Future employment GC Q/A

H

Hexamon

Registered Users (C)
Ok, it seems there's an increasing number of people (including myself) interested in (what's refered to as) future employment GC. That is, appying for GC through the company they don't work for (mostly due to these companies being in "fast" states).

I coined down two questions that might be of an overall interest:

Q1: Let's say one works for a company A, applied for GC through company B. The GC gets approved. Does one has to actually start working for company B? If yes, for how long?

One of the previos threads suggested that one would have to work for company B for at least 12 month. It also said, this would be relevant only for Naturalization purpouses. Is it truly 12 month? Is it more? is it less?

Q2: It is often mentioned that comapany (either A or B) has to be in a "financially good shape". This spawns several important sub-questions (if you will).

a) Who is interested in companies good financial health, INS or DOL? (subsequently, when does this become relevant at LC level or I140).

b) When does the company has to have a good health? At initial appliance or when the GC is actually processed?

c) How can one determine a "good health" of his/her company?

d) and finally, do bigger companies have a "preference" over small ones, as long as INS/DOL is concerned? (this implies that both big and small companies are in a good financial shape, that is, they make money and don't layoff people).

Expert input appreciated

Thanks,
 
Originally posted by Hexamon
Ok, it seems there's an increasing number of people (including myself) interested in (what's refered to as) future employment GC. That is, appying for GC through the company they don't work for (mostly due to these companies being in "fast" states).

I coined down two questions that might be of an overall interest:

Q1: Let's say one works for a company A, applied for GC through company B. The GC gets approved. Does one has to actually start working for company B? If yes, for how long?
Yes, you have to work with the GC sponsor. And both you and the employer should have intentions to maintain the employer-employee relationship INDEFINITELY.

One of the previos threads suggested that one would have to work for company B for at least 12 month. It also said, this would be relevant only for Naturalization purpouses. Is it truly 12 month? Is it more? is it less?
There is no formal rule regarding this but a good rule of thumb is to work for GC sponsor for at least 6 months before seeking a new job.

Q2: It is often mentioned that comapany (either A or B) has to be in a "financially good shape". This spawns several important sub-questions (if you will).

a) Who is interested in companies good financial health, INS or DOL? (subsequently, when does this become relevant at LC level or I140).
INS is. DOL only certifies that there are no americans available to fill the position. The financials of the company becomes relevant at I-140 and I-485 stages. Basic issue is the employer's ability to pay the wages.

b) When does the company has to have a good health? At initial appliance or when the GC is actually processed?
At least during I-140 and I-485 processing stages.

c) How can one determine a "good health" of his/her company?
That the busines is a legitimate;
If the company is publicly traded;
If they are in business for more than 1-2 years;
If it employs >10 people;
If they have no records of immigration abuse

d) and finally, do bigger companies have a "preference" over small ones, as long as INS/DOL is concerned? (this implies that both big and small companies are in a good financial shape, that is, they make money and don't layoff people).
[B} No, a company's size is not relevant but INS will tend to scrutinize more thoroughly a 1 man body shop that a regular business.
Expert input appreciated

Thanks,
Click to expand...
 
If the I-485 pending for more than 180 days, by using AC21, one doesn't have to work for the GC sponsoring company?
 
Thanks nkm-oct23.

This brings up another good question. It is obvious that LC approval rate in IT related fields has declined in recent years. Is there any reliable statistics?

It seems, there isn't (other than keying in random numbers into DOL-s automated system). What is overall feeling then?

I, on my side, think it's about 75% on avarage in RIR and probably more in non-RIR. This comes from number of problematic cases posted in this and similar forums and assumption, that most of the people who succesfully cleared their LC cases do not (have to) post any messages :)

Let's consolidate on the issue.
 
assumption

Are you assuming 75% of RIR are getting approved or 75% rejection rate?

sanb
 
well. Thanks for the optimistic response and hope we are a very small % of the "pending DOL" population and others are getting approved and moving on :-(
 
I don't think it is that optimistic. From these forums, you usually see about 50% cases with problems (problems, not necessarily denials). Assuming, only half of people with succesfull cases post messages here (which is a high number, it's probably less than that, most of succsefull cases have no idea there are forums like that).
 
Assuming everything is legitimate and everyone is honest, what are the reasons of a company willing to wait for 2-3 years to hire some one?

Just curious
 
HumHongeKamyaab

LOL.

Actually, the way I see it, it's screwed up due to the backlogs in DOL-s. I think, the legislators see it as: 1) market is tested 2) individual applies for i140 and i485 3) GC gets approved. According to current laws, you could join the company after 1) & 2), which should not take more than 3-4 month (step 2 is applying for, not "gets approved").

The more direct questios should actually sound like - if company advertises position in 2000, demonstrates that the market needs a specialist, then DOL places the case in the queue for 2 years and looks at it only in 2002, how good the AD results made 2 years ago are? This line of argumentation applies mostly to RIR cases. Somewhat to non-RIR cases too (in latter, the AD is done after SESA looks at ETA750, which seems to be the longest period right now).
 
