Again from confused resident on H1b

[immigrant43]

Dear Hadron, and other (NON-LAWYER!) experts who may be willing to help:

I explained my situation previously under a thread named “confused resident on H1b” posted on March 10, 2006.

I discussed my situation with my current residency program (in which I will also spend one year of fellowship, starting July 2006). It seems like they may be willing to help and there may be a position available in this university hospital for me to apply. My department chairman wants to know what their legal obligations are if they sponsor me for PERM, and how far down the path to the GC they have to remain committed. What are the down sides for them if they decide to withdraw at some point?

On the other hand, from my side, what are the options for me, having a LC from employer A to use it for an alternate (but similar) job, say employer B.

Can it be used in a different state?

A LC approved for a physician general radiologist can be used for a job as a physician neroradiologist?

A LC approved for a university job can be used for a private job?

If the LC was approved for job A, and the employee decides to use it for job B, do they check whether job B pays the prevailing wage, etc…?

I guess I have a fundamental problem in understanding the concept of LC. Isn’t it a test of the local job market certifying that a particular job is available for which there is no US citizen? Then how come it can be used for a different job market?

Do they specify on the LC that it is issued for the particular job/particular employer?

Again from my side of the story, what will happen to me if the employer stops supporting me at certain point? Say:

a) after LC approval but before the actual start date of the job (the job is for July 2007). (Say I-140 pending).

b) 6-mo or 1-yr after I start the job ( I guess at that point the I-140 would be still be pending or nore likely approved?)

Thank you very much for your help as usual.

 

[hadron]

> My department chairman wants to know what their legal obligations
> are if they sponsor me for PERM,

- they can't make stuff up (state that they advertised if they didn't)
- they can't fire a citizen to make a position for you

> and how far down the path to the GC they have to remain committed.

The immigration process is employer driven. They can pull out any time.

> What are the down sides for them if they decide to withdraw
> at some point?

That you will be mighty pissed.

> On the other hand, from my side, what are the options for me,
> having a LC from employer A to use it for an alternate (but similar)
> job, say employer B.

An LC is for ONE particular job and ONE particular applicant alien. Except incases of mergers of companies, it cannot be transferred to a different employer.

> A LC approved for a physician general radiologist can be used for a
> job as a physician neroradiologist?

Yes.

> A LC approved for a university job can be used for a private job?

No.

> Isn’t it a test of the local job market certifying that a particular
> job is available for which there is no US citizen?

That is correct.

> Do they specify on the LC that it is issued for the particular
> job/particular employer?

The labor cert says essentially 'The secretary of labor certifies that the employment of Sanjay Patel as general radiologist at Kanbraska University Medical Center will not have a negative effect on the working conditions of US citizen radiologists in the Springsoula, KN labor market'.

> Again from my side of the story, what will happen to me if the
> employer stops supporting me at certain point?

You are f'ed.

(EB immigration is employer driven, without their support you are out of luck.)

If the employer decides to withdraw a pending I140, you cannot use it to get your green-card EXCEPT:
- if your I485 is pending for more than 180 days AND the I140 is approved for more than 180 days. (AC-21 law). In that case you can change to a different employer for fundamentally the same job.

So, if your employer gets an LC but decides not to file the I140, there is nothing you can really do.

If your employer withdraws the I140 150 days after approval, there is nothing you can do.

If your employer tries to withdraw the I140 181 after it was approved, you are clear.


(Are you in radiology ? If yes, you are lucky. There are so many open academic positions, you shouldn't have a problem to get your GC before even finishing fellowship. Then you stick around a year or two and move in the PP sector.)

 

[immigrant43]

Thanks Hadron

Thanks Hadron,

Yes I am in radiology. The job market may still be good, but definitely not as hot as it was two years ago. Why did you think I might be able to get GC so fast in an academic setting?

When I said the program appears to be willing to help, I meant they really have positions, but it may not be exactly in the subspecialty area that I am doing my fellowship.

If I file for PERM/LC at the conclusion of my residency at the end of June (end of the 5th yr on H1) with my current program, then the LC is approved during the fellowship and I140 is filed, is it possible to seek for a different employer, shoul it become necessary, by filing a new PERM? If yes, how this will affect my 7th yr extension (or the 365 pendency requirement)? Do they count from the date the first LC was filed or I will lode all that period?