Discussion: Possible Labor Substitution

[nkimmigration]

Was reading on the oh law firm

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

and according to a note on 4/29... "04/29/2007: Elimination of Substitution of Aliens for the Certified Labor Certification Applications" it states...

"# 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. "

Does anyone have any more information / thoughts on this. It will be a hard slap if this is true. I will have to wait for another 6 years for my new PD to become current...

 

[labordrags]

Dear Members,

Numerous, especially lawyers websites are daggering the slice to cover their front page with big font and red color alert providing helpful tips in what really is this labor substitution elimination rule, the possible conjecture of its hard copy publication which eventually becomes law once its federally being registered.

This is the summary of the proposed labor, I could be wrong but any guidance in shedding the light will actually be helpful to those who are actively pursuing their American dream.

1. Once the rule takes place, you can not file for the labor substitution period.
2. If you labor is approved, your employer must file it within 45 days, as your labor will expire by the end of 45 days period.
3. This rule will not affect those who already filed I-140 seeking for the substitution.
4. If the job order has already been placed or your employer has received instruction from BEC, you can not amend that labor for another alien beneficiary substation.

I am welcoming all your input to grow the list, so if you could do any contribution to make list bigger, please do so in this conjunction.

 

[another_fella]

Already approved labor, No Sub, I-140 not filed yet, 45 days rule?

Any thoughts on already approved labor, for which we are in the middle of filing I-140. Does this also need to be filed within 45 days?

On a more detailed level:
- This is not substitution
- My labor was approved on March 19th
- I-140 has not been filed yet
- We would be filing it in the next couple of weeks.

If the law gets enacted this week, then does the 45 day rule apply to me?

Dear Members,

Numerous, especially lawyers websites are daggering the slice to cover their front page with big font and red color alert providing helpful tips in what really is this labor substitution elimination rule, the possible conjecture of its hard copy publication which eventually becomes law once its federally being registered.

This is the summary of the proposed labor, I could be wrong but any guidance in shedding the light will actually be helpful to those who are actively pursuing their American dream.

1. Once the rule takes place, you can not file for the labor substitution period.
2. If you labor is approved, your employer must file it within 45 days, as your labor will expire by the end of 45 days period.
3. This rule will not affect those who already filed I-140 seeking for the substitution.
4. If the job order has already been placed or your employer has received instruction from BEC, you can not amend that labor for another alien beneficiary substation.

I am welcoming all your input to grow the list, so if you could do any contribution to make list bigger, please do so in this conjunction.

 

[pkk123]

For approved labors still it does have 45 days from the day "45 day rule" is implemented. Guru's let me know If I am wrong.

Any thoughts on already approved labor, for which we are in the middle of filing I-140. Does this also need to be filed within 45 days?

On a more detailed level:
- This is not substitution
- My labor was approved on March 19th
- I-140 has not been filed yet
- We would be filing it in the next couple of weeks.

If the law gets enacted this week, then does the 45 day rule apply to me?

 

[labordrags]

I am not too sure what happens for the already approved labor. I believe they should have allowed 45 days rule after it becomes law. Also, in the safe side, why wait even a day when you are able to file I-140. Since some websites strongly instructs the employer to file ASAP, I believe those whose labor is approved and yet not filed may see its value gone to trash.

 

[nkimmigration]

Please Guru's any thought will be greatly appreciated.

Hello Guru's, This has been bugging me ever since I read the news. Please share your thoughts...
-nk..

 

[another_fella]

I hope they include provisions for cases like mine. For the 140, on my side I had sent the documents to the lawyer's office, now I am waiting for my company to sign the document and send it back to the attorney so they can file it.

I am not too sure what happens for the already approved labor. I believe they should have allowed 45 days rule after it becomes law. Also, in the safe side, why wait even a day when you are able to file I-140. Since some websites strongly instructs the employer to file ASAP, I believe those whose labor is approved and yet not filed may see its value gone to trash.

 

[another_fella]

I hope it is 45 days from the day the law gets in place for approved labors like mine. If there is a link to details that would help us to understand.

For approved labors still it does have 45 days from the day "45 day rule" is implemented. Guru's let me know If I am wrong.

 

[nkimmigration]

Priority Date..

Was reading on the oh law firm

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

and according to a note on 4/29... "04/29/2007: Elimination of Substitution of Aliens for the Certified Labor Certification Applications" it states...

"# 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. "

Does anyone have any more information / thoughts on this. It will be a hard slap if this is true. I will have to wait for another 6 years for my new PD to become current...

