Important: Pre-Approved State Labor & My H1B Extension

[dcmetro22042]

Important: Labor Substitution & My H1B Extension/GC

I have been offered a position where the labor is in Regional Processing Center in Philadelphia. Being an offer from a reliable source, I would like to consider it but have few Qs that I like answers to before I can making the decision. Your help shall be appreciated:

- Labor for the position offered to me was filed in Sep'2002, cleared and went to Philadelhia for Regional Approval in ??. Given that Phili is backed up, when can I reasonably expect it to clear labor?

- What is the probability that Regional might be rejected? In fact, what really happens when an application is forwarded to regional office? Is it as detailed a process as State Labor approval or not?

- My H1B exprires in Dec'2005. I know one has to be in stage of GC processing for over a year before one can get an extension for GC. BUT, if I join this company in November and the labor does not clear before Dec of this yr, then I cannot prove to Govt that this labor was for me and therefore shall I get the extension? Is a labor application tied to an applicant or a position and how does one prove to govt that HE (or She) has been waiting in that queue for over a year?

- For extention, does the same rule (of being over 1 yr) apply to I-140/485 stages as well?

- What happens in case of concurrent filing? When does one get their IAD card? After a certain time frame or once I-140 has been approved?

- Since my petition expires in Dec 2005, would the above State Labor even for me? Seems kinda strange to me. If I accept, the position, the labor
was applied before me and therefore I cannot prove that I was waiting for over a yr. Or can I, if I join the company before Dec of this yr?

Answers to the above questions shall help me in deciding when I should accept this position. Please advise.

 

[dcmetro22042]

One more thing about above, I have more experience & Education Qualifications than the State LC candidate approved and will draw more salary. how does that affect the outcome?
Also, does the position title and position need to be exactly the same? It is different in my case as earlier applicant was a deveoper and I would be a manager or above. Please advise.

 

[dcmetro22042]

No answers to the above Qs? Really need ur help folks to make an informed decision

 

[dcmetro22042]

bump. need input from u folks.

 

[Jim Mills]

One more thing about above, I have more experience & Education Qualifications than the State LC candidate approved and will draw more salary. how does that affect the outcome?
Also, does the position title and position need to be exactly the same? It is different in my case as earlier applicant was a deveoper and I would be a manager or above. Please advise.

Yes, the position title makes a difference to the extent that it indicates different job duties. I think a developer and a manager (or above) have significantly different duties. The ETA-750A for a developer probably indicated that no employees were being supervised and that is probably not true for the manager position. A higher salary is the same, it is not a problem until it demonstrates significantly different duties (although USCIS has sometimes tried to require the listing of the actual wage if it is above prevailing, I think this is a erroneous position and I will fight it). For example, if the LC says that the prevailing wage is $50,000/yr and you are actually being paid $200,000/year, I think USCIS and DOL would say that the positions are actually different.

 

[Jim Mills]

- Labor for the position offered to me was filed in Sep'2002, cleared and went to Philadelhia for Regional Approval in ??. Given that Phili is backed up, when can I reasonably expect it to clear labor?

Without knowing when it went to regional this is impossible to even estimate acccurately.

- What is the probability that Regional might be rejected? In fact, what really happens when an application is forwarded to regional office? Is it as detailed a process as State Labor approval or not?

I'd need to look at the filing to estimate probility of approval. It could be very high, or very low, depending on the quality of the filing.

- My H1B exprires in Dec'2005. I know one has to be in stage of GC processing for over a year before one can get an extension for GC. BUT, if I join this company in November and the labor does not clear before Dec of this yr, then I cannot prove to Govt that this labor was for me and therefore shall I get the extension? Is a labor application tied to an applicant or a position and how does one prove to govt that HE (or She) has been waiting in that queue for over a year?

Good question. I would need to look this one up since I have not handled a substitution under this situation. Off the top of my head, a letter to the USCIS and DOL along with a sworn affidavit from the employer and a completed ETA-750B would probably be a good start.

- For extention, does the same rule (of being over 1 yr) apply to I-140/485 stages as well?

It is one year from filing the LC.

- What happens in case of concurrent filing? When does one get their IAD card? After a certain time frame or once I-140 has been approved?

Normally you get EAD in about 3 months from filing concurrently.

- Since my petition expires in Dec 2005, would the above State Labor even for me? Seems kinda strange to me. If I accept, the position, the labor was applied before me and therefore I cannot prove that I was waiting for over a yr. Or can I, if I join the company before Dec of this yr?

I do not totally understand this question. You could probably transfer your H-1B and start working immediately under the portability provisions (assuming you are in H-1B status.

 

[saigc]

I have been offered a position where the labor is in Regional Processing Center in Philadelphia. Being an offer from a reliable source, I would like to consider it but have few Qs that I like answers to before I can making the decision. Your help shall be appreciated:

- Labor for the position offered to me was filed in Sep'2002, cleared and went to Philadelhia for Regional Approval in ??. Given that Phili is backed up, when can I reasonably expect it to clear labor?
based on current processing time it may take 1 - 1.5 years depending on RIR/NON-RIR from the date SESA forwarded the case to its regional office

- What is the probability that Regional might be rejected? In fact, what really happens when an application is forwarded to regional office? Is it as detailed a process as State Labor approval or not?

case may get reject due to mispresentation of facts or employer fraudulent filings. sometimes if there were past few layoffs in that company then regional office may remand it to state to continue changing it to rir to non-rir. sometimes they ask the employer to retest the market - if they are not satisfied then they may reject (very rare).


