I-485 will be denied if you continue with same employer....

clear485 said:
This has to be read everyone whose I-485 is in pending..... :(

Is it not safe, if we continue with same employer that who sponsored GC...
This is really sacres me....the reason they denied 485 for a guy (even in AAO).... :confused:

http://uscis.gov/graphics/lawsregs/admindec3/a1/2004/mar2204_01a1245.pdf

Please read and let us discuss the things.....
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The GC law is clear enough. The employer must intend to offer the same position mentioned in LC and the beneficiary must intend to accept the position mentioned in LC. GC does not apply for any other position - even if it's same employer and same location (if the position is different from LC in same location, sill I-140 cannot be applied). That's the very idea of having labor certification (state + federal) in GC processing.
Even H1 law applies similar way. For H1 LCA, location change is easy to manuever - by just getting another new LCA for new location and then use it with existing H1. But for GC, it's different - the employer must intend to offer the "future employment position" (after GC approval) specified in LC.
It get problematic for consulting companies who keep moving their employees all over USA - at their client locations. In that case, normally companies frame LC + I-140 accordingly, assuming the company's base location is the the location where they are offering GC possition - however, employee will move "temporarily" in different client locations. It's seems for this case, the beneficiary/employer failed provide the prove that the Waltham, MA position is still open for beneficiary.
 
clear485 said:
Is it not safe, if we continue with same employer that who sponsored GC... This is really sacres me....the reason they denied 485 for a guy (even in AAO).... :confused:
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Read it again. They didn't deny the I-485. The AAO overruled the district office director and remanded the case back to him. This decision clarifies a lot of AC21 in a very good way for intending EB immigrants. I'm going to eat dinner and then explain to you why this is so good.
 
Thanks Realcanadian

Thanks RealCanadian,

I just went through little bit and thought it might be useful if we keep this link infront of our Masters like u.....
 
OK, having read things over a bit, here's my read.

The alien appears to have received an LC in MA, despite never having lived or worked there. The case got transferred to a local office for an interview, and at the interview produced some paystubs with an address in CA. The sponsoring company claimed that AC21 allowed them to shift the work location to "all across the US" despite the LC not containing this language. The local office decided to deny the case, claiming that this was not a new job under AC21 and portability did not apply.

The AAO overruled the district office. Essentially, what they said was that for the purposes of AC21, a change in job duties, location or employer was covered. This means that you can work in a city not covered by your LC, for the same employer, or a different one. It is a nice, reasonable broad interpretation of AC21.

What the AAO did do is say that the alien's original H-1B petition didn't mention working all over the US, so it may be possible that the alien violated H-1B status based on what was listed in the G-325A biographic info form; so there may be an "out of status" issue here. It's important to note that this case was not denied; and if the LC was approved on 6/1/01, there's a good chance that even if the alien was out of status, he is covered by 245i and is good there, albeit with a $1000 fine.

This is a great interpretation of AC21.
 
TheRealCanadian said:
OK, having read things over a bit, here's my read.

The alien appears to have received an LC in MA, despite never having lived or worked there. The case got transferred to a local office for an interview, and at the interview produced some paystubs with an address in CA. The sponsoring company claimed that AC21 allowed them to shift the work location to "all across the US" despite the LC not containing this language. The local office decided to deny the case, claiming that this was not a new job under AC21 and portability did not apply.

The AAO overruled the district office. Essentially, what they said was that for the purposes of AC21, a change in job duties, location or employer was covered. This means that you can work in a city not covered by your LC, for the same employer, or a different one. It is a nice, reasonable broad interpretation of AC21.

What the AAO did do is say that the alien's original H-1B petition didn't mention working all over the US, so it may be possible that the alien violated H-1B status based on what was listed in the G-325A biographic info form; so there may be an "out of status" issue here. It's important to note that this case was not denied; and if the LC was approved on 6/1/01, there's a good chance that even if the alien was out of status, he is covered by 245i and is good there, albeit with a $1000 fine.

