EbImmigrationReference

USCIS AAO: AMIE not a valid 4 year degree, appeal denied

2011-11-15T20:24:00.001-08:00

AAO decision AMIE not a 4 year degree

....

nor does the record contain documentary evidence establishing that either Board of Technical Education Delhi or the Institution of Engineers (India) is a college or university that is entitled to grant a bachelor's degree.......

USCIS AAO decision on Indian Msc for EB2: Approved

2011-11-15T20:07:00.001-08:00

http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2007/Aug152007_02B5203.pdf

U.S. Department ofHomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
Office: NEBRASKA SERVICE CENTER

AUG 15 2007
Date:

u.s. Citizenship
and Immigration
Services
LIN 0615951905

PUBLIC COpy

identifying data deleted to
prevent clearly unwarranted
invasion ofpersonal privacy

FILE:
INRE: Petitioner:

Beneficiary:

PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration
and Nationality Act, 8 U.S. c . § 1153(b)(2)

ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office.
~vferrC,,~ Administrative Appeals Office
www.uscis.govLIN 0615951905

Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal
will be sustained; the petition will be approved.

The petitioner manufactures and sells semiconductor components, systems and equipment. I t seeks to
employ the beneficiary permanently in the United States as a test engineer pursuant to section 203(b)(2)
of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2). In pertinent part, section
203(b)(2) of the Act provides immigrant classification to members of the professions holding advanced
degrees or their equivalent and whose services are sought by an employer in the United States. As
required by statute, an ETA Form 9089 Application for Alien Employment Certification approved
by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition; the
director determined that the beneficiary did not satisfy the minimum level of education stated on the
labor certification. Specifically, the director determined that the beneficiary did not possess a
Master's degree. The director's conclusion, however, is based on an analysis of the beneficiary's
undergraduate degree, not his graduate degree.

On appeal, counsel asserts that the beneficiary has the foreign equivalent of a U.S. Master's degree.
The record supports counsel's assertion.

For the reasons discussed below, we find that decisions by federal circuit courts, which are binding
on this office, have upheld our authority to evaluate whether the beneficiary is qualified for the
classification sought.'

In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the
professions holding advanced degrees or their equivalent and whose services are sought by an
employer in the United States. An advanced degree is a United States academic or professional
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree
followed by at least five years of progressive experience in the specialty shall be considered the
equivalent of a master's degree." Id. The petitioner, however, is not asserting that the beneficiary
has a baccalaureate degree plus five years of experience. Rather, the petitioner is asserting that the
beneficiary has an academic or professional degree or a foreign equivalent degree above the
baccalaureate level.

The beneficiary possesses a foreign three-year bachelor's degree and a two-year Master of Science
degree in Electronics Science from the University ofCalcutta. Thus, the issue is whether that degree
can serve to qualify the beneficiary for the classification sought.
As noted above, the ETA Form 9089 in this matter is certified by DOL. Thus, at the outset, it is useful
to discuss DOL's role in this process. Section 212(a)(5)(A)(i) of the Act provides:

1 Cf Hoosier Care, Inc. v. ChertofJ, No. 06-3562 (7th Cir. April 11, 2007) relating to a lesser classification than the one involved in this matter and relying on the regulation at 8 C.F.R. § 204.5(1)(4), a provision that does not relate to the classification sought.LIN 0615951905
Page 3

In general.-Any alien who seeks to enter the United States for the purpose ofperforming
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined
and certified to the Secretary ofState and the Attorney General that-

(I) there are not sufficient workers who are able, willing, qualified (or
equally qualified in the case of an alien described in clause (ii) and available
at the time of application for a visa and admission to the United States and at
the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and
working conditions ofworkers in the United States similarly employed.
According to 20 C.F.R. § 656.1(a), the purpose and scope of the regulations regarding labor
certification are as follows:

(a) Under section 212(a)(5)(A) of the Immigration and Nationality Act ( INA or Act)
(8 U.S.C. 1182(a)(5)(A», certain aliens may not obtain immigrant visas for entrance
into the United States in order to engage in permanent employment unless the
Secretary of Labor has first certified to the Secretary of State and to the Secretary of
Homeland Security that:

(1) There are not sufficient United States workers who are able, willing,
qualified and available at the time of application for a visa and admission
into the United States and at the place where the alien is to perform the
work; and

(2) The employment of the alien will not adversely affect the wages
and working conditions ofUnited States workers similarly employed.
I t is significant that none of the above inquiries assigned to DOL, or the remaining regulations
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien
is qualified for a specific immigrant classification or even the job offered. This fact has not gone
unnoticed by federal circuit courts.

There is no doubt that the authority to make preference classification decisions rests
with INS. The language of section 204 cannot be read otherwise. See CastanedaGonzalez v. INS, 564 F.2d 417,429 (D.C. Cir. 1977). In tum, DOL ha s the authority
to make the two determinations listed in section 212(a)(14) [current section
212(a)(5)].2 Id. at 423. The necessary result of these two grants of authority is that
2 As amended by Sec. 601, and as further amended by Sec. 172 of the Immigration Act of 1990, Ac t of Nov.
29, 1990, Pub. L. 101-649, 104 Stat. 4978; however, the changes made by Sec. 162(e)(1) were repealed by
Sec. 302(e)(6) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991,LIN 06 15951905
Page 4
section 212(a)[(S)] determinations are not subject to review by INS absent fraud or
willful misrepresentation, but all matters relating to preference classification
eligibility not expressly delegated to DOL remain within INS' authority.
* * *

Given the language of the Act, the totality of the legislative history, and the agencies'
own interpretations of their duties under the Act, we must conclude that Congress did
not intend DOL to have primary authority to make any determinations other than the
two stated in section 212(a)[(5)]. I f DOL is to analyze alien qualifications, it is for
the purpose of "matching" them with those of corresponding United States workers so
that it will then be "in a position to meet the requirement of the law," namely the
section 212(a)(l4) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).

The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published
decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L.R.B.
v. Ashkenazy Property Management Corp., 817 F.2d 74, 7S (9th Cir. 1987)(administrative agencies
are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd.
Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), af f 'd 273 F.3d 874 (9
th Cir. 2001)(unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published in private publications or widely circulated). Even CIS internal
memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 231 F.3d
984,989 (Sth Cir. 2000)(An agency's internal guidelines "neither confer upon [plaintiffs] substantive
rights nor provide procedures upon which [they] may rely.")

A United States baccalaureate degree is generally found to require four years of education. Matter
of Shah, 17 I&N Dec. 244, 245 (Reg. Comm. 1977). The Joint Explanatory Statement of the
Committee of Conference, published as part of the House of Representatives Conference Report on
the Immigration Act of 1990, provides that "[in] considering equivalency in category 2 advanced
degrees, it is anticipated that the alien must have a bachelor's degree with at least five years
progressive experience in the professions." H.R. Conf. Rep. No. 95S, 101 st Cong., 2 nd Sess. 1990,
1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at *6786 (October 26, 1990). At the time of enactment
of the Act in 1990, it had been almost thirteen years since Matter ofShah was issued. Congress is
presumed to have intended a four-year degree when it stated that an alien ''must have a bachelor's
degree" when considering equivalency for second preference immigrant visas. We must assume that
Congress was aware of the agency's previous treatment of a "bachelor's degree" under the Act when
the new classification was enacted and did not intend to alter the agency's interpretation of that term.
See Lorilland v. Pons, 434 U.S. 575, 580 (1978)(Congress is presumed to be aware of administrative
and judicial interpretations).

Pub. L. No. 102-323, 105 Stat. 1733, effective as though that paragraph had not been enacted.LIN 06 15951905

Page 5
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the
Immigration and Naturalization Service (the Service), responded to criticism that the regulation
required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for
the substitution of experience for education. After reviewing section 121 of the Immigration Act of
1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee ofConference,
the Service specifically noted that both the Act and the legislative history indicate that an alien must
have at least a bachelor's degree:

The Act states that, in order to qualify under the second classification, alien members
of the professions must hold "advanced degrees or their equivalent." As the
legislative history . . . indicates, the equivalent of an advanced degree is "a bachelor 's
degree with at least five years progressive experience in the professions." Because
neither the Act nor its legislative history indicates that bachelor' s or advanced degrees
must be United States degrees, the Service will recognize foreign equivalent degrees.
But both the Act and its legislative history make clear that, in order to qualify as a
professional under the third classification or to have experience equating to an
advanced degree under the second, an alien must have at least a bachelor 's degree.
Employment-Based Immigrants, Final Rule, 56 Fed. Reg. 60897, 60900 (November 29,
1991)(emphasis added).

There is no provision in the statute or the regulations that would allow a beneficiary to qualify under
section 203(b)(2) of the Act as a member of the professions holding an advanced degree with
anything less than a full baccalaureate degree. More specifically, a three-year bachelor's degree will
not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree.
Matter of Shah, 17 I&N Dec. at 245. Where the analysis of the beneficiary's credentials relies on
work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a
bachelor's degree rather than a "foreign equivalent degree.t" In order to have experience and
education equating to an advanced degree under section 203(b)(2) of the Act, the beneficiary must
have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree.
8 C.F.R. § 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify
for an immigrant visa by virtue of education or experience equating to a bachelor's degree may
qualify for a visa pursuant to section 203(b)(3)(A)(i) of the Act as a skilled worker with more than
two years oftraining and experience. 56 Fed. Reg. at 60900.

In this matter, contrary to the implication in the director's decision, the petitioner is not attempting to
classify the beneficiary as a member of the professions holding an advanced degree through a
combination of multiple lesser degrees or education. Rather, it is the petitioner's contention that the
beneficiary's Master of Science degree from the University of Calcutta constitutes a foreign
3 Cf 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(defining for purposes of a nonimmigrant visa classification,
the "equivalence to completion of a college degree" as including, in certain cases, a specific
combination of education and experience). The regulations pertaining to the immigrant
classification sought in this matter do not contain similar language.LIN 0615951905

Page 6
equivalent degree to a U.S. academic or professional degree above the baccalaureate level. The
petitioner initially submitted a credential's evaluation from the Trustforte Corporation. The
evaluation indicates:
Admission to the graduate-level programs of the University of Calcutta is based on
the completion of bachelor's-level studies and competitive entrance examinations.
[The beneficiary] completed the requisite graduate-level studies, with a concentration
in Electronics Science. In addition, she was required to prepare and defend a
master's-level thesis in her field ofconcentration.

Based on her coursework at the University of Calcutta, the evaluation concluded that the beneficiary
"attained the equivalent of a Master of Science Degree in Electronics from an accredited US college
or university." On appeal, the petitioner submitted three new evaluations , each consistently finding,
based on the length of her studies and the number of credits, that the beneficiary's Master 's degree is
a foreign equivalent degree to a U.S. Master 's degree.

Citizenship and Immigration Services (CIS) uses an evaluation by a credentials evaluation
organization of a person' s foreign education as an advisory opinion only. Where an 'opinion is not in
accord with previous equivalencies or is in any way questionable, it may be discounted or given less
weight. See Matter ofSea, Inc., 19 I&N Dec. 817, 820 (Comm., 1988). The petitioner submitted the
beneficiary's transcript for her Master's degree, which reflects two years of coursework. This
transcript is consistent with the evaluations provided. Moreover, the petitioner has provided four
consistent and reasonable evaluations all finding that the beneficiary's Master ' s degree is a foreign
equivalent degree to a U.S. Master's degree. Thus, we are persuaded that the beneficiary qualifies
for the classification sought.

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has met that burden.

ORDER: The appeal is sustained. The petition is approved.

Murthy Takes Action : USCIS Response Regarding AACRAO EDGE

2011-11-12T06:56:00.001-08:00

http://www.murthy.com/news/n_mtaedg.html
MurthyDotCom and MurthyBulletin readers learned of issues raised by our firm at a USCIS National Stakeholders Meeting in our March 5, 2010 article, Murthy Takes Action : AC21 "Porting" and Employer Withdrawal of I-140 Petition. Following is the USCIS's response to another question submitted by our firm; this one on the criteria used by the USCIS to determine the equivalency of foreign degrees in the I-140 petition context. Specifically, we at the Murthy Law Firm have concerns about the USCIS's reliance upon the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE).

Background and Problem : USCIS Using Subscription Database

The USCIS routinely issues requests for evidence (RFEs) on I-140 employer petitions that reference ACCRAO EDGE when questioning a foreign national's educational qualifications. AACRAO EDGE is not a public source. The USCIS simply references this database, but, in our experience, does not provide copies of the documents from the database. They generally make a blanket statement that a particular degree is not from an accredited school or in an accredited program, according to AACRAO EDGE.

The USCIS, under regulation, is required to provide the petitioner with copies of any potentially derogatory information, so that the employer / petitioner can respond. The Murthy Law Firm asked for clarification as to whether adjudicators are making conclusions based on AACRAO EDGE, without providing the needed explanations and documentation.

Murthy Findings : Misplaced Reliance by USCIS on AACRAO EDGE

In order to address the USCIS's use of AACRAO EDGE, and to provide the best possible level of representation for our clients, the Murthy Law Firm subscribed to AACRAO EDGE. The USCIS sometimes asserts that a degree is not accredited according to AACRAO EDGE. However, if one actually reviews AACRAO EDGE, there often is no such conclusion regarding the particular institution. Although our firm opted to subscribe to AACRAO EDGE, the USCIS, in general, still has failed to provide required documentation in support of its findings.

Accreditation Improper - only Equivalency Required by Law

As part of our question, we also asked the USCIS to demonstrate any standards used in determining accreditation for foreign educations. We noted that the regulations refer only to possession of a U.S. degree or foreign equivalent, and do not reference the accreditation of the foreign schools. This issue was raised as we have seen instances of the USCIS having challenged the validity of a foreign degree because the issuing institution did not have accreditation at the time of degree issuance.

USCIS Response to Murthy Law Firm on Degree Equivalency

The USCIS referenced the Immigration and Nationality Act (INA), USCIS regulations and the Adjudicator's Field Manual (AFM) as setting out the criteria for evaluations of foreign degrees. The position of the Murthy Law Firm is that the law and the regulations do not refer to accreditation, only equivalency.

The USCIS stated that all sources are considered when evaluating foreign educational credentials. They note that they have received many evaluations by evaluators who cite AACRAO membership in their credentials and who reference AACRAO documents in support of their opinions. Thus, the USCIS has determined that it is appropriate to consider AACRAO materials and the EDGE database. The USCIS notes in its decisions instances in which the opinions of evaluators submitted by employers / petitioners are contradicted by information in EDGE.

The USCIS stated in response to the issue raised by the Murthy Law Firm that adjudicators have been instructed to attach a copy of the material relied upon in every RFE or adverse decision referencing material not generally available, including EDGE. The USCIS stated that the service centers will be provided with a reminder regarding this procedure.

Accreditation is Not Correct Standard

As stated, the law and regulations do not reference any need for a foreign national to possess an accredited degree. The requirements speak in terms of a foreign equivalent to a U.S. degree. However, the USCIS often focuses on whether or not the institution issuing the foreign degree was accredited at the time the degree was issued. The problem seems to stem from the fact that U.S. degrees must be accredited in order to be valid. This is part of the U.S. law, under the Higher Education Act. This law sets forth the accreditation requirement and standards. However, the fact that U.S. degrees must be accredited does not mean that, for a foreign degree to be equivalent, it too should be accredited. The systems for accreditation vary from country to country. It is common for a particular institution to be authorized by the government of a country to issue degrees, without further accreditation by any board or independent body. This is common even for well-recognized, high-quality foreign institutions. Accreditation is simply not a litmus test for degree equivalence.

It should also be noted that AACRO EDGE does not set forth a universal list of equivalent foreign educational institutions. It is a tool, a resource to be used by qualified evaluators in making their determinations of equivalency. It is rarely school specific. It gives the history of the educational system in the particular country, and other data that an evaluator needs to consider in issuing an opinion.

Conclusion

Efforts from the USCIS, in response to this issue raised by the Murthy Law Firm, to improve their procedures of providing the non-public documentation used in their decisions or RFEs should prove helpful to those who do not have access to AACRO EDGE. If the USCIS needs to locate and provide the documentation found in AACRO EDGE, this may reduce the instances in which this information is relied upon incorrectly. We at the Murthy Law Firm do believe there is the remaining issue with respect to accreditation being used as a requirement not contained in the law or regulations. These important matters will continue to be pursued by our firm to assist those who need to establish the equivalency of their foreign education to obtain the green card.

EAD Extension Delays: FAQs, Answers and Suggestions: murthy.com

2010-08-16T08:34:00.000-07:00

http://murthy.com/news/n_eadmor.html

he lockbox filing system, as related to renewals of employment authorization documents (EADs) has been reported previously to MurthyDotCom and MurthyBulletin readers. [See EAD Filings Now Must Be Filed at Designated Lockbox or at VSC (05.Mar.2010).] EADs are taking longer to process currently,
when compared with the recent past. As a result, our firm is receiving many inquires from individuals facing expiration of their EADs, while still waiting for EAD extension approval. Therefore, readers should be aware of filing timelines and procedures in light of these EAD delays.

File EAD Renewal 120 Days in Advance
One is permitted to request the renewal of an expiring EAD up to 120 days in advance of the expiration. It is advisable to take advantage of the full filing window, if the ability to work legally in the United States is based solely on the EAD. The U.S. Citizenship and Immigration Services (USCIS) is permitted to take up to 90 days to process EAD applications. Filing 120 days in advance allows enough time to accommodate additional minor delays or problems with the EAD request.

At the time of this writing, the USCIS is taking the full 90 days, or close to 90 days, to adjudicate EADs. There have been times in the past when the USCIS processed EADs more quickly. As a result, some EAD holders file their extension requests expecting processing times in keeping with those they may have previously experienced. Around 60 days, and sometimes less, was typical. Our current experiences, however, are echoed by our colleagues, as the American Immigration Lawyers Association (AILA) has posted similar reports.

EAD Must be Approved and Issued to Work
The urgent problem faced by many who have delayed their EAD extension filings is the prospect of not being permitted to work between the expiration of the current EAD and the approval and issuance of the new EAD extension. Unlike an H1B-type of petition, there is no employment authorization granted based upon a "pending" EAD, even if it is an extension request.

USCIS No Longer Issues Interim EADs
Those waiting for EAD renewals often ask about interim EADs. The USCIS local offices, unfortunately, no longer issue interim EADs, as they did before. Even when interim EADs were issued, it was required by the USCIS that the EAD filing had been pending for at least 90 days.

Options: 75-Day Follow Up
In light of the change in the interim EAD option, the USCIS now permits service requests to be initiated at the 75-day point. As explained in our article, USCIS Responds to CIS Ombudsman on EAD Delays (13.Feb.2009), customer service requests on EADs can be initiated from the 75th day. This is an effort to assure that the EAD will be processed in 90 days.

These requests will be forwarded to the location of the EAD processing, so that the case can receive priority treatment and, hopefully, approval within the 90 day timeframe. If the EAD still has not been approved by the 90-day point, further follow up with the National Customer Service Center (NCSC) or the local office, via an InfoPass appointment, may be appropriate.

Expedite: Not Usually Granted Unless Specific Criteria Satisfied
In many cases, an individual who has filed the EAD extension fewer than 90 days prior to the expiration date of the current EAD will ask about expedited processing. There is no "premium" processing option for EADs. Any such expedite request must fit within the USCIS expedite criteria.

