snathan
01-24 05:31 PM
If you think Memo is illegal why can't you file a lawsuit. That should be right way. But I did not see any suggestion from any lawyer. But when when July 2007 issue cropped most lawyers rushed to file lawsuit. Now no one even suggesting lawsuit except some members in IV. Either most are not interested or they think no legal basis to contest memo
I have been observing JoeF's posts from different threads. I can say for sure he doesn't know what he is talking about. He is just another sadistic person like snram4 on this forum.
For instance JoeF says "he saw it coming" in reference to this memo. But the fact is, this memo is ILLEGAL. It has no legal base. Please refer to Murthy's latest newsletter. However members on murthy forum as well as you spicy_guy, thinks that JoeF is "knowledgeable". I am surprised to see that people who are here in this country for long believes all the BS that JoeF says.
I am not sure if this snram4 is sadist or outright idiot. When this thread started there were couple of people supporting this memo. Once they understood no longer they are supporting. Snram4 is the only guy still supporting and talking all nonsense.
snram4...whatever may be the case whether people are going for law suit or not, You are not going to add any value. Why dont you simply go away rather than talking all nonsense and wasting everyone's time. No one is bothering you or stupid comments. So many people asked you to go away...why dont you consider that for GOD shake.
I have been observing JoeF's posts from different threads. I can say for sure he doesn't know what he is talking about. He is just another sadistic person like snram4 on this forum.
For instance JoeF says "he saw it coming" in reference to this memo. But the fact is, this memo is ILLEGAL. It has no legal base. Please refer to Murthy's latest newsletter. However members on murthy forum as well as you spicy_guy, thinks that JoeF is "knowledgeable". I am surprised to see that people who are here in this country for long believes all the BS that JoeF says.
I am not sure if this snram4 is sadist or outright idiot. When this thread started there were couple of people supporting this memo. Once they understood no longer they are supporting. Snram4 is the only guy still supporting and talking all nonsense.
snram4...whatever may be the case whether people are going for law suit or not, You are not going to add any value. Why dont you simply go away rather than talking all nonsense and wasting everyone's time. No one is bothering you or stupid comments. So many people asked you to go away...why dont you consider that for GOD shake.
wallpaper Coppola#39;s Marie Antoinette
qvadis
02-13 07:23 PM
No. You are wrong..
202 (e)(3) will not applicable, because of (a)(5).
The third point excempts that ..
(3) 3/ except as provided in subsection (a)(5), the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section 203(b) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b).
202(a)(5) was added by AC21!! That's exactly the change that allowed USCIS to give additional visas to over-subscribed countries.
202 (e)(3) will not applicable, because of (a)(5).
The third point excempts that ..
(3) 3/ except as provided in subsection (a)(5), the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section 203(b) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b).
202(a)(5) was added by AC21!! That's exactly the change that allowed USCIS to give additional visas to over-subscribed countries.
eb3_nepa
06-26 12:21 PM
Yeah but USCIS CAN change its rules at ANY time without ANY notice!!
Remember the ONE day notice that I-140 premium processing is terminated for Labour substitution cases?
Remember the ONE day notice that I-140 premium processing is terminated for Labour substitution cases?
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Marphad
04-01 12:48 PM
Calm down everyone.
The thread was posted in a seperate area we have created for such posts. As Marphad said, you cannot discuss immigration all day. IV is a platform for everyone in the community to be together. If you just talk about immigration, we may not get the number of people we need for action items. When we start action items to make calls, send faxes etc, we want people sending it in thousands and not hundreds. It hurt us last year when we had such action items and participation was thin. If we make the forums strictly to discuss immigration it will hurt us in time of need when we will desperately need massive participation. This is part of a plan in moving forward for IV and we are building a platform for immigrants to come and stay here and consider it as their home. This work is still under process and you will see its fruits when we have a big bill like CIR. There is a possibility of CIR after August and we need to be ready for it. We are hearing health care reform coming before CIR at this time. There is pressure from CHC and it will be tough to ignore.
So do not get emotional and start fighting. It is tme to be united and increase the membership of our community. We will need to burn the phone lines and jam the fax machines with our participation when the time comes.
