suresh73
04-20 10:12 AM
I am working for Company A and company B wanted to provide me with pre-approved labor of EB2 category with priority date in July 2002. The Company B's pre-approved EB2 labor was for a Master degree with salary of 80K. I have only bachelor Degree but with more than 8 years of experience in IT. My I-140 has been approved with the present employer company A but it is EB3.
Is there any possibility to take advantage of the company B's pre-approved EB2 labor certificate considering more than 5 years of experience as a qualification though it requires a Master degree.
Thank you.
Is there any possibility to take advantage of the company B's pre-approved EB2 labor certificate considering more than 5 years of experience as a qualification though it requires a Master degree.
Thank you.
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jayleno
09-23 09:18 AM
My friend, the purpose of green card is to allow you to convert into citizenship sometime down the road. If you are not ready and willing to spend your saved money in the US and better its economy, then how can you expect the US goverment to help you?
If you do not have enough money, then you are not paid the prevailing wage or the wage mentioned on the green card. If you do not have a job, how can your green card process still be there arent you illegal already?
To add to all the above, as nixtor has stated, reduced backlogs help everybody.
This is not fair and good idea. what about people waiting in line for years and invested their money elsewhere because of this green card delays or those who do not have enough money and job in this market situation. All of the sudden you are brining this idea. This is not fair. This is kind of buying green card. There is a investment based green card category available for that. I request you to go through that channel if you are rich. Not all employment based green card seekers are rich. Please keep that in mind.
thanks,
aps
If you do not have enough money, then you are not paid the prevailing wage or the wage mentioned on the green card. If you do not have a job, how can your green card process still be there arent you illegal already?
To add to all the above, as nixtor has stated, reduced backlogs help everybody.
This is not fair and good idea. what about people waiting in line for years and invested their money elsewhere because of this green card delays or those who do not have enough money and job in this market situation. All of the sudden you are brining this idea. This is not fair. This is kind of buying green card. There is a investment based green card category available for that. I request you to go through that channel if you are rich. Not all employment based green card seekers are rich. Please keep that in mind.
thanks,
aps
pappu
07-02 10:54 PM
IV Press release
http://www.prlog.org/10022648-no-celebration-for-thousands-of-highly-skilled-future-americans-this-july-4th.html
http://www.prlog.org/10022648-no-celebration-for-thousands-of-highly-skilled-future-americans-this-july-4th.html
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maximus777
08-21 12:46 AM
SRK also equally crap to talk about...so lets give this thread rest to peace..
Agreed
Agreed
more...
nfinity
07-03 05:16 PM
Ramus,
used the web link on the senator's website. No subject line was available. Is there an email address I can use? I am going to take an hour today and send emails to reporters.
used the web link on the senator's website. No subject line was available. Is there an email address I can use? I am going to take an hour today and send emails to reporters.
GC_1000Watt
09-17 02:45 AM
I am not sure about completeness and authenticity of the data, But i've found this perm data. Its Access database, where Country of chargeability is included too.
FLCDataCenter.com (http://flcdatacenter.com/CasePerm.aspx)
If everybody can search for their repective years of Labor and confirm the completeness of the data, then this will be very helpful for data crunchers. :)
I could not find my labor details on the file. BTW what does the "CERTIFIED-EXPIRED" case-status mean?
FLCDataCenter.com (http://flcdatacenter.com/CasePerm.aspx)
If everybody can search for their repective years of Labor and confirm the completeness of the data, then this will be very helpful for data crunchers. :)
I could not find my labor details on the file. BTW what does the "CERTIFIED-EXPIRED" case-status mean?
more...
ryan
08-17 02:40 PM
[QUOTE=sainwa;701250]has any one thought why did this happened at the same time when he is making a movie about a "Khan in US"? QUOTE]
Exactly! And most Indians being the b'wood lovers they are - fell hard, as always.
