a large number statements of nationally renowned experts in the field without carefully coordinating other evidence they submit. When it comes to the value and weight of the expert opinions, the key is the credibility of the expert opinions. For instance, in your case, apparently you heavily relied on the nationally renowned scientist statements which contained some fancy wordings about your achievement but most of them were involved in your campus or research team. The chance of influence of personal feeling was getting very high because of the relationship with you and the weight of such evidence is taken minimal at best. Besides, the other eivdence which you submitted did not substantiate the claims of these experts in their opinion letters. For instance, fellowships, no matter how prestigious it is, awarded by one school can by any standard reflect your standing in the "internationally" recognized scientist in your field. Sometimes, some evidence you submit hurts rather than helps to substantiate the claims of the experts and their credibility. The number means nothing when the credibility of the experts are dubious. You said you had published 15 articles and cited 50 times in other articles, but there is no evidence in the submission that these articles and citation influenced the science in your field. Again you were trapped in misunderstanding of the number game. People should not misunderstand that the adjudicators can be fooled by the volume of documents they submit. They are veterans in carefully reviewing the evidence in totality, particularly in judging the credibility of the evidence. I personally have encountered in numerous occasions people being offended and angry when I told them I would not submit scholarship or fellowship related evidence. Remember that the number does not count and neither is fancy word of the experts!
  • Q-18 (11-17-05): I filed PERM application in April 2005, which was approved at the end of September 2005. My employer then filed I-140 petition immediately which was approved by the Texas Service Center four days ago. I am an Indian and because of the visa retrogression, I cannot file I-485 application now. Probably it is not going to be many years from now before I can file my I-485 application. The problem is my H-1B 6th-year limit will reach in about one month but my labor certification employer cannot afford to keeping me in a H-1B employment. The employer agrees to continue my green card process and to hire me permanently once the green card is approved. In the meantime, the employer will not object to my taking H-1B job with another employer. Will I be eligible for H-1B extension through this new employer in 3-year increment during the visa retrogression? A-19: It appears that according to the California Service Center, a similar rule applies with the previous Q-17 in that the labor certification employer and the H-1B employer do not have to be same for the purpose of H-1B extension beyond 6 year limit. Again, same other rule applies that once the underlying approved I-140 petition is revoked, unless another I-140 is approved before the revocation of the existing I-140, the 3-year H-1B extension will not be viable. The same warning is also due here that it is one thing that you can file the three-year increment H-1B petition with a new employer and it is other whether your labor certification application employer will be able to prove existence of the labor certification job once the USCIS questions bona fides nature of the job offer. Otherwise, the three-year increment H-1B extension will be valuable relief for the late-labor certification filers who will not be eligible for the 7th-year extension because of their failure to meet 365-day pending rule. Since the H-1B three-year increment extension filing is available only if such petition is filed while the existing H-1B is valid, they should rush to file I-140 petitions as soon as the labor certification is approved so that they file the three-year increment H-1B petition timely "based on the approved I-140 petition." Of course, this option is available only for those who are unable to file I-485 application owing to the per country visa number retrogression.
  • Q-17 (11-17-05): My employer filed the labor certification application one week before my 5th anniversary of H-1B stay in the U.S. I have been working with this employer in the H-1B status. But now I have a new employer who wants to hire me inasmuch as the new employer will be able to file the 7th-year H-1B extension for me. Can I extend the 7th year extension through the new employer who is not the employer that filed my labor certification application? A-17: Your question involves two separate issues. First, the law does not require that the labor certification application employer and the H-1B petition employer must be same. Accordingly, an employer other than labor certification application employer is eligible to file the 7th-year H-1B extension petition for you. Second, it is one thing that employer other than labor certification employer can file your 7th year H-1B extension and it is the other whether such 7th-year extension can survive under any circumstances. For instance, if the employer that filed the labor certification application does not need your services while it goes through the labor certification process and it would not object to your change of the H-1B employment, you will have no problem in applying for 7th-year H-1B extension through the new employer. However, if the labor certification employer disagrees to your departure from the employment and your taking a job with another employer, it can withdraw the labor certification application, and withdrawal of the labor certificaion will make your 7th-year H-1B extension not viable. For the 7th-year or 8th-year extension to survive, "a" labor certification must be pending or a I-140 petition is pending after the approval of the labor certification for more than 365 days. Once this "underlying" application or petition disappears due to withdrawal and revocation or denial, 7th-year H-1B extension collapses as well. However, if a new labor certification application is filed by the new H-1B employer before the old employer withdraws the pending labor certification application, it appears that you may be eligible for the 7th-year H-1B extension. One of the USCIS HQ official termed this as "alien-based" and the 365-day benefit is carried by the alien in his/her backpack. However, the alien-based concept does not apply when the labor certification is approved and the alien beneficiary is substituted by the employer. In the substitution context, it is the substituting alien beneficiary and not original substituted alien who takes the benefit of 7th year H-1B extension. All in all, the answer to your question is positive.