There are very limited situations in which the USCIS may deem it appropriate to expedite an EAD. Any such request must fit within the criteria, and needs to be supported by appropriate documentation. Approval of an EAD expedite request is not common, particularly if there is a self-created emergency due to delay in filing the EAD extension.

Nebraska Service Center: Temporary Accommodations
In light of the expanding numbers of individuals facing the likelihood of EAD expiration before their extensions reach them, the Nebraska Service Center (NSC) is making some accommodations. In addition to making efforts to reduce the EAD processing times, the NSC will consider expedite requests in certain situations when an individual can establish that s/he will lose his/her job if the EAD is not renewed promptly. Eligibility for this special consideration requires that the EAD application has been pending for more than 60 days, and the current EAD will expire within the ensuing two weeks. This must be supported by evidence of imminent employment termination.

NO Work Allowed After EAD Expiration
As explained above, for those who rely on the EAD for their permission to work, authorization to work ends with the EAD expiration. One must cease all work functions until the new EAD is approved and issued to the individual. We at the Murthy Law Firm are often asked by individuals if they can "volunteer" (do the same job and not get paid) or work from home. If one is not authorized to work, s/he is not permitted to engage in the same activities without pay or from home.

Conclusion
It is very important to request EAD extensions in a timely fashion. A gap in employment authorization generates a number of practical and legal complications. The USCIS is working to improve the processing times for EADs. Hopefully, many who are waiting anxiously for their EAD renewals will have the approvals in time or without much of a gap in authorization. However, there is rarely a valid reason for not filing as early as possible. This should serve as a warning to individuals whose EADs will need to be renewed in the future. At the Murthy Law Firm, clients for whom we have obtained EADs receive courtesy reminders to renew their expiring EADs and file most cases around 120 days prior to the expiration. Following this practice avoids gaps in employment authorization.

AC21 Frequently Asked Questions: Murthy.com

2010-08-14T07:36:00.000-07:00

http://www.murthy.com/news/UDac21qa.html
Question 1 : Is it the received date or the notice date that governs the counting of the 180-day period under AC21?
Based upon the wording of the law and the USCIS interpretation of AC21, the 180 days should be counted from the date the USCIS receives the filing at one of its Service Centers. This is not the notice date, which reflects the several days or weeks the USCIS takes to issue the Receipt Notice. The 180 days are calendar days, not business days.

Question 2 : I lost my job before the 180-day period. Can I still use portability?
Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at least 180 days. It is the I-485 processing time that is important, not when the beneficiary changes positions. This is because the "green card" (GC) is based upon a future job offer. The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC. Accordingly, it appears the AC21 law did not intend to change the prior law, which only requires a future job offer with respect to the GC sponsorship in employment-based cases. Please refer to the disclaimer at the end of this page, since, at the time of this writing, the regulations have not been published.

Question 3 : I never worked for my sponsoring employer. It was a future job offer. Can I use AC21 portability?
Yes, under the same circumstances as Question 2. However, USCIS is more likely to question your past intent to work for the sponsoring employer.

Question 4 : My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work?
It should, though USCIS makes a case-by-case determination. The requirement of "same or similar" is determined by the description of the essential job duties and occupational classification. The title may change, as different companies use different titles. The USCIS position appears to be that the core job duties should be essentially the same or similar in order for the USCIS to approve the I-485 with a new employer.

Question 5 : What is meant by "same or similar" job?
The position must have the same essential job duties. For example, in the computer field the position can use different software and computer languages but it must require the same basic functions to be performed. A programmer is still a programmer, even if using different languages or working on a different application. A baker is still a baker, whether making bread, rolls, muffins, or croissants. The narrowest interpretation would consider the position to be under the same category in the Dictionary of Occupational Titles or the O*NET published by the Department of Labor. This narrow interpretation is the USCIS position as mentioned in the June 2001 USCIS Interim Guidance on AC21. However, we have lobbied for a broader and more liberal interpretation with senior USCIS officers at various meetings. In practice, the USCIS has agreed that the AC21 law does not limit it to an identical DOT or O*Net code and has approved many cases throughout the local USCIS offices and the USCIS Service Centers in which the new position does not match the earlier job with respect to DOT Code or O*Net classification.

Question 6 : If I change my job, I am afraid my employer will "do something" to end my immigration case. Am I in danger?
Perhaps. While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer's petition. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. Under AC21, USCIS has stated that if the I-140 is approved and then withdrawn, USCIS should issue a notice to the beneficiary with respect to continuing the processing of the I-485 with a new AC21 job. In some situations though USCIS has instead denied the I-485 without asking for evidence of the new AC21 job. The beneficiary might then have the opportunity to respond to the I-485 denial by showing another AC21 job offer filed in a Motion to Reopen/Reconsider the denial.

Question 7 : If I change jobs, does my sponsoring employer have to withdraw my I-140 or tell USCIS?
No. Unlike the H-1, where the employer must inform the USCIS of termination of employment, there is no affirmative requirement to tell the USCIS about changes in employment for I-140 beneficiaries or to withdraw the I-140.

Question 8 : If I change jobs, does the new employer have to pay the wage stated on the labor certification?
No. As explained by the USCIS in its guidance, the new job does not have to be at the same wage level, nor is there any requirement that the new position pay a rate equal to the "prevailing" wage. The only restrictions are that the pay must be sufficient to demonstrate that the person will be self-supporting and not become a "public charge."

Question 9 : Does the new job have to be in the same geographic area as the job in the labor certification?
No. Again based on the June 2001 USCIS Guidance, there are no geographic limitations on the job.

Question 10 : How do I exercise the portability provisions? What do I actually have to do?
AC21 does not state that notification to USCIS is required. The current USCIS guidance on the issue says that it is "expected" that a letter will be sent to USCIS. There is also no particular format for sending a letter advising of the change in jobs.
Lawyers may propose a variety of approaches in these circumstances. Often USCIS sends a Request for Evidence (RFE) as a routine part of the case, prior to final decision. The RFE may ask for updated employment information, including an employer letter and possibly pay stubs. It would be sufficient to inform the USCIS at that point of the new employment offer. Submitting information in response to an RFE rather than sending it unsolicited has the advantage that the RFE contains a tracking bar code to ensure that the information is placed into the file. Information submitted without an RFE often receives low priority at the Service Center and may languish in a pile of unsorted correspondence for several months or longer.

Still, it may make sense to send in the information after the 180-day point even if USCIS has not issued an RFE. That way, in the event USCIS does not send an RFE, the applicant can be sure that the information was provided prior to the approval of the case. This method may avoid confusion as to exactly which employment offer formed the basis of the approval and minimize the possibility of rescission proceedings to take away a Green Card for not working for the sponsoring employer. Of course, delays in matching up routine mail with a particular file may lead to the issuance of an RFE, regardless. In this case the information must be provided again.

Disclaimer : It is important to reiterate that there is a caveat to the responses to these FAQs: none of the present USCIS interpretations is binding on the agency when they finally issue regulations, although one may be protected for a reasonable and good-faith interpretation of the law. However, what is reasonable and in good faith is a matter of interpretation. Additionally, there is always the risk with portability that if USCIS approves or adjudicates the case within 180 days or less, the person would be required to work for the GC sponsor and could not benefit from the liberal language of AC21.

We will continue to follow developments in the interpretation and implementation of AC21, as we realize that it affects many of our clients and readers who are directly impacted by this important law, which has changed the face of U.S. employment-based immigration law.

AC21 Portability site

2010-08-14T07:30:00.001-07:00

http://ac21portability.com/

245K Memo

2010-08-11T13:23:00.000-07:00

245K Memo

U.S. Department of Homeland Security
20 Massachusetts Ave. NW
Washington, DC 20529

HQDOMO 70/23.1-P
AD06-07
Memorandum
TO: Field Leadership
FROM: Donald Neufeld /s/
Acting Associate Director, Domestic Operations

DATE: July 14, 2008

SUBJECT: Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act
Revisions to Adjudicator’s Field Manual (AFM) Chapter 23.5(d)
(AFM Update AD06-47)

1. Purpose
This memorandum clarifies how section 245(k) of the Immigration and Nationality Act (the Act) renders certain section 245(c) bars to adjustment of status under section 245(a) inapplicable to certain employment-based adjustment of status applicants.

2. Background
In general, Section 245(a) allows an admissible alien who was inspected and admitted or paroled into the United States to apply for permanent resident status from within the United States if the alien is the beneficiary of an approved immigrant visa petition and has an immigrant visa number immediately available.
Section 245(c) establishes eight (8) bars to adjustment under Section 245(a). For certain employment-based adjustment applicants, section 245(k) grants relief from three (3) of those bars: sections 245(c)(2), (c)(7) and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility.
Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under
Section 245(a) of the Immigration and Nationality Act
HQDOMO 70/23.1-P
Page 2

3. Field Guidance and AFM Update
The adjudicator is directed to comply with the following guidance. The Adjudicator’s Field Manual (AFM) is revised to add a new section (d) to subchapter 23.5, “Adjustment of Status under Section 245 of the INA.” Current sections (d) through (k) proceed thereafter and should be renumbered accordingly.
(d) Section 245(k) of the Act: Exemptions to the 245(c)(2), (c)(7) and (c)(8) Bars to Adjustment for Certain Employment-Based Adjustment of Status Applicants.

(1) General Provisions. Section 245(k) can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days:
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of his or her admission.

(2) Applicability. The following classes of employment-based adjustment of status applicants under section 245(a) are eligible for relief under 245(k):
(A) An alien who is present in the United States pursuant to a lawful admission and whose adjustment of status application is based on an approved immigrant petition for them as the beneficiary in one of the following classifications:
• EB-1: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives;
• EB-2: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability;
• EB-3: skilled workers, professionals, and other workers; or
• EB-4: religious workers described in section 101(a)(27)(C) of the Act only.
Other employment-based immigrant classifications and other immigrant classifications are not a basis for consideration under section 245(k).
(B) An eligible derivative of an alien described in (A) may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.

(3) Application Process. An alien must properly file an adjustment of status application under section 245(a) in accordance with 8 CFR 245.2 and 103.2. An applicant invoking 245(k) is not required to submit additional application forms or payment of a penalty surcharge. Thus, it is the responsibility of USCIS to determine section 245(k) applicability based on the evidence submitted in support of the adjustment of status application. To the extent evidence is deficient or absent, USCIS may issue a request(s) for evidence or notice of intent to deny asking for specific evidence in support of eligibility for relief under section 245(k).

(4) Counting against the 180 days timeframe in (d)(1).
(A) General Guidelines. If the adjudicator determines that an employment-based adjustment of status applicant described in (d)(2) above is subject to any of the bars to adjustment of status set forth in Sections 245(c)(2), (c)(7), or (c)(8), then the adjudicator must determine whether the aggregate period in which the alien failed to continuously maintain lawful status, worked without authorization, or otherwise violated the terms and conditions of the alien’s admission since the date of alien’s last lawful admission to the United States is 180 days or less.
The guidance below describes the periods of time to be examined for purposes of calculating time against the 180-day period.
• The adjudicator must only examine the period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.
• An alien, however, who entered the United States pursuant to an advance parole document is not “lawfully admitted,” because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k).
• An alien may be subject to more than one bar or violation described in section 245(k)(2) at the same time. For example, an alien in B-2 status who worked without authorization will also have violated a lawful status and failed to maintain continuously a lawful status. USCIS reads the phrase “aggregate period exceeding 180 days” in section 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation. Accordingly, the aggregate 180 day period must be calculated by adding together any and all days in which there is one or more of the violations, and each day in which one or more of these violations existed must be counted as one day. If USCIS reads section 245(k) to permit up to 180 days of each type of violation an alien could potentially accrue more than 180 total days of violations and remain eligible for adjustment of status. USCIS holds that the statute was not intended to permit such egregious violations.

(B) Engaged in Unauthorized Employment
(1) General. “Unauthorized employment” means any service or labor performed by an alien for an employer within the United States that is not authorized under 8 CFR 274a.12(a), (b), or (c) or exceeds the authorized period of employment. The filing of an adjustment of status application does not, in itself, authorize employment or excuse unauthorized employment, and accordingly the filing of an adjustment of status application will not stop the counting period of unauthorized employment. Therefore, all periods of unauthorized employment since the date of the alien’s last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application.

• With respect to engaging in unlawful employment, the count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated.

• It is completely within the control of the alien as to whether he or she engages in employment without authorization and, as stated above, the filing of an application for adjustment of status does not automatically authorize employment in the United States. Therefore, it is possible for an alien to accrue days of unauthorized employment against the 180 day period after the filing of the application for adjustment of status. To hold otherwise would not only reward an alien for engaging in unauthorized employment but it would also effectively eliminate the incentive and the need for an alien to maintain a valid employment authorization document in connection with the pending application for adjustment of status. Unlike an alien who has failed to maintain lawful nonimmigrant status, an alien who has worked without authorization may unilaterally avoid the accrual of additional days counted against such violation by simply terminating the unauthorized employment.

• An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment.

• For periods in which it appears that the alien has engaged in unauthorized employment, the alien bears the burden of establishing that any such periods were authorized or that he or she did not in fact engage in unauthorized employment. In addition, an alien who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document.

(2) Special Considerations. For purposes of section 245(c)(8) of the Act, an alien is not considered to be engaged in unauthorized employment while his or her properly filed adjustment of status application is pending final adjudication, if:

• The alien has obtained permission from USCIS to engage in employment based on his or her pending adjustment of status application and such authorization remains valid; or

• The alien had been granted employment authorization prior to the filing of the adjustment of status application and such authorization does not expire while the adjustment of status application is pending.
(C) Failed to Maintain a Lawful Status and/or Violated the Terms of a Nonimmigrant Visa.
(1) General. Expiration, revocation, or violation of status puts a nonimmigrant out of status, and the alien remains out of status until some adjudication restores status or the alien departs the United States.
In most cases, the 180-day counting period commences on the date the alien’s status expires, is revoked, or is violated following the alien’s most recent admission. In addition, with the exception of a dual intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application with USCIS, because most nonimmigrants who apply for adjustment of status are presumed to be intending immigrants and are no longer eligible to maintain a nonimmigrant status. Therefore, for purposes of the 180-day counting period, calculation of the number of days for failing to maintain status or violating a nonimmigrant visa will stop as of the date USCIS receives a properly filed adjustment of status application.

Notwithstanding, a properly filed adjustment of status application, in and of itself, does not accord lawful status or cure any violation of a nonimmigrant visa. For example, if an alien applied for adjustment of status three days prior to the expiration of his or her nonimmigrant status and the adjustment of status application was eventually denied, the alien will not be considered to be in lawful status after the expiration of the nonimmigrant status. Consequently, if the same alien files a second application for adjustment of status, the period after which the nonimmigrant status expired and during which the first adjustment of status application was pending counts against the 180-day period when considering eligibility for relief under 245(k) in the adjudication of the second adjustment of status application.

(2) Special Considerations. The adjudicator must consider the following when calculating the number of days an alien has failed to maintain a lawful status or violated the terms of a nonimmigrant visa.
• The regulations define “lawful immigration status” at 8 CFR 245.1(d)(1). In examining any period where an application for extension of stay (EOS) or change of status (COS) was ultimately approved, the period during which the EOS or COS had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status regardless of whether the EOS or COS application was timely or untimely filed. The period would not be disqualifying for section 245(c) purposes, and the period would not count against any 180-day period under section 245(k).
• The period during which an alien has a pending EOS, COS, or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful “status.”
• A period of unlawful status found to result only from a “technical violation” or through no fault of the applicant, as described in 8 CFR 245.1(d)(2), does not invoke the 245(c)(2) bar. Thus, such period does not count against the 180-day period.
• An alien who complies with all the terms and conditions of his or her nonimmigrant status does not violate the terms of such status merely by properly filing an adjustment of status application, provided the filing occurred before the alien’s nonimmigrant status expired.
• An F (student) or J (exchange visitor) nonimmigrant is considered in “status” for such authorized period of time before and after completion of his or her educational objective or program in accordance with 8 CFR 214.2(f) and 8 CFR 214.2(j), respectively, provided that the F or J nonimmigrant has not violated the terms and conditions of his or her status.
• A reinstatement of F status under 8 CFR 214.2(f) or J status under 22 CFR 62.45 cures time out of or in violation of status only for the particular period of time covered by the reinstatement, so that such period does not count against the 180-day period.
(5) Effect of 245(k) Exemption. A determination of eligibility under section 245(k) renders inapplicable the normal bars to adjustment found in section 245(c)(2), (c)(7), and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility.

4. Use
This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications for adjustment of status. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

5. Contact Information
Questions regarding this memorandum and USCIS policy regarding section 245(k) of the Act may be directed to Carol Vernon, Office of Policy and Strategy, Rishiram “Rishi” Lekhram, Service Center Operations, and Vinay Singla, Field Operations, through appropriate supervisory channels.

Distribution List: Regional Directors
District Directors
Field Office Directors
Service Center Directors
National Benefits Center Director

245(K): Unauthorized employment, leave without pay

2010-08-11T13:18:00.000-07:00

245K memo

An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment.

Back to School: Considerations for U.S. Education

2010-08-06T04:57:00.000-07:00

http://murthy.com/bulletin.html

Many inquiries come to us at the Murthy Law Firm from foreign nationals who are considering additional education in the United States. The motivation is frequently a combination of the desire to add to their
professional skills to gain qualifications for better job prospects, as well as potential immigration advantages. Additional education sometimes can open other immigration options. Some of the primary immigration considerations of a U.S. education are presented here for our MurthyDotCom and MurthyBulletin readers to contemplate.

Practical Considerations for U.S. Education
Many foreign nationals have practical considerations that limit their educational options. Most commonly, one must continue to work, or must remain in a certain location with a spouse. Online courses are often attractive, as a way to balance work and family responsibilities. Thus, they wonder how a degree from a particular school will be viewed from an immigration perspective. A key to this question is accreditation of the school.

Government Accreditation of U.S. Schools / Universities
Under current standards and policies, a U.S. degree must be accredited in order receive recognition from the U.S. Citizenship and Immigration Services (USCIS). This can be confusing, as many schools claim to be accredited. There are numerous organizations that issue accreditations to colleges and universities. Not all of these organizations are equal, however.

The USCIS recognizes those educational institutions that are accredited by organizations recognized as reliable authorities by the U.S. Department of Education. A database of educational institutions and accrediting agencies is maintained by the U.S. Department of Education. While all of the schools listed are accredited, it should be noted that they are not all colleges or universities that confer degrees at the bachelors' and masters' levels. Trade and/or technical schools are included. Thus, it is necessary to determine whether a particular school has an appropriate degree program, and then if it has the appropriate accreditation. [More information on authorization to confer degrees is available in our article, Indian Educational Accreditation Issues (09.Jan.2009).]

Strategies: Possibility of Upgrading from EB3 to EB2
One of the reasons individuals consider additional education is the possibility of qualifying under the employment-based, second preference (EB2) category. The strategy of changing from an EB3 case to an EB2 case is outlined in our article, Moving to the Faster Lane: EB3 to EB2 (19.Feb.2010). Of course, EB2 qualification is based on job requirements. It is not enough to have education that would meet the EB2 level. One also must have a job offer that has EB2 level requirements. Additionally, as explained below, in the labor certification context, there are issues with regard to how education gained while working with one's sponsoring employer will be treated.