I have deleted my post on this thread. As an administrator I represent IV and I will keep in mind not to air my personal views on politics as they can be misinterpreted as IV's views.
Thanks.
You may use your other handle on IV ;).
The thread was posted in a seperate area we have created for such posts. As Marphad said, you cannot discuss immigration all day. IV is a platform for everyone in the community to be together. If you just talk about immigration, we may not get the number of people we need for action items. When we start action items to make calls, send faxes etc, we want people sending it in thousands and not hundreds. It hurt us last year when we had such action items and participation was thin. If we make the forums strictly to discuss immigration it will hurt us in time of need when we will desperately need massive participation. This is part of a plan in moving forward for IV and we are building a platform for immigrants to come and stay here and consider it as their home. This work is still under process and you will see its fruits when we have a big bill like CIR. There is a possibility of CIR after August and we need to be ready for it. We are hearing health care reform coming before CIR at this time. There is pressure from CHC and it will be tough to ignore.
So do not get emotional and start fighting. It is tme to be united and increase the membership of our community. We will need to burn the phone lines and jam the fax machines with our participation when the time comes.
I have deleted my post on this thread. As an administrator I represent IV and I will keep in mind not to air my personal views on politics as they can be misinterpreted as IV's views.
Thanks.
You may use your other handle on IV ;).
more...
msyedy
01-27 10:39 PM
Can please somebody reply, is this a non profit organisation or everytime somebody ask's some innocent question he is bombarded with counter questions like have you contributed, I can understand the frustations when there are freebee's but please everybody has his limitations,this reminds of bania's in mumbai you will get your your grocerries only if you have paid your previous debt's. Please don't force anybody, this makes every core members feel cheap, if somebody has to contribute he will contribute out of guilt out, of appreciation,out of obligation, we have not forgotten our dharma that is to help anybody that helps us.
Ignore any posts that conveys a message forcing anyone to contribute. IV core has never ever forced anyone to contribute. IV core does not have time to reply to these kind of messages.
Please Ignore these messages.
Ignore any posts that conveys a message forcing anyone to contribute. IV core has never ever forced anyone to contribute. IV core does not have time to reply to these kind of messages.
Please Ignore these messages.
ItIsNotFunny
02-13 10:50 AM
I cannot agree more with the posts from lord_labaku and kuhelica2000. In 2000, during the startup boom I used to work with so-called "experts" in say java that would have a inflated resume, but absolutely no knowledge of what is happening. I am sure based on how their resume was structured, all of them are in the EB2 queue (I am in EB3 BTW). Last year in Nov, a group of us were talking about GC wait times when a friend who was about to apply for labor quoted..."but I do not need to worry, I am applying in Eb2". I have seen posts on this site where people have solely focussed on EB2. If EB2 becomes current, then these dudes would stop supporting IV....
Removing the limited quota per country seems to be the ideal solution. But it would help if we do not focus only on the category our application is in. It would help if , after some of us get our GC, we still continue our support for IV.
Be careful what you are talking on public forum.
Please also keep in mind, some personal experience can not be generalized.
Removing the limited quota per country seems to be the ideal solution. But it would help if we do not focus only on the category our application is in. It would help if , after some of us get our GC, we still continue our support for IV.
Be careful what you are talking on public forum.
Please also keep in mind, some personal experience can not be generalized.
more...
snathan
08-16 12:29 AM
US knows that Pakistan is the mother of Terrorism, doesn't look like with all the aid flowing in, that it is being reduced to rubble. Terrorism is a deeper debate, and it borders on uneven economics, social structures, global imbalance to name a few. We have quite a few terrorists in India too, just look up Sikh riots of 1984 and Gujrat riots of 2002, the culprits walk scott free. You talk about Israel, how safe is Israel? Would you settle in Israel given a chance? The same is with the US, in the pretext of 9/11 the residual racism is now emerging in these situations.
Whether we like it or not, Kasab will be hung to death. He is definitely a criminal, and it shines on our judicial system and independent media (both are screwed in their own ways) that we can tell that a terrorist hasn't been reduced to a weakling to not demand the food of his choice.
