sledge_hammer
07-16 08:33 AM
Hi,
Why would notification be necessary? Isn't an I-9 form (w/ EAD as proof of work permit) being present at the employer's location sufficient?
I haven't heard of any employer "notifying" USCIS about an employee's EAD status!
Thanks!
It is an error on USCIS part, may be because you (or your spouse's employer) have not notified the USCIS about your spouse using the EAD for employment.
Why would notification be necessary? Isn't an I-9 form (w/ EAD as proof of work permit) being present at the employer's location sufficient?
I haven't heard of any employer "notifying" USCIS about an employee's EAD status!
Thanks!
It is an error on USCIS part, may be because you (or your spouse's employer) have not notified the USCIS about your spouse using the EAD for employment.
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arihant
12-28 11:08 AM
All the gurus on this forum,
I have this questions and I have feeling some of you are considering doijng this;;;;
My I-140 and 485 was concurrently filed in Dec2002. I-140 got approved. 485 is pending.
As i decided that this GC process should not hold me captive i went ahead made plans for my MBA education. Now I have an admission from INSEAD france for classes starting 2007.
IF my employer gives me Pesonal Leave of Abscene for one year....without pay
can I take off for studies without impacting the GCprocess?
Since I will be moving out of my residenec should I inform the INS of a new address friends) so that they can send EAD/AP etc..
I would love to connect to anyone who is similar situation......
PLEASE respond
:(
Why is your 485 case pending since 2002? Is it stuck in Name Check or due to retrogression. I thought that 485 cases are progressing relatively fast as long as the case is not affected by retrogression and is not stuck in the black hole called "name check"!
I have this questions and I have feeling some of you are considering doijng this;;;;
My I-140 and 485 was concurrently filed in Dec2002. I-140 got approved. 485 is pending.
As i decided that this GC process should not hold me captive i went ahead made plans for my MBA education. Now I have an admission from INSEAD france for classes starting 2007.
IF my employer gives me Pesonal Leave of Abscene for one year....without pay
can I take off for studies without impacting the GCprocess?
Since I will be moving out of my residenec should I inform the INS of a new address friends) so that they can send EAD/AP etc..
I would love to connect to anyone who is similar situation......
PLEASE respond
:(
Why is your 485 case pending since 2002? Is it stuck in Name Check or due to retrogression. I thought that 485 cases are progressing relatively fast as long as the case is not affected by retrogression and is not stuck in the black hole called "name check"!
immi2006
08-30 09:32 AM
Talking to lawyer would be in ur best interest. We just put our thoughts collectively here. if you are stuck outside, do not blame us.
U can renew ur H1 6 months prior to expiry. Travel in and out depends on Visa stamping and the dates. If u have valid H1, and do not have a valid visa, then u need to get one too.
U can renew ur H1 6 months prior to expiry. Travel in and out depends on Visa stamping and the dates. If u have valid H1, and do not have a valid visa, then u need to get one too.
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InTheMoment
08-10 06:09 PM
This is not a proposal for a new law but regulations by the administration within the bounds of the current law.
My humble suggestion: Please do your homework before voicing your opinion.
guys, this kind of proposals have been raised million times in last 5 years. These guys are passing their time till next election. Nothing is going to happen till next election. So do not build any hopes. None of the proposal is going to be a law before election.
My humble suggestion: Please do your homework before voicing your opinion.
guys, this kind of proposals have been raised million times in last 5 years. These guys are passing their time till next election. Nothing is going to happen till next election. So do not build any hopes. None of the proposal is going to be a law before election.
more...
GlobalCitizen
07-27 10:31 AM
Thank you every one for your help. I have decided to apply!
pappu
07-01 08:21 PM
Let me tell you one thing, "You've got guts, buddy", Congrats on the bold move. not many people dare to do that.