Hexamon,

interesting points!

BCIS could argue that the person should be hired on h1 until his gc is approved. it is a good question though!
 
Experience with sponsoring employer

I still could not agree that you cannot use your experience with the sponsoring employer. That is fine only if DOL acts on a case as soon as the application was filed. But if it waits for more than a year, why should we be punished for it. 1 year is a long term in s/w development and I was part of a very important project for my company during that time. So to my employer looking for someone with minimal skills ( not even what I had 2 years ago) is ridiculous. Anyway this is totally unfair process.
 
Re: Experience with sponsoring employer

rite now there r some provisions wherby u can use experience with the current employer. this will be completely disallowed with PERM
 
Samb,

I don't thik they are trying to make it easier to find your "competitiors". The logic is - Do not count the experince with current employer because this experince directly tailors the application to you! Tailoring beats the whole purpouse of LC process (not that it makes too much rational sense, but ...)
 
Hexamon,
At some point everybody becomes uniquely qualified to occupy a particular position and that has to do with the experience that they gained on that job. Maybe they don't gain it within 6 months but 2 years is a long time and if you are employed for that long with an employer, you are unique. Well how do you justify runnig an AD for a day to meet the recruiting needs? And Is that consistent with RIR recruitment, which requires at least 6 month of recuritment efforts (this is the only thing they have done in favor of us, but sitll I'm questioning their rationale)
 
fruitless discussion

this is fruitless discussions as unquely qualified ppl r evry few and d u believe dept of labor will change law for ahandful few?

if u r so uniquely qualified u will be in gr8 demand and u may want to search some other employer to sponsor u. but if ur skills r reqd only at ur employer and u gained them at ur employer then they can hire an american citizen that is as qualified as u when u were hired and train him with ur acquired skills...

i agree to disagree so peace...
 
For a LC, the employer can only state requirement that are the MINIMUM the employer will accept for the position. The employer can't state that a Master's Degree is a requirement for the position since you were hired for the position before you obtained a Master's Degree.

You must put the minimum job requirements of the LC. If you are currently in that position, you obviously had at least the minimum requirements when you started with the company (that's why it's tough to use experience with the current employer) but there may be people with much less experience or education that also hold that position. As an example, if an attorney is working as a paralegal, it would not be correct to state that the minimum requirements for a paralegal position is a Juris Doctorate. The fact that the candidate holds a JD is not relevant except to show that the JD holder meets (in this case exceeds) the minimum requirements for the position.
 
Originally posted by LCSilence
If the I-485 pending for more than 180 days, by using AC21, one doesn't have to work for the GC sponsoring company?
Click to expand...

Great question and impossible to answer definitively without implementing regulations for AC21. This situation is precisely why I believe the regulations when/if ever promugated will require the person to work for the sponsoring employer for at least six months after I-485 submission. To not require this would allow an employer and candidate to build a "house of cards" where the employer files an LC for a candidate that both know from the beginning will never work for that employer. Basically, it permits an employer to sell GCs to qualified candidates with the only requirement being that the candidate find a "similar" position befor GC approval. I can't believe that BCIS will allow that to happen.
 
sanb,

For one thing, RIR requires "up to six month", not "of minimum six month". Further, I'm not in any way defending DOL/INS rationale, I'm merely trying to express it the way I see it.

Primary concern in "market test" is a fair and just test. Since, in a free market economy this statement is simply a nonsense, they tried to make it as logical as one can. In particular - Employer is required to prove that there are no eligable/avaliable US citizens to do the job at a given place and time. The means to prove it - perform a sizable AD campaign for number of weeks. Now, it is obviouselly quite important to make sure the test is not specifically "tailored" to an LC applicant. Like, you could not require potential candidates to have the same color of eyes, the same last name and such. In the similar manner, using any emploee abilities gained during his/her employment period (with the sponsoring company) is obviouselly something that gives him/her an unfair advantage. Of course, you could argue that those additional abilities are generic and don't really tailor the emploee to the sponsoring company, but in most cases this smells quite fishy. I think, anybody could see a rational there. Again, I'm not defending this rationale, I'm merely trying to lay it out the way INS policy views it. Don't forget, they are on the other side of the bar. They are trying to protect US citizens and GC holders, not us.

In this respect, there are two important side-comments to consider: 1) as mentioned before, this whole thing revolves around the idea of "market test" being fairly fast (without this assumption the whole idea of such a test is completelly senseless). Assuming this is true, then not using the experince gained with the current employer does not seem that bad. After all, in 3-4 or even 6 month it is quite unlikly that one would gain truly important "generic" points to be used for his/her LC process. 2) This policy applies to all professions, not just IT. Usually, other occupations are not that dynamic. For example, it is quite unlikely that a sizable number of people would aquire some extraordinary knowledge in, say, Industrial Engineering in a matter of a year or so. Again, not just one or to, but a sizable number of people.

Laws are written for avarage Joes, not for fools and geniuses.
 
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