If you are soft state they will after you...How come Israel surviving with all hostile neighbour....Do you know the seven day war. Do we have the guts to do that with any country who are launching terrorist into our land.?
Yes...US is not attacking Pak...because Pak is living at US mercy.
Whether we like it or not, Kasab will be hung to death. He is definitely a criminal, and it shines on our judicial system and independent media (both are screwed in their own ways) that we can tell that a terrorist hasn't been reduced to a weakling to not demand the food of his choice.
If you are soft state they will after you...How come Israel surviving with all hostile neighbour....Do you know the seven day war. Do we have the guts to do that with any country who are launching terrorist into our land.?
Yes...US is not attacking Pak...because Pak is living at US mercy.
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gc_on_demand
09-24 12:24 PM
This analysis is really excellent, how far do you foresee the EB2-I date going this year. Is there any hope for new people to file 485 this year? People who missed Jul 07 have waited long and can wait till next Sep in the hope that we will be able to file 485 this year.
Spill will be around 30k for Eb2 and that will clear till mid 2006. by Sep 2010. In Sep 2011 you should be able to file for 485.
there is no law that says to move date to accept new applications. If DOS makes date current and people have all data visible now will take USCIS to court for not approving cases. What I have learnt that USCIS is considering publishing rule ( Via Rule making process ) in dec 2009 to halt concurrent filling for I 140 and 485 and give chance to pre register for 485. so in Spiring of 2010 we may be able to pre file 485. which may / may not give benefit of AC 21 . EAD is always admin job so they can give out EAD and AP along with pre filling.
Spill will be around 30k for Eb2 and that will clear till mid 2006. by Sep 2010. In Sep 2011 you should be able to file for 485.
there is no law that says to move date to accept new applications. If DOS makes date current and people have all data visible now will take USCIS to court for not approving cases. What I have learnt that USCIS is considering publishing rule ( Via Rule making process ) in dec 2009 to halt concurrent filling for I 140 and 485 and give chance to pre register for 485. so in Spiring of 2010 we may be able to pre file 485. which may / may not give benefit of AC 21 . EAD is always admin job so they can give out EAD and AP along with pre filling.
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lazycis
02-14 09:19 AM
There are 71 people who have voted for a class action lawsuit.
Has anyone of them contacted Rajiv Khnanna and spent their own $600 and got an anwer? NO.
This is because nobody is serious about this. Everyone wants the other person to spend their money and time. They will only spend their time in writing posts.
I oppose this idea for number of reasons. Firstly people will not become plantiffs. They are scared. USCIS will scruitanize their applications more than anyone. Secondly people will not donate money in thousands of dollars each for it. Unless you can get hundred thousand dollars and above, you cannot go into a class action lawsuit. Thirdly nobody will go and travel on their own money and testify. Forthly, nobody will spend time helping lawyers prepare cases and research. Forthly, class action lawsuits take time and people will disappear after a while. Fifthly nobody will be willing to lead this effort. They will just dump it on IV to lead it and have core spend their time and money into it for them. Sixthly if this fail, they will blame IV for wasting the money and failing in the effort. Seventhly we do not want greencards that bad. If we wanted greencards that bad we all would have written more than 20 thousand letters till now. We should only try to bite as much as we can chew. This is just an overambitious plan and looks good in a post.
Thus I oppose this idea.
internet,
You cannot speak on behalf of other persons. Speak for yourself. Even though I have a GC, I am willing to contribute (monetary, reviewing lawyers briefs, doing legal research). I will not be able to participate as plaintiff as I have a GC.
Has anyone of them contacted Rajiv Khnanna and spent their own $600 and got an anwer? NO.
This is because nobody is serious about this. Everyone wants the other person to spend their money and time. They will only spend their time in writing posts.