Can he do so? - Theoratically yes, practically: highly unlikely.
if he is a typical consulting guy with less than 50 emps, he won't do it, because such employers almost always make "adjustments" that puts them in extremely weak spot during such law suits. here are some examples:
- a guy was laid off, his new employer sent him on a project even before filing for his H1 transfer
-many consulting companies do not pay salary while the guy is on "bench"
- they many times knowingly/unknowingly commit tax/accounting fraud or regulatory mistakes that can cause serius consequences
- a friend of mine was interrviewed by a client and when the result was positive, his new would be employer called him at a McDonalds and asked him to sign the contract right there (within 30 minute of meeting), and my friend did. Now most people won't see anything wrong in here. but a lawyer told me that my friend was not given enough time to read/understand a legal document and to talk to a lawyer ideally enough time is about 2 weeks. How many small consulting companies give 2 weeks when the interview at client is clear?
In your case, the end client is not your employer's client. Ask him to show the contract between him and the end client.
bottom line of the story is: there are many defenses that one can play and win the case and/or even put the employer in trouble. That's why most small employers don't do much beyond sending a lawyer's notice (just to scare you enough to write down a check). A real nasty guy can even go one step further and file a law suit only to withdraw it later if you decide to fiight it.
Good luck buddy!
We do see such threads on the forum occasionally. There are several instances where members have posted negative comments about consulting companies and how employees are unhappy working for them.
I want to understand the reasons why people are not filing lawsuits against such companies yet? Why are we not reporting them to DOL and USCIS? Especially after filing I485 and expiry of 6 months, people are in a better position to file lawsuits against such employers.
IV can help only if people are willing to be helped and ready to take action.
If this system needs to be cleansed, then why aren't we doing it?
Can he do so? - Theoratically yes, practically: highly unlikely.
if he is a typical consulting guy with less than 50 emps, he won't do it, because such employers almost always make "adjustments" that puts them in extremely weak spot during such law suits. here are some examples:
- a guy was laid off, his new employer sent him on a project even before filing for his H1 transfer
-many consulting companies do not pay salary while the guy is on "bench"
- they many times knowingly/unknowingly commit tax/accounting fraud or regulatory mistakes that can cause serius consequences
- a friend of mine was interrviewed by a client and when the result was positive, his new would be employer called him at a McDonalds and asked him to sign the contract right there (within 30 minute of meeting), and my friend did. Now most people won't see anything wrong in here. but a lawyer told me that my friend was not given enough time to read/understand a legal document and to talk to a lawyer ideally enough time is about 2 weeks. How many small consulting companies give 2 weeks when the interview at client is clear?
In your case, the end client is not your employer's client. Ask him to show the contract between him and the end client.
bottom line of the story is: there are many defenses that one can play and win the case and/or even put the employer in trouble. That's why most small employers don't do much beyond sending a lawyer's notice (just to scare you enough to write down a check). A real nasty guy can even go one step further and file a law suit only to withdraw it later if you decide to fiight it.
Good luck buddy!
We do see such threads on the forum occasionally. There are several instances where members have posted negative comments about consulting companies and how employees are unhappy working for them.
I want to understand the reasons why people are not filing lawsuits against such companies yet? Why are we not reporting them to DOL and USCIS? Especially after filing I485 and expiry of 6 months, people are in a better position to file lawsuits against such employers.
IV can help only if people are willing to be helped and ready to take action.
If this system needs to be cleansed, then why aren't we doing it?
more...
Libra
08-03 12:30 PM
Guys, I am july 2nd filer and i got my checks cashed and waiting for reciepts....your checks will be cashed soon dont worry........until then why start new threads on same topic....instead will go to contribution thread and will start our posting there.....howzatt
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snathan
03-31 01:16 PM
Not all L1 is bad
Not all H1B is bad
Not all consulting companies are bad
So why are we behaving like crabs?
Think from a perspecive of a legit L1 visa holder too
To anti Immigrants even your greencard is bad.
He will be happy if your greencard is made painful
Will you rejoice then?
