EB-2 Retrogression / Advice

R

Rog

Registered Users (C)
J1 waiver physician currently completed 2 yrs on H1-b at MUA site. LCA (RIR) of 11/2004 in Dallas BPC. Started the PERM process and will file next week but now hit with retrogression of dates in EB-2 ategory.

Any idea how long it may take to be able file I-485 if my PERM goes thru?

Given the current priority dates for Indian born applicants in EB-2 is Nov 1999 (almost at the 6-yr H1-b visa limit) – how likely is it that available visa numbers may be more than applicants with this priority date? Can I expect that the waiting time for filing an I-485 in my category will be decreasing or increasing as time passes by?

RIR vs. PERM?....given this new backlog with EB-2 starting on 10/1/05, can I still assume that I am better of going thru with PERM as the quickest way to get my green card? (My RIR LCA filed in Nov 2004 is currently in Dallas BPC – no letter of notification was received by my employer )

Given the backlog in EB-2, roughly how many years or till what stage in the application process I should continue to be with my current sponsoring employer?

If I do change jobs before my I-485 is filed do I have to start the process over again with the new employer?

At what stage in the application process can I safely change jobs in the same profession with out risking my green card?

Am I better of seeking NIW waiver? Would my prior 2 years in a MUA be applied to the 5-year service in a MUA requirement for NIW?

Will the NIW I-485 filing too be subjected to the retrogression as for the EB-2 category?

Born in India but citizen of Trinidad - I am I still subject to retrogression issues of EB-2?

“Congress provided 50,000 new visa numbers for applicants in the Schedule A category. The law on these numbers is not crystal clear but we believe it applies to all Schedule A workers, meaning those of exceptional ability, as well as nurses and physical therapists. Schedule A, Group II workers of exceptional ability are generally considered EB-2. However, the new law suggests that if you are in this category you are removed from the traditional EB-2 category for purposes of visa numbers, at least until the new 50,000 visas are allotted.”

--Can I be considered a Schedule A, Group II worker and take advantage of this?
 
Rog said:
J1 waiver physician currently completed 2 yrs on H1-b at MUA site. LCA (RIR) of 11/2004 in Dallas BPC. Started the PERM process and will file next week but now hit with retrogression of dates in EB-2 ategory.

Any idea how long it may take to be able file I-485 if my PERM goes thru?

Given the current priority dates for Indian born applicants in EB-2 is Nov 1999 (almost at the 6-yr H1-b visa limit) – how likely is it that available visa numbers may be more than applicants with this priority date? Can I expect that the waiting time for filing an I-485 in my category will be decreasing or increasing as time passes by?

RIR vs. PERM?....given this new backlog with EB-2 starting on 10/1/05, can I still assume that I am better of going thru with PERM as the quickest way to get my green card? (My RIR LCA filed in Nov 2004 is currently in Dallas BPC – no letter of notification was received by my employer )

Given the backlog in EB-2, roughly how many years or till what stage in the application process I should continue to be with my current sponsoring employer?

If I do change jobs before my I-485 is filed do I have to start the process over again with the new employer?

At what stage in the application process can I safely change jobs in the same profession with out risking my green card?

Am I better of seeking NIW waiver? Would my prior 2 years in a MUA be applied to the 5-year service in a MUA requirement for NIW?

Will the NIW I-485 filing too be subjected to the retrogression as for the EB-2 category?

Born in India but citizen of Trinidad - I am I still subject to retrogression issues of EB-2?

“Congress provided 50,000 new visa numbers for applicants in the Schedule A category. The law on these numbers is not crystal clear but we believe it applies to all Schedule A workers, meaning those of exceptional ability, as well as nurses and physical therapists. Schedule A, Group II workers of exceptional ability are generally considered EB-2. However, the new law suggests that if you are in this category you are removed from the traditional EB-2 category for purposes of visa numbers, at least until the new 50,000 visas are allotted.”

--Can I be considered a Schedule A, Group II worker and take advantage of this?
Click to expand...

Go through PERM. Apply for NIW also as you can get an EAD, but get your GC through PERM.

You are not subject to the retrogression.

You should be fine.

You are not schedule A.

You can change jobs after 3 years.
 
