180 day rule - retroactive?

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simpleguy

Registered Users (C)
Assuming if INS comes back with the 180 rule and says that it is retroactive, would it apply to the folks whose 485 ND is before Oct 17\'2000 and who have changed to a different job before Oct\'17 2000. For example, a candidate can have a 485 ND of 9/99 and could have changed to a differnt job in say 5/00. Technically, he fits into the 180 rule as he has changed job after 6 months of his 485 ND date.
Any ideas/inputs/thoughts?
 
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If it says retroactive, thats what it means - no matter when your ND is, you can change jobs after 180 days after ND..
 
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but I do not know if its ok for people who changed jobs before oct,2000 since when they changed, there was no such law..
but I dont think INS will take pains to determine that in each case..
 
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The very essence of the rule is to help the long waiting applicants to get some relief. So in that point of view, whoever is waiting for more than 180 days should benefit from this rule. The rule make no sense if the INS come up and say that the rule is applicable for only folks who applied on or after October 17, 2000. They may come up with such an interpretation. But, that will defeat the very intend of the rule. I guess, I\'ll call this debate on "retrospectiveness of the rule" is just a mockery - it should be retrospective.
 
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Any opinion on whether it is safe to quit current job and go back to school? Technically, it is not moving from one job to another in the same field that the GC was petitioned for.

I am from the August 99 ND batch (Eb2 India) and have been admitted to a biz school starting in August. Thanks!
 
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besides, I think that if they infer the regulation in such a negative way - that it only applies to people who applied
after oct 2000, they are making themselves succeptible to numerous law suits challenging their decision..
so before making such decisions, I think they also consider the possiblity if it will stand in a court of law..
 
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In your case, you might be able to apply the old law that the green card is for a job in the future.. in your case, it might
be interpreted that you will join back and that your sponsoring employer will take you back after you have finished school..
however, I do not know if the new law (180 day one) will necessarily make the old one (green card is for a future job )void..
 
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I agree with you. It is HIGHLY UNLIKELY that the DOJ/INS will come out with regulations that make the rule applicable only to applications files after Oct 17, 2000. Even if they do so, once they publish interim regulations (as they need to before the issue final regulations), I am sure they will get a lot of responses explaining that the rule should be made applicable to all pending I-485\'s and this opinion will be taken into consideration before the FINAL regulations are published.
That said, I slightly disagree with Aaryan Manju in that this discussion is a mockery. Yes, to all normal people, the spirit of the law says that it is applicable to all I-485\'s, irrespective of the date of filing, but our past experience with the INS is ample proof that that is not always the case with them - they have their own way of interpreting rules. Let us hope that atleast in this case, they will provide relief for long-pending applications in their interim regulation itself....
But then again, it is unlikely that the INS will agree that the 180 day rule will benefit people who switched employers even before Oct 17, 2000 - since there was no rule like that at that point. At best, they are likely to remain silent on that aspect and look at cases on a case-by-case basis, rather than announce a blanket protection for all....
 
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Govinda Vinod - I have not been following the laws and how INS has been interpeting them all this while..
I gave my opinion based on pure common sense (hoping INS would have it too)..
can you please quote some example, if you know of any, on a instance when INS did something stupid in interpreting the law
and what happened when it did - i.e. what were the repurcussions - on how the immigration community reacted..? may be a
discussion on that will make things clearer..
 
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I am not sure if I can explain the whole thing in detail citing examples - as you can guess, I am only another normal GC seeker forced to learn & understand the workings of these government bodies due to circumstances (I am STILL waiting for my GC after an I-140 redo, 2 RFEs and my I-485 having been pending for more than 600 days now!!!!).
    However, as I understand it, bills like this (AC21) that are signed into law by the President are then passed to the concered government departments. They in turn interpret them and issue interim regulations and invite comments from anyone who is interested/affected, on or before a certain date. After that, all the comments & suggestions are taken into consideration and FINAL regulations are published and the different arms of these government bodies start acting according to those regulations. This is a time consuming process and often, these bodies seek Congressional opinion too on the ways to implement these rules/reforms.
    To see an example of one such instance where the regulations published were not to the liking of the lawmakers, please visit http://www.shusterman.com/pdf/abraham01.pdf. This should give you a fair idea of what I am talking about.
    Also, please note that this is just my understanding of the issue in a nutshell, in reality, things will DEFINITELY be more twisted & complicated than this and you will need to do a lot more research to understand the whole process. It could also be very different than how I have stated it....
 
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hmm... that is interesting (the .pdf letter).. thanks for taking time with this.. I know you are another one of us..I was hoping to
get to get as much information as possible on the issue..I hope you will get your card very soon..
Do you know if the DOL in this case is obligated to consider the senator\'s concerns and to accept their wishes? can their
final regulations after implementation be challenged in courts?
 
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Govinda,

I agree with you on the possible outcomes you advocated for various scenarios. A discussion on the law and its possible outcomes is good. But, I guess, my point on the mockery was to just to convey that this law will be in retroactive and debating on the effective date is just a-waste of time.
 
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metoo & Aaryan Manju, Thanks for your responses. Like you mentioned, a healthy discussion on the topic is always good, and I also think the that 180 day rule will be retrocative, as anything else just does not make sense & does not agree with the spirit of the law.
And metoo, I am not sure what the DOL will do under the circumstances. I am sure they will consider the letter from the Chief sponsor of the said bill, but I am not sure how radically changed the Final regulations will be on the rule, and am not very familiar with the bill/rule myself. But I do feel that if there is anything in the final regulations that goes against the spirit of the law, it can be challenged in a court of law, especially in the context of letters like this. If there is a ruling against the regulations from a court of law, the concerned department WILL have to comply with the court\'s orders, within a time stipulated by the court.
An example would be the verdict by a court in California (if I remember right) about the disparity and ambiguity that was there within the DOL & INS regarding the consideration of H-1b holders with sufficient experience (4 year degree & 5 years or more or progressive work experience in the claimed field) to be considered under EB-2 category and not in EB-3 category for the purpose of AOS. I have heard that since the court verdict, the INS Service Centers have been more uniform in accepting these applications under EB-2. Also, I have heard that CSC had offered to switch pending petitions from EB-3 to EB-2 on the request of the applicants. However, I am not in a position right now to give you any links to any web-sites/pages that can explain this in more detail and with more authority. Hope this helps....
 
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