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07/25/2004: Increasing I-140 Denial Culture and Importance of Maintaining H-1B Nonimmigrant Status
· There are some indications that ever since the so-called Yates memo was released on RFE, employers see more and more RFE and denials of I-140 petitions on both the issues of employer's eligibility and alien's eligibility. From the perspectives of USCIS, the focus of denials of alien's immigration benefits can be placed either on I-140 or I-485 applications. For practical reasons, though, it may be more convenient and servces the agency's purposes better to focus on I-140. First denial of I-140 makes it unnecessary to reach the concurrently filed I-145, which can also be denied outrightly. Secondly, it can better manage political issues associated with the alien's change of employment freehand in the concurrently filed I-140 cases. Currently unless I-140 is first approved, the I-485 applicant is unable to change employment evan after 180 days of I-485 filing. Thirdly, denial of I-140 can block out the aliens who are not in a valid nonimmigrant status from reattempting to file the concurent I-140/I-485 green card application second time, unless he/she is eligible for 245(i) benefits. The 245(k) benefit is practically shut out in the event that I-140 is denied. Remember that 245(k) benefits remain alive in the event that I-485 is denied and the alien can refile I-485 application based on the approved I-140 petititon inasmuch as the status violation or unauthorized employment lasted less than six months since the last admission to the U.S. I-140 denial will also block another option of green card, to wit, consular immigrant visa processing. Fourthly, revocation of visa or immigrant petition has turned into a political quackmire in connection with the issues of admission of terrorists, and petition adjudication has received increated attention.
· In such I-140 denial culture, it is extremely important that the H-1B professionals maintain H-1B nonimmigrant status rather than sitting on EAD/AP status for the two reasons: The I-140 denial or I-485 denial does not disqualify the petitioner/applicant to refile the cases inasmuch as it does not constitutes a frivolous filing and more importantly the alien is in a valid nonimmigrant status. Those who stay and work on EAD/AP pending the decision of I-140/I-485 petition immediately loses a legal status as soon as I-140/I-485 is denied and becomes ineligible to file another I-485 unless he/she is eligible for 245(i). Secondly, the denial of I-140 is appeallable to the appellate agency and pending the decision of appellate agency, the alien in H-1B is eligible for 7th year or indefinite extension of H-1B beyond the 6-year limit if the alien is eligible for such extension under the AC 21 Act as amended by the DOJ Authorization Act. This is possible because the statutory amendment makes 7th year extension available until the "final decision" of his/her petition or application aftervpassing 365 days from the date of the labor certification application or a petition in the case of L/C waiver categories. Additionally, such extension is "not" subject to the annual cap of H-1B, which becomes more and more important nowadays. On the other hand, the denial of I-485 application is not appealable. In order to make the denial not final, one has to file a litigation before the federal court of appeals , which is usually not a workable option in terms of time and cost.
· One time, legal counsels advised their clients of the benefits of EAD/AP options under the extremely high unemployment rate and the lenient interpretation of AC 21 by the legacy INS. At the time, denial of I-140 was a rarety rather than a norm. All the aliens had to worry about was denial of I-485 applications. The direction of wind has swifted substantially since then putting them in a different environment. One thing people should note is the added weapons which USCIS can utulize, which are made available by the "concurrent filing of I-140/I-485." The USCIS appears to dig into the I-485 supporting documentation and develop issues of I-140 denial from these evidence such as incime tax returns, W-2 copies, etc., which can be used to challenge employer's finanacial ability to pay or existence of bonafide permanent job or bonifide business or legitimate nature of job opening as related to the familial relationship between the employer and the alien, etc. When I-140 petition was filed separately, these evidence was not available to the adjuditors of I-140 petitions.
· Caveat: The foregoing discussion is applicable "only" to H-1B professionals who can comply with "all" the terms and conditions of Labor Condition Application without any violations such as wages, locations, no benching, etc. Otherwise, staying on H-1B status can lead to denial of I-485 for failure of maintaintaing nonimmigrant status. Such aliens should stay and work on EAD/AP to avoid I-485 denials since the employer and the alien employee will no longer be required to comply with the terms and conditions of H-1B status. Please seek legal counsel.
· A wise man or woman never judges one's fate based on somebody's experience or rules which are related to different times and political/policy environment and not relevant to his/her case because of minute-to-minute changing immigration environment and differentials in the specific facts. Please seek legal counsel.