Retrogression affects every indian born

Arizonian, On what basis are you advising Rog that he is not subject to retrogression. I believe he is.
He is in EB2 and Indian born, this means he is unable to file 485 or have a filed one adjudiated until dates are current. I am not aware of any exceptions he is elegible for.
I agree that he should pursue PERM and also a NIW 140 petition simultaneously since we do not know how this whole retrogression thing will evolve. It all depends on which legislation is adopted in the upcoming immigration debates in Congress/Senate.
Job change always involves some risk. Definitely no until waiver complete, then too only after 140 approval and with EAD is my advise. If you change jobs your RIR/PERM labour certs. are toast, however your NIW petition can be kept alive if you go to another HPSA site and complete the required 5 yrs (with support letters from Depts of health etc) as required. YOur prior 2 yrs in MUA should also count since you are in a waiver, however your priority date will be the date of your NIW 140 filing.
Either way absent legislative help we are looking at long delays.

Best wishes
 
Last edited by a moderator:
> J1 waiver physician currently completed 2 yrs on H1-b at MUA site.
> LCA (RIR) of 11/2004 in Dallas BPC.

So, if you ever file an I140 based on this LC you will have a priority date of 11/2004. Keep it pending. Be careful that any PERM you file later doesn't kick out this LC (same EIN, same employee name, same work location, same work-code).

> Any idea how long it may take to be able file I-485 if my PERM goes thru?

In order to file a regular (LC based) I485 you will have to have served out your 3 years. Only the NIW based I485 can be filed earlier.

> Given the current priority dates for Indian born applicants in EB-2 is
> Nov 1999 (almost at the 6-yr H1-b visa limit) – how likely is it
> that available visa numbers may be more than applicants with this
> priority date?

If you look at family immigration, you will notice that the numbers pro- and retrogress at almost random. That the cutoff is 1999 right now does NOT mean that once everyone from 99 is adjusted that the numbers will go to 2000 then. They pull this date out of some unnamed body orifice of some commisioner, if they come upon another heap of unadjudicated cases, they can retrogress it even further (even though there is maybe only one applicant from 1994 left).

> Can I expect that the waiting time for filing an I-485 in my category
> will be decreasing or increasing as time passes by?

No crystal ball. We do know that there are two large 'humps' of priority dates in the pipeline:

1. The labor certs filed on 4/30/2001 in order to secure 245i benefits for people who were illegal at that time.
2. In the late nineties early 2000s, the H1b quota was up to 140.000 and 190.000 at times. Out of the 140k, about 114k were mathematicians and engineers from india who came to work in the IT industry before the bust. Many of them now don't have real jobs but rather work as 'consultants' for companies that pretty much only exist to facilitate the immigration of these people (while some of them work at your local convenience store). In the early 2000s, these companies filed LCs by the dozend for their H1b workers. Some of the large population centers such as NY an NJ have state labor agencies that are so slow that the processing of these LCs takes in excess of 5 years. So, while some of the people these LCs were filed for have long gone back to india, the body-shoppers will now be able to sell these 'substitution labor certs' for 20-50k a pop to someone else who is currently here.

> RIR vs. PERM?....given this new backlog with EB-2 starting on 10/1/05,
> can I still assume that I am better of going thru with PERM as the
> quickest way to get my green card? (My RIR LCA filed in Nov 2004
> is currently in Dallas BPC – no letter of notification was received
> by my employer )

The problem is that any PERM case you file now will have a priority date later than your RIR case (and it might bump your RIR case of the shelf if you are not careful). With retrogression in place, you might want to keep that 11/04 PD in case you need it later on.

> Given the backlog in EB-2, roughly how many years or till what stage
> in the application process I should continue to be with my
> current sponsoring employer?

There are two time periods of interest for you:
- you definitely have to stay the 3 years in H1b status
- following the AC21 law, you have to stay 180 days after your I140 from this employer has been approved. (So, if your RIR through some act of god comes through in 6 months and your I140 comes through in another 6 months, you could leave 18 months from now.)

> If I do change jobs before my I-485 is filed do I have to start the
> process over again with the new employer?

If you change jobs
- before your LC is approved
- before your I140 is approved
- before your I140 is approved for 180 days
you have to start all over again.

> At what stage in the application process can I safely change jobs
> in the same profession with out risking my green card?