  • Q-16 (11-16-05): My husband and I are Chinese natives. My first employer filed a labor certification application, which was certified. My priority date for this case is May 2000. My employer then filed a stand-alone I-140 petition which was approved. However, I was laid off and could not file I-485 through the first employer. My husband's employer filed on May 2001 a labor certification application through his employer which was approved. His employer then filed I-140 petition which was approved. Based on my husband's approved I-140 petition, my husband and I were able to file I-485 applications. These applications are pending. My question is that assuming that my first employer's approved I-140 petition is still good, whether I can that priority date (May 2000) for my pending I-485 and request the agency to adjudicate my I-485 application? A-16: You have raised a very interesting question which your colleagues may also be interested in learning. The question is whether the retained priority date through one's another I-140 petition as direct beneficiary can be used for the pending I-485 as a dependent derivative beneficiary. The simple answer is "no." The retained priority date is good only for your I-485 application as the "direct beneficiary" of another I-140 petition. The priority date of the derivative beneficiary is strictly determined by the direct beneficiary's priority date and not the derivative beneficiary's own retained priority date, if any. Good try, but sorry!
  • Q-15 (11-16-05): My wife and I are both professors teaching Management Information Systems in business schools of universities in Massachusetts. Our current status is H-1B. The school filed a faculty special handling labor certification in November 2004 for my wife and my school also filed a PERM application just a month ago. We are the natives of India. My wife's labor certification has just been certified by Backlog Elimination Center and she filed I-140 petition as we could not file I-485 because of the visa retrogression for EB-2 for India. I expect that my PERM will come through very shortly. I am thinking about filing EB-1 petition and trying to use my wife's priority date. She can also file EB-1 for herself, if necessary, to take advantage of her priority date. Can you shed some light on these options? A-15 (11-16-05): Lord, you people have achieved a peak in your careers. As you know, all the categories in EB-1 are labor certification exempt and inasmuch as EB-1 visa number becomes available for either your existing priority date or your wife's existing priority date after obtaining the I-140 petition approvals based on the labor certifications, you will be able to file I-485 for both of you. I have two questions for you. The first question is your occupation. When you say EB-1, if I am not mistaken, you were considering Outstanding Researcher. For the OR petition, you need at least three years of internationally recognized outstanding research experience and the profession your school offers must be a research faculty rather than a teaching faculty. Since your current occupation is teaching and not research, I wonder how you make for EB-1. Supposing that you were rather thinking about EB-1A, Extraordinary Worker petition and you thought you were eligible. Then you may certainly file such petition. Let's assume that both you and your wife are eligible for EB-1 petitions, and let's figure out how things will work for you. Supposing that your PERM is approved with the priority date of September 2005. It will be your priority date. As far as we can see, the EB-1 for India is far apart from this priority date. Accordingly, even if your EB-1 petition is approved, your PERM-based priority date will not help you much. Next question is whether you will be able to use your wife's priority date and both of you file I-485 when her priority date is reached in the near future. As I stated earlier, the priority date is not transferrable between the spouses. So, this will not be a viable option. However, if your wife also files EB-1 and her labor certification-based EB-2 priority date is reached in the near future, both you and your wife will be able to file I-485 based on her EB-1 and using her earlier priority date of November 2004 (labor certification based). For the purpose of her EB-1 I-485 filing, the priority date for both of you will be November 2004 and not December 2005. Good luck.
  • Q-14 (11-16-05): I am a clinical psychologist working in Dallas, Texas. My current status is H-1B. My clinic filed a PERM application with the requirement of a master's degree in psychology. Unlike other professions, the threshold for the "profession" of a clinical psychologist is a master's degree. I heard that when a master's degree is the minimum requirement for the entry level of a professional occupation, we cannot file EB-2. What is the truth to this rumor? A-14: That rumor is absolutely incorrect. In fact, such occupations are best candidates for EB-2 since the entry to that profession requires minimum of a master's degree. Another occupation similar to a clinical psychologist is a librarian. Since you are an Irish, there is no visa retrogression problem for EB-2 for you. Just file EB-2 I-140 petition as soon as the PERM application is certified.