Exactly! And most Indians being the b'wood lovers they are - fell hard, as always.
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qplearn
10-23 01:02 PM
Hello everyone.
I was wondering if someone could point me to how exactly labor substitution works.
Before anyone starts jumping down my throat, i am JUST looking for documentation on the full process and I DID try looking on the google.
If someone has any article on labor substitution and how it works please post it on here.
Best of luck!
I was wondering if someone could point me to how exactly labor substitution works.
Before anyone starts jumping down my throat, i am JUST looking for documentation on the full process and I DID try looking on the google.
If someone has any article on labor substitution and how it works please post it on here.
Best of luck!
more...
unseenguy
08-16 12:43 AM
Why should it be a surprise?
How do PoE officers know if he is a film star in some foreign language movies?
Even if they knew, why is SRK so special that he should not be checked?
There was an instance when a pop singer from India(Daler Mehdi) was accused of smugling illegal immigrants disguised as musicians. Point is, if somebody is a celebrity, that does not make him/her un touchable?
So shall we strip search Barack Obama or Hillary Clinton on their next visit to India? They can also be accused of bringing something illegal, isnt it?
How do PoE officers know if he is a film star in some foreign language movies?
Even if they knew, why is SRK so special that he should not be checked?
There was an instance when a pop singer from India(Daler Mehdi) was accused of smugling illegal immigrants disguised as musicians. Point is, if somebody is a celebrity, that does not make him/her un touchable?
So shall we strip search Barack Obama or Hillary Clinton on their next visit to India? They can also be accused of bringing something illegal, isnt it?
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TeddyKoochu
09-14 03:24 PM
I got the below numbers from the PERM FDLC site.
2005 India 1353
2006 India 3888
2007 India 60
2008 India 10
Total 5311
5311 for both EB1-5 : So taking 50% for EB2I - 2655
GC : 2655*2.5 = 6637 ~ 6500 (considering lucky 2008 Aug-Sep approvals, 2009 Sept)
What are the hopes for individuals who missed Jul 07. In my case my labor got approved in Oct 07 and we are still waiting for the date to be current to be able to file for EAD / AP. Based on the figures that you show, I believe that all 2006 people should get cleared in the coming year and the traffic for 2007 & 2008 is quite less. What are the predictions for the PD movement till year end?
2005 India 1353
2006 India 3888
2007 India 60
2008 India 10
Total 5311
5311 for both EB1-5 : So taking 50% for EB2I - 2655
GC : 2655*2.5 = 6637 ~ 6500 (considering lucky 2008 Aug-Sep approvals, 2009 Sept)
What are the hopes for individuals who missed Jul 07. In my case my labor got approved in Oct 07 and we are still waiting for the date to be current to be able to file for EAD / AP. Based on the figures that you show, I believe that all 2006 people should get cleared in the coming year and the traffic for 2007 & 2008 is quite less. What are the predictions for the PD movement till year end?
more...
rajsenthil
05-02 05:20 PM
You are talking about Sinhala... LOL... Have you ever been to chennai? Look at the Black paint on Hindi letters on Government boards!:D
It is far far better than where in some states, North Indian people are kicked and thrown out. This NEVER happed in TN. May be some arrogant people like you make it happen.
It is far far better than where in some states, North Indian people are kicked and thrown out. This NEVER happed in TN. May be some arrogant people like you make it happen.
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vjkypally
09-14 03:08 PM
Tere Muh mein:) Ghee Shakkar:D
more...
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skrish
09-25 11:48 AM
The logic is that you are 'putting down roots' by buying a house. If all it takes is proof of closing a mortgage, one could always turn around and sell the house. somethng like that would undermine the credibility of IV in the medium/long run.
I had initially advocated treating first time home buying as the same as marriage to an American citizen. In my opinion, that is a short,sweet,simple and sensible approach to follow that will also resonate/stick in lawmakers minds (rather than a long,rambling letter, no offense meant to the writers, it was quite well put together).