At two points:
- 180 days after I140 is approved but before I485 is approved
- 6-12 months after I485 is approved (no hard and fast rules. CIS tries to figure out whether your 'intent' on the date of adjustment was to stay with the employer)

> Am I better of seeking NIW waiver? Would my prior 2 years in a
> MUA be applied to the 5-year service in a MUA requirement for NIW?

You definitely want to give this some thought. As a J1 you are lucky. Your time on the J1 waiver in H1b DOES COUNT towards the 5 years in the HPSA/MUA (different from people who never were in J1 status). Once your waiver time with your current employer is over, you can change jobs or open your own shop as long as you stay in a HPSA/MUA and keep state health department support (some of them, mainly in the mentally underdeveloped south are real pricks about this. the state doh sometimes wants you to provide a 5 year contract with a 250k early leaving penalty in order to get the letter).
Once you have served out your 5 years, you can change jobs to outside a HPSA (using H1b 7th and 8th year extensions if you are subject to retrogression). Once your I140NIW becomes current, you can adjust based on your HPSA service.

> Will the NIW I-485 filing too be subjected to the retrogression as
> for the EB-2 category?

That is a good question that I haven't found an answer to yet.

> Born in India but citizen of Trinidad - I am I still subject to
> retrogression issues of EB-2?

To my knowledge, it is the country of birth that gets you into the country quota (otherwise people could circumvent the US family based priority dates which often run in the 15-20 year range by becoming citizens of canada within 3 years of immigrating there).
Are you married ? If yes, where is your spouse from (e.g. if your spouse is born in the UK without being a citizen you could be current again).

> Can I be considered a Schedule A, Group II worker and take
> advantage of this?

Only nurses and PTs are schedule A. Don't ask me why, if there is nobody to write the order, having a nurse or PT won't do the US patients any good.
 
Last edited by a moderator:
posmd said:
Arizonian, On what basis are you advising Rog that he is not subject to retrogression. I believe he is.
He is in EB2 and Indian born, this means he is unable to file 485 or have a filed one adjudiated until dates are current. I am not aware of any exceptions he is elegible for.
I agree that he should pursue PERM and also a NIW 140 petition simultaneously since we do not know how this whole retrogression thing will evolve. It all depends on which legislation is adopted in the upcoming immigration debates in Congress/Senate.
Job change always involves some risk. Definitely no until waiver complete, then too only after 140 approval and with EAD is my advise. If you change jobs your RIR/PERM labour certs. are toast, however your NIW petition can be kept alive if you go to another HPSA site and complete the required 5 yrs (with support letters from Depts of health etc) as required. YOur prior 2 yrs in MUA should also count since you are in a waiver, however your priority date will be the date of your NIW 140 filing.
Either way absent legislative help we are looking at long delays.

Best wishes
Click to expand...

Well, it is not the country of birth, but the country of citizenship that counts for immigration purposes. I am almost certain of that.

For example, if he were Indian born but had US citizenship, he would not even need a visa or GC. By the same logic, if he does not have Chinese or Indian citizenship, he does not fall under the retrogressed EB2 categories. Put another way, even a US born person, if he has Indian citizenship, will need a visa and will be subject to the EB2 retrogression if applying for a GC.

Again, it is the country of citizenship and not the country of birth that counts.

You are right in that he should preferably stick it out with the present employer until he gets his GC. But that was not his question. He did not ask whether he should switch jobs. He asked when he "can". I should probably have elaborated on this in my post. I would have said something similar to what you have.

I will research the country of origin issue and get back to you all.
 
Last edited by a moderator:
Here is the law

They use the word 'native' as in:
Native is an adjective meaning "from birth", as in native language, native speaker. It is also a noun indicating a person who was born in a place or lived there for most of the person's childhood.
(and since the 14th amendment someone born in the US is a citizen by birth and not subject to all this stuff I don't know why you would want to use this example)


If you are indian citizen born in Kenya, you are fine. If you are Kenyan citizen, born in china you fall under retrogression
Exceptions are:
- 'cross-chargeability' through your spouse
- if your parents were not citizens of the country of your birth, you can be charged to your parents country of birth

--------------------


Sec. 202. [8 U.S.C. 1152]


(a) Per Country Level. -


(1) Nondiscrimination. -



(A) Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.