- My H1B exprires in Dec'2005. I know one has to be in stage of GC processing for over a year before one can get an extension for GC. BUT, if I join this company in November and the labor does not clear before Dec of this yr, then I cannot prove to Govt that this labor was for me and therefore shall I get the extension? Is a labor application tied to an applicant or a position and how does one prove to govt that HE (or She) has been waiting in that queue for over a year?
--- all it matters is when the labor was filed. based on your input you are eligible for 7th year extension.

- For extention, does the same rule (of being over 1 yr) apply to I-140/485 stages as well?

- What happens in case of concurrent filing? When does one get their IAD card? After a certain time frame or once I-140 has been approved?
generally ead comes in 3-6 months. some service centers approve ead only after approval of i140. now a days both i140 & i485 are adjudicated almost the same time if they are concurrently filed.

- Since my petition expires in Dec 2005, would the above State Labor even for me? Seems kinda strange to me. If I accept, the position, the labor
was applied before me and therefore I cannot prove that I was waiting for over a yr. Or can I, if I join the company before Dec of this yr?
[B ] labor is tied to the position not the candidate. employer has the liberty to choose who they can use it for. [/B]

Answers to the above questions shall help me in deciding when I should accept this position. Please advise.

 

[dcmetro22042]

Yes, the position title makes a difference to the extent that it indicates different job duties. I think a developer and a manager (or above) have significantly different duties. The ETA-750A for a developer probably indicated that no employees were being supervised and that is probably not true for the manager position. A higher salary is the same, it is not a problem until it demonstrates significantly different duties (although USCIS has sometimes tried to require the listing of the actual wage if it is above prevailing, I think this is a erroneous position and I will fight it). For example, if the LC says that the prevailing wage is $50,000/yr and you are actually being paid $200,000/year, I think USCIS and DOL would say that the positions are actually different.

So that can be taken care of. I do not have to tell DOL that I am joining as manager. I could join as that position but work with the manager role, right? Salary analysis is a good point. Now I know that I shall earn more...maybe 1.5 times the other applicant but not 200K (I wish!). But point noted.

 

[dcmetro22042]

Without knowing when it went to regional this is impossible to even estimate acccurately.

Start of 2004 would be a good guess.


I'd need to look at the filing to estimate probility of approval. It could be very high, or very low, depending on the quality of the filing.

My Q is more general. What is checked in Regional Labor Approval Process? Is it as lengthy and detailed as State Labor?

Good question. I would need to look this one up since I have not handled a substitution under this situation. Off the top of my head, a letter to the USCIS and DOL along with a sworn affidavit from the employer and a completed ETA-750B would probably be a good start.

Would wait for ur reply

Normally you get EAD in about 3 months from filing concurrently.

If you get the EAD within 3 months, then would I even need to file the H1B extension? Or one does this, in case the I-140 is not approved or gets queries, etc?


I do not totally understand this question. You could probably transfer your H-1B and start working immediately under the portability provisions (assuming you are in H-1B status.

I am currently in H1B.

 

[ou90d02]

Hello

interesting questions. I am looking into this type of oppourtunity too. Only pre approved labors. So they say then the labor has to be exactlly your skill set. Well if you are working for a consulting firm, then what is the difference. How is the processing center going to find out what you actually do. How hard is it for a compnay to make a experience letter for you that matches your skills sets. As far as salary, well that a different issue.

Oh another thing, If someone goes for pre approved labor. What are their chances of getting their 140 and 485 rejected. if so, on what basis. lets assueme that the qualification matches whats on the pre approve labor. Then how can 140 and 485 be in any trouble. What all information is going to be required to prove that the employee is working on that labor has the same qulaifications as the labor stated.

Thanks!

 

[dcmetro22042]

Since I have an option of using a pre-approved (in works since its in Philly Regional Labor) LC from another company, I would like to ask another question.

Could there be any issue by doing BOTH - have the current LC with current employer and also use the pre-approved LC with the prospective employer and apply for the 140/485?

I do not plan to share this information with my current employer. Does the current employer need to be informed about this? Will they get to know at any stage about another filing for your labor/I-140? In my case, the labor for the second company is in Regional Phili Center...and for the current employer is in VA State

 

[mohanbv]

My company refused to sponsor GC.I have only 2 yrs left on my H1B visa.Do I have to look out for a different job??Or Can I hire an attorney on my own and file for labor without changing job.Please advice.
Thanks

 

[mohanbv]

dcmetro22042

Could you please share me the companys name where you will be getting Pre-approved labor mohan_bv@yahoo.com.I am willing to change my job if they get me some project.I am a PM(PMP).
Thanks