Ability to Attend School in H1B / H-4 or Other Status
One does not have to be an F-1 student to attend school in the United States. H1B workers can attend school, provided they continue in their H1B employment. The guidance on this is quite old and simply states that the H1B employment must be the primary reason for being in the United States.

Thus, the general practice is for an individual to work full time in H1B status, and attend school on a part-time basis. H-4 spouses and children can attend school on a full- or part-time basis. The same rules hold for most other nonimmigrant statuses, with the exception of F-2s.

Individuals with pending adjustment-of-status (I-485) cases can also attend school. The primary applicants in employment-based I-485 cases also need to have a valid qualifying job offer, in addition to any educational pursuits.

Problem of Education While Working with GC Employer
In the PERM labor certification (PERM / LC) context, there is an issue with respect to education gained while working for the sponsoring employer. It can be risky to use education gained while working with one's employer as a requirement for an employer-sponsored position in a PERM / LC case. The labor certification case must be based upon the employer's actual minimum education and/or experience requirements for the position. If an individual was hired prior to obtaining a certain degree, then that degree normally would not be regarded as a minimum requirement for the job.

PERM Restricts Experience with GC-Sponsoring Employer
The PERM regulations specifically address qualification based upon experience gained with the sponsoring employer. In that event, the experience can only serve as a basis for qualification for the job if the employer is offering the individual a significantly different job. The employer must establish that the job in which the experience was gained was not "substantially comparable" to the job for which the PERM / LC is being sought. The standard requires establishing that different job duties must be performed more than 50 percent of the time for the new position.

There is no such specific rule for education. However, using the more-than-50-percent rule generally is considered the safest approach for cases in which the education was gained while working for the sponsoring employer. Of course, this problem is eliminated if one changes to a job with a new employer for GC sponsorship.

Employer-Paid Education is Problematic for GC Sponsorship
Typically, it will not be possible to utilize education paid for by the sponsoring employer as a requirement for the offered position in a PERM / LC. The PERM application asks whether the employer paid for any of the beneficiary's education or training that is necessary to satisfy the employer's job requirements for the position. If the answer to this question is yes, the employer must offer similar training to domestic applicants for that particular position.

Other Immigration Considerations for EB2
When considering the level of degree that would be best, when immigration benefits are under consideration, it is necessary to review the EB2 requirements. The EB2, for those with bachelors' degrees, requires that the five additional years of experience be gained after completion of the degree. Thus, if one has a foreign bachelor's degree that is considered not equivalent to a U.S. bachelor's degree, s/he most likely will want to try to obtain a U.S. master's degree, rather than a U.S. bachelor's degree.

If one only has the U.S. bachelor's degree, s/he would have to wait five more years to get additional post-completion progressive work experience to potentially qualify for the EB2 category. One would be better off with a U.S. master's degree, and such an individual will find that many U.S. schools will accept the foreign bachelor's degree as sufficient for enrollment into a master's level program, even if the USCIS does not equate the foreign education to a U.S. bachelor's degree.

Conclusion
Obtaining a good U.S. education can make one more competitive in an economic period when any edge is helpful. A potential immigration advantage may also be beneficial. It is always best, however, to discuss such strategies with a qualified immigration attorney, and to make sure that one's status is maintained while attending school, sharpening skills to improve job prospects.

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

1. AC21 Portability Benefit Allowed in Removal Proceedings

2010-08-06T04:54:00.000-07:00

http://murthy.com/bulletin.html
In the almost ten years since the American Competitiveness in the Twenty-First Century Act (AC21) became law, many articles on various AC21 nuances and issues have been written to benefit our MurthyDotCom and MurthyBulletin readers
. One topic that has not yet been addressed is the ability to utilize the AC21 provisions in the context of a removal (previously called deportation) hearing. Under a 2010 case decision of the Board of Immigration Appeals (BIA), AC21 can be applied when seeking to adjust status to permanent residence before an immigration judge in a removal case. As explained here, this was not always the case.

History of AC21 and USCIS Guidance
AC21 is a law for which the U.S. Citizenship and Immigration Services (USCIS) still has not issued any regulations. Many of the details on AC21 are therefore addressed only in USCIS memos.

The very first government-published guidance on AC21 was issued June 25, 2001. This was reported in our article, INS Finally Issues its Initial Guidance on AC21 in June 2001(25.Jun.2001). That guidance still remains in effect today. That earlier article explains two key conditions for porting a green card case based on a new job. The adjustment-of-status application (Form I-485) must be pending for at least 180 days, and the new job must be in the same or similar occupational classification as the job offer upon which the case was initially based.

I-140 Petition Must be Approvable When Filed
Fundamental to the use of AC21 is the validity of the underlying I-140 employer petition. In AC21 the reason the green card case can potentially be approved via a new job offer is that the I-140 petition remains valid, notwithstanding the change in job offer. The USCIS addressed a series ofFAQs related to processing the I-140.
The AC21 provisions also can be utilized in the situation in which an I-485 application is pending for more than 180 days, but the I-140 is also still pending without approval. In such a situation, if the USCIS receives evidence of eligibility for AC21 portability, the I-140 is supposed to be approved if it was approvable when it was filed. This then paves the way for an I-485 approval either by the USCIS or, as we explain, by an immigration court.

Prior Uncertainty on Immigration Judge's AC21 Authority
In 2005, the BIA ruled that immigration judges did not have authority to make decisions under the AC21 green card provisions. The decision, in a case known as Matter of Perez Vargas, was based upon the fact that the AC21 portability provisions involve a determination of the ongoing validity of the I-140 employer petition.

Decisions on I-140s cannot be made by immigration judges; the USCIS makes I-140 decisions, as a matter of jurisdiction established within the immigration laws. This is not disputed. Thus, the BIA determined that, if a person in removal proceedings attempted to utilize the AC21 green card portability provisions, the judge did not have that authority. While immigration judges can make decisions regarding I-485 applications, the BIA in Matter of Perez Vargas, determined that AC21 involved a decision on the validity of the I-140, which was outside the scope and power of the immigration courts.

This was problematic, as AC21 is routinely used for green card cases for individuals who are not in removal proceedings. There is no reason under policy that individuals in removal should not have this option as a way to become permanent residents. It was simply a procedural matter that left the immigration courts without the power to apply AC21. This was, put simply, a crack in the system.

Many Appeals Courts Disagree with 2005 BIA Decision
A great deal of controversy arose over the 2005 Perez Vargas decision. The decision was appealed. The Court of Appeals 4th Circuit disagreed with the BIA's decision and found that immigration judges have power over AC21 portability decisions. Other federal appeals court decisions reached the same conclusion. However, those federal court decisions only applied within the particular states controlled by those federal courts. Thus, there was not uniformity throughout the country.

BIA in 2010 Overrules its Prior Decision
The BIA addressed the issue again in 2010. Both sides in this case, the U.S. government and the foreign national, supported a change in the prior decision. Thus, the BIA reconsidered and in theMatter of Jose Marcal Neto, et al. (PDF 41.1KB), the BIA ruled that immigration judges have the authority to decide whether an individual qualifies for adjustment of status under AC21, as long as the USCIS has approved the I-140 petition.

BIA Helps AOS Applicants in Removal Proceedings
The issues are somewhat complex, but the reasoning in the decision, for those who wish to review it, is part of the evolution of the AC21 provisions. The lack of regulations on AC21 in part led to the confusion and years of litigation over the matter of whether immigration courts have this particular power. This 2010 change can be greatly beneficial to one in removal proceedings, who is otherwise eligible for approval of a pending I-485 under AC21 portability.

Recommendation to Notify USCIS on AC21 Portability
Fortunately, most MurthyDotCom and MurthyBulletin readers will not have to face removal proceedings. Even those individuals who try to fully comply with immigration laws, however, can run into status problems due to job loss or mistakes in immigration filings. The ability to use the AC21 provisions in the removal context is another reason we recommend notifying the USCIS regarding changes in employment that meet the AC21 requirements. It generally is best to create a clear record of eligibility for approval, with documentation that the new job is within the same or similar job occupational classification as the original green card job offer

Home-Based Businesses : Inadvertent Unauthorized Employment

2010-07-27T13:14:00.001-07:00

http://murthy.com/news/n_hombus.html
Home-Based Businesses : Inadvertent Unauthorized Employment
Posted Jul 29, 2005

From time to time, we at The Law Office of Sheela Murthy write articles to guide MurthyDotCom and MurthyBulletin readers so they may avoid inadvertently running afoul of various immigration laws, regulations, or policies. One common problem that we see involves those present in the U.S. in a lawful, nonimmigrant
status who wish to earn extra money. Such individuals are often attracted toward home-based businesses, sometimes involving multi-level marketing. Because there is no direct employer-employee relationship, it is generally believed, incorrectly, that this does not engage them in any form of unauthorized employment. They are sometimes even advised by those seeking their involvement in the home-based business that it is not employment, since they are not going to receive an IRS W-2 Form for any money that they will earn. This presumption is incorrect and can lead to a series of problems. In some situations, where the earnings are over a certain amount, an individual must receive an IRS Form 1099 for non-employee compensation.

What is Unauthorized Employment?
It is not necessary to work for an existing business as an employee in order to be engaged in unauthorized employment. When one establishes a business, even on a part-time basis from home, s/he is considered to be working in the United States. Thus, if one is present in a status that does not allow employment or that only permits employment with a specific sponsoring employer, this person is engaging in unauthorized self-employment. This remains the case even if the involvement is fairly passive, such as in some Internet-based businesses and certain multi-level marketing operations. Therefore, while the temptation to earn some extra money is often strong, and many non-work authorized spouses would like to be able to contribute financially to the household, it is not permissible in these sorts of situations.

Incorporation Not Required
When speaking in terms of having one's own business or being self-employed, it is not necessary to have formed a corporation or LLC or a partnership. Even if no legal business entity is created, there can be self-employment without authorization.

Where the Problems Arise
The problems with these situations usually arise at the U.S. consulates in connection with visa applications or when filing Form I-485 applications to adjust status to permanent residence. These are instances in which it is sometimes necessary to provide income tax returns. If these returns show income from unauthorized employment, the U.S. consulate could deny the nonimmigrant visa and the U.S. Citizenship and Immigration Services (USCIS) could deny the Form I-485 adjustment application for working without authorization. In order to obtain a visa at the consulate, the consular officer must be convinced that the applicant will comply with the terms of the requested visa. If the officer sees a history of past violations in the form of unauthorized employment, the visa may be denied.

In order to adjust status, it is generally necessary to be in status at the time of filing. (There are exceptions under Section 245(k) for employment-based cases, when 180 days of violation can be disregarded, and under Section 245(i) for qualifying cases filed prior to April 30, 2001.) Thus, violating status by working without authorization can prevent the approval of an I-485 application to adjust status to obtain permanent residence or "green card" status.

While problems are generally detected in the tax filings, this does not mean that there is no violation as long as a paycheck is not received. Additionally, failure to declare money and pay taxes on any money earned in order to avoid detection is not a solution. The failure to pay taxes on money earned is yet another legal violation that will likely compound the problem for breaching two separate laws.

Passive Investments Allowed
The above information is not to be confused with making passive investments. It is permissible to make financial investments that, hopefully, will generate financial gain, provided that the investments are entirely passive in nature. For example, it is permissible to invest in various savings vehicles, such as the stock market or bonds, where the only involvement in obtaining the financial gain is purely passive and not the result of working (other than planning and research). It would be possible to invest in a private company, as long as the only role of the individual is as a passive investor.

Solutions
If an individual has been involved with his or her own business, it would be best to seek the advice of an experienced immigration attorney. There may be a solution that will place the individual back into lawful status. The person will then need to comply with the terms of that status, including ceasing the unauthorized employment. Timing can be important in crafting a solution, since working beyond 180 days could pose a serious problem in most employment-based cases.

Conclusion
Immigration laws are complex. Violations, even made innocently, often result in harsh consequences for individuals and their families. When in doubt regarding an immigration matter, it is important to obtain proper advice. The problem discussed in this article usually occurs because an individual either makes wrong assumptions or obtains advice from friends and colleagues, who are often not qualified to issue such advice. While insights and recommendations from friends and colleagues can be often helpful in some situations, final decisions on important legal matters need to be made based on qualified legal advice.

AC21 Law

2010-07-24T20:37:00.000-07:00

106 th Congress
October 17, 2000
114 Stat. 1251
[S. 2045]

One Hundred Sixth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-fourth day of January, two thousand An Act To amend the Immigration and Nationality Act with respect to H-1B nonimmigrant aliens.Be it enacted by the Senate and House ofRepresentatives of the United States of America in Congress assembled,

TITLE I--AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY
SEC. 101. SHORT TITLE.
This title may be cited as the “American Competitiveness in the Twenty-first Century Act of 2000”.

SEC. 102. TEMPORARY INCREASE IN VISA ALLOTMENTS.
(a) FISCAL YEARS 2001-2003- Section 214(g)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(A)) is amended--
(1) by redesignating clause (v) as clause (vii); and
(2) by striking clause (iv) and inserting the following:
“(iv) 195,000 in fiscal year 2001;
“(v) 195,000 in fiscal year 2002;
“(vi) 195,000 in fiscal year 2003 and”.

(b) ADDITIONAL VISAS FOR FISCAL YEARS 1999 AND 2000-
(1) IN GENERAL- (A) Notwithstanding section 214(g)(1)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(A)(ii)), the total number of aliens who may be issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act in fiscal year 1999 is increased by a number equal to the number of aliens who are issued such a visa or provided such status during the period beginning on the date on which the limitation in such section 214(g)(1)(A)(ii)is reached and ending on September 30, 1999.

(B) In the case of any alien on behalf of whom a petition for status under section 101(a)(15)(H)(i)(b) is filed before September 1, 2000, and is subsequently approved, that alien shall be counted toward the numerical ceiling for fiscal year 2000 notwithstanding the date of the approval of the petition. Notwithstanding section 214(g)(1)(A)(iii) of the Immigration and Nationality Act, the total number of aliens who may be issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act in fiscal year 2000 is increased by a number equal to the number of aliens who may be issued visas or otherwise provided nonimmigrant status who filed a petition during the period beginning on the date on which the limitation in such section 214(g)(1)(A)(iii) is reached and ending on August 31, 2000.

(2) EFFECTIVE DATE- Paragraph (1) shall take effect as if included in the enactment of section 411 of the American Competitiveness and Workforce Improvement Act of 1998 (as contained in title IV of division C of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999; Public Law 105-277).

SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:

“(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
“(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
“(B) a nonprofit research organization or a governmental research organization.

“(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).

“(7) Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.”.

SEC. 104.     LIMITATION ON PER COUNTRY CEILING WITH RESPECT TO EMPLOYMENT-BASED IMMIGRANTS.
(a) SPECIAL RULES- Section 202(a) of the Immigration and Nationality Act (8 U.S.C.1152(a)) is amended by adding at the end the following new paragraph:

“(5) RULES FOR EMPLOYMENT-BASED IMMIGRANTS-

“(A) EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.

“(B) LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens sp ecified in section 203(b).’.

(b) CONFORMING AMENDMENTS-
(1) Section 202(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1152(a)(2))is amended by striking “paragraphs (3) and (4)” and inserting “paragraphs (3), (4),and (5)”.
(2) Section 202(e)(3) of the Immigration and Nationality Act (8 U.S.C. 1152(e)(3))is amended by striking “the proportion of the visa numbers” and inserting “except as provided in subsection (a)(5), the proportion of the visa numbers”.

(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who--
(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.

SEC. 105. INCREASED PORTABILITY OF H-1B STATUS.
(a) IN GENERAL- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following new subsection:

“(m)(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

“(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien--
“(A) who has been lawfully admitted into the United States;
“(B) on whose behalf an employer has filed nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
“(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.”.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to petitions filed before, on, or after the date of enactment of this Act.

SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.
(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of stat us under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since--

(1) the filing of a labor certification application on the alien’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or

(2) the filing of the petition under such section 204(b).

(b) EXTENSION OF H-1B WORKER STATUS- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

(c) INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS- (1) Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:

“(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:

“(iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

(d) RECAPTURE OF UNUSED EMPLOYMENT-BASED IMMIGRANT VISAS-
(1) IN GENERAL- Notwithstanding any other provision of law, the number of employment-based visas (as defined in paragraph (3)) made available for a fiscal year (beginning with fiscal year 2001) shall be increased by the number described in paragraph (2). Visas made available under this subsection shall only be available in a fiscal year to employment-based immigrants under paragraph (1), (2), or (3) of section 203(b) of the Immigration and Nationality Act.

(2) NUMBER AVAILABLE-

(A) IN GENERAL- Subject to subparagraph (B), the number described it this paragraph is the difference between the number of employment-based visas that were made available in fiscal years 1999 and 2000 and the number of such visas that were actually used in such fiscal years.

(B) REDUCTION- The number described in subparagraph (A) shall be reduced, for each fiscal year after fiscal year 2001, by the cumulative number of immigrant visas actually used under paragraph (1) for previous fiscal years.

(C) CONSTRUCTION- Nothing in this paragraph shall be construed as affecting the application of section 201(c)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1151(c)(3)(C)).
(3) EMPLOYMENT-BASED VISAS DEFINED- For purposes of this subsection, the term “employment-based visa” means an immigrant visa which is issued pursuant to the numerical limitation under section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)).

SEC. 107.     EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES THROUGH FISCAL YEAR 2002.
(a) ATTESTATION REQUIREMENTS- Section 212(n)(1)(E)(ii)) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(E)(ii)) is amended by striking “October 1, 2001” and inserting “October 1, 2003”.
(b) DEPARTMENT OF LABOR INVESTIGATIVE AUTHORITIES- Section 413(e)(2)of the American Competitiveness and Workforce Improvement Act of 1998 (as contained in title IV of division C of Public Law 105-277) is amended by striking “September 30, 2001” and inserting “September 30, 2003”.

SEC. 108. RECOVERY OF VISAS USED FRAUDULENTLY.
Section 214(g)(3) of the Immigration and Nationality Act (8 U.S.C. 1184 (g)(3)) is amended to read as follows:

“(3) Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status. If an alien who was issued a visa or otherwise provided nonimmigrant status and counted against the numerical limitations of paragraph (1) is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepresenting a material fact and such visa or nonimmigrant status i s revoked, then one number shall be restored to the total number of aliens who may be issued visas or otherwise provided such status under the numerical limitations of paragraph (1) in the fiscal year in which the petition is revoked, regardless of the fiscal year in which the petition was approved.”.

SEC. 109. NSF STUDY AND REPORT ON THE “DIGITAL DIVIDE”.
(a) STUDY- The National Science Foundation shall conduct a study of the divergence in access to high technology (commonly referred to as the “digital divide”) in the United States.
(b) REPORT- Not later than 18 months after the date of enactment of this Act, the Director of the National Science Foundation shall submit a report to Congress setting forth
the findings of the study conducted under subsection (a).

SEC. 110.     MODIFICATION OF NONIMMIGRANT PETITIONER ACCOUNT PROVISIONS.
(a) ALLOCATION OF FUNDS- Section 286(s) of the Immigration and Nationality Act(8 U.S.C. 1356(s)) is amended--
(1) in paragraph (2), by striking “56.3 percent” and inserting “55 percent”;
(2) in paragraph (3), by striking “28.2 percent” and inserting “23.5 percent”;
(3) by amending paragraph (4) to read as follows:
(4) NATIONAL SCIENCE FOUNDATION COMPETITIVE GRANT PROGRAM FOR K-12 MATH, SCIENCE AND TECHNOLOGY EDUCATION-

“(A) IN GENERAL- 15 percent of the amounts deposited into the H-1B Nonimmigrant Petitioner Account shall remain available to the Director of the National Science Foundation until expended to carry out a direct or matching grant program to support private-public partnerships in K-12 education.

