CSC August 2005 Filing I-140 Tracking

Found the info in immigration-law.com

08/30/2005: Effect of Change of Employer After 180 Days "but" Before I-140 Approval

* Recently released Yates Memorandum of USCIS allowed the EB-485 waiting aliens to change employers after 180 days on a condition that the USCIS will eventually review the underlying I-140 petition and "if found approvable," then approve the pending EB-485 even if the alien changed employer before 1-140 was approved. It thus appears that the operative language is "approvable" I-140 petition.
* On January 10, 2005, the AAO denied the EB-485 application where the alien had changed employer after 180 days but underlying I-140 had been afterwards denied. It appears that the AAO decision was handed down in a similar vein that portability of I-140 may not require "approved" petition for porting but must be "approvable" and eventually adjudicated and approved. This decision must thus be taken as a warning that the passage of 180 days is "not a panacea" of I-140 porting, no matter what the underlying I-140 petition is.
* The AAO decision has ruled the standards of "approvable" narrowly which the Yates memo set forth afterwards. The Yates memo appears to instruct the adjudicators to approve the EB-485 if the underlying "pending" I-140 petition is found to have a merit and is approvable. The AAO decision appears to have narrowed it down in that even if the I-140 petition is not meritless nor baseless, once the underlying I-140 petition is denied for whatever reasons, EB-485 application should be denied.
* The Yates memo and this AAO decision left open the rule for the consequences of withdrawal of "pending" I-140 petition by the original employer after 180 days. Liberal interpretation of the Yates memo may allow advancement of an argument that inasmuch as the petition was "approvable," regardless of the petitioner's withdrawal of the I-140 petition after 180 days, pending I-485 should be approved. But we will have to wait and see how the rule will develop in this area of law. The current interpretation of the AC-21 180-day rule just states that the withdrawal of the "approved" I-140 petition would have no effect on the pending I-485 applications once the I-140 petition was approved but withdrawn after 180 days of I-485 filing.

tonysharma said:
Hi gp111,
Do you have a link to this recent memo or something similar to substantiate the fact that you can use AC21 even without I140 approval? Would greatly appreciate a response. Thanks!
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gp111:

Ofcourse, thats possible. I haven't denied that in my last message. The flip side of it is... you are unnecessarily risking all your efforts, by doing so. I don't think it is a wise idea to use AC21 before I140 approval. Here is why:
- I140 filing requires employer documents (like tax documents, ability to support, revenue etc etc)
- I140 filing also requires employee documents (like experience letters so on and so forth)

Remember, USCIS Memo says "approvable" I140 under such scenario. Why not wait couple of more weeks when I140 processing only takes few months and when you had already waited so long already. My recommendation would be to use AC21 with I140 pending, *only* when the situation is worse than not using it.

gp111 said:
No. As per recent USCIS Memo, AC-21 can be utilized in some cases without I-140 approval also.
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Changing EB3 to EB2 with the same employer?

I could use some help from Immi Gurus on this. My EB3 LC is approved and 140 pending. PD is 09/07/2005 and I belong to ROW (Rest of the World) catagory. I now have more than 5 years of experience and since PD for EB2 for ROW is current, I would love to move to EB2 if I can. Here is where I need some help from you guys.

1. Is it possible to re-file my LC under EB2 with the same employer without having to change my department or job code? If not, can I move to a different group within the same and file for LC?

2. I have 4 years of experience with Motorola and over an year with this new company. Does my experience with the current company count towards 5 year experience requirement to qualify for EB2 or did I have to have 5 year experience prior to joining the current company?

I am just trying to find a way to move to EB2 even if means changing the employer. Any help from you guys will be greatly appreciated.
 
GCard_Dream:

1. Is it possible to re-file my LC under EB2 with the same employer without having to change my department or job code? If not, can I move to a different group within the same and file for LC?
>> First of all, you CANNOT use the experience gained with your current employer, who is going to file your LC. Second of all, determination of EB2 or EB3 category is NOT based on how much experience you have, because you may not qualify for EB2 though you have more than 5 year experience. Thus, it is *only* based on qualifications required by your job. Basically, your company needs to advertise all this (under perm) for 6 months so on and so forth. BUT, the very basic (or minimum) requirements for such classification could be "Masters + 2 years OR Bachelors + 5 years" PROGRESSIVE experience.

