nk2006
10-21 03:30 PM
Though the denial of this MTR is against the law by USCIS, one must consider following.
AC21 is a benefit for a long delayed adjustment of status applicant to change the employer before getting GC. This law was framed based on the fact that the employee working for a long period of time with sponser (either in non-immigrant visa or in EAD) and cannot change the job because of prolonged delay in approval of 485. However, one must remember that, the fundamental priciple of granting GC is based on the fact that intent of the employee working "permanetly" or some longer period of time for the sponser. If the employer can demonstrate successfully to the USCIS that the employee does not having the intent then USCIS may deny the 485. If one resigns just immediatly after the 180 days, it doubts the legitimacy of the intent. If employer argues that the employee was waiting just for 180 days and using the law to change the job, there is a reason for USCIS to belive the employer's claim about false intent of the emploee. But one can overrule this denial in court, if the employee demonstrates that he/she worked for the sponsor for a considerable period of time before and after filing 485, to prove his/her intent.
How can USCIS can judge the legitimacy of the intent of the applicant - it can be very subjective and depend a lot on the way visa officer interprets. For example how long after six months is considered a "long wait"?
There will be always some descretionary powers to visa adjudicators but AC21 guidelines and associated memo's are detailed enough to give a clear explanation that once I485 is pending for six months, the applicants underlying I140 is valid (if its revoked or if it is not yet approved) and I485 continue to be processed - as long as the new job is same or similar. One thing that is not clear is the definitions of this same/similar job thing. We all expected some hiccups based on this interpretation. But the rejection of I485 (and subsequent MTR) based on I140 revocation is something that came out of blue and the number of these cases makes it really scary.
AC21 is a benefit for a long delayed adjustment of status applicant to change the employer before getting GC. This law was framed based on the fact that the employee working for a long period of time with sponser (either in non-immigrant visa or in EAD) and cannot change the job because of prolonged delay in approval of 485. However, one must remember that, the fundamental priciple of granting GC is based on the fact that intent of the employee working "permanetly" or some longer period of time for the sponser. If the employer can demonstrate successfully to the USCIS that the employee does not having the intent then USCIS may deny the 485. If one resigns just immediatly after the 180 days, it doubts the legitimacy of the intent. If employer argues that the employee was waiting just for 180 days and using the law to change the job, there is a reason for USCIS to belive the employer's claim about false intent of the emploee. But one can overrule this denial in court, if the employee demonstrates that he/she worked for the sponsor for a considerable period of time before and after filing 485, to prove his/her intent.
How can USCIS can judge the legitimacy of the intent of the applicant - it can be very subjective and depend a lot on the way visa officer interprets. For example how long after six months is considered a "long wait"?
There will be always some descretionary powers to visa adjudicators but AC21 guidelines and associated memo's are detailed enough to give a clear explanation that once I485 is pending for six months, the applicants underlying I140 is valid (if its revoked or if it is not yet approved) and I485 continue to be processed - as long as the new job is same or similar. One thing that is not clear is the definitions of this same/similar job thing. We all expected some hiccups based on this interpretation. But the rejection of I485 (and subsequent MTR) based on I140 revocation is something that came out of blue and the number of these cases makes it really scary.
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saileshdude
09-10 10:33 AM
Yes. By Law and by the Book. But I just saw in my friend circle. Most of them were US Masters.
I don't what how you define "most" but I am EB2 with US masters with PD 2006 and I am still waiting. Many of my friends with US masters are still waiting.
I don't what how you define "most" but I am EB2 with US masters with PD 2006 and I am still waiting. Many of my friends with US masters are still waiting.
shivarajan
03-07 02:50 AM
Jai Ho..... "Iam alive again (and so do my hope)"
This is what i like about "hope".... u just awaked the dead me~
Sire, I will be hopeful till the last nanosecond until visa bulletin from mumbai consulate gets published! :-)
This is what i like about "hope".... u just awaked the dead me~
Sire, I will be hopeful till the last nanosecond until visa bulletin from mumbai consulate gets published! :-)
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AllVNeedGcPc
03-22 10:05 PM
... thanks for sharing.
My First Post :
Initial EB3 - 07/2003 with fortune 200 company, got laid off in 10/2010 after working with them for 11 years.
