I-140 Permanent Employment Definition and Importance of Employment Contract Terms

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In-Delema

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The USCIS is growingly taking a hardline position on a number of issues. One of these includes the terms of employment for the I-140 proffered employment. In the past, the employers were not challenged by the INS when the employer stated in the letter that the terms of proffered employment is "at will" and the employment can be terminated with or without good cause by either the employer or employee. Indeed, it is reality that the substantial number of employment contracts include "at will" terms.
Lately, however, the USCIS has been challenging I-140 petition which included a term of employment at will. This is particularly true with the Outstanding Researcher position which usually establishes "permanent"nature of position by the annually renewable term of employment contract. If the employer states that the term of employment is at will, the employer will face a risk of denial of I-140 with the USCIS argument that it is not a permanent employment.

This issue usually involves a conflict between the employer's corporate lawyer who needs protection of his/her client (employer) from potential lawsuit by the employee when the employee is terminated "without good cause" and the immigration lawyer who represents the employer in the immigration proceeding and must established a supposed "threshold" of "permanent" employment. This issue should be resolved carefully within the employer legal team to satisfy the employer's legal protection under the employment law as well as the immigration law. One thing which is obvious is that unlike the H-1B petition, in the I-140 petition, neither the employer nor the lawyer should specifically state that the employment is at will and the employment can be terminated withou good cause by either party!

http://www.immigration-law.com/Canada.html
 
This is another form of slavery USCIS would like people to go in. The people should have now contracts in place, which are not at will, just to show the jobs are permanent.

Most of big companies in US are having at-will employment contracts so that employers/employee can terminate/leave the job at will.

Do people in USCIS have these contracts in place for themselves to show their jobs are permanent ???

This is another F***ing rule from USCIS to create problems for law abiding and since hard working non-immigrants trying to immigrate.

-Honeybee
:mad:
 
honeybee said:
This is another form of slavery USCIS would like people to go in. The people should have now contracts in place, which are not at will, just to show the jobs are permanent.

Most of big companies in US are having at-will employment contracts so that employers/employee can terminate/leave the job at will.

Do people in USCIS have these contracts in place for themselves to show their jobs are permanent ???

This is another F***ing rule from USCIS to create problems for law abiding and since hard working non-immigrants trying to immigrate.

-Honeybee
:mad:
Click to expand...

I have never seen this and I think it is probably either a USCIS error or an inaccurate statement of USCIS position. I have not seen this on the AILA website or any site other than that mentioned in the post. I would not worry about it.
 
Jim,
I would worry about it very much. To see USCIS position on at will issue go to USCIS home page/Laws and Regulations/Administrative desicions/B3-Outstanding Researchers/2003 Decisions/Nebraska Center 09-May-03 decision.

Applications have been denied based on this issue.
 
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It seems it's only for EB1 case. Right?

Anyway, I don't understand why USCIS is so hostile to immigrants. Try to find all kind of excuses to make troubles.

stllhope said:
Jim,
I would worry about it very much. To see USCIS position on at will issue go to USCIS home page/Laws and Regulations/Administrative desicions/B3-Outstanding Researchers/2003 Decisions/Nebraska Center 09-May-03 decision.

Applications have been denied based on this issue.
Click to expand...
 
GCIsTortoise said:
It seems it's only for EB1 case. Right?

Anyway, I don't understand why USCIS is so hostile to immigrants. Try to find all kind of excuses to make troubles.
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This line of thinking is clearly not universally followed, otherwise there would be a huge stink about it by now in AILA. The fact that this AAO decision can exist without every immigration attorney in the US knowing about it (my guess is very few do) is indicative of the infrequent nature that the Service makes this argument. I see no logical reason why this would be limited to EB-1 cases since nearly all employment based GC filings need "permanent employment". I have never had a problem with this issue and my feeling is that the case is an abberration. If this was universally followed, this would be disasterous since nearly all US employment is "at will". I think nearly every case that I have ever worked on the employment was "at will."

I sent an email out to an immigration attorney mailing list that I am a member of and I will let you know if anything interesting comes back.
 
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It seems that this issue has started to get some attention and even NSC is unsure of the answer.

In a recent meeting with AILA, the minutes of which were posted on the AILA website 2 days ago, the following question and answer took place:

QUESTION: If the contract states that employment is "at will," is there a policy to deny such cases?

NSC RESPONSE: The NSC is currently seeking advice from Center Counsel and headquarters on the issue as to whether "at will" employment can be considered "permanent." We will let you know when we make a determination.

I can't imagine that the counsel will think this case was correctly decided. Time will tell. This is one of the many reasons I discuss matters on this board. Some of you follow certain issues very closely and it helps to keep me updated.
 
Thank you Jim for the update.

My case was denied a couple of months ago ONLY because of "at will" statement. Of course it was appealed, and it will be interesting to see the decision that AAO will make. Will the decision about the permanent nature of "at will" positions change the future of EB1-OR applications same as NYDOT desicion changed it for the EB2-NIW applications, only time will tell. I on the other side am in the middle of a storm, and that is not very pretty.
 
"At Will" Issues

It seems to me that with the 09-May-2003 Nebraska case, USCIS and the AAO had issues with a postdoctoral appointment being a "permanent" position.

StillHope: I am really sorry to hear about your denial. I am also waiting for an EB-1 OR petition to be approved. May I ask if your petition was also based on a postdoctoral position, and which service center you are filing at?

Have a good day everyone.
 
tony403,

my position is not a postdoc position. It is as permanent as all the other employees of the organization.

It was filed at Nebraska center (this center in particular seems to have issues with the at-will wording in the contract of employment).
 
I-140 denied-postdoc as non permanent position

I have submitted my GC (EB-1, outstanding researcher) application concurrently last year. I have been fingerprinted on May, 04. My I-140 is denied on the basis of not having permanent position on June, 04, although my employer has stated in the emploment letter (RFE) that my position (postdoc) is permanent and funded by Gov Grants. In the mean time my employer has changed my employment status as permanent. Then I file I-290B with a new employment letter. It is more than four months over, I didn't heard anything from UCIS. In the receipt notice it is mentioned that the processing is taking 30-180 days and I will be informed when a decision will be taken. I was wondering about the chances of getting approval of this type of cases with a new document.
Could anyone in this forums please let me know how long the processing takes and what are the chances of getting the approval of a case like me?

sarbotutu
 
sarbotutu said:
I have submitted my GC (EB-1, outstanding researcher) application concurrently last year. I have been fingerprinted on May, 04. My I-140 is denied on the basis of not having permanent position on June, 04, although my employer has stated in the emploment letter (RFE) that my position (postdoc) is permanent and funded by Gov Grants. In the mean time my employer has changed my employment status as permanent. Then I file I-290B with a new employment letter. It is more than four months over, I didn't heard anything from UCIS. In the receipt notice it is mentioned that the processing is taking 30-180 days and I will be informed when a decision will be taken. I was wondering about the chances of getting approval of this type of cases with a new document.
Could anyone in this forums please let me know how long the processing takes and what are the chances of getting the approval of a case like me?

sarbotutu
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Sarbotutu,
Which service center have you filed at?

StillHope: Have you heard anything about your appleal? Please keep us posted, and good luck with this.
 
I-290B, 180 days over

The 30-180 days time frame for my I-290 is over. There is no change in my case ststus. Don't know what to do. Ask my layer to call service center to enquire the matter.
 
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