(B)1/ Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.


(2) Per country levels for family-sponsored and employment-based immigrants. - Subject to 1a/ paragraphs (3), (4), and (5) the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.


----------------------------------

and somewhere further down in the text:

For the purposes of this Act the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that- (and then it goes into cross-chargeability)
 
Last edited by a moderator:
I didn't say he should 'stick it out' with any particular employer. I tried to lay the issues out in front of him as I see them. There are no simple solutions to this mess. From the info he gave us here, he has many options for immigration. He (and hopefully his attorney) will have to sort through them and make a decision.

- he is subject to retrogression
- he can file an NIW and add 2 more years in HPSA to get an approved I140
- he can maintain his current RIR to keep a 2004 PD
- he can file a PERM but won't be able to file I485 until his PD becomes current
 
NIW I-485 subject to retrogression like Eb-2 I-485?

Hi Guys, THANK YOU for your responses. I got more answers in last 6 hours than in the last 6 days despite bombarding my lawyer (suposedly from the best law firm in Denver - far from the truth). So I take it my place of birth (India) trumps my citizenship (Trinidadian) and am subject to EB-2 retrogression.

I guess 2 thing most important for me was: 1) Ability to stay and work in the US till I acutually get green card regardless how many years it takes and 2) be in the driver's seat wrt to choice of jobs and not be driven by employer.

So based on your postings I think am assuming the following (CORRECT ME IF I AM WRONG):

1. At this point I can indefinitely extend my H1-B till I have GC provided I stay with the current employer.

2. I can stay and work indefinitely in the US despite changing employers thru an EAD either thru LCA I-140 or NIW I-140 approval if I change jobs 180 days after such approval.

3. If I want to change jobs, I have greater flexibility in chosing where I go by getting EAD 180 days after I-140 for LC (be it RIR or PERM) gets approved. EAD thru NIW process would limit me to MUA/HPSA jobs with the threat of a $250,000 state fine if I do not honor their 5-year commitment.

4. RIR and PERM: PD with RIR in Dallas BPC will be 11/04 and if I go thru with PERM it will be 10/05. Surely if I want GC early the RIR PD will be more useful provided BPC centers get their act together. However, if I want to have flexibility in changing jobs and give the same to my wife starting her PGY-2 in a another state in 7/06 (she is currently on H1-b for her transitional year), I would be better of geting an EAD ASAP - so she does not have to get another H1-b visa. Hence, PERM rather than RIR may be the quickest way to EAD....right? :confused:

5. If I am with a different employer when my I-485 is approved... are there any potential negative consequences for me to consider provided I switched 180 days after I-140 approval and still in the same field of work?

6. If PERM goes thru in 10/06 I will have to advise my employer to cancel LC RIR of 11/04 in Dallas BPC when they get the letter of notification from BPC....employer cannot have 2 petitions for the same employee although the 2 positions differ slightly (PERM LCA asks for 3-year job experience while RIR does not)....right?

So, in the final analysis the actual GC may take ages but for the purposes of my original 2 main objectives....it is not a horrible situation....right?

One question still remains:
Is the NIW I-485 subject to retrogression like LC EB-2 I-485? If yes, I guess no point in seeking NIW now unless you are on the final few years of your H1-b (ie did residency on H1-b rather than on a J-1 like myself) and need EAD ASAP. If no, I think it is a good back up plan from the get go for all physicians in MUA / HPSA site.

Once again thank you for your responses.
 
> 1. At this point I can indefinitely extend my H1-B till I have GC
> provided I stay with the current employer.

Yes.

> 2. I can stay and work indefinitely in the US despite changing
> employers thru an EAD either thru LCA I-140 or NIW I-140
> approval if I change jobs 180 days after such approval.

If you stay within the AC21 rules on one hand (for LC cases) and the USCIS/DoH HPSA rules (for your potential NIW case) --> Yes.

> 3. If I want to change jobs, I have greater flexibility in chosing
> where I go by getting EAD 180 days after I-140 for LC
> (be it RIR or PERM) gets approved.

Same job description (internist), same industry (healthcare). Yes

> EAD thru NIW process would limit me to MUA/HPSA jobs with the
> threat of a $250,000 state fine if I do not honor their 5-year commitment.