“(B) TYPES OF PROGRAMS COVERED- The Director shall award grants to such programs, including those which support the development and implementation of standards-based instructional materials models and related student assessments that enable K-12 students to acquire an understanding of science, mathematics, and technology, as well as to develop critical thinking skills; provide systemic improvement in training K-12 teachers and education for students in science, mathematics, and technology; support the profe ssional development of K-12 math and science teachers in the use of technology in the classroom; stimulate system-wide K-12 reform of science, mathematics, and technology in rural, economically disadvantaged regions of the United States; provide externships and other opportunities for students to increase their appreciation and understanding of science, mathematics, engineering, and technology (including summer institutes sponsored by an institution of higher education for students in grades 7-12 that provi de instruction in such fields); involve partnerships of industry, educational institutions, and community organizations to address the educational needs of disadvantaged communities; provide college preparatory support to expose and prepare students for careers in science, mathematics, engineering, and technology; and provide for carrying out systemic reform activities under section 3(a)(1) of the National Science Foundation Act of 1950 (42 U.S.C. 1862(a)(1)).”;

(4) in paragraph (6), by striking “6 percent” and inserting “5 percent”; and

(5) in paragraph (6), by striking “3 percent” each place it appears and inserting “2.5 percent”.
(b) LOW-INCOME SCHOLARSHIP PROGRAM- Section 414(d)(3) of the American Competitiveness and Workforce Improvement Act of 1998 (as contained in title IV of division C of Public Law 105-277) is amended by striking “$2,500 per year.” and inserting “$3,125 per year. The Director may renew scholarships for up to 4 years.”.

(c) REPORTING REQUIREMENT- Section 414 of the American Competitiveness and Workforce Improvement Act of 1998 (as contained in title IV of division C of Public Law 105-277) is amended by adding at the end the following new subsection:

“(e) REPORTING REQUIREMENT- The Secretary of Labor and the Director of the National Science Foundation shall--
“(1) track and monitor the performance of programs receiving H-1B Nonimmigrant Fee grant money; and
“(2) not later than one year after the date of enactment of this subsection, submit a report to the Committees on the Judiciary of the House of Representatives and the Senate--
“(A) the tracking system to monitor the performance of programs receiving H-1B grant funding; and
“(B) the number of individuals who have completed training and have entered the high-skill workforce through these programs.”.

SEC. 111. DEMONSTRATION PROGRAMS AND PROJECTS TO PROVIDE TECHNICAL SKILLS TRAINING FOR WORKERS.
Section 414(c) of the American Competitiveness and Workforce Improvement Act of 1998 (as contained in title IV of division C of Public Law 105-277; 112 Stat. 2681-653) is amended to read as follows:
“(c) DEMONSTRATION PROGRAMS AND PROJECTS TO PROVIDE TECHNICAL SKILLS TRAINING FOR WORKERS-

“(1) IN GENERAL-

“(A) FUNDING- The Secretary of Labor shall use funds available under section 286(s)(2) of the Immigration Nationality Act (8 U.S.C. 1356(s)(2)) to establish demonstration programs or projects to provide technical skills training for workers, including both employed and unemployed workers.

“(B) TRAINING PROVIDED- Training funded by a program or project described in subparagraph (A) shall be for persons who are currently employed and who wish to obtain and upgrade skills as well as for persons who are unemployed. Such training is not limited to skill levels commensurate with a four-year undergraduate degree, but should include the preparation of workers for a broad range of positions along a career ladder. Consideration shall be given to the use of grant funds to demonstrate a significant abil ity to expand a training program or project through such means as training more workers or offering more courses, and training programs or projects resulting from collaborations, especially with more than one small business or with a labor-management training program or project. The need for the training shall be justified through reliable regional, State, or local data.

“(2) GRANTS-

“(A) ELIGIBILITY- To carry out the programs and projects described in paragraph (1)(A), the Secretary of Labor shall, in consultation with the Secretary of Commerce, subject to the availability of funds in the H-1B Nonimmigrant Petitioner Account, award-

“(i) 75 percent of the grants to a local workforce investment board established under section 116(b) or section 117 of the Workforce Investment Act of 1998 (29 U.S.C. 2832) or consortia of such boards in a region. Each workforce investment board or consortia of boards receiving grant funds shall represent a local or regional public-private partnership consisting of at least—

“(I) one workforce investment board;

“(II) one community-based organization or higher education institution or labor union; and

“(III) one business or business-related nonprofit organization such as a trade association: Provided, That the activities of such local or regional public-private partnership described in this subsection shall be conducted in coordination with the activities of the relevant local workforce investment board or boards established under the Workforce Investment Act of 1998 (2 U.S.C. 2832); and

“(ii) 25 percent of the grants under the Secretary of Labor’s authority to award grants for demonstration projects or programs under section 171 of the Workforce Investment Act (29 U.S.C. 2916) to partnerships that shall consist of at least 2 businesses or a business-related nonprofit organization that represents more than one business, and that may include any educational, labor, community organization, or workforce investment board, except that such grant funds may be used only to carry out a strategy tha t would otherwise not be eligible for funds provided under clause (i), due to barriers in meeting those partnership eligibility criteria, on a national, multistate, regional, or rural area (such as rural telework programs) basis.

“(B) DESIGNATION OF RESPONSIBLE FISCAL AGENTS- Each partnership formed under subparagraph (A) shall designate a responsible fiscal agent to receive and disburse grant funds under this subsection.

“(C) PARTNERSHIP CONSIDERATIONS.-Consideration in the awarding of grants shall be given to any partnership that involves and directly benefits more than one small business (each consisting of 100 employees or less).

“(D) ALLOCATION OF GRANTS.-In making grants under this paragraph, the Secretary shall make every effort to fairly distribute grants across rural and urban areas, and across the different geographic regions of the United States. The total amount of grants awarded to carry out programs and projects described in paragraph
(1)(A) shall be allocated as follows:
“(i) At least 80 percent of the grants shall be awarded to programs and projects that train employed and unemployed workers in skills in high technology, information technology, and biotechnology, including skills needed for software and communications services, telecommunications, systems installation and integration, computers and communications hardware, advanced manufacturing, health care technology, biotechnology and biomedical research and manufacturing, and innovation services.
“(ii) No more than 20 percent of the grants shall be available to programs and projects that train employed and unemployed workers for skills related to any single specialty occupation, as defined in section 214(i) of the Immigration and Nationality Act.

“(3) START-UP FUNDS-
“(A) IN GENERAL- Except as provided in subparagraph (B), not more than 5 percent of any single grant, or not to exceed $75,000, whichever is less, may be used toward the start-up costs of partnerships or new training programs and projects.
”B) EXCEPTION- In the case of partnerships consisting primarily of small businesses, not more than 10 percent of any single grant, or $150,000, whichever is less, may be used toward the start-up costs of partnerships or new training programs and projects.
“(C) DURATION OF START-UP PERIOD- For purposes of this subsection, a start-up period consists of a period of not more than 2 months after the grant period begins, at which time training shall immediately begin and no further Federal funds may be used for start-up purposes.

“(4) TRAINING OUTCOMES-
“(A) CONSIDERATION FOR CERTAIN PROGRAMS AND PROJECTS- Consideration in the awarding of grants shall be given to applicants that provide a specific, measurable commitment upon successful completion of a training course, to--
“(i) hire or effectuate the hiring of unemployed trainees (where applicable);
“(ii) increase the wages or salary of incumbent workers (where applicable); and
“(iii) provide skill certifications to trainees or link the training to industry-accepted occupational skill standards, certificates, or licensing requirements.
“(B) REQUIREMENTS FOR GRANT APPLICATIONS-
Applications for grants shall--
“(i) articulate the level of skills that workers will be trained for and the manner by which attainment of those skills will be measured;
“(ii) include an agreement that the program or project shall be subject to evaluation by the Secretary of Labor to measure its effectiveness; and
“(iii) in the case of an application for a grant under subsection (c)(2)(A)(ii), explain what barriers prevent the strategy from being implemented through a grant made under subsection (c)(2)(A)(i).

“(5) MATCHING FUNDS- Each application for a grant to carry out a program or project described in paragraph (1)(A) shall state the manner by which the partnership will provide non-Federal matching resources (cash, or in-kind contributions, or both) equal to at least 50 percent of the total grant amount awarded under paragraph (2)(A)(i), and at least 100 percent of the total grant amount awarded under paragraph (2)(A)(ii). At least one-half of the non-Federal matching funds shall be from the business or busin esses or business-related nonprofit organizations involved. Consideration in the award of grants shall be given to applicants that provide a specific commitment or commitments of resources from other public or private sources, or both, so as to demonstrate the long-term sustainability of the training program or project after the grant expires.

“(6) ADMINISTRATIVE COSTS- An entity that receives a grant to carry out a program or project described in paragraph (1)(A) may not use more than 10 percent of the amount of the grant to pay for administrative costs associated with the program or project.”.

SEC. 112.     KIDS 2000 CRIME PREVENTION AND COMPUTER EDUCATION INITIATIVE.
(a) SHORT TITLE- This section may be cited as the “Kids 2000 Act”.

(b) FINDINGS- Congress makes the following findings:
(1) There is an increasing epidemic of juvenile crime throughout the United States.
(2) It is well documented that the majority of juvenile crimes take place during after-school hours.
(3) Knowledge of technology is becoming increasingly necessary for children in school and out of school.
(4) The Boys and Girls Clubs of America have 2,700 clubs throughout all 50 States, serving over 3,000,000 boys and girls primarily from at-risk communities.
(5) The Boys and Girls Clubs of America have the physical structures in place for immediate implementation of an after-school technology program.
(6) Building technology centers and providing integrated content and full-time staffing at those centers in the Boys and Girls Clubs of America nationwide will help foster education, job training, and an alternative to crime for at-risk youth.
(7) Partnerships between the public sector and the private sector are an effective way of providing after-school technology programs in the Boys and Girls Clubs of America.
(8) PowerUp: Bridging the Digital Divide is an entity comprised of more than a dozen nonprofit organizations, major corporations, and Federal agencies that have joined together to launch a major new initiative to help ensure that America’s underserved young people acquire the skills, experiences, and resources they need to succeed in the digital age.
(9) Bringing PowerUp into the Boys and Girls Clubs of America will be an effective way to ensure that our youth have a safe, crime-free environment in which to learn the technological skills they need to close the divide between young people who have access to computer-based information and technology-related skills and those who do not.

(c) AFTER-SCHOOL TECHNOLOGY GRANTS TO THE BOYS AND GIRLS CLUBS OF AMERICA-
(1) PURPOSES- The Attorney General shall make grants to the Boys and Girls Clubs of America for the purpose of funding effective after-school technology programs, such as PowerUp, in order to provide--
(A) constructive technology-focused activities that are part of a comprehensive program to provide access to technology and technology training to youth during after-school hours, weekends, and school vacations;
(B) supervised activities in safe environments for youth; and
(C) full-time staffing with teachers, tutors, and other qualified personnel.
(2) SUBAWARDS- The Boys and Girls Clubs of America shall make subawards to local boys and girls clubs authorizing expenditures associated with providing technology programs such as PowerUp, including the hiring of teachers and other personnel, procurement of goods and services, including computer equipment, or such other purposes as are approved by the Attorney General.
(d) APPLICATIONS-
(1) ELIGIBILITY- In order to be eligible to receive a grant under this section, an applicant for a subaward (specified in subsection (c)(2)) shall submit an application to the Boys and Girls Clubs of America, in such form and containing such information as the Attorney General may reasonably require.
(2) APPLICATION REQUIREMENTS- Each application submitted in accordance with paragraph (1) shall include--

(A) a request for a subgrant to be used for the purposes of this section;

(B) a description of the communities to be served by the grant, including the nature of juvenile crime, violence, and drug use in the communities;

(C) written assurances that Federal funds received under this section will be used to supplement and not supplant, non-Federal funds that would otherwise be available for activities funded under this section;

(D) written assurances that all activities funded under this section will be supervised by qualified adults;

(E) a plan for assuring that program activities will take place in a secure environment that is free of crime and drugs;

(F) a plan outlining the utilization of content-based programs such as PowerUp, and the provision of trained adult personnel to supervise the after-school technology training; and

(G) any additional statistical or financial information that the Boys and Girls Clubs of America may reasonably require.

(e) GRANT AWARDS- In awarding subgrants under this section, the Boys and Girls Clubs of America shall consider--
(1) the ability of the applicant to provide the intended services;
(2) the history and establishment of the applicant in providing youth activities; and
(3) the extent to which services will be provided in crime-prone areas and technologically underserved populations, and efforts to achieve an equitable geographic distribution of the grant awards.

(f) AUTHORIZATION OF APPROPRIATIONS-
(1) IN GENERAL- There is authorized to be appropriated $20,000,000 for each of the fiscal years 2001 through 2006 to carry out this section.
(2) SOURCE OF FUNDS- Funds to carry out this section may be derived from the Violent Crime Reduction Trust Fund.

(3) CONTINUED AVAILABILITY- Amounts made available under this subsection shall remain available until expended.

SEC. 113. USE OF FEES FOR DUTIES RELATING TO PETITIONS.
(a) Section 286(s)(5) of the Immigration and Nationality Act (8 U.S.C. 1356(s)(5)) is amended to read as follows: “4 percent of the amounts deposited into the H-1B Nonimmigrant Petitioner Account shall remain available to the Attorney General until expended to carry out duties under paragraphs (1) and (9) of section 214(c) related to petitions made for nonimmigrants described in section 101(a)(15)(H)(i)(b), under paragraph (1) (C) or (D) of section 204 related to petitions for immigrants described in sectio n 203(b).”.
(b) Notwithstanding any other provision of this Act, the figure to be inserted in section 110(a)(2) is deemed to be “22 percent”; the figure to be inserted in section 110(a)(4) is deemed to be `4 percent’; and the figure to be inserted in section 110(a)(5) is deemed to be “2 percent”.

SEC. 114.     EXCLUSION OF CERTAIN “J” NONIMMIGRANTS FROM NUMERICAL LIMITATIONS APPLICABLE TO “H-1B” NONIMMMIGRANTS.
The numerical limitations contained in section 102 of this title shall not apply to any nonimmigrant alien granted a waiver that is subject to the limitation contained in paragraph (1)(B) of the first section 214(l) of the Immigration and Nationality Act (relating to restrictions on waivers).

SEC. 115. STUDY AND REPORT ON THE “DIGITAL DIVIDE”.
(a) STUDY- The Secretary of Commerce shall conduct a review of existing public and private high-tech workforce training programs in the United States.
(b) REPORT- Not later than 18 months after the date of enactment of this Act, the Secretary of Commerce shall submit a report to Congress setting forth the findings of the study conducted under subsection (a).

SEC. 116. SEVERABILITY.
If any provision of this title (or any amendment made by this title) or the application thereof to any person or circumstance is held invalid, the remainder of the title (and the amendments made by this title) and the application of such provision to any other person or circumstance shall not be affected thereby. This section be enacted 2 days after effective date.

TITLE II--IMMIGRATION SERVICES AND INFRASTRUCTURE IMPROVEMENTS
SEC. 201. SHORT TITLE.
This title may be cited as the “Immigration Services and Infrastructure Improvements Act of 2000”.

SEC. 202. PURPOSES.
(a) PURPOSES- The purposes of this title are to--
(1) provide the Immigration and Naturalization Service with the mechanisms it needs to eliminate the current backlog in the processing of immigration benefit applications within 1 year after enactment of this Act and to maintain the elimination of the backlog in future years; and
(2) provide for regular congressional oversight of the performance of the Immigration and Naturalization Service in eliminating the backlog and processing delays in immigration benefits adjudications.
(b) POLICY- It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 214(c) of the Immigration and Nationality Act should be processed not later than 30 days after the filing of the petition.

SEC. 203. DEFINITIONS.
In this title:
(1) BACKLOG- The term “backlog” means, with respect to an immigration benefit application, the period of time in excess of 180 days that such application has been pending before the Immigration and Naturalization Service.

(2) IMMIGRATION BENEFIT APPLICATION- The term “immigration benefit application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act.

SEC. 204.     IMMIGRATION SERVICES AND INFRASTRUCTURE IMPROVEMENT ACCOUNT.

(a) AUTHORITY OF THE ATTORNEY GENERAL- The Attorney General shall take such measures as may be necessary to—
(1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog not later than one year after the date of enactment of this Act;
(2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and
(3) make such improvements in infrastructure as may be necessary to effectively provide immigration services.

(b) AUTHORIZATION OF APPROPRIATIONS-
(1) IN GENERAL- There is authorized to be appropriated to the Department of Justice from time to time such sums as may be necessary for the Attorney General to carry out subsection (a).
(2) DESIGNATION OF ACCOUNT IN TREASURY- Amounts appropriated pursuant to paragraph (1) may be referred to as the “Immigration Services and Infrastructure Improvements Account”.
(3) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to paragraph (1) are authorized to remain available until expended.
(4) LIMITATION ON EXPENDITURES- None of the funds appropriated pursuant to paragraph (1) may be expended until the report described in section 205(a) has been submitted to Congress.

SEC. 205. REPORTS TO CONGRESS.
(a) BACKLOG ELIMINATION PLAN-

(1) REPORT REQUIRED- Not later than 90 days after the date of enactment of this Act, the Attorney General shall submit a report to the Committees on the Judiciary and Appropriations of the Senate and the House of Representatives concerning--

(A) the backlogs in immigration benefit applications in existence as of the date of enactment of this title; and

(B) the Attorney General’s plan for eliminating such backlogs.

(2) REPORT ELEMENTS- The report shall include--

(A) an assessment of the data systems used in adjudicating and reporting on the status of immigration benefit applications, including--
(i) a description of the adequacy of existing computer hardware, computer software, and other mechanisms to comply with the adjudications and reporting requirements of this title; and
(ii) a plan for implementing improvements to existing data systems to accomplish the purpose of this title, as described in section 202(a);

(B) a description of the quality controls to be put into force to ensure timely, fair, accurate, and complete processing and adjudication of such applications;

(C) the elements specified in subsection (b)(2);

(D) an estimate of the amount of appropriated funds that would be necessary in order to eliminate the backlogs in each category of immigration benefit applications described in subsection (b)(2); and

(E) a detailed plan on how the Attorney General will use any funds in the Immigration Services and Infrastructure Improvements Account to comply with the purposes of this title.

(b) ANNUAL REPORTS-
(1) IN GENERAL- Beginning 90 days after the end of the first fiscal year for which any appropriation authorized by section 204(b) is made, and 90 days after the end of each fiscal year thereafter, the Attorney General shall submit a report to the Committees on the Judiciary and Appropriations of the Senate and the House of Representatives concerning the status of—-

(A) the Immigration Services and Infrastructure Improvements Account including any unobligated balances of appropriations in the Account; and

(B) the Attorney General’s efforts to eliminate backlogs in any immigration benefit application described in paragraph (2).