What Sen is doing is looking at everything in black and white. He is making all L1 as bad. He shoud be suggesting fixes in L1 like giving more power to L1s to complain and protecting them if they complain. he should be making punishment tougher for fraud. But he is targetting the whole via and you are feeling happy about it. Just because you are not an L1 visa holder some of us are happy. Tommow if he does it to all EAD holders will you be happy?
Forget this Crab story...it’s a crap story written by one idiot followed by other idiots only when its adding value for their argument.
If not all, most of the L1 are abusive. I know a company paying 30K for L1. They no longer take H1B and lay off H1 people whoever was already working with them.
But how are they are going scot-free...all the expenses are billed to the client but shown as benefit to the employee.
So the client is losing , the employee is losing.
But I am not supporting this whatever is reported.
When they came for the communists,
I remained silent;
I was not a communist.
When they locked up the social democrats,
I remained silent;
I was not a social democrat.
When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.
When they came for the Jews,
I remained silent;
I wasn't a Jew.
When they came for me,
there was no one left to speak out.
Not all H1B is bad
Not all consulting companies are bad
So why are we behaving like crabs?
Think from a perspecive of a legit L1 visa holder too
To anti Immigrants even your greencard is bad.
He will be happy if your greencard is made painful
Will you rejoice then?
What Sen is doing is looking at everything in black and white. He is making all L1 as bad. He shoud be suggesting fixes in L1 like giving more power to L1s to complain and protecting them if they complain. he should be making punishment tougher for fraud. But he is targetting the whole via and you are feeling happy about it. Just because you are not an L1 visa holder some of us are happy. Tommow if he does it to all EAD holders will you be happy?
Forget this Crab story...it’s a crap story written by one idiot followed by other idiots only when its adding value for their argument.
If not all, most of the L1 are abusive. I know a company paying 30K for L1. They no longer take H1B and lay off H1 people whoever was already working with them.
But how are they are going scot-free...all the expenses are billed to the client but shown as benefit to the employee.
So the client is losing , the employee is losing.
But I am not supporting this whatever is reported.
When they came for the communists,
I remained silent;
I was not a communist.
When they locked up the social democrats,
I remained silent;
I was not a social democrat.
When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.
When they came for the Jews,
I remained silent;
I wasn't a Jew.
When they came for me,
there was no one left to speak out.
more...
gcformeornot
04-08 05:47 PM
1). I just mailed (paper filing) I-765 for renewal of EAD. Reason: Last year, because of a tiny/immaterial mistake (in e-filing) my EAD was delayed to close to 120 days..
2) As per filing instructions (feb,2010) I donot think you have any choice/option as to where to file.
Make your own choice, good luck.
are 2 locations based on states where you live.
Dallas and Phoenix.
If you live in:
Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Guam, or the Commonwealth of Northern Mariana Islands.
Mail your application to:
USCIS Phoenix Lockbox
For U.S. Postal Service (USPS) deliveries:
USCIS
PO Box 21281
Phoenix, AZ 85036
For Express mail and courier deliveries:
USCIS
Attn: AOS
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034
Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia
USCIS Dallas Lockbox
For U.S. Postal Service (USPS) Deliveries:
USCIS
PO Box 660867
Dallas, TX 75266
For Express mail and courier deliveries:
USCIS
Attn: AOS
2501 S. State Hwy. 121 Business
Suite 400
Lewisville, TX 75067
2) As per filing instructions (feb,2010) I donot think you have any choice/option as to where to file.
Make your own choice, good luck.
are 2 locations based on states where you live.
Dallas and Phoenix.
If you live in:
Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Guam, or the Commonwealth of Northern Mariana Islands.