Joined small company in 11/2010, Perm EB2 - 12/22/2010 - Approved on 01/06/2011
I140 Premium - 03/02/2011. Both 140 and 485 approved on 03/15/2011 - Current Law Firm received 140 approval notice on 03/18/2011, Previous company's law firm received 485 approval on the same day.
My First Post :
Initial EB3 - 07/2003 with fortune 200 company, got laid off in 10/2010 after working with them for 11 years.
Joined small company in 11/2010, Perm EB2 - 12/22/2010 - Approved on 01/06/2011
I140 Premium - 03/02/2011. Both 140 and 485 approved on 03/15/2011 - Current Law Firm received 140 approval notice on 03/18/2011, Previous company's law firm received 485 approval on the same day.
more...
harivenkat
08-12 11:37 AM
Just dont get what the senator is intending here ....
"The business model of these newer companies is not to make any new products or technologies like Microsoft or Apple does. Instead, their business model is to bring foreign tech workers into the United States who are willing to accept less pay than their American counterparts, place these workers into other companies in exchange for a �consulting fee,� and transfer these workers from company to company in order to maximize profits from placement fees. In other words, these companies are petitioning for foreign workers simply to then turn around and provide these same workers to other companies who need cheap labor for various short term projects."
Does this mean every H1b at MS, Apple invents ipod, iphone, USB etc.... and there is no similarity in the nature of work done by him compared to that coming from a consulting company at a client site..... he talks about products or technologies but what about services/speciality occupation using these products/technologies ... that is exactly what most of the IT sector does....
"The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations."
Not sure if senator is missing it or dodging it ....
"The business model of these newer companies is not to make any new products or technologies like Microsoft or Apple does. Instead, their business model is to bring foreign tech workers into the United States who are willing to accept less pay than their American counterparts, place these workers into other companies in exchange for a �consulting fee,� and transfer these workers from company to company in order to maximize profits from placement fees. In other words, these companies are petitioning for foreign workers simply to then turn around and provide these same workers to other companies who need cheap labor for various short term projects."
Does this mean every H1b at MS, Apple invents ipod, iphone, USB etc.... and there is no similarity in the nature of work done by him compared to that coming from a consulting company at a client site..... he talks about products or technologies but what about services/speciality occupation using these products/technologies ... that is exactly what most of the IT sector does....
"The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations."
Not sure if senator is missing it or dodging it ....
legalVoice
06-03 12:06 PM
Canadian_Dream, I think your interpretation is wrong..
------------------------------------------------------------------------
40 (2) PENDING AND APPROVED PETITIONS AND APPLICATIONS.�Petitions
41 for an employment-based visa filed for classification under
42 section 203(b)(1), (2), or (3) of the Immigration and Nationality
43 Act (as such provisions existed prior to the enactment of this
44 section) that were filed prior to the date of the introduction of
265
1 the [Insert title of Act] and were pending or approved at the
2 time of the effective date of this section, shall be treated as if
3 such provision remained effective and an approved petition may
4 serve as the basis for issuance of an immigrant visa. Aliens with
5 applications for a labor certification pursuant to section
6 212(a)(5)(A) of the Immigration and Nationality Act shall
7 preserve the immigrant visa priority date accorded by the date
8 of filing of such labor certification application.
-------------------------------------------------------------------------
I think what AILA, our core group and other attorneys are trying to say is that as long as you filed before May 15, 2007 you will be fine regardless of whether your petition is pending or approved. There is no dispute about this point. Any applications that were filed after May 15, 2007 will become null and void the day this bill is signed by the president to make it a law. The 'effective date' ( Oct 1, 2008 ) does not apply for applications filed after May 15, 2007. I will be glad if you can prove me wrong :)
Well this is very confusing.
What if a person files the I-140 after May 15th and his/her I-140 is approved. Later assume that I-485 date becomes current for that particular person (before Oct 2008), he/she files for the AOS/I-485 (before Oct 2008). While the I-485 petition is pending the date Oct 2008 comes what happens then? Will this nulify the filed I-140?