  • Q-13 (11-16-05): I am a Canadian citizen working with a Software Development company as a Systems Analyst. My current status is TN-1. My employer filed a RIR application in November 15, 2004 which is pending at the Philadelphia Backlog Elimination Center. My one-year TN status will expire in about a month but currently H-1B is not available until October 1, 2006. In the meantime, since I filed the labor certification, I am afraid that either Free Trade Officer at the Canadian border or the Vermont Service Center may deny my TN-1 extension as I filed a permanent labor certification application. What do I have to do? A-13: TN-1 is a temporary visa status that needs your intent to return to Canada upon completion of the one-year temporary work. Unlike the H-1B or L-1, TN does not enjoy dual intent. In old days, both the Free Trade Officer at the Northern border as well as the Service Centers interpreted the intent issue very narrowly and either denied the admission at the border or the Service Centers denied extension petition. But now, the USCIS and FTOs at the border follow the following guidelines: First, filing of labor certification application does not in itself constitute such an intent not to return to Canada. Second, filing of I-140 petition is also not considered an evidence of such intent. Third, filing of I-485 is, however, taken as an evidence of an rebuttable intent not to return to Canada. For this information, please read the Employer Bulletin of the USCIS. In your case, you are in a very early stage of the immigration process, waiting for the labor certification application. Accordingly, you are not likely to face a serious problem either at the border or at the VSC in obtaining extension of TN status for another year. When it comes to October 1, 2006, you may then change your status from TN-1 to H-1B. Once your I-140 petition is approved and the visa number becomes available, you will have two options, either filing I-485 or applying for the immigrant visa at the American Consulate in Montreal. If you choose the first option, you should not travel on TN-1 status after you file I-485. Accordingly, in this option, you should change your status from TN-1 to H-1B by all means. On the other hand, ifyou take another option of applying for the immigrant visa at the American Consulate in Montreal, the FTO and the Service Centers will take you favorably in granting extension of the status as you proved your intent to return to Canada, even though you may return as an immigrant after obtaining an immigrant visa.
  • Q-12 (11-15-05): In September 2001, my former employer in New York filed a EB-2 labor certification application for me, and afterwards I was laid off. Now I am working for a different company. The current employer filed another EB-2 PERM application with the priority date of March 2005. Our cases was one of the first cases which were filed upon the launch of the PERM program. In early August 2005, miraculously this PERM application was certified and I was able to file the concurrent I-140/I-485 in August before the visa number retrogressed on October 1, 2005 for the Indian EB-2. Sure enough, I cannot complain because I was lucky enough to reach the stage of I-485 filing before the nightmare fell from the sky on October 1, 2005. However, I still want to know whether I will be able to use the priority date of September 2001. I have no information as to what happened with the labor certification filed in New York in 2001 and whether the former employer used that for substitution for other employee. Please help. A-12: It appears that you failed to retain the priority date of September 2001 because no I-140 petition had been filed and approved before you were laid off and left the company. Besides, even if you got I-140 petition approved based on the certified labor certification application, the chance is that the employer in New York must have used that labor certification application for substitution and your approved I-140 petition must have been revoked. You wanted to know how you find out whether the labor certification was approved and whether the certified labor certification has been used by your former employer. For the labor certification application, you have two ways to obtain the record. One is filing the FOIA (Freedom Of Information Reqest) with the DOL Regional office that had processed your application. DOL office keeps the certified labor certification applications for 5 years after when they destroy the records. You are still within the timeframe and you can try. They will not be able to give you a copy of ETA 750 Part A as it is the employer document, but they will be able to give you a copy of the certification notice cc'd to the alien beneficiary. You can also file FOIA with the Vermont Service Center to obtain a copy but this is not a good option because all the FOIA requests are currently processed by the USCIS National Record Center and takes even one year. Additionally, since the I-140 petitioner is the employer, they may refuse to release any documents that are related to your employer including I-140 record and ETA 750 record. It is better that you try through the DOL. After the visa number retrogression in October 2005, the I-140/485 applicants started filing report of change of employment after 180 days of I-485 filing "proactively" for the purpose of obtaining information about any actions taken by their former employers involving their approved labor certification and approved I-140 petitions as well as to avoid proactively receiving NOID (Notice Of Intent to Deny I-140 petition and I-485) upon receiving the withdrawal and revocation request by the former employer since the Service Centers would have no record that you changed employment after 180 days of I-485 filing and you were eligible for the AC-21 portability. When you did not file such change of employment report proactively and the USCIS receives the former employer's request for revocation, they will have to serve you NOID.