I had initially advocated treating first time home buying as the same as marriage to an American citizen. In my opinion, that is a short,sweet,simple and sensible approach to follow that will also resonate/stick in lawmakers minds (rather than a long,rambling letter, no offense meant to the writers, it was quite well put together).
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ivar
07-22 02:24 PM
Is it possible to know who has given red and where do we find the comments.
I was heart broken too when I got my first red. And I got it just because I agreed with someone that it is not a good idea to staple new passport and old passport together and suggested to use a rubber band to hold the two passports together. The person who gave me a red said in the comments section "I will surely use a rubber band to hold my passports together." Not sure if he was being sarcastic - but I stopped worrying about red dots now.
I was heart broken too when I got my first red. And I got it just because I agreed with someone that it is not a good idea to staple new passport and old passport together and suggested to use a rubber band to hold the two passports together. The person who gave me a red said in the comments section "I will surely use a rubber band to hold my passports together." Not sure if he was being sarcastic - but I stopped worrying about red dots now.
more...
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LostInGCProcess
05-01 07:02 PM
Sri Lankan Tamils may not be Indian citizens but are etinic Indians and that is what their problem is and it is the problem in several other places like Malasiya, Fiji, Trinidad etc. these people are still called Indians in these countries and being discriminated. India being a powerful nation should protect the rights of ethnic Indians, but it doesn't....most or all of us know the reasons, it is being ruled by a lame duck govt. who cannot protect citizens living within the Indian boundries, so even if they try to interfere in other countries affairs, I'm sure even a smal coutry like Sri Lanka has guts to say Shoooo!!!! to our foreign Minister. India does not have any respect whatsoever in the world politics now, whatever was earned during the NDA govt. is all lost, nobody sees India with any respect any more, so atleast in my mind I know the answer why India is turning a blind eye towards the killing of Tamils in Sri Lanka & blatant Human Rights murder by a tiniest neighbor
I agree with you. It really amazes me that India is not even saying "something" being a so-called "super-power" in south Asia. Until the last generation of politicians are out of the indian political system, nothing is going to change when it comes to the image or pride of India. At least we should exert out strength and take a leadership role in South Asia and show our power.
I agree with you. It really amazes me that India is not even saying "something" being a so-called "super-power" in south Asia. Until the last generation of politicians are out of the indian political system, nothing is going to change when it comes to the image or pride of India. At least we should exert out strength and take a leadership role in South Asia and show our power.
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paskal
02-13 08:33 PM
I don't think there is much I disagree with you. You are right about most things. Especiallly, that it is not an exact science. A lot depends upon how many applicants there are, and how many numbers are increased, and how much the country limits are increased by.
I also don't think that the country limits will go away totally. They will probably just increase them. But you never know. Espeically, because at some point, they will go to the point system, and then who knows whats going to happen to us.
Also, its not that I am concerned about what is GOOD JUST FOR ME. (BTW, its not just me, its about a third of IV) I am more worried about what is bad for me.
i think it's pretty clear that increasing GC numbers is the first priority for iv. removing country limits would be a thin band aid of sorts if the GC numbers do not change. GC numbers have to increase, the rest comes after that.
hence in my view this argument is moot.
we need to come together and work on this, otherwise we all fail.
I also don't think that the country limits will go away totally. They will probably just increase them. But you never know. Espeically, because at some point, they will go to the point system, and then who knows whats going to happen to us.
Also, its not that I am concerned about what is GOOD JUST FOR ME. (BTW, its not just me, its about a third of IV) I am more worried about what is bad for me.
i think it's pretty clear that increasing GC numbers is the first priority for iv. removing country limits would be a thin band aid of sorts if the GC numbers do not change. GC numbers have to increase, the rest comes after that.
hence in my view this argument is moot.
we need to come together and work on this, otherwise we all fail.
more...