B]Neither the original beneficiary can retain the priority date[/B] unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.

But what happens to the priority date. Can I still use the priority date from my previous labor and 140 approved? If the priority date is lost too... because of this substitution removal, then I am really in a deep deep dark hole!! Guru's Please share your thoughts and advice.

 

[pkk123]

another_fella, I am exaclty in same situation like you. I hope USCIS should give some provision for approved labors. I don't know it is possible to get all paper work done in 45 days. In my case my Labor approved date as per Certi is Jan 29 2007 and my attorney received the original on March 9 so it is almost 40 day so will be having only 5 to 10 days to apply for I140. In our company it is immpossible to get paper work done in 5 days as it takes weeks to get small information between HR and Attorney. Anyways I read about 45 days rule URL http://pubweb.fdbl.com/news1.nsf/9a...9eb0c12efa4303ae852571110078439e?OpenDocument


45-day Expiration Periods for Approved Labor Certifications. One obstacle to substitution at the USCIS stage would be DOL's proposed 45-day deadline for employers to file an approved labor certification in support of an I-140 petition with USCIS. Even if substitution at the I-140 stage could continue, the quick expiration period would severely limit the class of cases that would be in a position to take advantage of it. At the present time, approved labor certification applications are valid for an indefinite period of time, unless revoked or otherwise invalidated. The proposed rule would impose a 45-day expiration period so that labor certifications would need to be filed with I-140 permanent residence petitions within that time period. Cases already certified on the effective date of a final rule would need to be filed with USCIS within 45 days of that date

I hope it is 45 days from the day the law gets in place for approved labors like mine. If there is a link to details that would help us to understand.

 

[nkimmigration]

Priority Date retention.

Guru's. Can someone please share their thoughts on possible impact on retention of priority dates in case of approved 140... please..

 

[GrC2005]

How does labor substitution work

Hello,

Would anyone please explain how the labor substitution works

Do you have send DOL paperwork saying you want to substitute your name instead of the person who originally filed the labor?

or do you file I-140 directly with the substitute labor?

any feedback is greatly appreciated.

-------------
EB2 - MI - PD Feb 2004

 

[labordrags]

Hello,

Would anyone please explain how the labor substitution works

Do you have send DOL paperwork saying you want to substitute your name instead of the person who originally filed the labor?

or do you file I-140 directly with the substitute labor?

any feedback is greatly appreciated.

-------------
EB2 - MI - PD Feb 2004

Substitution can be worked both ways. You can file the sub within BEC if there is any active labor pending. But no supervised instruction should have been received, and also it should not have been posted to ajb.

Once the labor is approved, and if you are willing to sit in that labor, your next step is to file I-140 within USCIS. From today USCIS has halted Preminum Processing for all the pre-approved labor cases. So, you can still file the substitution, but in regular way. Let me know if you have any questions.

 

[GrC2005]

Substitution can be worked both ways. You can file the sub within BEC if there is any active labor pending. But no supervised instruction should have been received, and also it should not have been posted to ajb.

Once the labor is approved, and if you are willing to sit in that labor, your next step is to file I-140 within USCIS. From today USCIS has halted Preminum Processing for all the pre-approved labor cases. So, you can still file the substitution, but in regular way. Let me know if you have any questions.

Thanks Labordrags for your reply. The pre-approved labor is from April 2004 in EB3. It was already approved. Then do you file I-140 directly?
If you file I-140 in the regular way how long does it generally take to get an approval?

 

[labordrags]

Thanks Labordrags for your reply. The pre-approved labor is from April 2004 in EB3. It was already approved. Then do you file I-140 directly?
If you file I-140 in the regular way how long does it generally take to get an approval?

yeah, if you already have approved labor, you can sit as a substituated. Then file I-140.

I am not sure how long it takes. It can take up to six months to get it approved. Thats again the speculation. If you had a chance to file PP, then it would have been approved in 15 calendar days. But now since this cannot be done. The final sub-elimination rule begins from July 16th. After that you are NOT eligible to take this golden opportunity.

 

[GrC2005]

yeah, if you already have approved labor, you can sit as a substituated. Then file I-140.

I am not sure how long it takes. It can take up to six months to get it approved. Thats again the speculation. If you had a chance to file PP, then it would have been approved in 15 calendar days. But now since this cannot be done. The final sub-elimination rule begins from July 16th. After that you are NOT eligible to take this golden opportunity.