  • Q-11 (11-15-05): I am just wondering if I could use my husband's priority date to file my I-140 and I-485. He got his I-140 approved in 2003 with the priority date of 2000. Because he changed his employer, he had to file another labor certification application in 2004 with another employer. This second labor certification application is at standstill in the Backlog Elimination Center. He has not even received the 45-day letter. I filed my own PERM application which was quickly certified in October 2005. It is EB-2 category. I am wondering whether I can use my husband's priority date (2000) to file I-485 for my whole family. A-11: It appears that you are asking three issues. (1) Retention of your husband's priority date of 2000 and whether your husband's 2000 priority is currently valid or retained. (2) Transferrability of priority date between the spouses. (3) Applicability of alternative chargeability of the spouse's native country visa quota. Let's look at the retention of priority date issue first. Priority date is retained once the I-140 petition is approved. However, the retained priority is lost when the approved I-140 petition is revoked. For instance, if your husband's first employer substituted the alien beneficiary of the certified labor certification, it means that the petition has been revoked since without the revocation of the approved I-140 petition of yours, the employer was unable to substitute the alien beneficiary. Once substituted, the priority date established by the original labor certification is picked up by the substituting alien and not your husband. Considering the fact that the labor certification was filed in 2000 and he obtained I-140 petition approval in 2003, the chances are that the old employer has already used this labor certification for substitution and probably the new employee could have even obtained the green card approval. When the 2000 priority date is gone, use of the priority date either for himself or for you is out of question. (2) For discussion purpose, let's assume that your husband's priority date is still valid and good. Under the immigration regulation, the priority date is not transferrable to other person, no matter whether the other person is a spouse or a stranger. There is one distinction which you will have to keep in mind to avoid any confusion. I-140 and its underlying priority date are not transferrable to the spouse under any circumstances, but I-485 applications for both you, your husband, and your children can be transferred to your husband's proceeding. In order to transfer the pending I-485 applications between the spouses, both you and your husband should have separate approved I-140 petitions which remain valid. Assume that your husband still works for the first employer and the approved I-140 petition is still valid with the priority date of 2000. Assume also that you got your own I-140 petition approval using the PERM with the priority date of October 2005. Assuming also that your husband's priority date is EB-3 category and yours is EB-2 category. If your husband's EB-3 is open for 2000, you can ask the Service Center to transfer the pending I-485 applications for you, your husband, and your children to your husband's case so that whole family of yours can take advantage of your husband's favorable priority date. In this case, you are convered from direct beneficiary to dependent derivative beneficiary of your husband's approved I-140 petition, and your husband is convered from dependent derivate beneficiary of your approved I-140 petition to the direct beneficiary of his own approved I-140 petition. In other words, you and your husband's roles are switched around. Unfortunately, this is not applicable to you because in the first place, your husband's approved I-140 petition appears to be revoked and no good, and you do not have any approved I-140 petition of your own. Accordingly, this second rule is not applicable to you and your family. (3) Now, let's talk about availability of alternative chargeability. The rule of alternative chargeability applies to the two different countries of chargeability. It has no direct bearing on the transfer of priority date. Since you and your husband were born in the same country and are subject to the same per country visa chargeability, the rule of alternative chargeability has no relevance to your case. Unfortunately, no one of the foregoing three beneficial rules applies to you and your family and my answer to your question is "no." Sorry.
  • Q-10 (11-14-05): I am a Korean systems engineer. I worked with a world leading Korean electronics manufacturer that has subsidiaries and affiliates all over the world, including the United States, in the capacity of a manager of engineering department. Currently, I am working with a U.S. company based in Atlanta as a systems engineer in H-1B status. My H-1B 5th year has already run out. The U.S. subsidiary of my former Korean employer is willing to rehire me in the same position. However, since I can only work with the company with less than one year in a H-1B status, it is not likely that this Korean company would be able to help me to obtain the green card. Any way around? A-10: It appears that the U.S. subsidiary of the Korean company may be able to file EB-2 labor certification application inasmuch as somehow you can maintain a nonimmigrant status beyond the six year limit. Korea has an investment treaty with the United States and the Korean companies in the U.S. can bring from Korea or hire a Korean in the United States any employees who have a special knowledge of the company's technology, business secret such as the market network, pricing policies, etc in E-2 visa status. You will be surprised to learn how many of the executives or managers or engineers from the parent company in Korea are working on this EB-2 treaty investor status in the U.S. This visa does not have any annual cap nor any duration of stay in the U.S. It appears that the Korean subsidiary in Los Angeles may be able to rehire you in E-2 status and file the PERM labor certification application on your behalf. Since you can stay and work without any limitation to the maximum period of stay in the U.S., this status may work perfectly for you. Besides, once you obtain the approval of the PERM application and file a concurrent I-140/I-485, you will get EAD and advance parole in about two or three months, and you can stay and work either in E-2 status or EAD and AP pending adjudication of your I-485. There is an added benefit to keeping an E-2 status, though. Your spouse will be able to obtain employment authorization even before filing a green card application. E-2 status does not enjoy the dual-intent unlike H-1B or L-1 visa status, but enjoys a benefit similar to that status in that they do not have to maintain permanent residence/home in Korea and USCIS has been extending E-2 even after filing of I-485 applications without any problem. This option is available because you are a national of one of the countries that have investment treaties with the U.S. India and China do not have such treaties with the U.S. and this option is not available for the Indians and Chinese.