This is a great interpretation of AC21.
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if ur logic is correct, does this mean that LC needs to mention
that beneficiary will work all over the country? LC dosent have
name of beneficiary...

also like pralay says many IT folks work all over country at client
sites and sometimes end of working at different states even
in very short span of time..what is bottomline of all this?
 
fast_gc_seeker said:
if ur logic is correct, does this mean that LC needs to mention that beneficiary will work all over the country? LC dosent have
name of beneficiary...
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Actually, the ETA-750B does have the name of the beneficiary, although this can be substituted.

What the AAO ruling seems to indicate is that the LC does *not* need to have the magic words "and other unanticipated locations within the United States", but I think any good attorney should add these words in if there's even the possibility that the location will change.

Bottom line, it proves that AC21 benefits are portable to different locations, even within the same company.
 
unitednations said:
This case was really important for all the employees in that company. They had filed 40 labor certifications and 36 of them were from waltham, mass.
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Was the company HQ there? If so, their attorney deserves to be shot for not mentioning the "other unaticipated locations throughout the US" language - that's SOP for filing LCs through the HQ jurisdiction.
 
TheRealCanadian said:
Was the company HQ there? If so, their attorney deserves to be shot for not mentioning the "other unaticipated locations throughout the US" language - that's SOP for filing LCs through the HQ jurisdiction.
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As far I remember (if my memory did not betray me) NetGuru HQ was at NJ (like many other consulting companies of "Y2K bug" period). But its current website shows Yorba Linda, CA.
 
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pralay said:
As far I remember (if my memory did not betray me) NetGuru HQ was at NJ (like many other consulting companies of "Y2K bug" period). But its current website shows Yorba Linda, CA.
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Oh well. Either way, this case seems to have a happy ending for the alien involved and all of us I-485 filers. All's well that ends well. Hopefully this guy is eligible for 245i, but the LC approval date makes me suspect so.
 
it would be inconsistent with the intent of the law to interpret the term “new job” only if alien find a different employer or if the alien obtains new job title and different responsibilities with the same employer
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Does this means title and responsibilities can be different?
 
TheRealCanadian said:
Oh well. Either way, this case seems to have a happy ending for the alien involved and all of us I-485 filers. All's well that ends well. Hopefully this guy is eligible for 245i, but the LC approval date makes me suspect so.
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Pardon my ignorance, but could you elaborate a bit what is 245i, how is it tied to LC approval date and how can it help in such situation?
This case scares me... At the beginning of my H1 career I worked for a shitty bodyshop which sent people all over the country and for sure never bothered with getting LCAs for those locations.
 
Karaya said:
At the beginning of my H1 career I worked for a shitty bodyshop which sent people all over the country and for sure never bothered with getting LCAs for those locations.
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LCA is more of an employer's problem than employee's (not only that, employer is supposed to display a copy of LCA publicly at the workplace where H1 employee works - that's the rule). Not having LCA does not effect beneficiary's immigration status. However, if that employer who never bothered to get LCA, is the same employer who is sponsoring your GC, then USCIS can try to find out "something" from your GC processing - like they did in this case.
 
pralay said:
LCA is more of an employer's problem than employee's (not only that, employer is supposed to display a copy of LCA publicly at the workplace where H1 employee works - that's the rule). Not having LCA does not effect beneficiary's immigration status. However, if that employer who never bothered to get LCA, is the same employer who is sponsoring your GC, then USCIS can try to find out "something" from your GC processing - like they did in this case.
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LCA is not petitioners problem. Its their duty to send LCA to employee like you
said for being displayed at work place. But if LC is not filed correctly like
in this case then it will be huge headache for beneficiary.

Think about it, in case of any issue in GC its going to affect the beneficiary more than petitioner.
 
fast_gc_seeker said:
LCA is not petitioners problem. Its their duty to send LCA to employee like you said for being displayed at work place.
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It's petitioner duty (in case of H1, petitioner is employer). In fact the rule is that the LCA should be displayed before beneficiary resume work. Therefore, if it's client location the consulting company must contact with client company HR to display LCA on noticeboard. Probably some consulting compnaies sends it thru their H1 holders - out of shyness to interact with client company.

fast_gc_seeker said:
But if LC is not filed correctly like
in this case then it will be huge headache for beneficiary.