(2) REPORT ELEMENTS- The report shall include--

(A) State-by-State data on--
(i) the number of naturalization cases adjudicated in each quarter of each fiscal year;
(ii) the average processing time for naturalization applications;
(iii) the number of naturalization applications pending for up to 6 months, 12 months, 18 months, 24 months,

36 months, and 48 months or more;
(iv) estimated processing times adjudicating newly submitted naturalization applications;
(v) an analysis of the appropriate processing times for naturalization applications; and
(vi) the additional resources and process changes needed to eliminate the backlog for naturalization adjudications;

(B) the status of applications or, where applicable, petitions described in subparagraph (C), by Immigration and Naturalization Service district, including--
(i) the number of cases adjudicated in each quarter of each fiscal year;
(ii) the average processing time for such applications or petitions;
(iii) the number of applications or petitions pending for up to 6 months,12 months, 18 months, 24 months, 36 months, and 48 months or more;
(iv) the estimated processing times adjudicating newly submitted applications or petitions;
(v) an analysis of the appropriate processing times for applications or petitions; and
(vi) a description of the additional resources and process changes needed to eliminate the backlog for such processing and adjudications; and

(C) a status report on—
(i) applications for adjustments of status to that of an alien lawfully admitted for permanent residence;
(ii) petitions for nonimmigrant visas under section 214 of the Immigration and Nationality Act;
(iii) petitions filed under section 204 of such Act to classify aliens as immediate relatives or preference immigrants under section 203 of such Act;
(iv) applications for asylum under section 208 of such Act;
(v) registrations for Temporary Protected Status under section 244 of such Act; and
(vi) a description of the additional resources and process changes needed to eliminate the backlog for such processing and adjudications.

(3) ABSENCE OF APPROPRIATED FUNDS- In the event that no funds are appropriated subject to section 204(b) in the fiscal year in which this Act is enacted, the Attorney General shall submit a report to Congress not later than 90 days after the end of such fiscal year, and each fiscal year thereafter, containing the elements described in paragraph (2).

July Fiasco 2007 Hypothesis

2010-07-23T16:52:00.000-07:00

IMO July fiasco (making everything current) was the effect of CIR 2007. That was intentional move by DOS in anticipation of a passage of CIR. When they were sure that CIR won't pass, they reverted the bulletin back and rest is history.

Here are the dates:

CIR 2007 introduced in Senate on: May 9, 2007
CIR Vote on cloture fails in Senate: June 7 2007July 2007 visa bullettin released on :June 12 2007.

A related bill S. 1639 fails on: June 28, 2007
Bulletin was reversed on :July 2, 2007

S. 1639 failed on June 28, visa bulletin was reversed on July 2
July visa bulletin had already come out on June 12 2007.
The decision to publish this bulletin might have been taken sometime in May 2007.
Even if we base the events on the Original CIR 2007 which failed on June 7 2007, it would have taken sometime to communicate the decision to revert the bulletin to USCIS.

Comprehensive Immigration Reform Act of 2007 - Wikipedia, the free encyclopedia

Interesting discussion about 245(i) cases on murthy.com forum

2010-07-20T19:13:00.000-07:00

http://murthyforum.atinfopop.com/4/OpenTopic?a=tpc&s=1024039761&f=1474093861&m=7381004591
EB3I is not progressing beyond 2001 because of 245i
245i allowed illegals to adjust status in different immigration categories.
While Clinton and Bush passed this reform or extended it, they did not allocate any additional visas for those adjusted under 245i.
link for 245i faq
FAQ on the §245(i) Reauthorization, U.S. Immigration, Law Offices of **** **********
To understand the severity of impact on EB category, please read the following post.
Shocking EB Visa Numbers Prediction for FY 2006 and FY 2007

USCIS Memo on 2 year EAD

2010-07-17T10:02:00.000-07:00

http://www.uscis.gov/files/nativedocuments/Rec35_010209.pdf

DATE: January 2, 2009
SUBJECT: Response to Recommendation 35, Recommendations on USCIS Processing Delays for Employment Authorization Documents

CIS Ombudsman Recommendation 35
The CIS Ombudsman recommends that USCIS:
• Adhere to regulations that state USCIS shall issue Employment Authorization Documents (EADs) within 90 days, or issue interim EADs, to prevent unnecessary loss of employment;
• Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed;
• Ensure USCIS provide consistent guidance to the public regarding EADs pending more than 90 days via the National Customer Service Center (NCSC) toll-free number and local offices; and
• Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.
The CIS Ombudsman also suggests that USCIS consider the following operational procedures to issue interim EADs when applications are pending over 90 days:
• Modify USCIS I-797 Receipt Notices for Form I-765 (Application for Employment Authorization) to provide for continued employment authorization; and
• Affix fraud-proof stickers to expired EADs upon determination of an applicant’s eligibility for an extension.

USCIS Response
We appreciate the CIS Ombudsman’s interest in the adjudication of Form I-765, Applications for Employment Authorization, or EAD applications. We acknowledge that, unfortunately, there is a small percentage of applicants whose cases are not adjudicated timely, and we understand that this imposes a significant burden on them, but we respectfully disagree with the perception that EAD processing, as a whole, is a significant issue.
In Fiscal Year 2008, USCIS received 1,144,374 Forms I-765. During this same period, the NCSC toll-free number received 15,551 service requests relating to Form I-765 applications beyond the normal processing time. These requests constitute only 1.3% of the total applications received. In addition, the current cycle time, as of November 1, 2008, for the processing of EAD applications is 1.9 months—within the 90-day limit. Although we do not have quantifiable data available, we believe that a significant number of these service requests pertain to cases that are not outside of normal processing times. In many instances, the service requests come from applicants who:
• Are requesting a status on a card that is pending more than 75 days but still within the 90-day requirement;
• Do not understand that the 90-day clock was suspended while USCIS waits on additional evidence from the applicant; or
• Had an employment document issued, but it was returned to USCIS as non-deliverable.
With at least a 98.7% compliance rate for FY08, we do not believe there is a systemic problem. We will continue to further tighten our controls in an effort to minimize the number of cases adjudicated outside the required timeframe. The four parts of the recommendation, as well as the CIS Ombudsman’s suggestions for issuing interim EADs, are addressed separately below:

1. Adhere to regulations that state USCIS shall issue EADs within 90 days, or issue interim EADs, to prevent unnecessary loss of employment.
To accomplish EAD issuance within 90 days as required by regulation, USCIS is taking a multi-faceted approach. First, we will continue to conduct routine sweeps of our systems to determine the Form I-765 applications which have been pending for at least 60 days and have not been assigned to an Immigration Officer (IO). These sweeps are conducted at least weekly and more frequently if necessary. Applications that have not been assigned will be forwarded to an IO to facilitate adjudication within the required timeframe.
We also have updated customer call scripts at the NCSC to state that service requests can be accepted when an EAD application has been pending for at least 75 days. Service requests accepted by the NCSC will be forwarded to the Service Centers and the National Benefits Center (NBC). The Service Centers and the NBC will be required to prioritize these cases and have them adjudicated prior to the 90th day.

We will also issue guidance to the Service Centers, the NBC, and Field Offices regarding requests on EAD applications that have not been adjudicated within 90 days. Applicants who have not received a decision on their Form I-765 application after 90 days can call the NCSC to request expedited processing or go to their local office via an InfoPass appointment. Because interim cards are produced by the appropriate Service Center or the NBC and field offices no longer produce EADs on-site as of August 2006, we recommend that EAD applicants may prefer to call the NCSC rather than visit the local Field. The NCSC has created a new service request category specific to EAD-related inquiries: Outside Regulatory Processing Time. These requests will be forwarded to the appropriate Service Center or NBC. For all requests that are forwarded from either the NCSC or the Field Offices, Service Centers and the NBC will either adjudicate the application or issue an interim card within 10 days of receiving the request. Interim cards will only be issued when adjudication of an application is delayed beyond 90 days due to the required reviews leading to a final decision that will exceed outside of that timeframe.

2. Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed.
When processing delays result from issuance of a Request for Evidence (RFE), USCIS will explain how the issuance of the RFE affects the 90-day period. When issuing an RFE for initial information, USCIS will advise the applicant that the 90-day period is automatically rescinded and that, upon receipt of the requested information, a new 90 day period begins. Likewise, when an RFE is issued for additional information, USCIS will advise the applicant that the 90-day period is automatically suspended and that, upon receipt of the requested information, the 90-day period will continue from the point of interruption.

3. Ensure USCIS provide consistent guidance to the public regarding EAD applications pending more than 90 days via the National Customer Service Center toll-free number and local offices.
This recommendation is currently in place, and information is available to the public. On August 28, 2008, USCIS issued and posted on its website at www.uscis.gov an EAD fact sheet which explains the steps an applicant may take if his or her Form I-765 application has been pending for more than 90 days.
In addition, the NCSC toll-free number has been updated to accept service requests for any I-765 applications pending more than 75 days. An internal announcement within the NCSC has been made, and customer scripts used by Tier 1 representatives have been modified to reflect the new service request requirement for Form I-765 applications. USCIS also plans to issue guidance to the Service Centers, NBC, and Field Offices regarding consistent handling of expedite requests

4. Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.
USCIS currently issues multi-year EADs in some circumstances. The 2-year EAD is available to pending Adjustment Of Status (AOS) applicants who have filed for an EAD under Title 8,Code of Federal Regulations (C.F.R.) 274.a.12(c)(9) and who are currently unable to adjust status because an immigrant visa number is not currently available. Two-year EADs are currently being issued in these circumstances. USCIS will continue to grant EADs that are valid for 1 year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. 274a.12(c)(9). In order to be eligible for an EAD with a 2-year validity period, an applicant’s Form I-140, Immigrant Petition for Alien Worker, must be approved.
USCIS also currently issues EADs valid for 18 months to applicants with valid Temporary Protected Status (TPS). USCIS welcomes suggestions from the Ombudsman regarding which eligibility categories should merit consideration for multi-year EADs, recognizing that an across-the-board extension of EAD validity periods is not possible since some applicants are prohibited from receiving multi-year EADs because of their status. Many employment authorization categories are linked to specific periods of eligibility which can vary greatly from case to case and are very often for periods of less than a year in duration.

5. Modify USCIS I-797 Receipt Notices for Form I-765, Application for Employment Authorization, to provide for continued employment authorization.
Since 2006, we have streamlined our approach to enhance our ability to process these applications within the 90-day timeframe which minimizes the need for an interim EAD as well as produce a more secure document. USCIS is unable to modify an I-797 Receipt Notice to serve as an interim extension of an Employment Authorization Document for several reasons, including fraud which would pose a threat to national security and confusion that this action would likely cause employers.

6. Affix fraud proof stickers to expired EADs upon determination of an applicant’s eligibility for an extension.
USCIS believes it would be more efficient, secure, and customer-friendly to issue a new EAD rather than to place a sticker on an expired one. EADs are adjudicated at service centers, not at the Field Offices. Unlike placing a service request with the NCSC, use of a sticker to extend employment authorization to applicants would require that applicants schedule an appointment and visit their local office. This could be burdensome for many applicants, where the local office is some distance from the applicant’s residence or the applicant has children; and, it likely would not be any quicker than if USCIS mailed them new card upon approval. Additionally, mailing a new card would be more secure as the applicant would only have one valid EAD at a time. With a sticker, there would likely be some overlap and one person could have two valid EADs.

The effect of an employer withdrawal of an I-140: Ron Gotcher

2010-07-16T20:18:00.001-07:00

http://imminfo.com/News/Newsletter/2010-07/employer-withdrawal-of-I-140.html
The effect of an employer withdrawal of an I-140 depends on the employee's processing stage at the time of the withdrawal. There are three significant "break points" for purposes of this discussion:

First, the employer withdraws the I-140 before it is approved.
Second, the employer withdraws the I-140 after it has been approved.
Third, the employer withdraws the I-140 more than 180 days after the employee has filed for adjustment of status.

Let's look at these situations individually.
If an employer withdraws an I-140 before it is approved (unless in the context of a concurrent I-485 filing - discussed separately), then the employee gains nothing from the filing. The priority date does not become vested until the I-140 is approved. In this situation, it is as though the PERM and I-140 had never been filed.

If an employer withdraws an I-140 after it has been approved, however, the employee is entitled to keep the priority date and use it for any subsequently filed I-140. It doesn't matter that the new I-140 may be for a different job, a different employer, a different location, or even a different preference classification. Once an I-140 is approved, the employee "owns" the priority date forever.

If the employer withdraws an approved or still pending I-140 more than 180 days after the employee filed for adjustment of status using that I-140, the withdrawal is of no consequence. The CIS must regard it as still valid for adjustment of status purposes. If it has not yet been approved, then the CIS must look to see if it was "approvable" at the time it was filed. If so, then the I-140 will remain valid.

If the employee leaves the sponsoring employer, and the employer withdraws the approved I-140, then after the withdrawal the employee may no longer use the approved I140 as a basis for an exemption from the six year H1B limit. If the employee's new employer obtains a new H petition before the old employer withdraws the petition, the employee will be given H status for up to three years (depending on the petitioner's ability to justify the length of time requested).

Murthy Success Story: Newark, NJ Expedited Removal Case Resolved

2010-07-16T05:56:00.000-07:00

http://murthy.com/bulletin.html

Many MurthyDotCom and MurthyBulletin readers have inquired about whatever happened to those H1B workers who encountered problems at the Newark, New Jersey port of entry (POE) in January 2010. The incidents in Newark struck fear in the hearts of many H1B foreign nationals who needed or wanted to travel abroad or return to the United States from abroad.
This is the success story of one such traveler, who was denied entry at the Newark POE, and was banned at the POE from returning to the United States for five years under an order of expedited removal. He came to the Murthy Law Firm for help after he had returned to his home country under the order of expedited removal. This client of our firm has generously allowed us to share his success story with MurthyDotCom and MurthyBulletin readers. Information about a client or a case is never reported to our readers without consent of the client.

Background of Denial of Entry to the U.S. in January 2010

The problems of this individual were similar to those described in our January 14, 2010 NewsFlash entitled, Note to H1Bs Traveling to the U.S. and Working for Consulting Companies. The airport at issue was Newark International Airport in New Jersey. The traveler was returning to the U.S. and, rather than the routine verification of documents and basic information, he was questioned in detail about his employment. The U.S. Customs and Border Protection (CBP) officers questioned him regarding the validity of his H1B employment, the identity of his employer's customers, and whether or not his employer had sufficient work for him. As explained below, the CBP was not satisfied with the information it gathered and, ultimately, exercised its authority to issue an expedited removal order against the foreign national, who became a client of the Murthy Law Firm after he was sent back to India.

Travel Outside of the United States

The foreign national had traveled outside of the United States and returned to his home country to get married. He carried with him a letter from his H1B employer, verifying that he would resume his H1B employment upon his return to the U.S. After his wedding celebration, his wife applied for an H-4 dependent visa through a U.S. consulate in the couple's home country. They presented the employer's letter to the consular office in support of the H-4 visa application. The consulate was satisfied with the evidence presented, and issued the H-4 visa. The gentleman who later became our client then attempted to return to the United States alone, with plans for his wife to follow soon after.

CBP Checks on Returning H1B Workers

When the individual attempted to reenter the United States, his experience at the POE was far from ordinary. The CBP officers placed him into what is known as secondary inspection. This is the procedure for foreign nationals who cannot be quickly and routinely processed through the standard primary inspection. The traveler was questioned about his employer, his work, and the end-client where he was performing his work. He was asked whether or not his employer had enough work to keep him employed throughout the duration of his H1B petition. One CBP officer contacted his employer, using the contact information on the employer's letter. The H1B employer was surprised by the call from CBP and did not firmly state that he had sufficient work to keep this particular H1B worker fully employed for the rest of the duration of the H1B petition.

The CBP officer took this information and determined that the foreign national was not returning to resume valid nonimmigrant work on his H1B visa. The officer instead considered the foreign national to be an intending immigrant seeking admission to the United States without a proper immigrant visa. This is one of the grounds under the law that permits an expedited removal. The officer cancelled the individual's H1B visa stamp in his passport and entered an expedited removal order against him, which carries the penalty of a five-year bar to reentering the U.S. The gentleman was then ordered to depart the U.S. on the next flight back to his home country.

Removed H1B Worker Contacts Murthy to Take Action

The foreign national contacted Murthy Law Firm after this unfortunate incident, and requested our assistance. The case was assigned to our Special Projects department, and we quickly made contact with the CBP officers at the port of entry involved. Our attorneys analyzed the case and found several legal mistakes that were made in the process of cancelling the H1B visa as well as in issuing the expedited removal order. A detailed legal argument was drafted and sent to the lead CBP official for the POE.

New H1B Petition Approval

While the Murthy Law Firm team was working on this case, our client obtained a new job offer from his H1B employer's end-client. The job involved duties identical to his previous position, but as a direct employee of the prior end-client company. The new employer obtained an approval of its H1B petition for consular processing. The only thing standing between our client and a great job was the five-year ban on his return to the United States that was created by the expedited removal order. The attorney assigned to this case contacted a U.S. senator representing the state where the new employer is located and began a series of actions that led to a review of the expedited removal.

Murthy Takes Action to Reverse Earlier CBP Decision

The review and reconsideration of expedited removal orders is not explicitly provided for in the regulations that control the day-to-day operations of the CBP. The Murthy Law Firm team succeeded in showing that the events that transpired for our client were extremely unusual and required review by leaders at CBP. Due to the new employer's need for this individual's skills, the attorney contacted several officers at CBP, filed a second official request with CBP, and worked with the U.S. senator's office to show that there was a serious and urgent need for a decision.

Determined Follow-up Leads to Relief

The persistence of our excellent legal team paid off. After almost ten weeks of communications with the CBP and other government offices, the CBP issued a letter stating that, while there is no appeal of expedited removal orders under the law, CBP was exercising its discretion and overturning its prior expedited removal order. The letter was quickly forwarded to our client, who scheduled his H1B visa interview at the appropriate U.S. consulate in India. He was issued his H1B visa at the conclusion of his consular interview and he then made the arrangements necessary for his wife and himself to return to the United States so that he could commence his new H1B employment.

Conclusion

We at the Murthy Law Firm are proud to share another of our many successful stories with our readers. We would like to extend our deep appreciation for the hard work and cooperation of the CBP officers in reconsidering their prior decision and taking the bold step, even though there was no law or regulation for an appeal or reconsideration of an earlier CBP decision. We also send our thanks the U.S. senator's staff, who worked to resolve the incorrect expedited removal order, which would have resulted in the five-year bar to our client's ability to return to the United States. Finally, our gratitude is offered once again to our client for his permission, allowing us to share his story, thereby providing hope to others.

Memo: USCIS Processing Delays for Employment Authorization Documents

2010-07-15T05:11:00.000-07:00

http://www.uscis.gov/files/nativedocuments/Rec35_010209.pdf

Memorandum
TO: Michael T. Dougherty
Citizenship and Immigration Services Ombudsman
FROM: Michael Aytes /s/ Rendell L. Jones
Acting Director
DATE: January 2, 2009

SUBJECT: Response to Recommendation 35, Recommendations on USCIS Processing Delays for Employment Authorization Documents
CIS Ombudsman Recommendation 35
The CIS Ombudsman recommends that USCIS:
• Adhere to regulations that state USCIS shall issue Employment Authorization Documents (EADs) within 90 days, or issue interim EADs, to prevent unnecessary loss of employment;
• Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed;
• Ensure USCIS provide consistent guidance to the public regarding EADs pending more than 90 days via the National Customer Service Center (NCSC) toll-free number and local offices; and
• Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.
The CIS Ombudsman also suggests that USCIS consider the following operational procedures to issue interim EADs when applications are pending over 90 days:
• Modify USCIS I-797 Receipt Notices for Form I-765 (Applicationfor Employment Authorization) to provide for continued employment authorization; and
• Affix fraud-proof stickers to expired EADs upon determination of an applicant’s eligibility for an extension.