  • Q-9 (11-14-05): I am a German citizen currently working with a German company in Berlin. From May 1996 to June 2004, I worked with a German subsidiary of the American fortune 500 company as a Vice President Engineering in Frankfurt. In July 2004, I left the company. Since then, I have been working with the current employer in Berlin, Germany. One month ago, I was approached by my former employer, the American company in Frankfurt, with a job offer of the Vice President Engineering in Frankfurt. They are planning to send me over to its parent company in Chicago in January 2006 as a Director of Engineering. However, since such move to the U.S. will disrupt my family life, particularly my children in middle schools, unless the company assures permanent resident status for my family, I intend not to accept the offer. Since I have not been working for the American company for almost year and a half, I may have to go through the labor certification process once they decide to sponsor our green cards after I get there. I understand that both EB-2 and EB-3 may be oversubscribed not only for the Indians and Chinese, but also other nationalities sometime next year. Sir, what optiions do I have? A-9: It sounds that you do not have correct understanding of the U.S. immigration law. The EB-1C multinational corporate executive does not need a labor certification and you will be able to get a green card in a fairly short period of time by filing the concurrent I-140/I-485. It is true that the EB-1C petition requires that the alien beneficiary should have worked for the German subsidiary at least for one year. It is also true that you have not been working for this company more than one year by now. But there is more to the one-year employment requirement. Inasmuch as you worked with the American company in Frankfurt for more than one year during the last three years, even if you have not been working for the American company until now, you will have such EB-1C immigration opportunity inasmuch as you are rehired now and transferred to the U.S. parent company in Chicago before June 2006. You should enter the U.S. before June 2006 to be qualified for the labor certification exempt EB-1C petition later. Obviously, the U.S. parent company in Chicago will file and obtain L-1A petition for you, which will only take 15 days if the premium processing is requested. Currently, H-1B is not available, but you will be eligible to enter the U.S. on a L-1A visa status before June 2006. Once you enter on a L-1A status before June 2006, you will be able to file EB-1C immigrant petition any time after June 2006. Accordingly, if the immigration is a key issue for your decision for the employment change in Germany, you may want to take it as soon as possible and join the company in Chicago as soon as possible as well. Unlike EB-2 or EB-3 immigrant category, there is practically no chance that EB-1 immigrant category for the Germans will be oversubscribed in the future. Just be aware that Chicago is a windy and cold country. But you yourself have been living in a cold country and this should not be an issue, I'd bet!
  • Q-8 (11-13-05): I am an Indian single man. I have been going out with an intelligent and attractive lady who lives in Seattle. We are about to tie the knots. She is a British and was born in London. She works with a financial company and through the employer, she has just obtained a green card. I am deeply in love with her and hate to think about getting any kind of immigration benefit through her, but she is carrying our baby and insists that I find out how the marriage will help me to get green card quickly. Please help. A-8: When you marry a woman who is already a permanent resident, the concept of "following-to-join" does not apply. It sounds you are inquiring whether her British background can help you to get benefit of alternative chargeability. Unfortunately, no. Alternative chargeability is available when your spouse is applying for green card with you. Since she is already a permanent resident, she cannot give you any employment-based immigrant benefits either through following-to-join derivative beneficiary of the employment-based immigrant petition or alternative chargeability of the British spouse. Had you married her even one day before the USCIS approved her green card, you would have been eligible the following-to-join derivative beneficiary. Even if you did not file I-485 as the derivative beneficiary of her I-140 petition at the time she was granted a green card, you would have been eligible to file a stand-alone I-485 application for yourself. But you have yet to marry her and she has already been given a permanent resident status. It is too late. The only immigration benefit she can give you is to file the second preference spouse family-based immigrant petition. The FB-2 visa numbers are so behind, and practically it is not a viable option for you. What an irony!
  • Q-7 (11-12-05): I filed a EB-3 labor certification application on May 23, 2002. I am an Indian man. My green card was approved in September 23, 2005. My wife filed I-485 application in February 25, 2005 as an accompanying spouse. We thought that my EB 485 application had been approved, her application would be approved even after October 1, 2005. I wonder why my wife's I-485 should be subject to the visa retrogression when a visa number was already taken out for me when they approved my I-485. Assume that she is subject to the visa retrogression. When will be the date the USCIS will be able to process her I-485? Is it her I-485 filing date or my priority date? A-7: Under the current "preference" immigrant visa quota system, (1) the spouse and children are counted in the quota and the visa number must be available. Besides, (2) their visa number availability is determined by the priority date of the direct beneficiary of I-140 petitions. In your case, the priority date for both you and your wife is the date when labor certification was filed, which is May 23, 2002. Since the visa number is not available for the Indian for this date, the USCIS cannot adjudicate your wife's I-485 application. The Budget Reconciliation Bill (S.1932) is intended to change the problem of (1) above, but not the problem of (2) above. Accordingly, even after the S.1932 is finally enacted into a law, it appears that your wife will have to wait until Visa Bulletin shows May 23, 2002 for India EB-3. However, she will not take out any visa number from the Indian EB-3 pool and the number will be made available for other direct beneficiary of EB-3 Indians. In this regard, the spouses and the children of the EB beneficiaries are not the people who "directly" receive the benefits from S. 1932, but it is the direct beneficiaries of the I-140 petitions who will receive the benefits of this legislation. The spouses and children will receive the benefits "indirectly" in the sense that once more visa number is made available for the direct beneficiaries, they can also apply for I-485 early together with the direct beneficiaries.