Check with your state what their requirements for a support letter are. Some are very liberal. As long as your office location is HPSA or MUA they will give you any letter you want. Others are real pricks. They either require the employer to slap you with a fine or they do it themselves.

> 4. RIR and PERM: PD with RIR in Dallas BPC will be 11/04 and if I
> go thru with PERM it will be 10/05.

Yes.

> However, if I want to have flexibility in changing jobs and give
> the same to my wife starting her PGY-2 in a another state in 7/06

Now you are talking, things get even more complicated... She is an indian born indian citizen I assume ?

> I would be better of geting an EAD ASAP - so she does not
> have to get another H1-b visa. Hence, PERM rather than
> RIR may be the quickest way to EAD....right?

Yes, but since you are retrogressed, you will not be able to file I485 and EAD anytime soon. So she will be stuck with a residency on H1b or worst case a J1 by her own right unless india becomes current.

> 5. If I am with a different employer when my I-485 is approved...
> are there any potential negative consequences for me to consider
> provided I switched 180 days after I-140 approval and still in the
> same field of work?

Well, yes and no. If you use AC-21 to switch jobs after 180 days, you have to notify USCIS with a letter (this protects you from loosing your I140 if your employer decides to withdraw it in order to sell your labor cert to someone else). If you don't send them the letter, they typically never ask. However, in cases that have been pending for many years, they often request an 'employment verification letter' at the time of adjustment stating that you are working this job or that the job offer the I140 was based on still exists. Submitting your AC21 letter at that point can be dicey.


> 6. If PERM goes thru in 10/06 I will have to advise my employer to
> cancel LC RIR of 11/04 in Dallas BPC when they get the letter of
> notification from BPC....employer cannot have 2 petitions for the
> same employee although the 2 positions differ slightly (PERM LCA
> asks for 3-year job experience while RIR does not)....right?

Employers CAN have different LCs for the same employee, but there are rules on when and when not (different job locations, job descriptions etc. I don't think a difference in your qualification requirements will qualify. be sure to read up on this so you know what happens to your RIR).

> So, in the final analysis the actual GC may take ages but for the
> purposes of my original 2 main objectives....it is not a
> horrible situation....right?

Not horrible.

But without retrogression you could have filed I140NIW+I485(you)+I485(wife)+I765(wife). That way, your wife would have had a lot more choices for residencies (with an EAD she would have just put 'immigrant' on her applications and the programs would have known that they don't have to deal with visa issues).

> One question still remains:

THE BIG QUESTION THAT STILL REMAINS:

> Is the NIW I-485 subject to retrogression like LC EB-2 I-485?

The NIW is EB-2. I have not seen any exemption that would allow MUA/HPSA physicians to file the I485 despite retrogression. (It would make sense that someone who has shown that his work is in the 'national interest' and who is serving in an area of shortage should be exempt from this bull#$#@, but thats just me).

> If yes, I guess no point in seeking NIW now unless you are on the
> final few years of your H1-b (ie did residency on H1-b rather than
> on a J-1 like myself) and need EAD ASAP. If no, I think it is a good
> back up plan from the get go for all physicians in MUA / HPSA site.

If nothing, it can secure you an early PD. If you are on J1, you can file your NIW the day the doh gives you a letter of support and the moment you have a job offer from a HPSA employer who is willing to give you a tentative 5 year contract (or you just file with a 'business plan' for a practice which you intend to open in the HPSA.)

Filing an NIW costs peanuts compared with all the other expenses related to immigration. If you follow the 'do it yourself NIW thread' here in the forum and you were smart enough to make it through medschool, you can even do it yourself.




Little Rant I would like to add here:


With this retrogression issue, I notice how many crappy immigration attorneys are out there (including names we all know). I have gotten a couple of PMs from people here in the forum (some posters, some lurkers) who got screwed big time by their attorneys cluelessness with the retrogression problem.