07/25/2004: Increasing I-140 Denial Culture and Importance of Maintaining H-1B Nonimmigrant Status
· There are some indications that ever since the so-called Yates memo was released on RFE, employers see more and more RFE and denials of I-140 petitions on both the issues of employer's eligibility and alien's eligibility. From the perspectives of USCIS, the focus of denials of alien's immigration benefits can be placed either on I-140 or I-485 applications. For practical reasons, though, it may be more convenient and servces the agency's purposes better to focus on I-140. First denial of I-140 makes it unnecessary to reach the concurrently filed I-145, which can also be denied outrightly. Secondly, it can better manage political issues associated with the alien's change of employment freehand in the concurrently filed I-140 cases. Currently unless I-140 is first approved, the I-485 applicant is unable to change employment evan after 180 days of I-485 filing. Thirdly, denial of I-140 can block out the aliens who are not in a valid nonimmigrant status from reattempting to file the concurent I-140/I-485 green card application second time, unless he/she is eligible for 245(i) benefits. The 245(k) benefit is practically shut out in the event that I-140 is denied. Remember that 245(k) benefits remain alive in the event that I-485 is denied and the alien can refile I-485 application based on the approved I-140 petititon inasmuch as the status violation or unauthorized employment lasted less than six months since the last admission to the U.S. I-140 denial will also block another option of green card, to wit, consular immigrant visa processing. Fourthly, revocation of visa or immigrant petition has turned into a political quackmire in connection with the issues of admission of terrorists, and petition adjudication has received increated attention.
· In such I-140 denial culture, it is extremely important that the H-1B professionals maintain H-1B nonimmigrant status rather than sitting on EAD/AP status for the two reasons: The I-140 denial or I-485 denial does not disqualify the petitioner/applicant to refile the cases inasmuch as it does not constitutes a frivolous filing and more importantly the alien is in a valid nonimmigrant status. Those who stay and work on EAD/AP pending the decision of I-140/I-485 petition immediately loses a legal status as soon as I-140/I-485 is denied and becomes ineligible to file another I-485 unless he/she is eligible for 245(i). Secondly, the denial of I-140 is appeallable to the appellate agency and pending the decision of appellate agency, the alien in H-1B is eligible for 7th year or indefinite extension of H-1B beyond the 6-year limit if the alien is eligible for such extension under the AC 21 Act as amended by the DOJ Authorization Act. This is possible because the statutory amendment makes 7th year extension available until the "final decision" of his/her petition or application aftervpassing 365 days from the date of the labor certification application or a petition in the case of L/C waiver categories. Additionally, such extension is "not" subject to the annual cap of H-1B, which becomes more and more important nowadays. On the other hand, the denial of I-485 application is not appealable. In order to make the denial not final, one has to file a litigation before the federal court of appeals , which is usually not a workable option in terms of time and cost.
· One time, legal counsels advised their clients of the benefits of EAD/AP options under the extremely high unemployment rate and the lenient interpretation of AC 21 by the legacy INS. At the time, denial of I-140 was a rarety rather than a norm. All the aliens had to worry about was denial of I-485 applications. The direction of wind has swifted substantially since then putting them in a different environment. One thing people should note is the added weapons which USCIS can utulize, which are made available by the "concurrent filing of I-140/I-485." The USCIS appears to dig into the I-485 supporting documentation and develop issues of I-140 denial from these evidence such as incime tax returns, W-2 copies, etc., which can be used to challenge employer's finanacial ability to pay or existence of bonafide permanent job or bonifide business or legitimate nature of job opening as related to the familial relationship between the employer and the alien, etc. When I-140 petition was filed separately, these evidence was not available to the adjuditors of I-140 petitions.
· Caveat: The foregoing discussion is applicable "only" to H-1B professionals who can comply with "all" the terms and conditions of Labor Condition Application without any violations such as wages, locations, no benching, etc. Otherwise, staying on H-1B status can lead to denial of I-485 for failure of maintaintaing nonimmigrant status. Such aliens should stay and work on EAD/AP to avoid I-485 denials since the employer and the alien employee will no longer be required to comply with the terms and conditions of H-1B status. Please seek legal counsel.
· A wise man or woman never judges one's fate based on somebody's experience or rules which are related to different times and political/policy environment and not relevant to his/her case because of minute-to-minute changing immigration environment and differentials in the specific facts. Please seek legal counsel.
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