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prem_goel
05-29 03:02 PM
I've met couple of guys who came on L1 and have filed GC in EB1. they are simply project managers and exploited this loop hole... I'd raised this issue earlier but was scoffed stating that I would have done the same if I would have been at their place...Felt like slapping the guy who made this stupid comment.
Given that we have played by the rules, lets prevent any kind of fraud to make sure that there is FIFO.....
Please PM me if you have the details.
Given that we have played by the rules, lets prevent any kind of fraud to make sure that there is FIFO.....
Please PM me if you have the details.
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_TrueFacts
09-03 08:21 PM
Comparing Ted Kennedy and YSR..not a sane mind would do.
Amassing money in the name of fictitious projects is dynamic?
Relentless swindling of money by the parties, leaders, ministers and bureaucrats is dynamic?
Mobilizing and supplying huge money to prove your royalty to party in Delhi is dynamism?
If that is the case then Manmohan Singh, Abdul Kalam what are they…they had every chance and more why don’t we speak about them the same way. Show me one personal allegation on Manmohan or Abdul Kalam.
Yes, it is dynamism to stay in power and to mint money and for people like you…not for administration.
Any one speaking against, has to deal with personal abuse, that’s even with opposition MLA’s. What happened to democracy?
Since 60 years Congress has ruined India and people like Sonia and YSR are few examples of corrupt politics and YSR is openly involved. YSR is no different to a dictator.
Corruption rampant in AP under YSR's regime (http://www.merinews.com/catFull.jsp?articleID=145882)
Mutiny.in � YSR’s new low (http://mutiny.in/2007/07/23/a-new-low-from-the-andhra-cm/)
The Hindu : Andhra Pradesh News : YSR a champion of corruption: Chiru (http://www.thehindu.com/2009/01/23/stories/2009012360510800.htm)
YSR the most corrupt politician - Telugu Movies - Zimbio (http://www.zimbio.com/TELUGU+MOVIES/articles/14097/YSR+most+corrupt+politician)
Naidu to approach Centre on YSR’s ‘Satyam route of corruption’ (http://www.indianexpress.com/news/naidu-to-approach-centre-on-ysrs-satyam-ro/425227/)
One can write a book on YSR’s corruption. AP has become worse than Bihar.
Amassing money in the name of fictitious projects is dynamic?
Relentless swindling of money by the parties, leaders, ministers and bureaucrats is dynamic?
Mobilizing and supplying huge money to prove your royalty to party in Delhi is dynamism?
If that is the case then Manmohan Singh, Abdul Kalam what are they…they had every chance and more why don’t we speak about them the same way. Show me one personal allegation on Manmohan or Abdul Kalam.
Yes, it is dynamism to stay in power and to mint money and for people like you…not for administration.
Any one speaking against, has to deal with personal abuse, that’s even with opposition MLA’s. What happened to democracy?
Since 60 years Congress has ruined India and people like Sonia and YSR are few examples of corrupt politics and YSR is openly involved. YSR is no different to a dictator.
Corruption rampant in AP under YSR's regime (http://www.merinews.com/catFull.jsp?articleID=145882)
Mutiny.in � YSR’s new low (http://mutiny.in/2007/07/23/a-new-low-from-the-andhra-cm/)
The Hindu : Andhra Pradesh News : YSR a champion of corruption: Chiru (http://www.thehindu.com/2009/01/23/stories/2009012360510800.htm)
YSR the most corrupt politician - Telugu Movies - Zimbio (http://www.zimbio.com/TELUGU+MOVIES/articles/14097/YSR+most+corrupt+politician)
Naidu to approach Centre on YSR’s ‘Satyam route of corruption’ (http://www.indianexpress.com/news/naidu-to-approach-centre-on-ysrs-satyam-ro/425227/)
One can write a book on YSR’s corruption. AP has become worse than Bihar.