Rajiv Khanna might disagree with me here. But if I didn't advise a patient of an upcoming deadline to get himself treated or examined and didn't order the right tests (e.g. you have to come back on 10/10/05 for another sputum test and cxr to see whether your TB treatment is effective), it would be clear malpractice and I would be liable for it. If an attorney f(#_$ up as bad as some did in the last couple of months (between CIS announcing that the EB categories will retrogress and it actually happening) you unfortunately don't have a lot of recourse. These cases are complicated, often because there is also a medical spouse with his/her own visa needs. And yes, it does make a difference whether an attorney is familiar with the issues involving physicians or not.
 
Last edited by a moderator:
EB-2 retrogression and options for physicians

Thank you for your advice.

Can you tell me anything specific about AC21 rules which are worth knowning about before I go down this road.

I am a bit confused about when can I get EAD...i.e. since I-485 filing is retrogressed..I would not be able to apply for EAD both for myself and my spouse even after approval of I-140 till my PD is current either with LC or NIW pathway...right?

Again...thanks guys!
 
> Can you tell me anything specific about AC21 rules which are
> worth knowning about before I go down this road.

Check in other forums here on the site.

The law was passed when some big IT companies wanted to be able to steal employees from smaller companies who went through the hassle of sponsoring them. If the then INS had been able to approve AOS requests within a couple of months, there would never have been a need to pass this law. But now, employees were stuck with their employer for years until their AOS came through. (In the very old days you had to stay with the sponsoring employer for 2 years AFTER your adjustment got approved or after you received your immigrant visa). With the AC21 (americas competitiveness in the 21st centry act), they limited the time you have to stick with your employer to 180 days post I140 approval. The law also made the transfer from one employer on H1b to another easier, another move to benefit big business.

> I am a bit confused about when can I get EAD...i.e. since I-485
> filing is retrogressed..I would not be able to apply for EAD both for
> myself and my spouse even after approval of I-140 till my PD is
> current either with LC or NIW pathway...right?

That is correct. The EAD is tied to the I485, if you apply for both at the same time you get the EAD after a max of 90 days. If you can't apply I485 due to retrogression, you can't get an EAD (this is where filing a NIW+I485 last week would have been a great way to secure an EAD for your wifes residency).
 
Last edited by a moderator:
485 Filing rules

HI All,

Quite a spirited thread. I guess it demonstrates how bad our frustration is with the current scenario. I think many of us are damn sure that the work we do IS in the national interest since we KNOW that our jobs were offered to us because without a doubt there are NO SIMILARLY qualified professionals to take them. As previously written there are other fields of work (eg the aforementioned tech workers) where the rules are twisted and turned and manipulated in ways where people for whom there is a marginal if any need here currently are able to get in the queue ahead of us. But I think we all have to accept that this is inherent in running a system as large as this.
Firstly retrogression is definitely related to place of birth.
Hadron, that was a good reply, however I have something I am not clear about. I do not think you can file a NIW140 based 485 while affected by retrogression. I did not see any exemptions for this though I have looked. AC21 says that you can move to another similar job after 180 days of a pending 485 NOT 180 days after an approved 140 petition, so I think that is not an option here for the PERM LC route etc nor probably for the NIW based petition currently.
Having said this I would definitely file a NIW since that is the most likely situation for which any exemptions are likely to be made in the future and also since it establishes the quickest route to a 140 approval. It is a bit of a sacrifice to have to stay on in HPSA for a further 2 yrs but by the looks of the current situation there does not seem to be a quick alternative anyway. With respect to the restrictive criteria imposed by individual Dep'ts of health, Theyforget that they are in competition with the other 49 states for doctors willing to work in HPSA/MUAs, that likely expains in part their longstanding underserved situation!
With respect to RIR labour and PERM, One strategy worth considering is to convert the pending Labour RIR to a PERM and retain that Priority date. I am currently contemplating that alternative to keep my earlier PD. To add to your rant;
Believe me, I know what you are saying about the advise given or not given by some of these lawyers. Your analogy to a medical practice is based on the premise that we are all held to the same moral standard. That has never been the case with solicitors in this country. I am just shy of 30K dollars out of pocket to date in legal fees and to be perfectly honest, I would say I spend that money more out of a fear of doing something erroneous than not knowing how to proceed. There have been atleast 2 times where I can recollect my vigilance has kept me straight when the legal advise I got was flat out wrong.
I so wish I knew about these forums about 3-4 yrs ago when perhaps the discussions would have helped me more. Were that the case, the odds are that I would have had my green card in hand already eg. I had a lawyer who told me 3 yrs ago that there was no chance of a labour being faster than a NIW (knowing I was in the midwest) and that there was no sense filing a NIW right away as the 3yrs of waiver would be retrospectively counted anyhow and to contact them toward the end of the waiver period. Of course that was long before any of us had to consider priority dates into the equation however my point is they are being paid the big buck to think about all this.
In my view this all comes down to 2 things. 1) your priority date and 2) Legislative change which will be forthcoming within the next year and how generous/mean that turns out. Absent these 2 points there is nothing left to do but to sit and wait and discuss subtle difference in rules and their interpretation!