  • Q-6 (11-12-05): I am an indian software engineer and applied for EB-3 labor certification in June 2002. I have already obtained I-140 approval, but am unable to apply for I-485 due to retrogression for india under EB3. My job is so far so good, but I am not sure whether I want to be there in the same job for the next 3 years and 6 months, provided priority dates will move at a pace of month by month basis for india. I have a master's degree and 5 years of post graduation experience. Will there be any issues if I file another labor certification application under PERM EB-2 category through another employer? A-6: Under the immigration law and the labor certification law, the U.S. employers can file a labor certification for any alien beneficiaries regardless of the beneficiary's employment status. Classical illustration is the labor certification filed by an employer on behalf of someone who currently resides in India and does not work with the sponsoring employer. The same is true with the beneficiary who resides in the U.S. but does not work for the sponsoring employer. The PERM regulation just covers one situation where the same employer files multiple applications for the same alien beneficiary for an "identical" job. However, in implementing this regulation, the former Chief of DFLC overstepped his legal authority by enacting a regulation through the FAQ Round 5 wherein he even threatened that possibly any multiple applications for the same beneficiary may be denied except one application regardless of the specifics of the requirements. This was supposed to be implemented beginning from September 1, 2005. This was indeed outright untra vires and illegal. Accordingly, the DOL quickly pull back this part of the FAQ and the former Chief was stripped of the alien labor certification function completely by transferring to a Region. The new leadership team in the DOL has since been reviewing their position on the multiple filing for the same alien beneficiary by the same employer and we expect that sooner or later, they will have to make public their decision. However, no matter what their decision will be, the DOL absolutely does not have any legal authority to ban any U.S. employers from filing a labor certification application on behalf of any alien beneficiary which they choose regardless of the alien beneficiary's pending application with his/her current employer. There is absolutely no legal basis including the statutes and regulations. Should such regulation be enacted, it will be quickly struck down by the federal courts for an act of ultra vires (action beyond authority). In your case, the new job with the new employer is a different occupation. When the new job involves (1) a different employer and (2) not identical occupation, it is my opinion that the agency will absolutely have no authority to deny any one of the two cases filed by the two different U.S. employers. Currently, the lawyers, employers, and aliens all over the country are taking a cautious approach not to jeorpardize the existing priority dates and take a position of "wait and see," waiting for the DOL policy announcement on this issue. In the U.S. labor certification history, there have been a huge number of aliens whose multiple employers had filed and obtained mutiple labor certification applications for the same employee, which neither the INS nor USCIS nor DOL could do anything about it because they had no authority under the statutes and the U.S. Constitution to deprive the U.S. business entities of their rights to hire a foreign worker who they might choose inasmuch as they could prove that there was no qualified U.S. worker available in the area through the labor market test. As you can imagine, such multiple filings by multiple employers for the same alien beneficiary have produced a large number of "spare" certified applications and created a huge number of "substitutable" certified labor certification applications. The USCIS and the DOL are currently trying to block such a big loophole in the legal system by enacting a regulation to eliminate "substitution of alien beneficiary" in the future. This is an approach which these agencies are trying to circumvent the basis of legal authority through an "indirect" legal device to achieve the same goal which would not have been available without overstepping their legal authorities under the statutes and the Constitution. In view of the sensitive nature of their actions, they are taking a cautious approach in enacting the substitution regulations. It is anticipated that these regulations will not come into force for the next several months because of the mandatory rule-making procedure. In your case, you should seek legal counsel and determine whether you want to take a conservative approach or liberal approach at this time. However, if you seek my legal counsel, I may suggest you to go ahead in this "specific" situation. Should there be any variation of the facts, no matter how trivial it may be, I may take a different position. Again, I am unable to give you a legal advice over the internet and you should not take this posting as a legal advice for your specific case as there may be other facts involved which I am not aware of. Please seek legal counsel.
  • Q-5 (11-12-05): I am an Indian and I and my wife filed EB-3 I-140 and I-485 concurrently two years ago. I am the direct beneficiary. My wife was born in Sri Lanka. Are we eligible for cross chargeability? A-5: When the direct beneficiary uses spouse's country of chargeability, we say "alternative chargeability." You are eligible for alternative chargeability to Sriranka which belongs to worldwide chargeability and the EB-3 visa number is better for the worldwide than Indian's. However, in order to request the agency to process your case on the alternative chargeability, the visa number should be available for your wife's country, Srilanka. Currently, the visa number is not available for your wife's place of birth. You will have to wait until it comes to close to the visa number availability for the worldwide in the Visa Bulletin, and write the Service Center requesting to process your I-485 under the alternative chargeability to Srilanka. When the Sriranka visa number is not available, your request for such alternative chargeability will be ignored.