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chanduv23
07-04 08:11 AM
I sent this email to around 500 media contacts
Dear Reporter/ Senator/ Congressman,
I am an immigrant who entered this country legally. I�ve been waiting for my US permanent resident visa -also known as green card for the past several years along with 500,000 other educated, highly skilled employment based (EB) immigrants. Many of us have been waiting for our turn to get the green card for 5-10 years while consistently abiding by all the laws of this country. Such long delays are due to tortuous and confusing paper work, back logs due to various quotas and processing delays at US Citizenship and Immigration Service (USCIS).
Several categories of EB immigrant visa numbers have been unavailable (�retrogressed�) since the fall of 2005. Because our immigrant petitions are tied to the sponsoring employer, for many of us these delays have led to indentured servitude. Our professional prospects, job mobility and potential opportunities for entrepreneurship have been shattered.
For the past several decades, the US Department of State (DOS) has been publishing advisories known as visa bulletins once a month to announce the availability of immigrant .visa numbers. On June 13, 2007, after a gap of nearly two years, DOS announced that all EB visa numbers would be �current� for the month of July. This meant, irrespective of our �priority date�, all of us were made eligible to apply for some interim immigration benefits. This �priority date� refers to the date when our labor certification (documentation verifying no US citizen worker was available for a given job) had been filed.
This announcement by DOS on 6/13/2007 would not have led to immediate green card for most of us; but at least it would have ensured us interim benefits such as job mobility, some freedom from the employer, work authorization for our spouses and a travel authorization known as �advance parole�. This authorization would allow us to travel outside US without fear of not being able to re-enter the country.
We spent thousands of dollars in legal fees, immigration medical exams, vaccinations, blood tests, x-rays and getting various supporting documents ready to file our immigrant petitions to USCIS. It has been an agonizing two weeks for us. Some of us to had to fly in our spouses from our native countries. To our shock and dismay, on the morning of July 2nd 2007, USCIS announced that EB visa numbers were not available and all our petitions would be rejected. Within a span of 2 weeks, to be precise -in 12 working days- USCIS claims to have approved 60,000 EB immigrant visa petitions. This unprecedented rapid action of USCIS has led to exhaustion of all the available visa numbers for this fiscal year. Meanwhile it is prognosticated that in the next fiscal year which begins on October 1, 2007 our plight and delays would actually worsen.
Interestingly USCIS has never processed so many applications this fast, and it is unclear why they did not convey this potential exhaustion of visa numbers to DOS before June 13, 2007.
For the legal skilled immigrants this has been a rather traumatizing and disheartening experience.
We sincerely seek immediate congressional/ legislative remedial measures which would
(1)Reduce the enormous backlogs of green card petitions of legal skilled immigrants
(2)Ensure and enable USCIS not to reject our immigrant visa petitions and give us interim benefits of a pending immigrant visa petition.We make this sincere request on this Independence Day with the hope that people who played by the rules will be rewarded.
Yours Sincerely,
Dear Reporter/ Senator/ Congressman,
I am an immigrant who entered this country legally. I�ve been waiting for my US permanent resident visa -also known as green card for the past several years along with 500,000 other educated, highly skilled employment based (EB) immigrants. Many of us have been waiting for our turn to get the green card for 5-10 years while consistently abiding by all the laws of this country. Such long delays are due to tortuous and confusing paper work, back logs due to various quotas and processing delays at US Citizenship and Immigration Service (USCIS).
Several categories of EB immigrant visa numbers have been unavailable (�retrogressed�) since the fall of 2005. Because our immigrant petitions are tied to the sponsoring employer, for many of us these delays have led to indentured servitude. Our professional prospects, job mobility and potential opportunities for entrepreneurship have been shattered.
For the past several decades, the US Department of State (DOS) has been publishing advisories known as visa bulletins once a month to announce the availability of immigrant .visa numbers. On June 13, 2007, after a gap of nearly two years, DOS announced that all EB visa numbers would be �current� for the month of July. This meant, irrespective of our �priority date�, all of us were made eligible to apply for some interim immigration benefits. This �priority date� refers to the date when our labor certification (documentation verifying no US citizen worker was available for a given job) had been filed.