I oppose this idea for number of reasons. Firstly people will not become plantiffs. They are scared. USCIS will scruitanize their applications more than anyone. Secondly people will not donate money in thousands of dollars each for it. Unless you can get hundred thousand dollars and above, you cannot go into a class action lawsuit. Thirdly nobody will go and travel on their own money and testify. Forthly, nobody will spend time helping lawyers prepare cases and research. Forthly, class action lawsuits take time and people will disappear after a while. Fifthly nobody will be willing to lead this effort. They will just dump it on IV to lead it and have core spend their time and money into it for them. Sixthly if this fail, they will blame IV for wasting the money and failing in the effort. Seventhly we do not want greencards that bad. If we wanted greencards that bad we all would have written more than 20 thousand letters till now. We should only try to bite as much as we can chew. This is just an overambitious plan and looks good in a post.
Thus I oppose this idea.
internet,
You cannot speak on behalf of other persons. Speak for yourself. Even though I have a GC, I am willing to contribute (monetary, reviewing lawyers briefs, doing legal research). I will not be able to participate as plaintiff as I have a GC.
hair 3 - MARIE ANTOINETTE
mallu
02-13 02:00 PM
Well, i see only congress can do it. But still, in the EB skill based immigration that law is barbarian. Do companies find the much needed critical talent based on country of birth ?
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needhelp!
09-23 05:01 PM
FIRST lets just send out the emails as requested by IV (Yes, this is OFFICIALLY ENDORSED BY IV initiative)
We will have all the time in the world to discuss the details.
We will have all the time in the world to discuss the details.
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Imigrait
06-16 03:25 PM
To be honest, you are the kind of people, with the right attitude and qualifications, who deserve the GC and should not be subject to these mindless wait times. I am truly sorry for you. Hope the best for you
Who defines what "right" qualifications are? Will IIT Kanpur make the cut and not IIT Guwahati? In the US, especially Sillicon Valley the best people from all over the world come for work. People from the best colleges in their countries come to work in addition to people from "normal" colleges from their countries. Where does India's top colleges stand compared to the best colleges around the world? IITs according to some rankings are not even in the top 200 colleges. Does that mean we exclude them altogether? Where does that leave BITS Pilani? Stop harping on that qualifications theme. I know people from both Bombay University and IIT kanpur Eb2 2003 waiting still for their GCs in the same company and same department. Workwise both are similarly capable.
I would suggest you to think hard before you do your MBA. An MBA does not teach you that 1+1=2 all the time unlike an engineering field.
Who defines what "right" qualifications are? Will IIT Kanpur make the cut and not IIT Guwahati? In the US, especially Sillicon Valley the best people from all over the world come for work. People from the best colleges in their countries come to work in addition to people from "normal" colleges from their countries. Where does India's top colleges stand compared to the best colleges around the world? IITs according to some rankings are not even in the top 200 colleges. Does that mean we exclude them altogether? Where does that leave BITS Pilani? Stop harping on that qualifications theme. I know people from both Bombay University and IIT kanpur Eb2 2003 waiting still for their GCs in the same company and same department. Workwise both are similarly capable.
I would suggest you to think hard before you do your MBA. An MBA does not teach you that 1+1=2 all the time unlike an engineering field.
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dallasdude
05-29 12:31 PM
Otherwise how would you explain the sudden rise in EB1 filings and a quota which never used to be over in previous years suddenly has cut-off dates.
If we keep quiet, these same clowns will use up all the visas and smirk at us for filing in the "lower" categories. What a backdoor to a green card! :mad:
Those clowns will rot in hell! All those unworthy idiots will never make it here till the end.
If we keep quiet, these same clowns will use up all the visas and smirk at us for filing in the "lower" categories. What a backdoor to a green card! :mad:
Those clowns will rot in hell! All those unworthy idiots will never make it here till the end.
tattoo Guide to Movie Costumes,
immi_enthu
07-26 07:32 PM
we dont need to work after 40 we will move to Florida with all the money we make , stop stalking people , stop working just enjoy everyday on the beach and big mansion bought from the savings from the regular job and live off of free $xxxx/month earnings we make out of Amway/Quixtar . Where as you guys will be slogging in 40's and 50's
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pictures My frock for our Marie Antoinette film excursion or Green Ball Gown Phase 3.
thomachan72
09-17 03:27 PM
[QUOTE=arunmurthy;916610]Cousin of my friend got an email that his card production has been ordered.
He falls in EB3I (PD Aug. 2005). I could not believe it but my friend told me that
EB3I would see significant movement in coming months.