Best wishes all.
 
Last edited by a moderator:
> however I have something I am not clear about. I do not think you
> can file a NIW140 based 485 while affected by retrogression.
> I did not see any exemptions for this though I have looked.

This is exactly what I wanted to say. If I wrote it in a way that could be misunderstood, I am sorry.

Here is what I wanted to say:

If you file an an EB-2 NIW (for physician in underserved area with department of health support), you CANNOT file a concurrent I485 if you are affected by retrogression.

(unless there is some exemption in the law or in USCISs processing rules that I am not aware of)

> AC21 says that you can move to another similar job after 180 days
> of a pending 485 NOT 180 days after an approved 140 petition,
> so I think that is not an option here for the PERM LC route

The I485 has to be pending right (I might have forgotten to mention that). In a concurrently filed case, the I140 has to be approved for >180 days before you can change jobs under AC21.
 
> Having said this I would definitely file a NIW since that is the most
> likely situation for which any exemptions are likely to be made in
> the future and

Amen !

I emailed Sen Conrad and Rep. Pomeroy to ask whether they could look into including the retrogressed NIW physicians into the schedule A healthcareworker quota. Maybe the congressional rural health care coalition can stick that to some defense appropriations bill.

> theyforget that they are in competition with the other 49 states for
> doctors willing to work in HPSA/MUAs, that likely expains in part
> their longstanding underserved situation!

Their loss.

> With respect to RIR labour and PERM, One strategy worth considering
> is to convert the pending Labour RIR to a PERM and retain that
> Priority date. I am currently contemplating that alternative to
> keep my earlier PD.

Right, I forgot about that one. There is a process (at least in the PERM draft rules put out sometimes last year, this was the last thing I read about it), that allows you to take a pending LC and get it converted to PERM under retention of the PD (you advertised 2 years ago and didn't find anyone, you advertised now and didn't find anyone, you should be able to retain the same application). Rog should definitely look into that before doing anything regarding the pending RIR.
 
Last edited by a moderator:
It might get boring BUT:

Sen Conrad is potentially facing a contested re-election in 2006 (so far, he never had a real counterpart on the GOP side, this time around Gov Hoeven might run against him). So, as all politics is driven by money, lets make sure he has some money to burn. It is a small state, TV time is dirt cheap and this is a worthy cause.

Ask your US citizen friends to contribute generously to Sen Kent Conrads re-election campaign:

Friends of Kent Conrad
Pat Ness, Treasurer
P.O. Box 812
Bismarck, North Dakota, 58502

https://services.myngp.com/ngponlineservices/custom/conrad/contribute.htm

Without him in the senate, we are all toast.
 
Last edited by a moderator:
arizonian said:
Well, it is not the country of birth, but the country of citizenship that counts for immigration purposes. I am almost certain of that.

For example, if he were Indian born but had US citizenship, he would not even need a visa or GC. By the same logic, if he does not have Chinese or Indian citizenship, he does not fall under the retrogressed EB2 categories. Put another way, even a US born person, if he has Indian citizenship, will need a visa and will be subject to the EB2 retrogression if applying for a GC.

Again, it is the country of citizenship and not the country of birth that counts.

You are right in that he should preferably stick it out with the present employer until he gets his GC. But that was not his question. He did not ask whether he should switch jobs. He asked when he "can". I should probably have elaborated on this in my post. I would have said something similar to what you have.

I will research the country of origin issue and get back to you all.
Click to expand...

Guys, I stand corrected ! I appears that the country of birth and not the citizenship matters. Sorry for the misinformation.
 
You must log in or register to reply here.
Top