Must Read: Planning/Looking for Pre-Approved LC (possible scam)

you'll be OK !!

Don't worry man, you'll be ok. I am in the same boat, and I am pretty sure there are many more like us who took the advantage of faster LC processing, after all if states like CA/NJ/NY/TX do not take 3+ years to do LC, why would be even think of this. We all know there are risk involved but I think as long as there is no fraud involved, you should be ok. (and Virtual office is no fraud, AFAIK), there are many consulting companies in NJ and Bay area which operate from apartments, do H1 and GC and that's fine. The fact that, GC is for the future job, and there is AC21, I think you should be ok.

I also searched entire INTERNET and did not find any case where the I-140 was denined/questioned due to virtual office, DOL did have issues but there also, if you see Rajiv Khanna's letter to DOL, it appears that he has a pretty strong case against DOL too.
http://www.immigration.com/newsletter1/dolbreifing.html

Rest, all depend upon your luck, buddy. I know people who got their entire GC process done in 9 months and there are people whose LC is pending for 3+ years.




root said:
Hi guys,

Does any one know a single case where INS/CIS questioned the employer's office or future job location if the LC was applied from branch office (Virtual Office) ? I know there were issues with Virtual Office/Forum Shopping in Philly and Delaware, but that was DOL investigating employers. I haven't come across a single case where CIS has questioned the Virtual Office/Forum shopping.

I am in this situation. My company applied for LC (EB2) from ND (using a Virtual office) and got approved, and we are thinking of applying for I-140 and I-485 with this approved LC.

Anybody here who got his I-140 approved from a Virtual office. Please share. AFAIK, CIS only checks for ability to pay and employee's educational and work experience qualification and if that is ok, they usually approve the case.

Also, can we change the Job Location using AC21 after 6 months of pending I-485 ?

Please share if any one has any info regarding this and Please no flames !!

Just so you all know, this is my last year on H1-B and 3rd GC attempt ( got laid off twice after LC was approved) :mad:

Thanks in advance.
 
Looking for a preapproved labor

Hi
I have a longterm project with me and am looking for a pre approved labor for substitution & filing I140/ I485. I am on my 5th year of H1B & eagerly looking for an employer who possesses a valid approved labor for immediate substitution.
Thanks
 
My company filed my I-140 with substitute labor from another employee. The EX employee had his I140 cleared. His 485 got cancelled after month 4 months. We asked our lawyer and he said - we can file at any point short of the final approval of the I-485 for the original beneficiary. ? Is this true? Is there any way to find out if the substituted labor can be used in this case? Actual guidelines on which LC's are available for substitution?
 
Labor substitution

Hi,
My labor was filed through my current company X an year back.However due to EB3 retrogression already in effect & the pending labor cases having gone to BECs, I have started exploring other optons.I am going to complete my 5th year in H1B in next three months.
Now I have found a company Y who has a valid approved labor with a priority date prior to March 2002.Now could you please suggest me, to get a 7th year H1B extension which one would be considered as my priority date if I decide to file my I-140/I-485 with the new company? Do I need to file the I-140 before the start of my 6th year if I decide to go ahead with the new company ? In that case, do I stand to lose the priority date of the labor filed through my current company?
 
1) Is it approved LC? What's the name of the cmpnay Y ? Haa haa. just kidding..For ur first question i think priority date will be for the new compnay.
2) Yes just before 5 months earlier before cmpleting sixth year.
3)Yes
 
mnhrdc said:
You should seek Attorney's help before you proceed.

Pending GC process beyond 365 days is eligible for extension in 1yr period

Pending LC beyond 365 days eligible for extensions of h1
Pending i-140 beyond 365 days eligible for extensions of h1
Pending i-485 beyond 365 days approved I-140 eligible for 3yrs.
These stages can be combined also.

Check yourselves where you fall in this catagory.

Alternative example is if any appln is pending from a different employer also can be used for extension with new company.