Gus Hang on and tighten your seat belts. We will have a wild ride if he is true.[/QUOTE
Really?? are you sure??
He falls in EB3I (PD Aug. 2005). I could not believe it but my friend told me that
EB3I would see significant movement in coming months.
Gus Hang on and tighten your seat belts. We will have a wild ride if he is true.[/QUOTE
Really?? are you sure??
dresses Marie Antoinette
reachinus
07-27 08:22 AM
Hello All,
I travelled by car to Quebec-Canada and came back to US thru vermont on AP since my H4 visa stamping has expired. I was given an I-94A which has no expiry date and also is says single use. They didn't take my old I-94 and issued me a new one with no expiry date. Can any one please tell me if they had the same expirenece or should i contact the Immigrations and ask them to issues a new I-94?
I read through a couple of forums and know that all were issued an I-94 with 1 year expiry date. What is the significance of that Date? I am asking this because we cannot travel on the same AP since the AP will expire in 1 year from the date of issue and hece we cannot use the AP even though the I-94 has 1 year validity.
Hope some one can throw some light on this.I
I travelled by car to Quebec-Canada and came back to US thru vermont on AP since my H4 visa stamping has expired. I was given an I-94A which has no expiry date and also is says single use. They didn't take my old I-94 and issued me a new one with no expiry date. Can any one please tell me if they had the same expirenece or should i contact the Immigrations and ask them to issues a new I-94?
I read through a couple of forums and know that all were issued an I-94 with 1 year expiry date. What is the significance of that Date? I am asking this because we cannot travel on the same AP since the AP will expire in 1 year from the date of issue and hece we cannot use the AP even though the I-94 has 1 year validity.
Hope some one can throw some light on this.I
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mbawa2574
02-15 01:43 PM
You guys keep saying diversity is a FB immigration problem only not EB, hence no cap needed in EB.
REALLY? Is it a coincidence that a desi company owner will usually have 99% of his emploees Indian? Thinking that employment depends only on skills is not realistic. A lot of the networking based on national origin interferes with how at least H1 jobs are landed here. So there is a reason to have rules preventing a monopoly.
Cheers.
Yes skills don't need a cap. If I am a business owner, I have all rights to hire best and brightest in the world. It is my choice whom I hire not Government tells me where to go for hiring. Business may hire from India or Antartica, it should not be anyone's damn concern. Let the free markets work !!! This is insane
REALLY? Is it a coincidence that a desi company owner will usually have 99% of his emploees Indian? Thinking that employment depends only on skills is not realistic. A lot of the networking based on national origin interferes with how at least H1 jobs are landed here. So there is a reason to have rules preventing a monopoly.
Cheers.
Yes skills don't need a cap. If I am a business owner, I have all rights to hire best and brightest in the world. It is my choice whom I hire not Government tells me where to go for hiring. Business may hire from India or Antartica, it should not be anyone's damn concern. Let the free markets work !!! This is insane
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BharatPremi
09-25 07:45 PM
Quarterly spill over: no law change required; supported by both EB2 and EB3. This is the way to go.
Yes, it is supported by both but which group would support which method? Quarterly horizontal or quarterly vertical? :)
Yes, it is supported by both but which group would support which method? Quarterly horizontal or quarterly vertical? :)
hairstyles [Anniversary Dress, Norma
psgprasad
07-03 04:34 PM
Requesting IV core to setup webfax and IV action items to call senators and congressmen on the mid month retrogression issue and bad process followed by USCIS and DOS
The response by congresswoman Rep. Lofgren should be added in the webfax and our phone calls.
The response by congresswoman Rep. Lofgren should be added in the webfax and our phone calls.
pathmaker
02-12 12:05 PM
correction: EB3 ROW = 01JAN05 !!!!!!!!!!!!!
OMG!!!
Just 1.25 more year and I would have been current! Damn!!!!
are you dreaming ... India EB3 is 01AUG01
OMG!!!