  • Q-4 (11-12-05): I am an Indian with the PH.D. background. For the past three and a half years, I have been working at a higher education institution as a Research Associate. The school just filed EB-1B Outstanding Researcher petition in September 2005 concurrently with my I-485 application. I am currently working for the University in a H-1B status. This is my 5th year in H-1B. I am not sure whether the Outstanding Researcher petition will make it. I am wondering whether I should file a "PERM" labor certification application in the category of faculty special handling and as soon as the ETA 9089 is approved, I file I-140 petition based on the PERM approval and request the Service Center to replace the underlying I-140 petition by the labor certification based EB-2 petition. A-4: It sounds that you met basic requirement for Outstanding Researcher petition in that you had more than three years of outstanding research experience, provided that (1) your employer proves that the employment contract is not "at-will terms" contract under which you can be terminated without a good cause, and (2) you have reached a level of internationally outstanding researcher as demonstrated by the recognition of your research achievement in your field of science. Nowadays, most of the OS petition is denied on the first ground since the universities are reluctant to sign an employment contract that can bind the uniersities with the employment. Under the AAO decision, for the OS petition only, such at-will employment contract is construed as a "temporary" employment offer and not qualified for permanent employment proceedings. I trust that when you say that you are not comfortable with the pending OS petition you must have in mind one of the foregoing two potential problems. Filing a labor certification application is always a good backup for the EB-1 filers. There are a few issues in your case, though, as related to your future. The first issue is your 7th-year H-1B extension. You are already in the 5th-year of H-1B. If you start the recruitment process for PERM filing now, it will take minimum of three months before your employer can file PERM application. By that time, you may pass the 5th-year of H-1B status and PERM filing will not help to extend H-1B for the 7th-year. For your H-1B 7th-year extension, keeping your OS petition will be critically important. The problem is a chance of potential denial of the OS petition. Once the petition is denied, unless you appeal the denial of I-140 petition to AAO, you will not be able to extend your H-1B 7th year. Pending your appeal, the Service Center may either deny I-485 or more likely they will hold the case in abeyance of the appeal. If appeal is denied, then you lose everything. If your H-1B 6-year limit either did not pass or passed but less than 6 months, you may be able to refile I-485 based on the approved new I-140 petition. However, since you are an Indian, this is not likely going to happen because there is not visa number available for EB-1 and you will not be able to refile I-485 application. All in all, you have a problem of 7th-year H-1B extension. As for your question of faculty special handling PERM application of EB-2, the PERM regulation provides a special procedure for faculty position which is similar to the former Special Handling, but it is no longer called a special handling procedure. The faculty special proceeding is available only for "teaching" faculty position. Since you are a "research" faculty, you are not eligible for this special proceeding. Accordingly, you will have to go through a regular "professional" labor certification proceeding. For your last question relating to whether you will be able to substitute underlying I-140 OS petition by the PERM based I-140 petition, you have two problems. First, for the pending I-485 application, the current USCIS policy requires that in order to substitute the underlying I-140 petition, both petitions should have been approved. Since your OS petition is still pending and has a good chance of denial, substitution of underlying I-140 petition will not be allowed in your case. The second problem is the visa number problem for EB-2. You should have started the labor certification process earlier.
  • Q-3 (11-12-05): I am a Filipino software engineer. Early this year, my employer forced me to agree to filing of an entry-level EB-3 labor cerification application with requirement of bachelor's degree and one-year experience with the duties of performing the job under the supervision. Even though my job was much more than entry level, the employer thought level I wage was the only salary it could offer. I have seven years of work experience and am performing a lead engineer job. Now I am trapped with the terrible EB-3 visa numbers and I am afraid that I will have to endure for years this terribly low wages. At the same time, I cannot complain to the employer for paying me such a limited wage as the company business has not been growing fast enough to pay us a higher salary. Is there any way I can refile the labor certification for EB-2 under the PERM system, while I keep being paid at the current salary which is level I? A-3: There are two common misconceptions about the permanent resident proceeding in the business community. One is failure to distinguish between a temporary employment (i.e. H-1B) and a permanent employment (labor certification). The second is failure to distinguish between the wage for a temporary position and the wage for a permanent position. The H-1B alien is not authorized to take a permanent job until the green card is approved because he/she is a "temporary" worker who is authorized to work for a limited period of time under the law and not for a period of indefinite duration. Accordingly, conceptually, H-1B job which is the present job and the labor certification job which is a future job are two separate employments. Accordingly, the duties and responsibilities of the H-1B job and the labor certification job do not have to be exactly same. Besides, when it comes to the level of job and the amount of salary, if the H-1B job is level I job, the employer is permitted to pay the level I wages for the "temporary" employment regardless of your experience, and at the same time, can offer you a higher-wage for permanent employment, depending on the