My lc took 2 years for approval and i filed I-140 and I-140 pending for 4 months but my H-1 expire in few months am i eligible for 7th year H-1 extension? even though my I-140 is pending less than 365 days?
 
shaaka said:
My lc took 2 years for approval and i filed I-140 and I-140 pending for 4 months but my H-1 expire in few months am i eligible for 7th year H-1 extension? even though my I-140 is pending less than 365 days?

Yes you are eligible. As SHAAKA said that these stages can be combined.

Your GC process has to be 365 days approval pending. Does not matter at what stage you are as long as you started the process 365 days back and your LC or I-140 or I-485 has not been approved or denied, you are eligible for extensions.
 
End to substitution Labors!!

source:www.immigration-law.com
05/16/2005: DOL Proposes to Eliminate Substitution and to Mandate Use of Certified Labor Certification Within 45 Days

On May 12, 2005, last Thursday, the DOL submitted to the White House OMB for its review a "proposed" regulation in order to remove the substitution of the alien beneficiary and to require filing of I-140 petition within 45 days of the certification of the ETA 750 or ETA 9089.
The Department of Labor is proposing changes reportedly to reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. Among other key changes, the Department is proposing to eliminate the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications. DOL is proposing to further reduce the likelihood of the submission of fraudulent applications for the permanent employment of aliens in the United States by proposing a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security. The proposed rule expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments. DOL will also propose enforcement mechanisms to protect program integrity, including debarment with appeal rights. These proposed amendments would apply to employers using both the Application for Alien Employment Certification (Form ETA 750) or the Application for Permanent Employment Certification (Form ETA 9089).
This is a proposed rule and it may take some time before it is made a final or interim rule. However, sometimes, agencies changed or revised during the process of the OMB reviews from the proposed regulation to interim regulation or vice versa.
 
05/17/2005: Proposed Elimination of Labor Certification Beneficiary Substitution and PERM Regulation

As we reported yesterday, the DOL and the USCIS have reached a concensus that it is time to eliminate the rule of substitution of alien beneficiary for the certified labor certification application because of the alleged pervasive fraud selling the approved labor certifications in the blackmarket. The Inspector General of the DOL reported to the Congress not too long ago his findings of such pervasive fraud. Obviously, if this is true, the DOL may have a concern that the current and future visa number backlog will exacerbate the fraudulent activities as the rule of substitution has laid a bridge for the aliens to bypass the visa number backlogs by illegally buying earlier priority dated labor certification applications. The current rule of substitution transfers the original priority date to the substituting alien beneficiary.
In parallel with such rule-making efforts, however, the DOL should have also initiated its efforts to revise the PERM regulation to make refiling of applications easier and attractive consistent with the original plan of the labor certification system reengineering. There is currently practical halt of refiling of labor certification application because of the PERM regulation which requires the withdrawal of the labor certification application before the Backlog Processing Centers. Obiviously, this policy was adopted and incorporated in the PERM regulation with an intent to prevent, among other reasons, such frauds involved in the substitution. Actually, for this matter, the DOL may even consider any multiple applications for the same alien beneficiary by the same employer as the potential source for such fraudulent activities inasmuch as the unsued certified labor certification applications are allowed for substitution of the alien beneficiary. However, inasmuch as such substitution rule is removed from their policy and practice, there is no reason why the DOL should keep the current PERM policy and rule that require or even consider withdrawal of pending pre-PERM labor certification application if the employer refiles the PERM application on behalf of the identical alien beneficiary, idential occupations, and identical location. It is thus urged that the DOL also initiates a rule-making process to revise the current PERM regulation and to permit the employers to refile an application under the PERM system without withdrawal of the pending labor certificdation application and without losing the priority date. Indeed, such revised policy will swift a large number of backlog cases from the Backlog Processing Centers to the PERM National Processing Centers, achieving the goal of removal of backlog cases in a short period of time and utilitization the valuable resources in the National Processing Centers more efficiently and effectively. Some questions whether valuable "adjudication" resources are currently being wasted at the National Processing Centers because of practical abandonment of PERM filings by the employers
 
there are infact more to come. wait few more months and watch the fun of fraud employers and shortcut loving people who are ready to do anything for gc.