Just 1.25 more year and I would have been current! Damn!!!!
are you dreaming ... India EB3 is 01AUG01
apnair2002
04-29 09:23 AM
04/29/2007: Elimination of Substitution of Aliens for the Certified Labor Certification Applications
As we stated earlier, the OMB had 90 days to make a decision on this DOL Final Rule. It was submitted on 01/26/2007 and the OMB cleared on 04/27/2007, just immediately prior to expiration of 90 days.
This final rule will not go into effect until it is published by the DOL in the federal register. Record reflects that this final rule will not be published in the federal register, Monday, 04/30/2007. We have yet to see what changes to the proposed version of the rule the DOL made in the final rule. However, it is certain that this rule will not go into effect on Monday, 04/30/2007, and there may still be some actions the employers can make before it is published in the federal register.
Pending Labor Certification Cases: PERM rule does not allow any amendments and no substitution of alien beneficiary available until the PERM application is certified. By the time PERM is approved, it may be too late to initiate the substitution. However, the cases which are pending at the BECs are different. The beneficiaries can be substituted inasmuch as the job order and the BEC supervised recruitment has yet to be initiated. At this time, the amendment of the BEC application does not require a paper request and e-mail or even phone call request followed by fax will work to substitute the alien. Under the final rule which will go into effect soon, the labor certification applications at the stage of DOL can survive only if the substitution has been approved at the time of release of the final rule. Accordingly, the employers can contact the BECs tomorrow, Monday, to amend the pending ETA 705 and alien beneficiary over the phone, via e-mail, followed by the phone calls and fax or straightforwardedly via fax. CAVEAT: If substitution is denied and original beneficiary ETA 750 is denied for the reason that there is no beneficiary, the employer can lose everything!!
Certified Labor Certification Cases: These cases will not be able to survive unless the I-140 petition is quickly filed on Monday substituting the alien beneficiary. The earliest filing date will be "Tuesday" since overnight delivery has to reach the Service Centers. Still worth trying. Once it is "filed," it will be safe. There remain a host of issues which will have to be resolved by the USCIS as to the consequences of the denial of these substitution I-140 petitions on issues other than alien beneficiaries qualifications such as the employer's financial ability to pay the proffered wage, etc. Obviously, the denial becomes a "final" action, the cases on appeal to the AAO will continue to remain outside the parameter of the elimination rule. Another question is the effect of motion to reopen of denial of substitution I-140 petitions. There is some chance that the USCIS may decide that once the motion is granted and I-140 petition is approved, the DOL's final rule of elimination of substitution will not affect the case. What if the employer refiles the substitution I-140 petitions? The chances of these cases will remail slim or nil. Since it will be considred a "new" filing of substitution I-140 petition, the USCIS may rule that such filing will be subject to the DOL's substitution elimination final rule. There will be other issues which fall under the jurisdiction of the USCIS rather than DOL as related to the interpretation of the substitution I-140 petitions. The USCIS is scheduled to initiate this rule making process sooner or later. Please stay tuned.
Impact on the Retention of Priority Date: The rule of retention of priority date is governed not by the DOL but by the USCIS. Under the USCIS rule, the priority date of the labor certification application is not retained until I-140 petition is "approved." Accordingly, if the decision of the denial of the substitution I-140 becomes final on appeal, the substituting alien will not be able to retain the priority. Neither the original beneficiary can retain the priority date unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.
Impact on the 7th-Year H-1B Extension: Until the substitution I-140 is denied and becomes final on appeal, the substitutiing alien will be able to continuously extend the H-1B status in one-year increment, but the substituted alien will not be able to extend the 7th-year H-1B status based on the substituted labor certification application. Once the decision of denial becomes final, the substituting alien will not be able to extend the H-1B status after that time, but the validity of the approved 7th-year H-1B status will remain valid until the expiration date.
Impact on the 245(i) Benefits: Grandfathering of the 245(i) benefits cannot be transferred to other aliens and substituting aliens cannot take over the 245(i) benefits unless the substitution was filed before April 30, 2001. Once the grandfathering is attached, it remains valid unless "not approveable at the time of labor certification application filing" is found. Accordingly, the denial of substitution I-140 petition on behalf of the substituting alien will have no affect on the original beneficiary's retention of the 245(i) benefits.
