unitednations said:
Incorrect.
Please provide the sources. USCIS has given procedures to adjudicators and lawyers of what to do when their is labor substitution for cases where a 140 has already been filed/approved for another beneficiary.
I last did the "re"search about 6 months ago when I was considering my options (My 140 was eventually approved after 13 months). Had searched a lot of sites - this site itself, usvisanews.com, murthy.com, immihelp.com, immigration-law.com etc. Have to search through the hundreds of saved immig-related files to see if I did indeed save. But here are some points in the meantime
The Yates memo on AC-21 states that
" ...the labor certification or approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:
(a) A Form I-485, Application to Adjust Status, on the basis of the EB
immigrant petition has been filed and remained unadjudicated for 180
days or more; and
(b) The new job is in the same or similar occupational classification as the job
for which the certification or approval was initially made. "
" .. If an alien is the beneficiary of an approved Form I-140 and is also
the beneficiary of a Form I-485 that has been pending 180 days or longer, then the approved Form I-140 remains valid with respect to a new offer of employment under the flexibility provisions of §106(c) of AC21."
These essentially mean that the labour and I-140 application are "ported" to the new job, as if the new employer had filed them. This seems to be the underlying reason for the new job being "same or similar". Also note that the "porting" is indeed the case as the original beneficiary of the labour
application does retain the priority date of the original labour the substituting" beneficiary does not. This is further highlighted below
Excerpt from
www.immigration-law.com
"The priority date is not only "alien-based" but also limited to a specific alien and cannot be transferred to another alien. Consequently, an alien who files I-140 petition as the substituting beneficiary of an approved labor certification application takes over the approved labor certification application but not priority date. Accordingly, an alien who files I-140 petition as a substituting alien establishes his/her priority date at the time of filing of his/her I-140 petition and not on the date of filing of alien labor certification application by the employer on behalf of the original alien beneficiary who is substituted. The regulation specifically states that a priority date is not transferrable to another alien."
Priority Date Valid Only with the Alien Beneficiary and Cannot be Transferred to Other Aliens. As per 8 CFR 204.5(e).
"(e) Retention of section 203(b)(1), (2), or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the
Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3)
of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien."
It is fairly common knowledge that for substitution cases, USCIS asks for the "original" labour approval instead of just a copy of it. They often take months to locate the original file with the original labour cert. As a side effect, for people with lost cerifications, one has to request a "duplicate" from the DOL which then sendsit directly to the agency requesting it. This is all to "ensure" that the same labour is not used to immigrate multiple aliens.
The onus would be on the employer to prove that the original labour was not already used to immigrate another alien. If the original 140 petition was approved and it has been 180 days since the orignal 485, even though it may not have been approved by the time the new 140 for the "substituting" employee was filed, barring any unforeseen conditions, the subsequent approval of the original 485 is almost guaranted.
I don't recollect, but it was pretty recent news that a lot of employers and employees are being investigated for immigration fraud and this multiple alien thing was one of them, others being "fake" job locations or "offices" just for the sake of labour filing etc. Damn! I just can't seem to recollect where I read this.
UN, I will surely try find out the exact sources and post. Also, could you please point to info on USCIS procedures to adjudicators and lawyers of what to do when there's labor substitution for cases where a 140 has already been filed/approved for another beneficiary.
Thanks.
Awaiting_PR