this is one way bad for genuine people but with current trend of frauds its better to welcome it. convince yourself that dol/uscis dont have to waste time in checking the authencity which will ease fast adjudications.

soon this thread may retire ;)
 
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From www.immigration-law.com

06/04/2005: Labor Certification Substitution Elimination Rule-Making Agenda

As we reported earlier, the DOL and USCIS have agreed to eliminate the policy of substitution of alien beneficiary for the certified labor certification applications. The rule will also require that unless the certified labor certification is used by filing I-140 petition within 45 days, it will lose validity. The two departments planned to implement these changes through the rule-making process.
Last months, both DOL and USCIS released their rule-making agenda which included this rule-making agenda within this year. There are a couple of things people should know about the rule-making agenda of these departments.
Both DOL and USCIS have decided to take a little bit of time to implement the policy change on the substitution by taking the route of rule-making option of "proposed" rule. Proposed rule is normally reviewed and decided by the OMB from 30 days to 90 days unless there is emergency. Once the OMB review is completed and approved, the agencies have their own schedule to publish in the federal register. The proposed rule is published with the period of comment which usually ranges from 30 days to 60 days. Once the comment period is over, the agencies consider all the comments which they have received and reflecting their positions on the comments, they prepare either an Interim Rule or Interim Final Rule or Final Rule. There is no legal mandate as to when either the Interim Rule or Final Rule should be published. Therefore, sometimes, it takes months or years after the release of the Proposed Rule for the agencies to publish the Interim or Final Rule. (Look at what happened with the PERM rule!) Sometimes, they even extend the comment period over and over or even withdraw the published proposed rule. Proposed Rule has no force of law until it is enacted into an Interim Rule or Final Rule. Interim Rule or Final Rule is the rule that has the force of law.
Additionally, apparently the two agencies have different schedules when it comes to the specific time tables. DOL scheduled to initiate the proposed rule making process in May 2005. They kept the schedule and requested the OMB to review this rule on May 12, 2005. But there is no information available about the two important things: (1) OMB review schedule (2) Comment Period which is incorporated in the proposed rule. Depending on the specific time table for these two factors, the interim or final rule making process may not come for awhile. The USCIS time table was even later than the DOL, scheduling to publish the proposed rule in September 2005 with a comment period ending in November 2005. This time table can change but USCIS has yet to request the OMB to review its proposed rule.
Once either interim rule or final rule is enacted and takes effect, there will be three groups of people who may or may not be affected by these new rules:
Group I: Those Who Already Filed I-140 Petition Using Labor Certification Substitution: It is incomprehensible that the rule will take effect retroactively that far. There is a serious issue of legality for such action.
Group II: Those Employers Who Have Certified Labor Certification Applications at the Time of Effective Date of such Rule: The rule may apply retroactively to the certified labor certification applications and the employers may be barred from using the certified labor certification application for substitution after the effective date. There is some chance, though, that they may apply only prospectively affecting only the Group III.
Group III: Those Employers Whose Labor Certification Applications Are in the Pipeline but Yet To Be Certified at the Time of Effective Date: It is almost certain that these employers will not be able to use the certified labor certification applications for substitution after the effective date of the rule, no matter whether the rule is applied retroactively or prospectively only.
The bar for substitution applies to ETA 750 applications which have already been certified or are still pending at the Backlog Processing Centers. The bar will also apply to the new labor certification application, so-called PERM application, ETA 9089. The foregoing discussion suggests that employers who have certified labor certification applications but whose substituting alien beneficiary will not be able to file concurrent I-140/I-485 petition/application filing because of the visa number retrogression should still file I-140 petitions quickly before the interim or final rule is published and enacted. These employers should keep closely following news on the progress of the these rule-making activities of DOL and USCIS. Please stay tuned to this web site.
 