Mail your application to:
USCIS Phoenix Lockbox
For U.S. Postal Service (USPS) deliveries:
USCIS
PO Box 21281
Phoenix, AZ 85036
For Express mail and courier deliveries:
USCIS
Attn: AOS
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034
Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia
USCIS Dallas Lockbox
For U.S. Postal Service (USPS) Deliveries:
USCIS
PO Box 660867
Dallas, TX 75266
For Express mail and courier deliveries:
USCIS
Attn: AOS
2501 S. State Hwy. 121 Business
Suite 400
Lewisville, TX 75067
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tinku01
07-17 10:29 AM
My details-
PD -June 2004, India
I-140 - approved Feb, 2007
CP applied - Aug, 2007
PD -June 2004, India
I-140 - approved Feb, 2007
CP applied - Aug, 2007
more...
number30
06-10 08:24 PM
Hello All,
I was reading at some of the posts in this forum and they seem to have been quiet helpful.
My company has decided to go ahead with my GC process.
Its in the very early stage, but my immigration specialist gave me a heads up regarding something.
She said, that as I have a 3 yrs BE degree the USCIS may not recognize me under EB2 category :confused: So I explained her the education system in India, but she said that it depends upon the Credential Evaluation Agency which will process my educational qualification and prepare a report and submit it to USCIS.
Following this USCIS will make a decision whether to grant EB2 or EB3 category.
I am sure many of the members may have faced a similar Dilemma....Is there any specific solution to this?
To be precise I completed my Diploma from Mumbai & Degree from Pune University, followed by MS in US and currently working on H1B.
Please Advice.
Thanks,
Shakti
It is not 3 years degree. All UK degrees are three years degrees and USCIS accepts the degree as equivalent. Important thing 16 years of education to attain the degree. Ask your evaluator to stress on the point that the your Bachelors was awarded after 16 years of education.
I was reading at some of the posts in this forum and they seem to have been quiet helpful.
My company has decided to go ahead with my GC process.
Its in the very early stage, but my immigration specialist gave me a heads up regarding something.
She said, that as I have a 3 yrs BE degree the USCIS may not recognize me under EB2 category :confused: So I explained her the education system in India, but she said that it depends upon the Credential Evaluation Agency which will process my educational qualification and prepare a report and submit it to USCIS.
Following this USCIS will make a decision whether to grant EB2 or EB3 category.
I am sure many of the members may have faced a similar Dilemma....Is there any specific solution to this?
To be precise I completed my Diploma from Mumbai & Degree from Pune University, followed by MS in US and currently working on H1B.
Please Advice.
Thanks,
Shakti
It is not 3 years degree. All UK degrees are three years degrees and USCIS accepts the degree as equivalent. Important thing 16 years of education to attain the degree. Ask your evaluator to stress on the point that the your Bachelors was awarded after 16 years of education.
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ilovestirfries
07-06 10:28 AM
I thought that Kaiser was only for Western States. Is it there for other places also?
A little peek into Kaiser's website will help you a long way in answering your basic questions...
Here is the info. about their locations,
http://members.kaiserpermanente.org/kpweb/toc.do?theme=locate_members
Here is their website, where you can do "SEARCH" before you ask any kind of basic questions,
http://www.kaiserpermanente.org/
A little peek into Kaiser's website will help you a long way in answering your basic questions...
Here is the info. about their locations,
http://members.kaiserpermanente.org/kpweb/toc.do?theme=locate_members
Here is their website, where you can do "SEARCH" before you ask any kind of basic questions,
http://www.kaiserpermanente.org/
more...
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technoboy
10-23 10:14 AM
Card Production Order. I saw this message on I- 765 application on-line check.
hope this help.
hope this help.
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WAIT_FOR_EVER_GC
11-11 12:51 PM
ASK THE LAWYER FOR FREE int the NOV 11 FREE ATTORNEY CALL
Every week there is a free call
Hi All,
I had worked for a company from Feb 2006 to Feb 2007 on an H-1B visa. I had applied for an H-1B extension via that company as their software engineer. I was granted that extension. After Feb 2007, i started working at a different company.