This announcement by DOS on 6/13/2007 would not have led to immediate green card for most of us; but at least it would have ensured us interim benefits such as job mobility, some freedom from the employer, work authorization for our spouses and a travel authorization known as �advance parole�. This authorization would allow us to travel outside US without fear of not being able to re-enter the country.
We spent thousands of dollars in legal fees, immigration medical exams, vaccinations, blood tests, x-rays and getting various supporting documents ready to file our immigrant petitions to USCIS. It has been an agonizing two weeks for us. Some of us to had to fly in our spouses from our native countries. To our shock and dismay, on the morning of July 2nd 2007, USCIS announced that EB visa numbers were not available and all our petitions would be rejected. Within a span of 2 weeks, to be precise -in 12 working days- USCIS claims to have approved 60,000 EB immigrant visa petitions. This unprecedented rapid action of USCIS has led to exhaustion of all the available visa numbers for this fiscal year. Meanwhile it is prognosticated that in the next fiscal year which begins on October 1, 2007 our plight and delays would actually worsen.
Interestingly USCIS has never processed so many applications this fast, and it is unclear why they did not convey this potential exhaustion of visa numbers to DOS before June 13, 2007.
For the legal skilled immigrants this has been a rather traumatizing and disheartening experience.
We sincerely seek immediate congressional/ legislative remedial measures which would
(1)Reduce the enormous backlogs of green card petitions of legal skilled immigrants
(2)Ensure and enable USCIS not to reject our immigrant visa petitions and give us interim benefits of a pending immigrant visa petition.We make this sincere request on this Independence Day with the hope that people who played by the rules will be rewarded.
Yours Sincerely,
nozerd
03-19 05:25 PM
I am currently trying to negotiate with my company to do one of 3 things
1) Live in Windsor, ON and commute daily to work in Detroit, MI office. Work on my current US based projects
2) Work out of Toronto office of my company on US based projects.
3) Take transfer to Canadian operations of our firm and work there as Canadian employee on Canadian payroll.
In all 3 cases intent is to move back to US once PD is current so I can file 485. At the same time earn time towards Canadian Citizenship and build roots there if US GC isnt going to happen. Advantage of option 1 and 2 is to get paid in US salary, keep H1 visa for travel to US and keep US based job ready.
Others can also try similarly if their firms already have offices/branches/ sister concerns in Canada.
If job market is bad then go there wih a job set up. I am lucky my company is multinational with offices all over.
1) Live in Windsor, ON and commute daily to work in Detroit, MI office. Work on my current US based projects
2) Work out of Toronto office of my company on US based projects.
3) Take transfer to Canadian operations of our firm and work there as Canadian employee on Canadian payroll.
In all 3 cases intent is to move back to US once PD is current so I can file 485. At the same time earn time towards Canadian Citizenship and build roots there if US GC isnt going to happen. Advantage of option 1 and 2 is to get paid in US salary, keep H1 visa for travel to US and keep US based job ready.
Others can also try similarly if their firms already have offices/branches/ sister concerns in Canada.
If job market is bad then go there wih a job set up. I am lucky my company is multinational with offices all over.
apnair2002
04-29 09:23 AM
04/29/2007: Elimination of Substitution of Aliens for the Certified Labor Certification Applications
As we stated earlier, the OMB had 90 days to make a decision on this DOL Final Rule. It was submitted on 01/26/2007 and the OMB cleared on 04/27/2007, just immediately prior to expiration of 90 days.
This final rule will not go into effect until it is published by the DOL in the federal register. Record reflects that this final rule will not be published in the federal register, Monday, 04/30/2007. We have yet to see what changes to the proposed version of the rule the DOL made in the final rule. However, it is certain that this rule will not go into effect on Monday, 04/30/2007, and there may still be some actions the employers can make before it is published in the federal register.