duties and responsibilities in the labor certification application. If the labor certification "permanent" employment salary is higher than H-1B salary, the employer is just obligated to prove two things: Existence of the permanant position for future employment and financial ability to pay the labor certification level salary at the time of labor certification filing and I-140 petition filing. Inasmuch as the employer can establish by financial record that the employer had enough net income or sufficient assets, the employer does not have to prove that the alien beneficiary has been and is paid the labor certification salary while the employer goes through the labor certification and I-140 petition process. To answer your question, your employer can file a PERM application for the EB-2 occupation, and meanwhile keep hiring you with the current temporary H-1B position inasmuch as the three conditions are met: (1) Your employer must be prepared to prove that the EB-2 job indeed exists and is not a speculative position. (2) Financial record of the company shoud show either net income in excess of the labor certification salary or sufficient assets that can be converted to operating expenses to pay the labor certification salary "at the time of filing of the labor certification application" and "at the time of filing of I-140 petition." (3) You and your employer are prepared to abandon the pending RIR application at the Backlog Elimination Center because there is some chance that the DOL may deny RIR case once they learn that your PERM has been approved. This means that you may lose your RIR priority date. However, considering the fact that unlike the Chinese or Indians, Filipinos are not likely to face a serious visa number retrogression for EB-2 in the future, the third factor may not weigh too heavily in your decision making process. All in all, the question boils down to your employer's burden to prove existence of permanent employment and financial ability to pay. Once your answers to these first two factors are positive, you may seek legal counsel to consider filing a PERM application as soon as possible.
  • Q-2 (11-11-05): I am an Indian and want to apply for EB-2 immigrant status. I do not have a master's degree. But I have 5 years and 6 months verifiable work experience. One year of experience was gained before I received a bachelor's degree. My employer has filed a labor certification requiring a bachelor's degree and 5 years of progressive experience. Can I file EB-2 petition once this labor certification is certified? A-2: When it comes to the experience gained before a bachelor's degree and after a bachelor's degree, the AAO has been treating such experience different between EB-2 and EB-3. For the EB-3, since you only have to prove a two-years of experience in the worst case and you do not have to prove that the offered job is a "professional" job, the USCIS has been in pactice in allowing people to use such internship experience to prove experience. (Please refer to the Oregon federal court decision which I just posted today, Grace Korean United Methodist Church v. Michaeil Chertoff, November 3, 2005). However, when it comes to the EB-2, you are required to prove that the position is a "professional" occupation and you must prove that the progressive experience was gained at the professional level. Any experience which was gained before you attained the Bachelor's degree is not counted towards 5 years of progressive experience. Only the post-graduation work experience is counted for the purpose of establishing BS+5 years of experience. But what you will have to do is that once your labor certification is certified, you may want to file EB-2 I-140 and EB-3 I-140 concurrently just to take a chance for EB-2. Sometimes, the adjudicators are not attuned to the rules and they approve the petition. Since you will be entitled to EB-3 under any circumstances, even though EB-3 (please make it sure in your cover letter letter that you are seeking "professional/skilled worker"classification rather than "professional" only), you will obtain approval of I-140 petition regardless of denial of EB-2 petition. If you just file one I-140 petition requesting EB-2 only, the agency may deny your I-140 petition rather than processing it as EB-3 petition. It is one thing that the DOL accepted your experience for the purpose of labor certification and it is the other that the USCIS will accept such experience for the purpose of the EB-2. Remember that the USDOL is not an agency to determine the level of the EB classification. It is the USCIS that determines your EB classification and eligibility for specific EB classification.
  • Q-1 (11-11-05): I have a Master''s degree in Computer Science and three (3) years of experience. I have a job offer from an employer in New York that has a certified labor certification application that required a Bachelor's degree in Computer Science and five (5) years of experience. The employer filed this case for EB-2 case. Since I have a Master's degree and am qualified for EB-2, I figure that I can use this certified labor certication for substitution. Am I right? A-1: No, you are not right. The USCIS goes by the qualification requirements in the labor certification application to determine whether the alien beneficiary is qualified for the job. It is true that both (1) the requirement of a Master's degree and (2) the requirement of a Bachelor's degree plus 5 years of progressive experience are separately qualified for the EB-2. But it does not mean that one qualification can substitute the other alternative qualification requirement. The labor certification for EB-2 includes: (1) Master's degree requirement or (2) Bachelor's degree plus 5 years of progressive experience requirement or (3) Master degree or alternatively Bachelor's degree plus 5 years of progressive experience requirement. The Master's degree holder can be qualified only for (1) and (3). The Bachelor's degree holder with 5 years of progressive experience can be qualified only for (2) and (3). In your case, you only have a Master's degree and 3 years of work experience, and you cannot use the certified labor certification application for substitution that required a Bachelor's degree plus 5 years of progressive experience.
    
    
    October 1, 2005 Retrogression Q&A