I applied for an H1B transfer as a software engineer with my current employer on Nov 27th 2006 through a law firm in Michigan. And last year my current company applied for my GC process in October 2009 under EB2 CATEGORY but with the same designation software engineer [level 2 as suggested by our lawyer] .I obtained a Master�s of Science in Management Information Systems from (University of Illinois at Springfield) in 2008 .I received my I-140 delivery notice in July 2010 stating that they have received his I-140 and it is now in process. I also received an approval on I-131 and I-765 just 2 weeks ago, I got a notice asking me and my wife to go for the biometrics test. Moreover, yesterday i.e. Nov 9th ,I received the EAD card for both me and my wife but unfortunately the very same day I get this Notice of Intent to Deny for I-140 requesting for evidence .
The notice states:
"��..The record contains a form ETA 9089 received by the department of labor on October 2009, thereby establishing a priority date in this matter. The petitioner certified in part H of that form that the proffered position is that of a "Software Engineer" and that the minimum level of education required to enter into that position is a Master's in Computer Science, Management Information Systems, Information Technology.
However the beneficiary also filed a form I-129, Petition for a non-immigrant worker in November 2006 (when i was working for the previous company) as a "Software Engineer". It is noted that the beneficiary did not have a master's degree at that time.
If the beneficiary entered into that H1B employment as a software engineer without a master's degree, the labor certificate will be invalidated since the master's level of education was not a minimum requirement. Please submit the evidence that the beneficiary obtained a master's degree prior to starting work for the petitioner as a software engineer.
The petition may be denied based on the above information. However u r hereby granted 30 days from the date of this letter to submit to this office a written rebuttal to the adverse information."
Also please note that we recently applied for my H1B extension as a programmer analyst as our lawyer had applied with this designation last year.
Now here my questions:
1. I applied for my H1B transfer with my current employer as Software engineer in 2006; I got my masters degree in Dec 2008. After consulting with my lawyer I filed for my GC in EB2 category as Software Engineer level 2 in Oct 2009. Now based on this why do you think we got this RFE? Is this a matter of concern or can it be a mistake? How can we resolve this?
2. The USCIS has asked me to provide evidence of my masters degree in 2006, but that is not true, I received it in 2008, what I have to prove is that my new job requires me to have my masters degree. But how do I do that since my work title is still just a software engineer but level 2 and in my organization level 2 software engineer requires masters degree?!!!
3. What is the worst case scenario? Is there a possibility that my I-140 will be rejected? What should my next step be then?
4. What will happen to all my approved forms (I-131 and I-765). Will they automatically get rejected too if my I-140 is denied?
5. Has anybody else had a similar case like mine? If yes, Please post your case out-comings on this thread.
6. What will happen to my EAD card? Can I change my status to EAD now or should I just wait?
7. Also we applied for H-1B extension as a different designation [Programmer Analyst]. So will that affect my GC process?
We have 30 DAYS to respond to this RFE. If u have any suggestions or advice Relating to my case please post them here ASAP. Please help us out on this.
Every week there is a free call
Hi All,
I had worked for a company from Feb 2006 to Feb 2007 on an H-1B visa. I had applied for an H-1B extension via that company as their software engineer. I was granted that extension. After Feb 2007, i started working at a different company.
I applied for an H1B transfer as a software engineer with my current employer on Nov 27th 2006 through a law firm in Michigan. And last year my current company applied for my GC process in October 2009 under EB2 CATEGORY but with the same designation software engineer [level 2 as suggested by our lawyer] .I obtained a Master�s of Science in Management Information Systems from (University of Illinois at Springfield) in 2008 .I received my I-140 delivery notice in July 2010 stating that they have received his I-140 and it is now in process. I also received an approval on I-131 and I-765 just 2 weeks ago, I got a notice asking me and my wife to go for the biometrics test. Moreover, yesterday i.e. Nov 9th ,I received the EAD card for both me and my wife but unfortunately the very same day I get this Notice of Intent to Deny for I-140 requesting for evidence .
The notice states:
"��..The record contains a form ETA 9089 received by the department of labor on October 2009, thereby establishing a priority date in this matter. The petitioner certified in part H of that form that the proffered position is that of a "Software Engineer" and that the minimum level of education required to enter into that position is a Master's in Computer Science, Management Information Systems, Information Technology.