If LC is approved from Maine, can I-140 be filed from TX center?

Hi Friends,

I am getting substitute labor from a company. The labor was approved from Maine. The company is saying that they will file I-140, I-485, I-765 from TX center.

Is it possible to file all those forms from TX if labor was approved from Maine?

Thanks
 
Why do the company want to file it from Tx??

Do you live in TX or Do u work in TX??


skgc12 said:
Hi Friends,

I am getting substitute labor from a company. The labor was approved from Maine. The company is saying that they will file I-140, I-485, I-765 from TX center.

Is it possible to file all those forms from TX if labor was approved from Maine?

Thanks
 
08/12/2005: OMB Approved DOL's Proposed Rule to Eliminate Substitution of LC and 45-Day Cap for Approved LC

On August 10, 2005, the OMB cleared the DOL's proposed rule entitled Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse for publishing in the federal register. In this rule, the DOL is proposing changes to reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. Among other key changes, the DOL is proposing to (1) eliminate the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications. DOL is proposing to further reduce the likelihood of the submission of fraudulent applications for the permanent employment of aliens in the United States by (2) proposing a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security. The proposed rule expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments. DOL will also (3) propose enforcement mechanisms to protect program integrity, including debarment with appeal rights. These proposed amendments would apply to employers using both the Application for Alien Employment Certification (Form ETA 750) or the Application for Permanent Employment Certification (Form ETA 9089).
Considering the recent DOL policy change to prevent labor certification frauds, it is anticipated that this proposed rule will be published in the federal register very swiftly. Please stay tuned to this website for the development of this rule-making.
 
How soon can it come to effect?

HI,

Please check the following article in immigration-law.com that says that OMB has approved DOL's proposal to eliminate labor substitution on Aug 10th

http://www.immigration-law.com/

To make it a final rule, does they have to publish in federal registry for comments or can they directly make it a rule with immediate effect next week?

What is the minimum amount of time that they will take for bringign this rule into effect?

Please help me with the info you know.

Thanks In Advance
 
Read this recent news bulletin from Murthy's website:

Beware of Fraudulent LC Substitution Cases

Beware of Fraudulent LC Substitution Cases

The practice of substituting beneficiaries into labor certifications recently has come under greater scrutiny, as regular MurthyDotCom and MurthyBulletin readers are aware. There is a U.S. Department of Labor (DOL) proposal to end the practice entirely. This proposed regulation has not yet been published, but it appears to be of great concern, affecting both U.S. employers and foreign workers. More information on the proposed regulation is available in our August 26, 2005 MurthyBulletin article, Proposal to End LC Substitution and Require Prompt I-140 Filing, available on MurthyDotCom.

Substitution, essentially, is the replacement of the named beneficiary in a labor certification (LC) with another, equally qualified individual. We at The Law Office of Sheela Murthy wish to warn our readers to be careful to avoid involvement with improper LC substitution cases. Although there are certainly genuine substitution cases; there are also many that may be fraudulent. The DOL and USCIS are keenly aware of the fraudulent cases and are investigating and taking action when such fraud is detected.

The process of obtaining a labor certification from the DOL was traditionally a slow process, as many of our readers are personally aware. Depending upon location, prior to the start of PERM in March 2005, labor certification processing could take years. With LC substitution, an individual gets to skip that entire lengthy process, use an already approved labor certification, and move forward with filing to obtain the "green card" by directly filing the I-140 petition. It is an enormous benefit to the substituted individual. It also saves the employer the effort of redoing the labor certification and avoids all of the associated expenses. The individual additionally gains certain benefits, including H1B extension eligibility, based upon the filing date of the initial labor certification.

Illegal Sale of LC Substitutions

The problem is that, because the labor certifications are so sought after by the foreign national, some employers and unscrupulous individuals apparently have created a market to sell these labor certifications to the highest bidder. The scale of this fraud has only recently come to light.