USCIS Response
We appreciate the CIS Ombudsman’s interest in the adjudication of Form I-765, Applications for Employment Authorization, or EAD applications. We acknowledge that, unfortunately, there is a small percentage of applicants whose cases are not adjudicated timely, and we understand that this imposes a significant burden on them, but we respectfully disagree with the perception that EAD processing, as a whole, is a significant issue.
In Fiscal Year 2008, USCIS received 1,144,374 Forms I-765. During this same period, the NCSC toll-free number received 15,551 service requests relating to Form I-765 applications beyond the normal processing time. These requests constitute only 1.3% of the total applications received. In addition, the current cycle time, as of November 1, 2008, for the processing of EAD applications is 1.9 months—within the 90-day limit. Although we do not have quantifiable data available, we believe that a significant number of these service requests pertain to cases that are not outside of normal processing times. In many instances, the service requests come from applicants who:
• Are requesting a status on a card that is pending more than 75 days but still within the 90-day requirement;
• Do not understand that the 90-day clock was suspended while USCIS waits on additional evidence from the applicant; or
• Had an employment document issued, but it was returned to USCIS as non-deliverable.

With at least a 98.7% compliance rate for FY08, we do not believe there is a systemic problem. We will continue to further tighten our controls in an effort to minimize the number of cases adjudicated outside the required timeframe. The four parts of the recommendation, as well as the CIS Ombudsman’s suggestions for issuing interim EADs, are addressed separately below:
1. Adhere to regulations that state USCIS shall issue EADs within 90 days, or issue interim EADs, to prevent unnecessary loss of employment.
To accomplish EAD issuance within 90 days as required by regulation, USCIS is taking a multi-faceted approach. First, we will continue to conduct routine sweeps of our systems to determine the Form I-765 applications which have been pending for at least 60 days and have not been assigned to an Immigration Officer (IO). These sweeps are conducted at least weekly and more frequently if necessary. Applications that have not been assigned will be forwarded to an IO to facilitate adjudication within the required timeframe.
We also have updated customer call scripts at the NCSC to state that service requests can be accepted when an EAD application has been pending for at least 75 days. Service requests accepted by the NCSC will be forwarded to the Service Centers and the National Benefits Center (NBC). The Service Centers and the NBC will be required to prioritize these cases and have them adjudicated prior to the 90th day.

We will also issue guidance to the Service Centers, the NBC, and Field Offices regarding requests on EAD applications that have not been adjudicated within 90 days. Applicants who have not received a decision on their Form I-765 application after 90 days can call the NCSC to request expedited processing or go to their local office via an InfoPass appointment. Because interim cards are produced by the appropriate Service Center or the NBC and field offices no longer produce EADs on-site as of August 2006, we recommend that EAD applicants may prefer to call the NCSC rather than visit the local Field. The NCSC has created a new service request category specific to EAD-related inquiries: Outside Regulatory Processing Time. These requests will be forwarded to the appropriate Service Center or NBC. For all requests that are forwarded from either the NCSC or the Field Offices, Service Centers and the NBC will either adjudicate the application or issue an interim card within 10 days of receiving the request. Interim cards will only be issued when adjudication of an application is delayed beyond 90 days due to the required reviews leading to a final decision that will exceed outside of that timeframe.
2. Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed.
When processing delays result from issuance of a Request for Evidence (RFE), USCIS will explain how the issuance of the RFE affects the 90-day period. When issuing an RFE for initial information, USCIS will advise the applicant that the 90-day period is automatically rescinded and that, upon receipt of the requested information, a new 90 day period begins. Likewise, when an RFE is issued for additional information, USCIS will advise the applicant that the 90-day period is automatically suspended and that, upon receipt of the requested information, the 90-day period will continue from the point of interruption.

3. Ensure USCIS provide consistent guidance to the public regarding EAD applications pending more than 90 days via the National Customer Service Center toll-free number and local offices.
This recommendation is currently in place, and information is available to the public. On August 28, 2008, USCIS issued and posted on its website at www.uscis.gov an EAD fact sheet which explains the steps an applicant may take if his or her Form I-765 application has been pending for more than 90 days.
In addition, the NCSC toll-free number has been updated to accept service requests for any I-765 applications pending more than 75 days. An internal announcement within the NCSC has been made, and customer scripts used by Tier 1 representatives have been modified to reflect the new service request requirement for Form I-765 applications. USCIS also plans to issue guidance to the Service Centers, NBC, and Field Offices regarding consistent handling of expedite requests.
4. Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.

USCIS currently issues multi-year EADs in some circumstances. The 2-year EAD is available to pending Adjustment Of Status (AOS) applicants who have filed for an EAD under Title 8,

Code of Federal Regulations (C.F.R.) 274.a.12(c)(9) and who are currently unable to adjust status because an immigrant visa number is not currently available. Two-year EADs are currently being issued in these circumstances. USCIS will continue to grant EADs that are valid for 1 year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. 274a.12(c)(9). In order to be eligible for an EAD with a 2-year validity period, an applicant’s Form I-140, Immigrant Petition for Alien Worker, must be approved.
USCIS also currently issues EADs valid for 18 months to applicants with valid Temporary Protected Status (TPS). USCIS welcomes suggestions from the Ombudsman regarding which eligibility categories should merit consideration for multi-year EADs, recognizing that an across-the-board extension of EAD validity periods is not possible since some applicants are prohibited from receiving multi-year EADs because of their status. Many employment authorization categories are linked to specific periods of eligibility which can vary greatly from case to case and are very often for periods of less than a year in duration.
5. Modify USCIS I-797 Receipt Notices for Form I-765, Application for Employment Authorization, to provide for continued employment authorization.
Since 2006, we have streamlined our approach to enhance our ability to process these applications within the 90-day timeframe which minimizes the need for an interim EAD as well as produce a more secure document. USCIS is unable to modify an I-797 Receipt Notice to serve as an interim extension of an Employment Authorization Document for several reasons, including fraud which would pose a threat to national security and confusion that this action would likely cause employers.

6. Affix fraud proof stickers to expired EADs upon determination of an applicant’s eligibility for an extension.
USCIS believes it would be more efficient, secure, and customer-friendly to issue a new EAD rather than to place a sticker on an expired one. EADs are adjudicated at service centers, not at the Field Offices. Unlike placing a service request with the NCSC, use of a sticker to extend employment authorization to applicants would require that applicants schedule an appointment and visit their local office. This could be burdensome for many applicants, where the local office is some distance from the applicant’s residence or the applicant has children; and, it likely would not be any quicker than if USCIS mailed them new card upon approval. Additionally, mailing a new card would be more secure as the applicant would only have one valid EAD at a time. With a sticker, there would likely be some overlap and one person could have two valid EADs

Interim Employment Authorization EAD Processing for Long Pending EAD Applications

2010-07-09T05:22:00.000-07:00

http://www.immigration-visa-lawyer-blog.com/2010/07/-current-regulations-require-u.html

Aliens applying for a green card in the United States through adjustment of status need to obtain an employment authorization document (EAD) to work in the U.S. Current regulations allow for aliens to obtain an interim EAD card when the original EAD application is pending for more than 90 days.

Question: How does one apply for an interimEmployment Authorization Document?

The U.S. Citizenship and Immigration Services (USCIS) is required by federal regulations to decide an application for employment authorization I-765 (EAD) within 90 days from the date the EAD application is received. Generally speaking, the USCIS takes anywhere from 45-90 days to make a decision on a filed EAD. Under current regulations, if USCIS does not decide the application by the 90 day deadline, federal regulations instruct USCIS to issue an interim Employment Authorization Document (EAD), which is valid for up to 240 days. This allows the alien to work when USCIS has otherwise failed to meet its statutory and regulatory obligations.

Presently, interim EADs are issued by USCIS service centers. Since 2005, USCIS local offices no longer issue interim EAD cards. The local offices used to issue interim EADs upon an in person request by the application. This is no longer true. The below procedures govern the process by which an applicant can obtain an interim EAD allowing the alien to take up employment in the U.S. faster so that he/she does not have to wait for a slow moving bureaucratic governmental agency.

Procedure for Obtaining an Interim EAD Card:

Make an Info-Pass Appointment. If USCIS has not adjudicated the employment authorization application (I-765), or issued an interim EAD by day 90, an alien is required to make an Info-Pass appointment at the nearest USCIS local field office. Click here for further information on scheduling the appointment.

USCIS field office CLAIMS Evaluation. After the info-pass appointment has been scheduled, the USCIS local office will perform a Computer Linked Application Information Management System (CLAIMS) evaluation. This ensures that the original I-765 EAD application is still pending and unadjudicated, that there is no request for evidence (RFE) on file regarding the application (which effectively restarts or tolls the 90 day period), and the applicant has undergone his/her biometric fingerprinting.

The applicant must have completed a biometrics appointment. The CLAIMS verification will determine whether the applicant has undergone fingerprinting. If they have not, the USCIS local office will refer the applicant to obtain biometrics at the USCIS Application Center (ASC). The applicant must have his/her biometrics completed to obtain an interm EAD.

Case refered to USCIS Service Center. After the CLAIMS verification process is complete, the local office will contact the Service Center with jurisdiction over the applicant's U.S. residence. At this point, the Service Center will be responsible for adjudicating the interim EAD.

Call 1-800-375-5283 if the interim EAD is not issued by the Service Center by the time the applicant appears at the local office. The applicant may make a status inquiry via telephone to the Service Center while in the local office. All inquiries should be responded to within 30 days.

Question: What are the documents needed for obtaining an interim EAD

In order to obtain an interim employment authorization document the applicant should bring the following items to the USCIS Info-Pass appointment:

A new, completed Application for Employment Authorization (Form I-765);

The original Notice of Action (Form I-797) notice of receipt of the underlying pending EAD (I-765) application

The original Notice of Action (I-797) receipt notice for the underlying pending application which gives rise to the employment authorization such as a green card application receipt notice (I-485) and/or petition for alien relative (I-130 approval notice);

The applicant needs all present and past passports and Form I-94s;

Two passport-style photographs according to these specifications;

Proof of U.S. residency, such as state issued photo ID or driver's license (for proof of USCIS office jurisdiction); and

All current and expired EAD cards issued to the applicant.

Question: What happens when USCIS has issued an RFE on the pending application for employment authorization (I-765)? Can you still obtain an interim EAD?

A request for evidence (RFE) affects the applicant's eligibility for an interim EAD depending on the type of evidence requested in the RFE. If the RFE seeks "initial evidence", i.e., evidence mandated under federal regulations in order to obtain employment authorization, then USCIS will restart the 90 adjudication timeline. The evidence requested must have been required to obtain the EAD from the get go. Once the evidence has been gathered and the RFE has been responded to, USCIS will start the 90 adjudication clock over upon receipt of the response. Therefore, it is a must to make sure you submit all required evidence up front so that the 90 day clock does not get reset.

But, if the RFE seeks evidence not required under federal regulations, the USCIS will "toll" the 90 day deadline until it receives the RFE response, at which point USCIS will resume counting at the point that the clock was interrupted by the RFE. Tolling simply means that the 90 clock will be suspended at the point the RFE was issued (say at day 46). If the RFE is responded to 14 days later, the clock will be "tolled" for those 14 days and counting will begin again at day 47 upon receipt of the response to the RFE.

Call the Law Firm of Shihab & Associates Today

If you are currently applying for a green card (Form I-485) and have sought employment authorization EAD in connection therewith and have not received your EAD within 90 days of receipt of the application, please call The Law Firm of Shihab & Associates, Co., LPA for help in obtaining an interim EAD. Our firm handles all employment-based and family-based green card applications, EADs and advanced parole as well as naturalization, citizenship, deportation and removal, and immigration litigation. Call today at 614-255-4USA.

Case Study: Upgrade from EB3 to EB2: Ron Gotcher

2010-07-08T12:36:00.001-07:00

http://www.imminfo.com/News/Newsletter/2010-06/case_study_upgrade_from_eb3_to_eb2.html

In this edition's case study, we will examine an individual's recent effort to upgrade his immigrant preference category from EB3 to EB2. In particular, we will look at the mechanics of how it was done and the practical considerations involved.

Raj is an IT professional who works for a medium sized company. He holds a four year bachelor's degree in computer science from an Indian university and has two years of post-graduation experience, other than with his then employer. In mid-2003, Raj's employer filed a labor certification on his behalf and, when it was approved, filed a successful EB3 I-140. In the Summer of 2007, he filed an application for adjustment of status, which is still pending.

Recently, Raj did the math with respect to the likelihood of his priority date becoming current within a reasonably short time. He knew that the law only provides for about 2,800 visas per year for his preference category (EB3, India). He learned that there are at least 10,000 people in line ahead of him and possibly more (depending upon the accuracy of the data provided by the CIS). Even in a best case situation, he realized that he will have to wait at least four more years before his priority date has a chance of becoming current.

Raj decided to investigate upgrading his current EB3 status to EB2. He learned that since he has a four year bachelor's degree, it might be possible for him to qualify for EB2. To do this, he would have to show five years of full time, post graduation experience. He has more than five years of experience, but only two prior to being hired by his current employer.

Raj had heard that he could recapture his old EB3 priority date for use with his new EB2 petition. He was concerned, however, that filing for EB2 might damage his pending EB3. After investigating further, he learned that his pending EB3 could not possibly be harmed by the new EB2 filing. He also learned that while the new EB2 petition would share the EB3 priority date, the EB3 petition would be able to retain that date without any difficulties.

The Department of Labor (DOL) rules are pretty strict with respect to minimum qualifications gained on the job with the sponsoring employer. Raj's current employer can sponsor him for a new PERM, but the new job's duties must be more than 50% different from the earlier job for which he was hired and where he gained the qualifying experience. Raj further understands that even if they employer can prove this to the satisfaction of the DOL, his case will almost certainly go into an audit where it will require another year and a half of processing time.

In the end, Raj decided to find a new sponsoring employer. The new employer was willing to offer Raj a position that clearly required an advanced degree (or equivalent). Since Raj had the required four year bachelor's degree and more than five years of post graduation experience, he accepted the new job offer.

PERM processing is currently taking less than ten months. The prevailing wage determination takes two months, the required recruiting takes at least two months, and the DOL is taking slightly less than six months to process a PERM once it is filed.

Raj learned that the CIS will not allow him to substitute his new I-140 into his pending EB3 adjustment of status (AOS) application. Instead, they require a new AOS filing. Knowing the the CIS can take years to process an AOS application, even when the applicant's priority date is current at all times, he decided to opt for overseas consular processing.

Since his EB3 AOS application was still valid, he was able to continue using his EAD and advance parole while doing his EB2 consular processing.

Upon approval of his PERM, Raj persuaded his employer to file the I-140 through premium process so that it would be approved in two weeks. When the I-140 was approved, the CIS sent it to the National Visa Center (NVC) for overseas consular processing. Since the law provides for the automatic recapture of his earlier priority date, when his EB2 was approved, it had a mid-2003 priority date. The NVC walked Raj through the process of submitting his application and supporting documents. When everything was complete, they scheduled him for an interview overseas since his priority date was current.

Raj received about five weeks advance notice of his final interview. He went abroad, had his interview, and returned with his immigrant visa. About ten days after his return, he received his green card in the mail. He then wrote to the CIS and asked them to withdraw his pending EB3 since he now had a green card through EB2.

Moving to the Faster Lane : Changing EB3 to EB2: Murthy.com

2010-07-08T12:33:00.000-07:00

http://www.murthy.com/news/n_eb3to2.html

Posted 19.Feb.2010
©MurthyDotCom
We at the Murthy Law Firm receive many inquiries as to whether it is possible for an individual with an employment-based, third preference (EB3) case to change to the employment-based, second preference (EB2) category. As explained in this article, it is possible for many some people to make this transition. When combined with the potential to retain the priority date from the earlier employment-based (EB) case, this can be a powerful tool for qualified individuals to obtain permanent residence, or the "green card," much earlier. ©MurthyDotCom
EB3 Cannot Simply be Changed to EB2 ©MurthyDotCom
Often individuals ask whether their current EB3 cases can somehow be converted to EB2s. They will usually mention that they had enough education and/or experience to meet the EB2 requirements at the time the EB3 case was filed. The answer to this is simply, "No." The EB category of any labor certification-based case is set at the beginning, when the labor certification is prepared and filed. The category depends on the requirements specified in the labor certification. If these requirements are at the EB3 level, then the case is filed as an EB3, even if the foreign national beneficiary may have qualifications in terms of the education and work experience sufficient for an EB2 level job. ©MurthyDotCom
New EB2 Case Filing Based on Minimum Job Requirements ©MurthyDotCom
It is possible for an individual with an EB3 case to have either the existing employer / sponsor or a new employer file a new case in the EB2 category. Of course, the new position must meet the EB2 requirements, and the individual must qualify for the offered position. The starting point must always be with the job requirements, not one's own education and experience. It is the job that must fit within the EB2 category, as the law requires that the employer specify the minimum education and other qualifications for the specific job. Then, of course, the beneficiary must be able to establish that s/he meets the education and experience required for the job. ©MurthyDotCom
New EB2 Filing Permissible with Job Change ©MurthyDotCom
It is not unusual for an individual with an EB3 case to qualify for EB2. This happens when one acquires additional education and/or experience through the years during which the EB3 case has been pending. Over time, people often are promoted into jobs that may meet the EB2 requirements. ©MurthyDotCom
Typically, questions about potentially changing to EB2 come from individuals who have reached the point where they have filed their I-485s. They have waited for a number of years, but are suffering under the enormous waiting times in the EB3 category. Many have used AC21 to change jobs, are advancing in their careers, and now hold jobs that could meet the EB2 standards. ©MurthyDotCom
EB2 Filing can be with Existing or New Employer ©MurthyDotCom
As explained above, in order to move from EB3 to EB2 it is necessary to start over with an entirely new labor certification. This often is filed through a new employer, when an individual has moved to a different job. ©MurthyDotCom
It potentially could be filed through the same employer that filed the EB3 labor certification. This could be appropriate if one obtained a promotion or otherwise moved into an EB2 job. If filing through the same employer, the employee ideally should have completed the minimum years of work experience for the EB2 position before starting work with the current employer. This is because there are legal issues and potential restrictions when relying on the experience gained with the same employer to qualify for the new job. These issues should be analyzed and discussed with an attorney experienced and knowledgeable immigration law. ©MurthyDotCom
Transfer of Earlier Priority Date to New Case Filing ©MurthyDotCom
The greatest benefit to utilizing the strategy of re-filing comes in the potential to retain the priority date from the EB3 case. This option exists if the EB3 I-140 petition has been approved. If so, then it is possible to request retention of this priority date in the later-filed EB2 case. This means that it potentially is possible to transfer the earlier EB3 priority date to the later-filed EB2 case with a new or the same employer. In many cases, this means that the individual could have a current or closer-to-current priority date, thus saving many years of waiting to become eligible for permanent residence. ©MurthyDotCom
There are some issues with respect to retention of the priority date if the I-140 has been revoked. Generally, however, it is the policy of the USCIS to allow the retention and transfer of the earlier priority date if the I-140 petition has not been revoked by the USCIS for fraud or misrepresentation. ©MurthyDotCom
Is Earlier EB3 Filing Made Vulnerable by Filing New EB2?©MurthyDotCom
Most people inquiring about this option are concerned about any potential risks to their current EB3 cases. There are some procedural options with respect to the final step in the re-filed cases. However, it is possible to process the new case without risk of disruption to the EB3 case. This assumes that all information provided in the course of the prior filing was accurate. ©MurthyDotCom
A new labor certification filing, even if not approved, would not disrupt a prior approval. The same holds true for an I-140 filing. Conversely, approvals of the labor certification and I-140 do not disrupt or displace existing approvals. It is possible to have multiple approvals of labor certifications and I-140s for the same individual. Even when the request to retain the earlier priority date from the EB3 case is granted, the prior EB3 case remains undisturbed. There is nothing transferred or taken away from the EB3 case in the process of requesting that the EB2 case be assigned the same priority date. ©MurthyDotCom
At the final stage, there are options as to how to complete the case. The pros and cons should be discussed with a qualified immigration attorney. It is possible to proceed with the cases essentially in parallel, allowing for two cases and two potential avenues for eventual approval of permanent residence. The best way to proceed depends upon one's situation and, ideally, should be analyzed to consider the risks and options. What is helpful to most people, however, is that they do not have to risk their current EB3 cases to try to move to EB2. ©MurthyDotCom
Conclusion ©MurthyDotCom
At the Murthy Law Firm, we have successfully utilized the strategy discussed in this article for many of our clients by filing for each a new EB2 case with the same or a new employer. While it requires starting over with a new labor certification, for many it offers a significant advantage in terms of timing when the earlier priority date can be retained. MurthyDotCom andMurthyBulletin readers who wish to explore this option further should contact the Murthy Law Firm to help them with this process or for aconsultation to determine whether it is appropriate for them.