However the beneficiary also filed a form I-129, Petition for a non-immigrant worker in November 2006 (when i was working for the previous company) as a "Software Engineer". It is noted that the beneficiary did not have a master's degree at that time.
If the beneficiary entered into that H1B employment as a software engineer without a master's degree, the labor certificate will be invalidated since the master's level of education was not a minimum requirement. Please submit the evidence that the beneficiary obtained a master's degree prior to starting work for the petitioner as a software engineer.
The petition may be denied based on the above information. However u r hereby granted 30 days from the date of this letter to submit to this office a written rebuttal to the adverse information."
Also please note that we recently applied for my H1B extension as a programmer analyst as our lawyer had applied with this designation last year.
Now here my questions:
1. I applied for my H1B transfer with my current employer as Software engineer in 2006; I got my masters degree in Dec 2008. After consulting with my lawyer I filed for my GC in EB2 category as Software Engineer level 2 in Oct 2009. Now based on this why do you think we got this RFE? Is this a matter of concern or can it be a mistake? How can we resolve this?
2. The USCIS has asked me to provide evidence of my masters degree in 2006, but that is not true, I received it in 2008, what I have to prove is that my new job requires me to have my masters degree. But how do I do that since my work title is still just a software engineer but level 2 and in my organization level 2 software engineer requires masters degree?!!!
3. What is the worst case scenario? Is there a possibility that my I-140 will be rejected? What should my next step be then?
4. What will happen to all my approved forms (I-131 and I-765). Will they automatically get rejected too if my I-140 is denied?
5. Has anybody else had a similar case like mine? If yes, Please post your case out-comings on this thread.
6. What will happen to my EAD card? Can I change my status to EAD now or should I just wait?
7. Also we applied for H-1B extension as a different designation [Programmer Analyst]. So will that affect my GC process?
We have 30 DAYS to respond to this RFE. If u have any suggestions or advice Relating to my case please post them here ASAP. Please help us out on this.
more...
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geniousatwork
03-31 12:16 PM
Congratulations...
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GC2B
03-30 10:52 PM
Congratulations....
A couple of questions, which could everybody in analysis
- Did you use EAD ?
- Did you use AC21 ?
Thanks
A couple of questions, which could everybody in analysis
- Did you use EAD ?
- Did you use AC21 ?
Thanks
more...
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yestogc
11-17 02:26 PM
using AP with H1B will not affect your h1b status in anyway.
Go with what roseball said ..................... 100% true
Go with what roseball said ..................... 100% true
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vxg
10-15 11:25 AM
Thanks. Can someone get me USCIS contact number to get the status on receipts.....
dial 1-800-375-5283
use option 1-2-2-6-2-2-1
BTW i am a AUG 3rd TSC Filer No receipts yet. The EAD Check for my wife cashed on Oct 12th and it says Vermont service center.
dial 1-800-375-5283
use option 1-2-2-6-2-2-1
BTW i am a AUG 3rd TSC Filer No receipts yet. The EAD Check for my wife cashed on Oct 12th and it says Vermont service center.
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gc_bulgaria
10-09 04:18 PM
http://www.immigration-law.com/
10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication
When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer’s ability to pay the prevailing wage."
(1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
(2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physical location restrictions.
(3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
Remember that when there is a portability issue, two things can ensue. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.
10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication
When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer’s ability to pay the prevailing wage."
(1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
(2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physical location restrictions.
(3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
Remember that when there is a portability issue, two things can ensue. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.
beautifulMind
06-16 10:10 AM
Are you sure of this..This is very important for my wife. Her F1-OPT begins in October and I feel that the I-485 EAD may not come till then. She also has a job offer to start in october so we are thinking that it should be ok to start working on F1 OPT till we get our 485-EAD and eventually shift
gantilk
04-28 09:44 AM
when you say new fees, i assuem it is $340 . Correct ??
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