The increasing interest in these previously-approved LCs appears to be tied, in part, to AC21 provisions. The value of the substituted labor increased as a result of specific AC21 provisions that allow for approval of a green card case through an employer other than the labor certification petitioner. Thus, some people seek out substitution cases through employers for whom they have never worked. They then try to use AC21 to obtain green card approval. Another incentive for abuse is the benefit under AC21 is that the priority date on the labor certification can be used as the basis for an H1B extension beyond the six year limitation. This often provides relief for an individual who is coming to the end of the six years on H1B, but who does not have a pending green card case. With so much at stake, the incentives for fraud of the labor certifications are high.

What Makes a Labor Substitution Fraudulent?

This ability to profit from having the valuable certification provided incentives for filing labor certifications that were not bona fide from the beginning. That is, there may not have been a genuine job offer or a genuine beneficiary of the initial case. Additionally, even if the case was good at the start, the sale of the labor certification means that there may not be a genuine job offer underlying the substitution case. That is, the company may just have sold the labor certification, but may not really intend to hire the individual on a full-time, permanent basis, as required by law, upon the approval of the permanent resident status based on that approved LC. Maybe the individuals are just using the labor certification to extend their H1B statuses; maybe the intent is, as discussed above, just to buy time or to try to use AC21 portability to get a green card case approved through a different employer without working for the substitution company. This is considered improper and fraudulent.

Fraud can have many consequences, including criminal charges. From an immigration perspective, a case that is based upon a fraudulent labor certification can be terminated or revoked. That is, if an employer files an I-140 petition based upon a fraudulent labor certification, the I-140 can be revoked based upon the fraud. So, one could spend a great deal of money for the labor certification only to find that s/he ends up without a green card and no means to recover all the money spent. Of course, one could also become the target of fraud investigation. The government is aware of the improper use of LCs and is taking action.

There are many ways a company could come to the attention of the DOL or USCIS. Cases that are filed reveal company size and financials. The USCIS can track the number of filings made by an employer. If it is disproportionate to the size of the company, i.e. many green card cases filed by an employer with relatively few employees, this may be an indicator that something is wrong. They may investigate employers with repeated substitution cases. They may investigate lawyers and other individuals whose names are associated with these repeated cases, and make connections in that manner. The government is experienced with investigations of fraud and has the resources to conduct those investigations which they feel are important.

How to Avoid an Association with Fraudulent Substitution

When considering whether to have an LC Substitution case filed by a particular employer, the individual should consider the general reputation of the employer. If they are in the business of selling labor certifications to anyone wishing to buy them, avoid that employer. Labor certifications are supposed to represent a job offer. Companies are supposed to make offers to those they select for employment, not someone merely willing to pay a fee for the process. A legitimate employer that happens to have some labor certifications that were approved for prior employees, using substitution can be a valuable shortcut to the green card.

It is always best to know your employer's reputation and to choose carefully. Even if every aspect of one's case is legitimate, problems can arise if the employer has been engaged in fraud. The USCIS can challenge I-140 filings if the company has filed more cases than it can support. Thus, even if one's case is genuine, it can encounter problems if the employer has filed others that may not be bona fide. Employers must show that they can pay the prevailing wage for the job offered. The USCIS sometimes asks for proof pertaining to all pending cases, not just a single case. If the company has offered more jobs than there are funds to support, all of the cases could run into problems.

Conclusion

Anyone who may have gotten involved with the practice of fraudulent substitution, innocently or otherwise, may need to review his or her immigration situation. If the labor substitution case is questionable, it may be time to, at the very least, consider working with a reputable and experienced immigration lawyer who is able to navigate the system, offering advice and options within the legal framework.

© 2005, The Law Office of Sheela Murthy, P.C. All Rights Reserved
 
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fraud charge for both

Both employer and employee are liable for fraud labor substitution (paying even a cent for labor).

it will haunt even after greencard approval. poor fellas, they think its easy way to get gc. lets wait and see for who gets more.
 
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