2010-01-18T09:02:00.001-08:00

Overview of Immigration Law – A Brief History

Public Benefit Programs and Immigration Status

2010-01-08T05:14:00.000-08:00

http://www.murthy.com/mb_pdf/arc_mb.html Dated Jan 08 2010
The U.S. Citizenship and Immigration Services (USCIS) recently issued a factsheet clarifying issues related to the public charge concept. Specifically, the factsheet discusses the consequences of accessing certain public benefit programs for those in an immigration status. Given the current economic situation, this topic is particularly timely. Questions often reach the Murthy Law Firm regarding potential repercussions from taking advantage of certain government benefits and the possible impact on the individual's and/or family's immigration status. Many programs listed carry immigration-related restrictions on eligibility.

Public Charge and Inadmissibility to United States

A public charge is defined as an individual who is likely to become primarily dependent on the U.S. government for subsistence, as demonstrated by receipt of public cash assistance or institutionalization for long-term care at government expense. An individual who is likely to become a public charge is inadmissible to the United States, as well as deportable from the United States. Inadmissibility refers to those individuals not permitted to enter the United States. Applicants for adjustment of status (AOS, or Form I-485) are regarded as applicants for admission, even though they are physically in the United States. Thus, concerns are raised when an individual applies for certain pubic benefit programs, if otherwise eligible to do so.

Since the public charge provisions refer to one's being "likely" to become a public charge, the determination of whether an individual fits within this category involves weighing various factors. There are certain types of benefits that involve public funding, which are considered in the public charge analysis, and others that are not considered. The fact that a person may have experienced a temporary need does not necessarily indicate that s/he is likely to become primarily dependent upon the U.S. government for subsistence.

Benefits Not Considered for Public Charge Computation

The USCIS factsheet sets forth a list of benefits that are not subject to the public charge considerations. The reason given for excluding these benefits is that they are not intended for income maintenance.

Unemployment Compensation

One item of particular interest in the current economic climate is unemployment compensation. This is specified as NOT being considered for public charge purposes. We at the Murthy Law Firm wrote on this topic in our February 20, 2009 article, Unemployment Benefits and Impact on U.S. Immigration, available on MurthyDotCom.

Job Training Programs or Other Assistance

Also on the list of benefits not considered in the public charge analysis are: job training programs, in-kind community-based programs or assistance (crisis counseling, soup kitchens, short-term shelter). These types of services are often needed on a temporary basis, when there are spousal abuse problems or other family disruption.

Social Security Benefits, Food Stamps, Other Payments

The list also excludes the following from consideration: cash payments that have been earned (certain social security benefits, government pensions, veterans' benefits), emergency disaster relief, energy assistance, housing benefits, Medicaid and other health insurance / services (except for long-term institutional care), nutrition programs (food stamps, WIC, school lunch) and others.

USCIS WebSite Provides Full List

The full list is set out in the factsheet. While some of the programs provide cash benefits, they do not fall within public charge, as they are not intended for income maintenance. It is noted that some of these programs are intended to avoid the need for on-going cash assistance.

Benefits Considered Under Public Charge

The factsheet lists programs that will be considered when determining if an individual is likely to become a public charge. The receipt of these benefits, alone, does not automatically make one inadmissible or removable. Determination is made on a case-by-case basis, depending upon the circumstances.

SSI/TANF and State / Local Programs Could Cause Problems

Programs that fall under consideration are those that involve cash payments for income maintenance. The list includes: Supplemental Security Income (SSI), cash payments from Temporary Assistance for Needy Families (TANF), and state or local cash general assistance programs.

SSI and TANF have immigration-related restrictions. Additionally, if the potential applicant for benefits is the beneficiary of an Affidavit of Support (Form I-864), then the sponsor's income may need to be considered when determining whether an individual is eligible for any of these benefits. This should be reviewed carefully before making any application for benefits.

Conclusion

The factsheet provides a helpful explanation of the programs that are and are not considered under the public charge analysis. We at the Murthy Law Firm do see situations in which individuals are afraid to avail themselves of the help they need, due to concerns of potential impact on their U.S. immigration process. Since some of these programs have immigration-related restrictions on eligibility, it is important to accurately answer all questions on the necessary applications.

H-1B Workers—Labor on the Cheap or Through a Complex Process Fair to U.S. Workers?

2009-10-23T08:13:00.000-07:00

http://blogs.ilw.com/h1bvisablog/2009/09/h-1b-workerslabor-on-the-cheap-or-though-a-complex-process-fair-to-us-workers.html

The H-1B program is designed to allow employers to hire foreign nationals to fill specialty occupations; that is, those positions that require a theoretical and practical application of highly specialized knowledge through the attainment of at least a bachelor’s degree (or an equivalent combination of education and/or experience) in a specific discipline.

Critics of the H-1B program claim that the program must be modified to combat what they refer to as "legal discrimination" and “displacement of U.S. workers”. Indeed, U.S. Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) have recently introduced legislation which, among other things, would require employers to certify that no U.S. workers were available to fill the proffered position before an H-1B petition may be filed on behalf of a qualified foreign national. Proponents of the H-1B program counter such allegations by pointing to the safeguards for U.S. workers already built in to the H-1B program. Additionally, what the media fails to point out is that the H-1B program is not specifically tailored to the IT industry. Rather, it fills necessary positions in a broad array of disciplines, such as architecture, accounting, marketing, management and operations research, with some of the brightest, most capable individuals available worldwide.

Such talent comes at a substantial cost to employers -- compliance with the H-1B program is complicated and burdensome. Prior to sponsoring a foreign national for an H-1B petition, employers must (a) obtain a prevailing wage assessment from the U.S. DOL or an acceptable alternative survey source for the geographic area in which the foreign national will work, (b) agree to pay the H-1B worker the higher of (i) such prevailing wage or (ii) the actual wage it pays to other employees in similar roles, (c) prepare a memorandum describing the factors (e.g, experience, qualifications, education, job responsibilities) that it considered in determining the foreign national’s wage, (d) post a public notice of the H-1B employee's job title and salary in two locations for ten days at the foreign national’s place of employment, and (e) maintain a “public access file” containing evidence of each of the foregoing, which must be updated regularly and made available to the public at any time.

In addition, in the event of an audit by DOL or USCIS, the employer must be prepared to produce additional information, including payroll records showing the wage rates for the position, any data used to establish the actual wage for the position, and a copy of documents given to employees describing employee benefits.

In addition to developing the appropriate regulatory compliance program associated with hiring H-1B workers, H-1B employers must also expend resources to hire experienced HR and legal personnel to insure that the employer remains compliant with the regulatory scheme. HR, with advice of counsel, is typically charged with the responsibility of updating the public access files when appropriate and budgeting and timing visa extensions as well as developing other, longer-term immigration strategies for their most valued foreign national employees. Additional expenses associated with the H-1B program include counsel fees and the rather excessive filing fees required by USCIS, most of which go toward educating and training U.S. workers and uncovering fraud within the H-1B program. (see our prior post entitled, “H-1B Fraud Fee, Money Well Spent?)

When one considers the sum of such resources expended -- the only logical conclusion one can derive is that H-1B workers are clearly not “cheap labor” as some would have you think. Rather, the H-1B program involves a significant process and expense for employers to attract some of the best and brightest from all over the world.

No doubt there are employers who blatantly ignore the H-1B rules and take advantage of H-1B workers. In this vein, the U.S. government is aggressively pursuing indictments against alleged fraudulent use of the H-1B program. (see also our previous post entitled, “H-1B Audits On The Rise”).

On the other hand, employers who abide by the rules will attest that the H-1B regulations are quite complex and that, with proper enforcement of the existing regulations, the H-1B program provides a viable option for maintaining a competitive workforce. Indeed, given the above-described built-in safeguards for U.S. workers, taking a strict protectionist position which favors abolishing –- or even weakening -- the H-1B program would do nothing but send operations offshore; thus, in effect, cutting off our nose to spite our face. (see our prior post entitled,"H-1B Visa Usage On The Decline: Is It The Economy Or Increased USCIS Scrutiny Or Something More?”)

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

US Law: Office of the Law Revision Counsel

2009-10-02T16:58:00.000-07:00

US Law: Office of the Law Revision Counsel

2009-10-01T07:54:00.001-07:00

Situation: Green Card Approval In Error : murthy.com

2009-09-28T10:08:00.000-07:00

Indication of large number of 245(i) labor filings: murthy.com
Maryland Labor Certification Processing DatesPosted Dec 28, 2001

The Maryland Department of Labor, Licensing and Registration (DLLR) announced in mid-December, 2001 that their office is logging in and issuing confirmation of receipt for cases received on April 30, 2001. A remaining 1,500 applications received that day await the logging-in process.

As MurthyBulletin and MurthyDotCom readers may be aware, April 30, 2001 was the deadline to file for INA Section 245(i) eligibility under the Legal Immigration and Family Equity Act (LIFE Act) of December 2000. This provision allows individuals who are out-of-status or who entered the U.S. without being inspected at a designated INS port of entry to adjust to permanent residence, if they are otherwise qualified. In order to benefit from this provision, the individual must be the beneficiary of a labor certification or a family petition filed on or before April 30, 2001. For this reason, extraordinary numbers of cases were filed nationwide on or slightly before April 30, 2001. According to the information released by the Maryland DLLR and other states, local DOL offices did not receive additional funding in connection with the LIFE Act filings.

With respect to case processing, the DLLR reports that they are processing RIR cases received April 5, 2001 and non-RIR cases received March 8, 2001. Of course, these processing dates will be further affected by the glut of cases filed on or immediately before the LIFE Act deadline.

These time frames are similar to those experienced in most other states that are attempting to catch up on the huge volume of cases filed on or before April 30, 2001. We will share information with our MurthyBulletinand MurthyDotCom readers as and when released by other state labor agencies.

2009-09-27T14:14:00.000-07:00

Pending I-485 Numbers Sep 2009: USCIS

2009-09-27T14:10:00.001-07:00

Eligibility Under Sections 245(i) and 245(k): murthy.com

Section 245(i), the Penalty Fee Provision
Section 245(i) of the Immigration and Nationality Act (INA) allows persons who are the beneficiaries of immigrant visa petitions or of labor certification applications (LCs) filed on or before January 14, 1998, to eventually adjust status in the U.S. despite having fallen out of status or having entered without inspection. There is also a limited extension allowing people who hav
e the petition or LC filed by April 30, 2001 to benefit, though there are additional requirements in such cases. Prior to the enactment of section 245(i), one who reaches the final stage of Green Card processing and turns out to be ineligible for adjustment must instead “consular process” for his or her permanent residency by undergoing an interview at a U.S. consulate abroad. (There remain some limited exceptions, the main one being “immediate relatives:” parents, spouses, and children (under 21 years of age) of U.S. citizens, so long as they entered legally.)

For persons with status problems consular processing has significant risks imposed by the 1996 immigration law, mainly the prospect of being barred for three or ten years from re-entering the United States. Section 245(i) enables persons who have employment- or family-based immigrant petitions or labor certifications, filed on or before April 30, 2001, to avoid consular processing when the time comes to complete their Green Card cases and, instead, be able to complete the entire procedure in the U.S. As we have reminded many callers and readers of the MurthyBulletin, this provision does not affect the timing of the adjustment but only affects whether, when the time eventually comes to adjust, the person will be eligible to file the adjustment application (Form I-485 and related documents) in the U.S., as opposed to having to go for a visa interview abroad.

It is important to keep in mind that Section 245(i) does not give a person permission to remain in the U.S. in expired status. For those who have not been apprehended by INS in the meantime, however, 245(i) provides the opportunity to retroactively remedy the out-of-status problem at the time of filing for adjustment of status.

INS has issued guidance clarifying who is eligible for 245(i) :

a. Even if the case under which the person ultimately obtains the Green Card involves a completely different petition from the one that was filed earlier, the applicant can still benefit from that earlier filing. A particular person - not an application or petition - is 245(i) eligible. This means that if a labor certification application or an immigrant petition is filed on or before April 30, 2001, then even if the alien eventually adjusts status based upon a different petition filed after April 30, 2001, s/he is still eligible for 245(i) adjustment.

b. A labor certification or a petition filed on or before January 14, 1998, which was denied, withdrawn, revoked, or undecided can still be the basis for 245(i) eligibility, so long as it was “approvable when filed.” If a petition was fraudulent or without any legal or factual basis or filed without the fee payment, it would not meet the “approvable” standard. If a petition requires additional documentation a reasonable opportunity would generally be provided to submit such information and thereby, hopefully, establish that the petition was indeed approvable.

c. A visa lottery application cannot be the basis for 245(i) eligibility since it is an application to the State Department (DOS) and not an INS petition or a labor certification application. However, if the lottery winner did have a pre-April 30, 2001 labor certification or immigrant petition, then s/he would be able to adjust.

d. If a person is 245(i) eligible, his or her spouse and children can also benefit, even if the family members adjust at a different time from the principal applicant. This applies even if the child reaches the age of 21 or the spouse obtains a divorce after April 30, 2001.

e. In the above situation, the INS has recently acknowledged the position of AILA that if the marriage or birth took place after filing the qualifying labor certification or petition, but prior to approval of the principal applicant’s adjustment, the family members are still eligible to adjust and benefit from 245(i).

The Law Office of Sheela Murthy is pleased that AILA's lobbying efforts have resulted in the INS classifying all of these categories as “grandfathered” beneficiaries who can take advantage of the adjustment provisions.

Section 245(k)

Section 245(k) enables a person who is adjusting status in an employment-based category (whether on the basis of a labor certification or in one of the special Green Card categories that does not require a labor certification or job offer) to adjust, even if s/he has been out of status or worked without authorization for less than 180 days. This provision does not require an immigrant petition or labor certification to have been filed on or before any particular date and there is also no penalty fee involved.

A useful tip for those hoping to benefit from 245(i) or 245(k) : Keep a personal immigration file which should contain the originals and clean photocopies of documents. These documents should include all approval notices from the INS; receipt notices for INS applications and petitions; I-94 cards (latest original will probably be stapled into passport - keep photocopies of current and previous I-94s in the file); Forms I-20, IAP-66 (if applicable); pay stubs from current and prior U.S. employers and experience letters from prior (U.S. and overseas) employers indicating dates of work and the nature of the work; transcripts from all schools / colleges / universities attended; copy of current and prior employment cards; and any other documents that may be relevant.

The above documents are important to maintain for several purposes. First of all, some of these items may need to be included with an application or petition to change status or at the time of filing an extension of status with a different employer. Even more importantly, at the time of filing for adjustment of status it is necessary to show that the applicant has maintained valid legal status (subject to the 180 day period for employment-based cases under 245(k) and the exception for applications by immediate family members of U.S. citizens).

Persons with a petition or LC filed after January 14, 1998, up to April 30, 2001 must also document that they were "physically present" in the U.S. as of December 21, 2000.

Although organization experts will advise you to trash documents that do not appear relevant in the immigration context, it is better to keep them in a file. For example, the fact that the receipt notice indicates one filed for change or extension of status prior to the expiration of his/her present status is sometimes the only proof one has not fallen out of status, even if INS takes several months to adjudicate a case. In such a case, the approval notice could be misleading so the receipt notice may come in handy. Every case is different. A person who may have difficulty proving maintenance of status should consult with an attorney. If you do not have an attorney and wish to consult one, please send an eMail to law@murthy.com

2009-09-14T21:05:00.000-07:00

End of Labor substitutions: murthy.com

245i FAQ: Carl Shusterman

2009-09-14T06:14:00.000-07:00

245i FAQ: Carl Shusterman

Q1. I've heard that a new law was recently passed by Congress which would reauthorize section 245(i). What is section 245(i)? (§ = Section)
A. §245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who entered the U.S. without being inspected by an INS officer, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain EB applicants.)

§245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were "grandfathered" into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998.

Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000 when they extended the grandfathering date of §245(i) to April 30, 2001. Not only does this extend the benefits of §245(i) to persons who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months AFTER the passage of the law to qualify for the benefits of §245(i).

Q2. What must I do to qualify for §245(i)?

A. A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of §245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000).

Q3. Does this mean that I must have been lawfully in the U.S. on December 21, 2000?

A. No, merely that you were present, legally or illegally, in the U.S. on that date.

Q4. What exactly do I have to do to qualify for the benefits of §245(i)

A. You must have either an employer or a relative submit a labor certification or a visa petition on your behalf by April 30, 2001. It is not necessary that the Labor Department or the INS approve your application or petition by this date, only that it be filed.

For example, there is a tremendous labor shortage in the U.S. in a wide variety of occupations. Whether you work as a nanny or a rocket scientist, a nurse or a professor, a mechanic or an engineer, if your employer (or prospective employer) is unable to find a U.S. worker to fill your job, you may be eligible for labor certification.

Also, if your brother, sister, father, mother, adult son or daughter, or your spouse is a citizen, or perhaps even a permanent resident, they should immediately submit a petition on your behalf, no matter what the waiting time is in that particular category. The purpose of filing such a petition is to qualify you for the benefits of §245(i).

U.S. citizens may petition for their spouses, married or unmarried sons and daughters of any age, parents, and brothers and sisters. Permanent residents may petition for their spouses and their unmarried sons and daughters of any age (This includes sons and daughters who are divorced or widowed).

Q5. Do I have to adjust status in the same category that I was petitioned for?