Think about it, in case of any issue in GC its going to affect the beneficiary more than petitioner.
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Actually both cases, it can be headache beneficiary. H1 holder is able to come to USA because his/her underlying LCA is already approved. Many consulting companies get the initial LCA for a job position that does not exists (most of the times it's for base office location). Then once the H1 comes with USA using that LCA (initial) + H1 and assigned to a client location, then they get a new replacement LCA for their client location.
The point is that, if the initial LCA in trouble, H1 also will be in trouble too(basically no H1).
And, the green card LC works same way. Only difference is that H1 can change its underlyng LCA. But for GC it cannot be changed. But it seems from this ruling AC21 provides similar opportunity.
 
pralay said:
It's petitioner duty (in case of H1, petitioner is employer). In fact the rule is that the LCA should be displayed before beneficiary resume work. Therefore, if it's client location the consulting company must contact with client company HR to display LCA on noticeboard. Probably some consulting compnaies sends it thru their H1 holders - out of shyness to interact with client company.



Actually both cases, it can be headache beneficiary. H1 holder is able to come to USA because his/her underlying LCA is already approved. Many consulting companies get the initial LCA for a job position that does not exists (most of the times it's for base office location). Then once the H1 comes with USA using that LCA (initial) + H1 and assigned to a client location, then they get a new replacement LCA for their client location.
The point is that, if the initial LCA in trouble, H1 also will be in trouble too(basically no H1).
And, the green card LC works same way. Only difference is that H1 can change its underlyng LCA. But for GC it cannot be changed. But it seems from this ruling AC21 provides similar opportunity.
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Lets be very clear on LC's...

I believe H1 LC is different from LC for GC...please post ur comments.
 
fast_gc_seeker said:
Lets be very clear on LC's...

I believe H1 LC is different from LC for GC...please post ur comments.
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I don't know what's the point by getting into this circular arguments.
Of course, H1 LCA (not LC) is different from GC LC. But they works similar way. Without LCA approval, no H1. and without LC, no GC.
 
TheRealCanadian said:
Oh well. Either way, this case seems to have a happy ending for the alien involved and all of us I-485 filers. All's well that ends well. Hopefully this guy is eligible for 245i, but the LC approval date makes me suspect so.
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What if the beneficiary is not eligible for 245i (for example if his labor was approved after June 2002)? What would be his options?

Again the ruling is fishy. They had neither denied nor approved the case. Infact they had made the case stronger for the district director to issue a denial notice. It ventured into areas the director had not mentioned (like H1B locations) and given a hint to the director that the beneficiary might not be eligible for 485.

Also it will be interesting to know how they would handle substitution labor in that case? A labor substitution technically should match only education and experience. In that case, a beneficiary is not bound by the location for which the labor is approved for, right?

I think my I129 doesnot specify a location of work. I am not sure I would get into similar trouble.

-dyno
 
To Pralay or anyone who knows

pralay said:
Only difference is that H1 can change its underlyng LCA.
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If a company has an LCA for location X, and they apply for H1 based on this location. H1 gets approved.
Now the beneficiary moves to location Y on a project. Company applies for LCA for that location Y. Now what?

Does the company have to apply for a H1 amendment based on location Y?

What are the LCA and H1 rules for a consulting company i.e. where, say, a consultant has to move around US for like 6 months project each time?
 
avi101 said:
If a company has an LCA for location X, and they apply for H1 based on this location. H1 gets approved.
Now the beneficiary moves to location Y on a project. Company applies for LCA for that location Y. Now what?

Does the company have to apply for a H1 amendment based on location Y?

Yes... that is what the AAO seems to suggest.

What are the LCA and H1 rules for a consulting company i.e. where, say, a consultant has to move around US for like 6 months project each time?

The AAO suggests that in that case a proper itinerary of locations are to be provided with supporting H1B amendmends for each location change.

This is going to be big!

-dyno
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