Thanks
------------------------------------------------------------------------
40 (2) PENDING AND APPROVED PETITIONS AND APPLICATIONS.�Petitions
41 for an employment-based visa filed for classification under
42 section 203(b)(1), (2), or (3) of the Immigration and Nationality
43 Act (as such provisions existed prior to the enactment of this
44 section) that were filed prior to the date of the introduction of
265
1 the [Insert title of Act] and were pending or approved at the
2 time of the effective date of this section, shall be treated as if
3 such provision remained effective and an approved petition may
4 serve as the basis for issuance of an immigrant visa. Aliens with
5 applications for a labor certification pursuant to section
6 212(a)(5)(A) of the Immigration and Nationality Act shall
7 preserve the immigrant visa priority date accorded by the date
8 of filing of such labor certification application.
-------------------------------------------------------------------------
I think what AILA, our core group and other attorneys are trying to say is that as long as you filed before May 15, 2007 you will be fine regardless of whether your petition is pending or approved. There is no dispute about this point. Any applications that were filed after May 15, 2007 will become null and void the day this bill is signed by the president to make it a law. The 'effective date' ( Oct 1, 2008 ) does not apply for applications filed after May 15, 2007. I will be glad if you can prove me wrong :)
Well this is very confusing.
What if a person files the I-140 after May 15th and his/her I-140 is approved. Later assume that I-485 date becomes current for that particular person (before Oct 2008), he/she files for the AOS/I-485 (before Oct 2008). While the I-485 petition is pending the date Oct 2008 comes what happens then? Will this nulify the filed I-140?
Thanks
more...
sam2006
07-19 12:53 AM
thank you :)
Signed up mothly contribution from july.
Atleast with the current visa bullettin change has eased the worry of a lot of people if not all. Also get the satisfaction that we are doing something to improve our situation.
Signed up mothly contribution from july.
Atleast with the current visa bullettin change has eased the worry of a lot of people if not all. Also get the satisfaction that we are doing something to improve our situation.
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needhelp!
09-11 11:27 AM
coopheal,
Thank you for you generosity!
Thank you for you generosity!
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Jimi_Hendrix
11-11 01:08 AM
We are 7 in all now and growing:)
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Michael chertoff
12-16 09:39 PM
What a nobel idea. IV has thousands of members and we all are with you. What we don't seems to have is LEADER. Yes, we are lacking leaders like you, If you start I am sure all IV members will follow you. Just drop us a line when you are ready to start. We all are counting on you.
J.F.
Dear JetFlyer,
lets do it together, let me know when you are ready. we both will start and see how many people will follow us.
thanks for your support.
MC
J.F.
Dear JetFlyer,
lets do it together, let me know when you are ready. we both will start and see how many people will follow us.
thanks for your support.
MC
more...
honeyB
01-23 02:25 PM
AP filed on august 16th still waiting for approval
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vpadman
01-04 12:06 PM
One my friends got his wife's AP approved by scheduling an appointment with local InfoPass office. but you need a valid reason and proof for that. In his case he got his father in law's medical certificate from India.
Julsun,
When your friend went for INFOPASS, did he get a single copy of the AP, or two copies of the AP ?
I want to know if there is a difference between getting APs through mail or INFOPASS.
Thanks,
-Viju
Julsun,
When your friend went for INFOPASS, did he get a single copy of the AP, or two copies of the AP ?
I want to know if there is a difference between getting APs through mail or INFOPASS.
Thanks,
-Viju
more...
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vayumahesh
10-28 03:28 PM
Thanks 9Years for sharing the info. My I-140 was filed on Oct 20th under premium processing and still waiting for approval.
As next step, are you planning to do interfiling or wait and see if I-485 will be approved automatically ?
As next step, are you planning to do interfiling or wait and see if I-485 will be approved automatically ?
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admin
03-09 09:40 AM
Here is the link to the full markup. SJC is going in the order of the titles. Our sections are predominantly from Title 5 but some are in 4 too.
http://immigrationvoice.org/forum/attachment.php?attachmentid=23&d=1140888843
http://immigrationvoice.org/forum/attachment.php?attachmentid=23&d=1140888843
more...
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conundrum
09-10 09:41 AM
Other than the visa recapture, I guess at this point there isn't a whole lot we can do. I guess when we applied for GC we basically pawned our life to USCIS.
It is kind of sad that when they had visa available they weren't able to approve the cases before April '03. Pathetic!!
Enough of venting.... hopefully things might work out for the better this year!