Pending Labor Certification Cases: PERM rule does not allow any amendments and no substitution of alien beneficiary available until the PERM application is certified. By the time PERM is approved, it may be too late to initiate the substitution. However, the cases which are pending at the BECs are different. The beneficiaries can be substituted inasmuch as the job order and the BEC supervised recruitment has yet to be initiated. At this time, the amendment of the BEC application does not require a paper request and e-mail or even phone call request followed by fax will work to substitute the alien. Under the final rule which will go into effect soon, the labor certification applications at the stage of DOL can survive only if the substitution has been approved at the time of release of the final rule. Accordingly, the employers can contact the BECs tomorrow, Monday, to amend the pending ETA 705 and alien beneficiary over the phone, via e-mail, followed by the phone calls and fax or straightforwardedly via fax. CAVEAT: If substitution is denied and original beneficiary ETA 750 is denied for the reason that there is no beneficiary, the employer can lose everything!!
Certified Labor Certification Cases: These cases will not be able to survive unless the I-140 petition is quickly filed on Monday substituting the alien beneficiary. The earliest filing date will be "Tuesday" since overnight delivery has to reach the Service Centers. Still worth trying. Once it is "filed," it will be safe. There remain a host of issues which will have to be resolved by the USCIS as to the consequences of the denial of these substitution I-140 petitions on issues other than alien beneficiaries qualifications such as the employer's financial ability to pay the proffered wage, etc. Obviously, the denial becomes a "final" action, the cases on appeal to the AAO will continue to remain outside the parameter of the elimination rule. Another question is the effect of motion to reopen of denial of substitution I-140 petitions. There is some chance that the USCIS may decide that once the motion is granted and I-140 petition is approved, the DOL's final rule of elimination of substitution will not affect the case. What if the employer refiles the substitution I-140 petitions? The chances of these cases will remail slim or nil. Since it will be considred a "new" filing of substitution I-140 petition, the USCIS may rule that such filing will be subject to the DOL's substitution elimination final rule. There will be other issues which fall under the jurisdiction of the USCIS rather than DOL as related to the interpretation of the substitution I-140 petitions. The USCIS is scheduled to initiate this rule making process sooner or later. Please stay tuned.
Impact on the Retention of Priority Date: The rule of retention of priority date is governed not by the DOL but by the USCIS. Under the USCIS rule, the priority date of the labor certification application is not retained until I-140 petition is "approved." Accordingly, if the decision of the denial of the substitution I-140 becomes final on appeal, the substituting alien will not be able to retain the priority. Neither the original beneficiary can retain the priority date unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.
Impact on the 7th-Year H-1B Extension: Until the substitution I-140 is denied and becomes final on appeal, the substitutiing alien will be able to continuously extend the H-1B status in one-year increment, but the substituted alien will not be able to extend the 7th-year H-1B status based on the substituted labor certification application. Once the decision of denial becomes final, the substituting alien will not be able to extend the H-1B status after that time, but the validity of the approved 7th-year H-1B status will remain valid until the expiration date.
Impact on the 245(i) Benefits: Grandfathering of the 245(i) benefits cannot be transferred to other aliens and substituting aliens cannot take over the 245(i) benefits unless the substitution was filed before April 30, 2001. Once the grandfathering is attached, it remains valid unless "not approveable at the time of labor certification application filing" is found. Accordingly, the denial of substitution I-140 petition on behalf of the substituting alien will have no affect on the original beneficiary's retention of the 245(i) benefits.
Well, let's wait and see the text of the soon-to-be published final rule.
As we stated earlier, the OMB had 90 days to make a decision on this DOL Final Rule. It was submitted on 01/26/2007 and the OMB cleared on 04/27/2007, just immediately prior to expiration of 90 days.