Labordrags, this is the situation I am in. My non-rir labor from Feb2004 is under processing at DOL, and my company will be placing the ad this weekend. Assuming everything goes well, and my labor get approved before end of june or july 07 (again assuming the visa dates wont shift) i can apply for I-485 and get EAD.
My husband's company withdrew his non-rir labor because the company filed for bankruptcy. Now he is running out of H1 time (8th year extension expires Feb 2008). One option for him is to use the labor substitution, but if no PP is available for I-140 then he probably won't get approval to extend his H1 in time. Complicated situation!
Couple of questions, it would really help if you can give me some feedback.

1) If I apply for I-485 in July/Aug 2007 can we get our EAD's by Feb 2008? Is there PP for EAD?

2) Rather than use substitute labor, should my husband switch companies and have someone apply PERM from scratch and Premium process the I-140?

Thanks much in advance

 

[labordrags]

Labordrags, this is the situation I am in. My non-rir labor from Feb2004 is under processing at DOL, and my company will be placing the ad this weekend. Assuming everything goes well, and my labor get approved before end of june or july 07 (again assuming the visa dates wont shift) i can apply for I-485 and get EAD.
My husband's company withdrew his non-rir labor because the company filed for bankruptcy. Now he is running out of H1 time (8th year extension expires Feb 2008). One option for him is to use the labor substitution, but if no PP is available for I-140 then he probably won't get approval to extend his H1 in time. Complicated situation!
Couple of questions, it would really help if you can give me some feedback.

1) If I apply for I-485 in July/Aug 2007 can we get our EAD's by Feb 2008? Is there PP for EAD?

2) Rather than use substitute labor, should my husband switch companies and have someone apply PERM from scratch and Premium process the I-140?

Thanks much in advance

1?) I am not aware of any PP when you file for EAD.
2?) What is the advantage in filing PERM? If he can file PERM within few days, and get it approved, then file I-140 Premimum processing, then he is eligible to get his H1B extension for 3 years.

--when you file for EAD/AP/I-485 and I-140 together utilizing the sub-labor, and if your I-140 gets denied for some reason, you all preceding application automatically get denied, so be careful.

--if you have a pre-approved labor, you can file I-140 and if the dates are current, then you can file EAD/AP/I-485 for you and your husband as well. Again the problem is if I-140 gets denied for some reason, then all your application is denied as well.

-----suggestion---
You can wait for your labor to get cleared. Once cleared, file I-140. Do it under Premium Processing. Once this is approved, file the rest of applications for you and your husband.

For your husband, try to find a job, and do the PERM, then file I-140. He would be safe that way, even your I-140 gets approved and retrogression starts to hit - where you cannot file EAD/AP/I-485.

 

[GrC2005]

1?) I am not aware of any PP when you file for EAD.
2?) What is the advantage in filing PERM? If he can file PERM within few days, and get it approved, then file I-140 Premimum processing, then he is eligible to get his H1B extension for 3 years.

--when you file for EAD/AP/I-485 and I-140 together utilizing the sub-labor, and if your I-140 gets denied for some reason, you all preceding application automatically get denied, so be careful.

--if you have a pre-approved labor, you can file I-140 and if the dates are current, then you can file EAD/AP/I-485 for you and your husband as well. Again the problem is if I-140 gets denied for some reason, then all your application is denied as well.

-----suggestion---
You can wait for your labor to get cleared. Once cleared, file I-140. Do it under Premium Processing. Once this is approved, file the rest of applications for you and your husband.

For your husband, try to find a job, and do the PERM, then file I-140. He would be safe that way, even your I-140 gets approved and retrogression starts to hit - where you cannot file EAD/AP/I-485.

Thanks Labordrags, it makes sense and is a bit clearer now.

 

[GrC2005]

Labordrags, one more question,
Is it possible to extend H1 by one year based on labor substitution filing and I-140 is still pending ? The substitute labor is already approved

 

[labordrags]

No U Cannot

Labordrags, one more question,
Is it possible to extend H1 by one year based on labor substitution filing and I-140 is still pending ? The substitute labor is already approved

In order to get extension beyond six-years in H1B, your labor should be pending in DOL for more than a year.

You can get extension beyond six years if you have this. There is no provision that once the pre-approved labor gets approved, you will get the same benefit as you are utilizing someones else labor.

You need to get I-140 approval if you are looking to get the H1B extension beyond six years, and you are eligible to get 3 year extension, given that your I-140 is approved.

You are funny to say that "The substitute labor is already approved" becuase you cannot file I-140 if the substitute labor has not been approved.