It is kind of sad that when they had visa available they weren't able to approve the cases before April '03. Pathetic!!
Enough of venting.... hopefully things might work out for the better this year!
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santb1975
06-20 12:53 AM
Are we not reaching 20K even??
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smisachu
09-28 10:38 PM
If this is indeed true then we must high light this and make it our next issue. This is a poster child of USCIS's careless work and sloppyness.
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mayitbesoon
10-08 09:41 AM
Diptam,
Thanks for the updates.
My husband's I-140 is pending at TSC for an year now and employer is not agreeing to sign on form 7001. Can we send an e-mail to Omburdsman and expect some action to be taken?? does it help?
Thanks for the updates.
My husband's I-140 is pending at TSC for an year now and employer is not agreeing to sign on form 7001. Can we send an e-mail to Omburdsman and expect some action to be taken?? does it help?
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conchshell
06-05 01:09 PM
I am keeping an eye on the funding drive... and it seems that there is progress but somewhat slow. I think we need new ideas to promote the same. What about giving IV T-Shirts to all those who contribute $100+ for our 20K to 50K drive?
realizeit
07-11 10:51 AM
These two could be the real reasons why they changed the dates to 2006-June-01.
1. USCIS want to utilize all available EB2 and EB1-Balance GC numbers before 2008-0ct-01. So, they moved the EB2 dates in such a way that there is enough room for obtaining approvable and valid EB2 applications.
2. They could just move the dates to somewhere at the end of 2005 instead of 2006-June to achieve the same result. But, they did this specifically to include some relief to EB2 CHINA folks as well. EB2 China backlog starts from the beginning of 2006.
3. This reason is from my imagination: USCIS is a govt organization..You know. I heard stories that corruption is there everywhere in a GOVT system. Some influential applicant needs to get the benefit and they moved the dates to June-2006. :)) HEY THIS IS NOT TRUE :)
Oh by the way, this won't last long. The month September could see an "UNAVAILABLE" EB2 or "2004-APRIL" EB2.
My heart jumps with joy, but my brain still caution the heart to wait for the official visa bulletin at DOS/USCIS website. USCIS has a trend of "correcting" the visa bulletin. Nevertheless, if the dates are really what they are published at Mumbai site, its a time for us to be happy.
EB2 looks promising, but in this moment of joy lets not forget our friends in EB3 category. Anyone whose priority date is current, please don't just move forward with your joy, and continue to support IV and our initiatives to help legal immigrants. We have suffered so much because the folks who came prior to us never bothered to support legal immigration, once they got their their GC. Please remember that after GC/Citizenship, your status in this nation depends on how active you are socially/politically.
1. USCIS want to utilize all available EB2 and EB1-Balance GC numbers before 2008-0ct-01. So, they moved the EB2 dates in such a way that there is enough room for obtaining approvable and valid EB2 applications.
2. They could just move the dates to somewhere at the end of 2005 instead of 2006-June to achieve the same result. But, they did this specifically to include some relief to EB2 CHINA folks as well. EB2 China backlog starts from the beginning of 2006.
3. This reason is from my imagination: USCIS is a govt organization..You know. I heard stories that corruption is there everywhere in a GOVT system. Some influential applicant needs to get the benefit and they moved the dates to June-2006. :)) HEY THIS IS NOT TRUE :)
Oh by the way, this won't last long. The month September could see an "UNAVAILABLE" EB2 or "2004-APRIL" EB2.
My heart jumps with joy, but my brain still caution the heart to wait for the official visa bulletin at DOS/USCIS website. USCIS has a trend of "correcting" the visa bulletin. Nevertheless, if the dates are really what they are published at Mumbai site, its a time for us to be happy.
EB2 looks promising, but in this moment of joy lets not forget our friends in EB3 category. Anyone whose priority date is current, please don't just move forward with your joy, and continue to support IV and our initiatives to help legal immigrants. We have suffered so much because the folks who came prior to us never bothered to support legal immigration, once they got their their GC. Please remember that after GC/Citizenship, your status in this nation depends on how active you are socially/politically.
saimrathi
08-10 01:46 PM
Did you file concurrent?
Its random at best then anything else. According to my lawyer, my application (EB2) was there July 2nd morning.
Its random at best then anything else. According to my lawyer, my application (EB2) was there July 2nd morning.
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