CSC August 2005 Filing I-140 Tracking

azamani123 said:
perm_faq

I have also another question: what happens if I go out of US and come back with AP. but till that time I don't receive my EAD? I mean when you aer entering to US you have to have EAD or no still you are on H1B?
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As long as you have Valid H1B (not stamp) you are fine working with current employer... You can also extend it if you need to.

If you enter the country on advance parole and you continue to work for the h-1b employer; uscis will allow you to extend h-1b status. You are still on h-1b and do not need the EAD.

PS: Please trust qualified attorney OR UNITEDNATIONS rather then advice from an engineer like me
 
Updating my status.

RD: 8/25 ND: 8/26 EB2-Sub
LUD on 2/13, 1/31
Talked with the lawyer, they havenot received any rfe/approval.

Dont know what is going on.

Raj.
 
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I don't see the contradicting reply from Attorney Murthy.

Let me, shed some light on this specific issue for more clarity:
=============================================

1. As I said earlier, a parolee is allowed to keep working for the current H1B sponsered employer, provided that particular H1B is "still valid". There after you can file H1b extensions etc etc, but you are still considered as a parolee as your I194 indicates the status as "AP", which is the "last action" as per USCIS.
- Here the most important thing is: H1B recoginses "dual intent nature".
- Since you have unexpired H1b, and you entered as parolee (your I94 is marked at the port of entry) USCIS allows one to file "H1B extensions".

2. After being paroled in, if the alien decides to change the employer, then he will loose his "non-immigrant status", though he can still lawfully stay in the US as long as the underlying 485 is pending. Now at this point, either you need EAD to work -or- re-enter the country on H1B and start working.

:p


=========================================================================
NOTE: No one should consider the messages (posted by any one) on these public forums, as
they are their own views or perhaps their experiences. As far as immigration matters are concerned,
every case is unique and different. People should consult immigration attorneys to seek any help.
=========================================================================




unitednations said:
Both answers contradict each other. Be careful of reading Murthy's bulletins. She changes answers and doesn't go back and update.

It is well established with many examples that if you enter on AP and you have an unexpired h-1b that you can extend h-1b while in USA. You can only extend h-1b in the country if you are in h-1b status. If you are not in h-1b status or the I-94 card has expired they will not allow you to extend h-1b in USA.
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My comments are inline .....


unitednations said:
So your position is if one enters on AP, you can only work on EAD. Even if H-1b is valid (unexpired I-94).
Here is my stand:
-----------------------
1. As I said earlier, a parolee is allowed to keep working for the current H1B sponsered employer, provided that particular H1B is "still valid". There after you can file H1b extensions etc etc, but you are still considered as a parolee as your I194 indicates the status as "AP", which is the "last action" as per USCIS.


If you start working on EAD then you have violated non immigrant h-1b and you cannot extend h-1b.
>>> If you have H1B approval for long time, lets say for 3 years. Then you can ping-pong between the two. But before the expiry of "that" 3 years, one has to re-enter the country using his valid H1B visa stamp, if wanted to remain in H1b Status.

Therefore; entering on AP doesn't nullify H-1b and if you continue with h-1b employer and work you are fine and can extend h-1b within u.s.
>>>> Same as what I said, above.
>>>> NOTE: It will be a problem, if you work for a different employer other than H1b employer, after being paroled-in. Then you will loose your H1b status. CORRECT ?

If you use EAD at any point in time you have violated h-1b and cannot extend h-1b within USA.
>>>> As I said earlier, if you have valid H1B approval, it doesn't matter whether you use EAD or not, *as long as* you are STILL working for the GC sponsered employer.


As I said earlier; this isn't a new topic and has been discussed; tried; tested many times over the last couple of years. Many people didn't want to get h-1b visa stamping and used AP to enter the country. Some had EAD some didn't but they were still in H-1b status.
>>>>> YES, this is not a new topic. But, there are quite different scenarios that need to be understood.