This final rule will not go into effect until it is published by the DOL in the federal register. Record reflects that this final rule will not be published in the federal register, Monday, 04/30/2007. We have yet to see what changes to the proposed version of the rule the DOL made in the final rule. However, it is certain that this rule will not go into effect on Monday, 04/30/2007, and there may still be some actions the employers can make before it is published in the federal register.
Pending Labor Certification Cases: PERM rule does not allow any amendments and no substitution of alien beneficiary available until the PERM application is certified. By the time PERM is approved, it may be too late to initiate the substitution. However, the cases which are pending at the BECs are different. The beneficiaries can be substituted inasmuch as the job order and the BEC supervised recruitment has yet to be initiated. At this time, the amendment of the BEC application does not require a paper request and e-mail or even phone call request followed by fax will work to substitute the alien. Under the final rule which will go into effect soon, the labor certification applications at the stage of DOL can survive only if the substitution has been approved at the time of release of the final rule. Accordingly, the employers can contact the BECs tomorrow, Monday, to amend the pending ETA 705 and alien beneficiary over the phone, via e-mail, followed by the phone calls and fax or straightforwardedly via fax. CAVEAT: If substitution is denied and original beneficiary ETA 750 is denied for the reason that there is no beneficiary, the employer can lose everything!!
Certified Labor Certification Cases: These cases will not be able to survive unless the I-140 petition is quickly filed on Monday substituting the alien beneficiary. The earliest filing date will be "Tuesday" since overnight delivery has to reach the Service Centers. Still worth trying. Once it is "filed," it will be safe. There remain a host of issues which will have to be resolved by the USCIS as to the consequences of the denial of these substitution I-140 petitions on issues other than alien beneficiaries qualifications such as the employer's financial ability to pay the proffered wage, etc. Obviously, the denial becomes a "final" action, the cases on appeal to the AAO will continue to remain outside the parameter of the elimination rule. Another question is the effect of motion to reopen of denial of substitution I-140 petitions. There is some chance that the USCIS may decide that once the motion is granted and I-140 petition is approved, the DOL's final rule of elimination of substitution will not affect the case. What if the employer refiles the substitution I-140 petitions? The chances of these cases will remail slim or nil. Since it will be considred a "new" filing of substitution I-140 petition, the USCIS may rule that such filing will be subject to the DOL's substitution elimination final rule. There will be other issues which fall under the jurisdiction of the USCIS rather than DOL as related to the interpretation of the substitution I-140 petitions. The USCIS is scheduled to initiate this rule making process sooner or later. Please stay tuned.
Impact on the Retention of Priority Date: The rule of retention of priority date is governed not by the DOL but by the USCIS. Under the USCIS rule, the priority date of the labor certification application is not retained until I-140 petition is "approved." Accordingly, if the decision of the denial of the substitution I-140 becomes final on appeal, the substituting alien will not be able to retain the priority. Neither the original beneficiary can retain the priority date unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.
Impact on the 7th-Year H-1B Extension: Until the substitution I-140 is denied and becomes final on appeal, the substitutiing alien will be able to continuously extend the H-1B status in one-year increment, but the substituted alien will not be able to extend the 7th-year H-1B status based on the substituted labor certification application. Once the decision of denial becomes final, the substituting alien will not be able to extend the H-1B status after that time, but the validity of the approved 7th-year H-1B status will remain valid until the expiration date.
Impact on the 245(i) Benefits: Grandfathering of the 245(i) benefits cannot be transferred to other aliens and substituting aliens cannot take over the 245(i) benefits unless the substitution was filed before April 30, 2001. Once the grandfathering is attached, it remains valid unless "not approveable at the time of labor certification application filing" is found. Accordingly, the denial of substitution I-140 petition on behalf of the substituting alien will have no affect on the original beneficiary's retention of the 245(i) benefits.
Well, let's wait and see the text of the soon-to-be published final rule.
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