2. I have 4 years of experience with Motorola and over an year with this new company. Does my experience with the current company count towards 5 year experience requirement to qualify for EB2 or did I have to have 5 year experience prior to joining the current company?
>>> No, as I said above, current company experience will not be counted. BUT, if you CAN re-join the company, lets say for a different job title or responsibilities or whatever, you could use that!!

3. I am just trying to find a way to move to EB2 even if means changing the employer. Any help from you guys will be greatly appreciated

>>>> As per some immigration analysts, lately, they are predicting EB3 could move faster than EB2 for retrogressed countries like India, Mainlan China. Hope that make sense for you, Let me know!!


GCard_Dream said:
I could use some help from Immi Gurus on this. My EB3 LC is approved and 140 pending. PD is 09/07/2005 and I belong to ROW (Rest of the World) catagory. I now have more than 5 years of experience and since PD for EB2 for ROW is current, I would love to move to EB2 if I can. Here is where I need some help from you guys.

1. Is it possible to re-file my LC under EB2 with the same employer without having to change my department or job code? If not, can I move to a different group within the same and file for LC?

2. I have 4 years of experience with Motorola and over an year with this new company. Does my experience with the current company count towards 5 year experience requirement to qualify for EB2 or did I have to have 5 year experience prior to joining the current company?

I am just trying to find a way to move to EB2 even if means changing the employer. Any help from you guys will be greatly appreciated.
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perm_faq,

As comforting as it is know that EB3 might move faster than EB2, in my case I could have filed for 485 today if I had EB2 LC since the EB2 PD is current for ROW and hence my desire to move to EB2.

I am a little confused with the notion of re-joining the same company for a different job title or responsibility. Can I just move to a different group or business unit within the same company and have the new job title or do I have to be off the payroll and then re-join the company in order to get my experience with the current company count? In other words, can I move from IC test group to functional verification group or design group which will have a different job title.

What do you mean my PROGRESSIVE experience? Does it mean that your experience has to be in the same field for which you are applying EB2 LC for?
 
EB3 WON'T go any faster than EB2.
Those "experts" calculated EB3 category retrogression dates according to it speed in last several visa bulletin.
That's wrong approach. Caps for EB2 and EB3 are equal and demands for EB3 is much higher becuase of (245)i. And demands for EB3 won't subside any soon. Even more, it's going to be used more when BEC will start working on (245)i cases. EB2 will most likely retrogress for the rest of the world as well. At the same time EB3 won't go beyond Apr-01-01 any time soon because of 245 factor. :( Indians and Chinese EB3 will stuck at Apr-01-01 where is the rest of the worl sitting for last 5 month for long time. Happy camping. :)
 
alex904,

You sure are a lot of help :) .... just kidding. I just hope that EB3 moves faster. What can I say man.. hope is all I have left.

alex904 said:
EB3 WON'T go any faster than EB2.
Those "experts" calculated EB3 category retrogression dates according to it speed in last several visa bulletin.
That's wrong approach. Caps for EB2 and EB3 are equal and demands for EB3 is much higher becuase of (245)i. And demands for EB3 won't subside any soon. Even more, it's going to be used more when BEC will start working on (245)i cases. EB2 will most likely retrogress for the rest of the world as well. At the same time EB3 won't go beyond Apr-01-01 any time soon because of 245 factor. :( Indians and Chinese EB3 will stuck at Apr-01-01 where is the rest of the worl sitting for last 5 month for long time. Happy camping. :)
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tonysharma,

Can you post the exact wording of the statement. Also please post your case history, that will help other folks to understand whats going on. As far as I know, I have never heard of """overseas investigation""" and did not see on any board. All I can say if it is related to:
- Education --> Hope you had submitted the 'education evaluation'. Check it, if it is not submitted, then it makes sense of this "overseas investigation ..."
- Experience --> Did you have all experience certificates from the previous employers?





tonysharma said:
My I140 has been pending for the last 5 months for an 'overseas investigation' for education and experience. It was filed under EB2 and everything on my application is legit. Has anyone heard about this before and/or knows how long it could take for the approval?