Read very carefully the H-1b forms and you can only extend h-1b status if you are currently in h-1b status. If you say your status is "adjustment of status"; then you do not meet the criteria of being in h-1b for extension purposes.

Many people with advance parole stamp in passport which they supply to USCIS when extending h-1b and USCIS will still approve it because you are currently in h-1b even though you entered on AP.

USCIS position (cronin memo) essentially states that when you apply for extension of h-1b at a later time; they backdate and cancel the parolee status and make you on h-1b.


>>>>>>> We can take it offline (via PM) and come up with final conclustion, if needed. I guess it creates confustion among the other folks.
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1. EB classification is made at 140 petiton.
2. EB classification is "NOT" decided based one's education, or experience. It is decided based on the "minimum requirements" advertised for that job position.
For instance: If the job requirement is BS+3 and you have BS + 10 years experience. In this case, this pettion is treated as EB3 not EB2.
As in this specic querry: His minimum requirements are MS+1 or BS+3 is treated as EB3. And RFE is expected in this case, though he has MS+3 prior to the LC submission.

3. I had given the link[very useful], which refers to some of the 140 appeals and some got sustained and some are rejected.


unitednations said:
This is a very tough situation. Another case I had seen (i saw the denial letter and it was a straight denial from Nebraska Service Center) the requirements were Masters +3 and other requirements were bachelors plus five but experience could be used to get to bachelors equivalent.

Nebraska denied it stating that a labor fitting the requirements for advanced degree can only be masters or bachelors plus five and if the labor allowed for experience to get to bachelors equivalent then it wasn't a job requiring advance degree.

Please note that this was a non perm labor.

On another note there is obvious problems with PERM labors.

One of the conditions of PERM labor is that if there is a primary education/experience requirement and a secondary requirement and the beneficiary only meets the secondary requirements then they will only approve the labor for the beneficiary is if there is a note in "other requirements" that state "any suitable combination of training/education/experience is acceptable". Now this statement may get you through the perm labor but USCIS would object to it stating that advance degree labor can only require bachelors plus five or masters.

It is one of those things where you create a solution for labor but a problem for I-140.

It gets tricky that a solution for one creates a problem for the other.

Other tricky part about this is that the criteria from DOL of meeting only one of the requirements and having that little note only applies if the beneficiary is already working with the employer. If the beneficiary is not working with the employer then they can meet the alternative requirement and not have this little note in the labor.
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perm_faq, unitednation, gp111,

I've been following your posts on this issue of EB3 applicant filing an EB2:

In this particular case (EB2-U2), an EB2 has been filed while the associated 9089 form matches EB3. CSC has issued an RFE asking for explanation. I am pretty sure lots of people have done this to escape the retrogration on EB3.

So I am wondering why CSC didn't deny this case? Why did CSC issue an RFE?

Does that mean there COULD be an explanation out there that justifies the situation?
 
Actually, that was Attorney's mistake. The applicant has MS+3 years experience, which is good for
EB2. The problem is with setting the "minimum requirements". By mistake, his attorney set it for EB3
though he implied EB2. He set the requirements as MS+1 or BS+3.

- Here, USCIS is taking the position of BS+3 (alternative requirements) and thats why RFE
- Most of the times, USCIS will deny the case straight-away with-out issuing any RFE.
- Some times (very rare) they will issue RFE and give a chance to fix the errors via RFE. Then it
depends on how his attorney replies to the RFE. Whether he would request them to re-classify the
petition as EB3 and tell them it was in error. That way he can retain the PD, PERM process etc.

OR,
- If he wanted to argue that his client meets EB2 category, then USCIS will come forward and deny
the case at that point of time, saying the "job requirements" are not properly advertised for EB2 category which is "MS+3 -or- BS+5 years of progressive experience".

- PERM did go through, because, EB classification is not determined at that time. All it see is, whether
the applicant is meeting the primary requirements or whether he is meeting alternative requiremets.