A. No. Let's assume that your brother (or your spouse's brother) has recently naturalized. The published waiting time for a sibling petition varies from 12 to over 20 years on paper, and the actual waiting time is even longer. Still, you should have him petition for you and your spouse and children immediately. The filing of a simple petition will make your whole family eligible for the benefits of §245(i). You are not obligated to wait 12 to 20 years to obtain a green card. If you qualify for a green card through employment, through another relative, or even through the green card lottery, because you are qualified under §245(i), you will be able adjust for status for permanent residence much more quickly. However, if you adjust your status based on a visa petition which was not the original basis for your being eligible to adjust status under §245(i), you must use your new priority date.

Q6. If my wife's relative files a petition for her on or before April 30, 2001, can we both qualify for permanent residence based upon a labor certification and visa petition filed after that date? How about my children? Once they turn 21 years of age, they won't be entitled to any benefits based on this petition, will they?

A. You and your children are considered to be "derivative beneficiaries" of the petition filed by your wife's relative on her behalf. This entitles not only your wife, but you and your children to the benefits of §245(i). If later on, you qualify for a green card based upon your job, a future job, a petition filed by one of your relatives after April 30, 2001, or if you win the green card lottery no matter how far in the future, you and your family can still adjust status under §245(i).

Even your children who "age-out" by turning 21, or by marrying, will still be entitled to the benefits of §245(i) if they were "derivative beneficiaries" of a visa petition filed by your wife's relative on or before April 30, 2001.

Conversely, if you and your wife divorce, not only will you and your children be eligible for the benefits of §245(i), but so will each of your new spouses and children, as long as the new relationships are in place prior to the time you or your ex-wife adjust status.

An INS Memorandum, dated June 10, 1999, provides excellent guidance in such situations.

Q7. What happens if my labor certification is not approved? Or if the employer goes bankrupt or withdraws my labor certification or visa petition? What happens if my relative dies? Am I still eligible under §245(i)?
A. Yes, the INS utilizes an "alien based" interpretation of §245(i). If a labor certification or visa petition was "approvable when filed", you are entitled to the benefits of §245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.

Filings that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, are not considered to be "approvable when filed" and confer no benefits under §245(i) .

Q8. If I qualify for the benefits of §245(i), leave the U.S. and return at a later time, will I still be entitled to adjust status in the U.S. in the future?
A. Yes. However, if you have been "unlawfully present" (a legal term of art - be sure to consult with an experienced immigration attorney) in the U.S. for 180 days or more, you may be subject to either a three or a ten-year bar to returning to the U.S. If this applies to you, DO NOT TRAVEL OUTSIDE THE U.S. UNTIL YOU BECOME A PERMANENT RESIDENT.

Q9. If I qualify for benefits under §245(i), when will my eligibility for being able to adjust status in the U.S. expire?
A. Never. Once you qualify for benefits under §245(i), your eligibility never expires. Of course, you must still qualify (through a relative, a job or the green card lottery) when you apply for adjustment of status. And you must be admissible to the U.S. If you are a criminal, have committed immigration fraud, etc., you may be inadmissible.

Q10. I want to qualify for the benefits of §245(i). What should I do?

A. You need to move quickly to meet the April 30, 2001 deadline, and you can't afford to make any mistakes. If the INS or the Labor Department returns your application because it was incomplete or because you made a mistake in completing the forms, you may lose your last best chance to qualify for benefits under §245(i) and to legalize your status in the U.S.

2009-09-14T06:09:00.001-07:00

Past Visa Bulletins: Immigration Voice

2009-09-11T13:12:00.000-07:00

USCIS Clarifies 245(i) "Grandfathering" : Murthy.com

The Memo clarifies certain eligibility requirements for §245(i). The term "grandfathered" is a legal term essentially including a certain group of people under the law or exempting a group from a new law based upon a prior act or condition. To illustrate using an example with no bearing in reality, if a law is passed prohibiting people under 21 from driving, it might allow those who already have drivers' licenses to continue to drive, even if they are under 21 years of age. In this imaginary example, these existing drivers would be considered as "grandfathered in" because of their existing status as licensed drivers.
©MurthyDotCom
To be grandfathered under §245(i), a person must be the beneficiary of a qualifying immigrant visa petition (usually I-130/I-140) or labor certification (not the Labor Condition Application used for H1Bs) filed on or before April 30, 2001. If the qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001, that person must also prove that s/he was physically present in the United States on December 21, 2000, on the date that the LIFE Act was passed. All potential beneficiaries of §245(i) must show that the petition or labor certification was properly filed and approvable when filed. This latter requirement essentially means that it had to be a good, valid case when filed, even if it ultimately did not result in a green card approval for some reason.

245i DOL statistics: OH Law firm

2009-09-11T13:08:00.000-07:00

OH Law firm link

The 245(i) cases which were filed mostly before April 31, 2001 will more or less seriously affect the pace of the visa number progression. But look at the estimate of 245(i) which is pending at the DOL. The number is staggering. There are estimated to be approximately 345,000 245(i) applications with the DOL. Without doubt, some of these applications will be denied, withdrawn or abandoned, but the prediction indicates that as many as 250,000-275,000 direct beneficiaries plus additional derivative beneficiaries of their family members (average 2.5) will move into I-140 and I-485 streams in the future.

2009-07-11T13:14:00.000-07:00

H-1B vs. EAD/AP some thoughts: Ron Gotcher

H-1B vs. EAD/AP – some thoughts
by Ron Gotcher on 05-29-2008 at 10:18 AM (8708 Views)
People ask me every day whether they should use their EAD cards or H-1B classification for work authorization. In most instances, I recommend that they use EAD cards. I’d like to take a moment to discuss the reasons why I make this recommendation.

There is no clear “law” on the subject. That is, nothing in the law requires an applicant for adjustment of status to use one or the other. The “best” solution is always the one that best satisfies the applicant’s unique needs. With this in mind, let’s examine the pros and cons of each.

Maintenance of H-1B status is not without cost. The CIS filing fees are $320, plus $500 for the anti-fraud fee it is a first filing (such as an employer transfer), and $750 to $1,500 for the ACWIA fee. This does not include attorney’s fees. There are two other “costs” that must be counted as well. If you travel, you must have a valid H-1B visa to re-enter. This means that you may have expend time and money renewing your H visa. Also, with an H visa, you may not accept work from anyone other than your petitioning employer. Otherwise, you are in violation of your H status.

Historically, I’ve heard three main arguments I’ve in favor of using H-1B. First, there is the “just in case” argument. To me, this falls into the “monsters under the bed” or fear of the dark kind of superstitious dread argument. “I don’t know what might happen, but I want to keep my H-1B just in case.” I’ve always felt that if you can’t articulate the reason for doing something, it isn’t a very good reason.

The second reason is a concern that if the applicant’s I-485 is denied, the applicant can revert to H-1B status. I believe this to be a specious argument also. Most I-485 denials result from I-140 denials. If your I-140 has been approved, the odds of your I-485 being denied drop to almost zero. The two remaining reasons for I-485 denials are status violations prior to filing and fraud. Both of these reasons impact H-1B validity as well and if an I-485 is denied for either reason, it is doubtful that the applicant would be allowed to resume H-1B status.

The third reason, and in my opinion the only valid reason, arises in unusual situations where the principal applicant has applied for adjustment of status but his or her spouse hasn’t. In such cases, it is essential that the principal applicant maintain H-1B status so that the spouse remains eligible for H-4 status.

There is one other important consideration with respect to maintaining H-1B status while applying for adjustment of status (AOS). Three times in the last month I’ve become aware of individuals who elected to stay in H status while applying for AOS and traveled abroad using their H visas. Two of them were laid off unexpectedly while abroad, the other saw his H petitioner go out of business suddenly. All three were left high and dry overseas with no way to return to the US. If they tried to use their H visas, they would be guilty of visa fraud at entry and thus ineligible for adjustment of status.

Finally, AOS applicants who have given up H status should understand that there is nothing to prevent them from re-applying for H classification should something go disastrously wrong with their AOS application. If the applicant is still eligible for H classification, there is nothing to prevent them from re-acquiring it later.

Employment authorization documents (EAD) are presently valid for one year at a time. The CIS is about to extend this validity to three years. The same is true of advance parole (AP) documents. The EAD/AP combination provides an applicant with a simple, inexpensive alternative to trying to maintain H status while applying for AOS. More importantly, EADs give an applicant job flexibility. With an EAD, an AOS applicant who wishes to exercise his or her right to job portability need only show an EAD card in order to accept new employment immediately. Similarly, an applicant who travels and uses AP as a re-entry document need never bother with having to make an appointment and apply for a new visa while abroad.

If someone wishes to maintain their H-1B status while they are applying for AOS, that is their right. They should do so, however, only if they understand these facts and still wish to maintain H status. They should not do so out of fear of the unknown or a misunderstanding of the facts.

2009-07-09T12:57:00.000-07:00

AC21 Memo

Date: May 12, 2005
Re: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)
Purpose

The purpose of this memorandum is to provide field offices with interim guidance on:
(1) Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of §106(c) of AC21;
(2) Adjudication of H-1B petitions in connection with the 7th year extension provisions of § 106(a) of AC21;
(3) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 104(c) for aliens subject to per country visa limitations; and
(4) Adjudication of H-1B petitions in connection with the H-1B portability provisions of § 105 of AC21;
This interim guidance will only be in effect until regulations that are currently in progress are published as a final rule. The proposed rule may take a more restrictive position than this memorandum. Please note that the Adjudicator’s Field Manual (AFM) will not be updated at this time.
Memorandum for Service Center Directors, et al.

Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 2

Prior AC21 Guidance
On January 29, 2001, the Office of Field Operations issued a memorandum entitled "Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313." On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled "Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)." On February 28, 2003, the Immigration Service Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.” On April 24, 2003, the Office of Operations issued a memorandum entitled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).” On August 4, 2003, the Office of Operations issued a memorandum entitled “Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”
All of these memoranda remain in effect and this memorandum supplements the existing guidance.
New AC21 Guidance
New issues and questions in connection with I-140 portability cases and H-1B cases have arisen since the previous guidance memoranda were issued. Implementation of the provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485.
This guidance is intended to address those questions and issues. This memorandum is divided into four separate sections, establishing guidelines and interim procedures for use by USCIS personnel:

Section I
Processing of Form I-140 petitions and Form I-485 applications when there is a question of eligibility for I-140 portability benefits under §106(c) of AC21.

Section II
Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §106(a) of AC21.
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 3

Section III
Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §104(c) of AC21 (aliens subject to per country limitations).

Section IV
Processing of H-1B petitions where there is a question of the affect of H-1B portability under §105 of AC21.
* * * * *

I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-140 PORTABILITY PROVISIONS OF §106(C) OF AC21
Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?
Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:
A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 4
Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:
A. Deny the petition on the merits of the case; and
B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?
Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:
A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases?
Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment when considering the alien’s new position and job duties and not the geographic location of the new employment.
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 5

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Question 6. Can multinational managers or executives classifiable under 8 USC 203(b)(1)(C) avail themselves of AC21 § 106(c) (8 USC § 204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can “same or similar” for multinational employees mean employment with an unrelated company?
Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job duties are vastly different, so that that the new position is not in the same or similar occupational classification as the I-140 employment).

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?
Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

Question 8. Can an alien port to self-employment under INA § 204(j)?
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 6
confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 9. Must a successor employer in an I-140 portability case provide a new labor certification?
Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied. The beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 7
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Question 12. Can the 180 days that an I-485 application must be pending for I-140 portability eligibility accrue during a period when visa numbers are unavailable?
Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

Question 13. Does the alien’s priority date change as a result of porting under §106(c) of AC21?
Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required).

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF §106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT
Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 8
A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
B. 365 days or more have passed since the filing of an EB immigrant petition.
Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 9
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on § 106(a) of AC21?
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?
Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 10

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the implementation of the new DOL PERM Program?
Answer: Guidance on this subject will be provided via separate memorandum.

III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT

Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?
Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 11
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted?
Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “one-time protection” a qualifying alien may be granted more than one extension under this provision.

IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY PROVISIONS
Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?

Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:
Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”
In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 12

Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?

Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.
* * * * *

Questions regarding this memorandum may be directed through appropriate channels to Service Center Operations.

2009-07-08T19:50:00.000-07:00

List of USCIS Memos
This page provides access to various policy and procedural memoranda which gives guidance to USCIS adjudicators in their work of processing applications and petitions for immigration benefits while still protecting national security.

2009-07-08T19:43:00.000-07:00

USCIS Memo: Consolidation of Guidance Concerning Unlawful Presence

Controversial memo that says AOS candidates are deportable.

Clarification from Ron Gotcher

I don't care what the non-binding policy memo says, it can't trump a duly promulgated regulation. Indeed, I don't think that they were trying to do that. The problem stems from the fact that the policy memo is a lot of inarticulate babble and is very hard to decipher. In any case, it is a memo, not a statute or a regulation and it must bow in the face of a regulation with contradictory information.

2009-07-08T12:19:00.000-07:00

Cronin Memo 2000: Regarding AP

Deals with the inadmissibility factor while traveling on AP

Effect of Travel While in H1B / L-1 Status and Pending I-485 : Murthy.com

2009-03-20T21:28:00.000-07:00

http://www.murthy.com/news/n_efftrv.htm

There are questions commonly on the minds of many Murthy Law Firm clients, as well as the greater immigrant community, that involve the effect of reentry into the U.S. on those who hold H1B or L-1 status as well as having approved Advance Parole (AP) based upon pending applications to adjust status (I-485). The law pertaining to this situation is not clear and the result is confusion. Thus, many with both H1B (or L-1) status and AP find themselves faced with the difficult decision of how to reenter the U.S. after travel abroad. One must decide between reentering in H1B (or L-1) status, which requires that the passport have a valid H1B (or L-1) visa stamp or utilizing the AP document. AP does not require an approved visa at the U.S. consulate. Such individuals are concerned about the manner they choose for reentering, as this may affect their respective status in the U.S. Answers to many of these questions are in our MurthyBulletin article, Adjustment of Status and Travel : Your Questions Answered! (August 31, 2007), available on MurthyDotCom. The differences between entering in H1B (or L-1) status as opposed to entry on AP, as well as the effect on one's immigration status and employment authorization are explored here for the benefit of our readers.
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One Entering on AP Becomes a Parolee
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It is a common misconception that entering the U.S. on a valid AP will not impact one's H1B (or L-1) status. An individual with a pending I-485 application, who is eligible to enter in H1B (or L-1) status, may do so without abandoning the I-485 application. Using the AP to enter the U.S., however, terminates one's nonimmigrant H1B (or L-1) status. The reason for this is that an entry on AP is not considered an admission in any particular status but, rather, it is a separate form of entry known as parole. Since the most important document evidencing one's status in the U.S. is the I-94 form, one may easily determine the category of entry by looking at the I-94 issued at the port of entry. One who enters the U.S. on AP has a notation on the I-94 indicating that s/he is paroled into the U.S. An individual who uses a valid H1B (or L-1) visa to enter the U.S. is issued an I-94 specifying the appropriate nonimmigrant status and the date of expiration.
©MurthyDotCom
The complete analysis, however, is not quite so simple. Under Legacy INS memoranda issued March 2000 and revised in May 2000, the H (or L) individual who enters on AP does not lose all benefits related to the H-1 (or L-1) status. This is wherein the confusion arises, as explained below.
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Parolee may Work for H1B (or L-1) Employer without Valid EAD
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Pursuant to the Legacy INS memorandum issued on May 16, 2000, a parolee may continue to work for the H1B (or L-1) employer "if the alien's H1B or L-1 employment authorization would not have expired had the alien not left and returned under advance parole." Such employment is not regarded as being unauthorized, even if the individual does not hold a valid Employment Authorization Document (EAD). In practical terms, while an individual in this situation would no longer hold a nonimmigrant status, s/he still would be able to use the H1B (or L-1) employment authorization to continue working for the H1B (or L-1) employer. This appears to be the most difficult concept to understand, as it does not have any parallel applications within other immigration concepts. The easiest way to grasp this is to think of the unexpired H1B (or L-1) approved petition and I-94 in this situation as employment authorization, which does not give one a corresponding status. Essentially, while the individual does not hold H-1 (or L-1) status after a paroled entry, s/he does retain some of the privileges of that status. It is important to note, however, that in the event that one's I-485 application is denied, the individual would be out of status since s/he would not be maintaining the H (or L) status.
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One who chooses to enter the U.S. on AP to resume working for the H1B (or L-1) employer, according to the terms of an unexpired nonimmigrant petition, is eligible to use it as employment authorization. Therefore, s/he does not need a separate EAD. Since the employee continues to hold a valid document permitting employment, the travel and reentry do not trigger any obligations on the part of the employer with respect to Form I-9 prior to the expiration of the H1B (or L-1) petition.
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EAD is Safer / H1B Makes Extensions Possible
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As a matter of precaution, since the above information is based on a long-standing Legacy INS memo, rather than law or regulation, it may be advisable to possess an EAD in this situation, in the event of any questions on the issue. However, even in that scenario, the employer would not seem to have any additional I-9 obligations, as the last document reviewed by the employer (H1B or L-1 I-94) would be unexpired. Also, the employee would be allowed to file for the H1B (or L-1) extensions even after entering on AP.
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Parolees Resume H1B (or L-1) Status upon Admission or upon Approval of H/L Petition
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The May 2000 memorandum clarified that an H1B (or L-1) nonimmigrant, who has traveled abroad and reentered the U.S. on AP "may apply for an extension of H1B or L-1 status, if there is a valid and approved petition." If the USCIS approves the petition, this "will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification." Therefore, one's H1B (or L-1) status will be reinstated upon the approval of the petition for extension of status. In order to utilize these provisions, s/he should have resumed employment with the H1B (or L-1) employer following the paroled entry.
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Similar Result if Employer Files H1B Amendment
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The same effect would be achieved if the current employer files an amended petition. It can also be achieved if the individual works for the H1B employer, and later seeks to extend H1B status through a change of employer. Additionally, since the AP entry does not invalidate the approved H1B (or L-1) petition, the foreign national potentially could regain H (or L) status by traveling abroad and reentering with a valid H (or L) visa, and obtaining an H (or L) notation on the I-94 card at the port of entry. In these circumstances, the H (or L) status will be reinstated, giving one the benefit of continuing in that status for a length of time even if the I-485 ultimately is denied. Thus, when one wishes to maintain H1B (or L-1) status, which is often the case, this still may be accomplished, even if AP is used for entry at some stage in the process. This is particularly straightforward for individuals who have H1B (or L-1) status that will need to be extended shortly after their reentry into the U.S. The H (or L) extension, if approved, will put them back in H (or L) status, even if they last entered on AP. At the Murthy Law Firm, we also see many situations in which one uses AP for emergency travel or shorter trips, but then seeks the H (or L) visa on a later trip, when time allows for a visa application at the consulate.
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Conclusion
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An H (or L) nonimmigrant with a pending I-485 application may have to make a number of decisions before traveling abroad. These decisions potentially subject one to an unintended result that could have been easily prevented, if anticipated. There are risks and variables to weigh, each of which is case specific. Because each person's situation is different, a consultation with a knowledgeable, experienced attorney is advisable prior to travel. Additionally, since AP can take several months to process, it is often a good idea to request AP just in case it is needed for an emergency or other unexpected situation, even if the intention is to travel as an H (or L) nonimmigrant.