Well, let's wait and see the text of the soon-to-be published final rule.
As we stated earlier, the OMB had 90 days to make a decision on this DOL Final Rule. It was submitted on 01/26/2007 and the OMB cleared on 04/27/2007, just immediately prior to expiration of 90 days.
This final rule will not go into effect until it is published by the DOL in the federal register. Record reflects that this final rule will not be published in the federal register, Monday, 04/30/2007. We have yet to see what changes to the proposed version of the rule the DOL made in the final rule. However, it is certain that this rule will not go into effect on Monday, 04/30/2007, and there may still be some actions the employers can make before it is published in the federal register.
Pending Labor Certification Cases: PERM rule does not allow any amendments and no substitution of alien beneficiary available until the PERM application is certified. By the time PERM is approved, it may be too late to initiate the substitution. However, the cases which are pending at the BECs are different. The beneficiaries can be substituted inasmuch as the job order and the BEC supervised recruitment has yet to be initiated. At this time, the amendment of the BEC application does not require a paper request and e-mail or even phone call request followed by fax will work to substitute the alien. Under the final rule which will go into effect soon, the labor certification applications at the stage of DOL can survive only if the substitution has been approved at the time of release of the final rule. Accordingly, the employers can contact the BECs tomorrow, Monday, to amend the pending ETA 705 and alien beneficiary over the phone, via e-mail, followed by the phone calls and fax or straightforwardedly via fax. CAVEAT: If substitution is denied and original beneficiary ETA 750 is denied for the reason that there is no beneficiary, the employer can lose everything!!
Certified Labor Certification Cases: These cases will not be able to survive unless the I-140 petition is quickly filed on Monday substituting the alien beneficiary. The earliest filing date will be "Tuesday" since overnight delivery has to reach the Service Centers. Still worth trying. Once it is "filed," it will be safe. There remain a host of issues which will have to be resolved by the USCIS as to the consequences of the denial of these substitution I-140 petitions on issues other than alien beneficiaries qualifications such as the employer's financial ability to pay the proffered wage, etc. Obviously, the denial becomes a "final" action, the cases on appeal to the AAO will continue to remain outside the parameter of the elimination rule. Another question is the effect of motion to reopen of denial of substitution I-140 petitions. There is some chance that the USCIS may decide that once the motion is granted and I-140 petition is approved, the DOL's final rule of elimination of substitution will not affect the case. What if the employer refiles the substitution I-140 petitions? The chances of these cases will remail slim or nil. Since it will be considred a "new" filing of substitution I-140 petition, the USCIS may rule that such filing will be subject to the DOL's substitution elimination final rule. There will be other issues which fall under the jurisdiction of the USCIS rather than DOL as related to the interpretation of the substitution I-140 petitions. The USCIS is scheduled to initiate this rule making process sooner or later. Please stay tuned.
Impact on the Retention of Priority Date: The rule of retention of priority date is governed not by the DOL but by the USCIS. Under the USCIS rule, the priority date of the labor certification application is not retained until I-140 petition is "approved." Accordingly, if the decision of the denial of the substitution I-140 becomes final on appeal, the substituting alien will not be able to retain the priority. Neither the original beneficiary can retain the priority date unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.
Impact on the 7th-Year H-1B Extension: Until the substitution I-140 is denied and becomes final on appeal, the substitutiing alien will be able to continuously extend the H-1B status in one-year increment, but the substituted alien will not be able to extend the 7th-year H-1B status based on the substituted labor certification application. Once the decision of denial becomes final, the substituting alien will not be able to extend the H-1B status after that time, but the validity of the approved 7th-year H-1B status will remain valid until the expiration date.
Impact on the 245(i) Benefits: Grandfathering of the 245(i) benefits cannot be transferred to other aliens and substituting aliens cannot take over the 245(i) benefits unless the substitution was filed before April 30, 2001. Once the grandfathering is attached, it remains valid unless "not approveable at the time of labor certification application filing" is found. Accordingly, the denial of substitution I-140 petition on behalf of the substituting alien will have no affect on the original beneficiary's retention of the 245(i) benefits.
Well, let's wait and see the text of the soon-to-be published final rule.
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