:p





tantan said:
perm_faq, unitednation, gp111,

I've been following your posts on this issue of EB3 applicant filing an EB2:

In this particular case (EB2-U2), an EB2 has been filed while the associated 9089 form matches EB3. CSC has issued an RFE asking for explanation. I am pretty sure lots of people have done this to escape the retrogration on EB3.

So I am wondering why CSC didn't deny this case? Why did CSC issue an RFE?

Does that mean there COULD be an explanation out there that justifies the situation?
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""Posters issue is that if the labor's requirements are anything other then masters or bachelors plus five then USCIS will consider it an eb3 labor.""

==> There is no issue here in HIS case.
==> It was a simple mistake that he mentioned minimum requirement as MS+1 or BS+3, which
his attorney interpreted as EB2, but USCIS interprets it as EB3 (refering to alternative
requirement).


unitednations said:
What you are saying is immigration 101. There is nothing to debate about what is eb2, eb3.

Posters issue is that if the labor's requirements are anything other then masters or bachelors plus five then USCIS will consider it an eb3 labor.

Problem is that rules for DOL on getting labor approved and USCIS rules on getting 140 approved are two different things.

When a labor has two requirements (ie., bachelors plus five or masters), USCIS posistion is that beneficiary can meet one of those requirements and can use the experience gained with the employer to fulfil experience requirements as long as it is before priority date.

However, DOL position is that beneficiaries experience should be gained before person joined employer (can't use employer experience to fulfill the labor requirement (except in very limited circumstance).

DOL position is also that when labor has two or more requirements then beneficiary has to meet both requirements and if person doesn't then it needs a note in other requirements stating "any acceptable combination, etc.).

Because of the diverging rules/requirements between USCIS/DOL one has to be very careful because the perm labor may get approved but then cause issues in I-140.
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perm_faq, thanks for the response. Does it take any significant time for USCIS to process G-28 and thereby will it take any significant extra time for USCIS to process the RFE response if I change the lawyer compared to not changing the lawyer?

Thanks!

perm_faq said:
sn2004

Wondering why haven't you submitted "financial documents on behalf of your company and your W2s" when you filed 140. Because, that is the pretty much the common document(s) that no one can miss that. USCIS would issue RFE on this matter, only when it is not convinced with "ability of pay". So based on this, I can suggest:
1) ur old lawyer is not very efficient
2) changing lawyer would need you to sign another G-28 form to notify USCIS regarding this change. This would legally authorize him/her to represent your case. Other than, I don't think there is any thing needed to be done.
3) Sending response to this RFE is very simple. All you have to do is, give your W2 attorney, and the attorney should be able to get the remaining docs from your company.
4) Finally, its your call whether you really wanted to change attorney at this moment or not. As far as USCIS is concerned, you/attorney should only send new G-28.

:p
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You are welcome.

While replying to the RFE, your new attorney needs to attach the new G-28. USCIS will update your profile once they receive the response to the RFE.

sn2004 said:
perm_faq, thanks for the response. Does it take any significant time for USCIS to process G-28 and thereby will it take any significant extra time for USCIS to process the RFE response if I change the lawyer compared to not changing the lawyer?

Thanks!
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perm_faq - are you a woman ?

perm_faq said:
You are welcome.

While replying to the RFE, your new attorney needs to attach the new G-28. USCIS will update your profile once they receive the response to the RFE.
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Perm Eb2

perm_faq, unitednation and tantan,

Thanks for sharing your idea on this issue
any comment from gp111?

Guess I gotta go through a lot to clean this mess up.

Good luck to everybody
and NEVER trust your attorney :mad: on something you are sure about it.
 
I-140 approved!

Just got the approval email. Best Valentine's Day gift ever received :)

Updated the tracker spread sheet.
 
140 Approved

140 was approved yesterday

RD: 8/25 ND: 8/26
LUD: 1/31 2/13
AD: 1/14

pan4GC said:
Just got the approval email. Best Valentine's Day gift ever received :)

Updated the tracker spread sheet.
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