Thanks!
EB2 I140/485 ND Jan 3rd 2005
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GCard_Dream,

If you have a different job title other than the one currently you are working, should help you to claim as expereince. But, your company needs to advertise and complete the rest of the formalities. Top of that, you have to apply for H1B amendment when you switch roles with in the same company. (Do you follow...?)

Regarding the PREOGRESSIVE expeience, all your past experience should reflect that you are taking senior roles as you move on. Meaning: Junior engineer--> engineer--> senior engineer-->manager-->senior manager--> blah, blah...

GCard_Dream said:
perm_faq,

As comforting as it is know that EB3 might move faster than EB2, in my case I could have filed for 485 today if I had EB2 LC since the EB2 PD is current for ROW and hence my desire to move to EB2.

I am a little confused with the notion of re-joining the same company for a different job title or responsibility. Can I just move to a different group or business unit within the same company and have the new job title or do I have to be off the payroll and then re-join the company in order to get my experience with the current company count? In other words, can I move from IC test group to functional verification group or design group which will have a different job title.

What do you mean my PROGRESSIVE experience? Does it mean that your experience has to be in the same field for which you are applying EB2 LC for?
Click to expand...
 
Thanks very much for the info perm_faq.

If anyone else has any similar experience or would like to share any info, please do so. Your help will be very much appreciated.
 
GCard_Dream,

You are welcome!

You can send me a message if you want to! Also, better talk to immigration attorney or consultants for more help or if you need advice.

GCard_Dream said:
Thanks very much for the info perm_faq.

If anyone else has any similar experience or would like to share any info, please do so. Your help will be very much appreciated.
Click to expand...
 
alex904 said:
EB3 WON'T go any faster than EB2.
Those "experts" calculated EB3 category retrogression dates according to it speed in last several visa bulletin.
That's wrong approach. Caps for EB2 and EB3 are equal and demands for EB3 is much higher becuase of (245)i. And demands for EB3 won't subside any soon. Even more, it's going to be used more when BEC will start working on (245)i cases. EB2 will most likely retrogress for the rest of the world as well. At the same time EB3 won't go beyond Apr-01-01 any time soon because of 245 factor. :( Indians and Chinese EB3 will stuck at Apr-01-01 where is the rest of the worl sitting for last 5 month for long time. Happy camping. :)
Click to expand...

245 i will not come under EB3 category.
 
srignram,

Thats Right.

"Alex" did mis-understood the whole concept of section 245 (i) and section 245 (k). It is nothing to do with EB2 classification or EB3 Classification or any other. Section 245 (i) is for who entered the country illegally or kind of cases (see below), and Section 245(k) is for who has status violations though they entered the country legally.

"""
You might need section 245(i) if you:

* Entered the U.S. without being inspected by an Immigration official.
* Stayed in the U.S. longer than allowed by Immigration.
* Entered the U.S. as a worker on an aircraft or ship (crewman).
* Entered the U.S. as a “Transit Without Visa.”
* Failed to continuously maintain a lawful status since your entry into the US.
* Worked in the U.S. without Immigration permission.
* Entered as an “S” nonimmigrant (relates to witnesses about criminal or terrorism matters).
* Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).
* Worked in the U.S. while being an “unauthorized alien.
"""

"""
Section 245(k) enables a person who is adjusting status in an employment-based category (whether on the basis of a labor certification or in one of the special Green Card categories that does not require a labor certification or job offer) to adjust, even if s/he has been out of status or worked without authorization for less than 180 days. This provision does not require an immigrant petition or labor certification to have been filed on or before any particular date and there is also no penalty fee involved.
"""


srignram said:
245 i will not come under EB3 category.
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Process after filing 140/485

Hello GP111,
Would you please explain detail process steps for I-140/485 after filing to USCIS. for e.g, Fingerprint,overseas investigation etc.. for each stage.

Thanks for your response.
 
I140 approved!

Online message says my case is approved today. No LUD before.
I will try to update the status list.

My rd is Aug 1, 2005, ND Aug 3, 2005.

Good luck to all of us. Looks like they're starting to process AUG cases!
 
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