Labor substitution ban rule got clearance from OMB

I think Murthy is getting some of us who haven't filed the i-140 anxious regarding the 45 day rule for no reason (Murthy's website states that we "still have time" to file the i-140 by April 30th, etc, etc...)...the proposed rule clearly states that labor certifications approved prior to the final rule will have 45 days to file after it is published in the federal register...soooo, we can all relax a bit and hope this rule helps bring an end to retrogression...good luck to all!!!!
 
where is neocor ...

I remember he was very much against this substitution crap.:eek:
 
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Put it this way; I have done 25 labor substitutions this week-end. None of them were for revoked cases.

Today; I will also be doing a good number. 8 cases for today are revocations (approved i-140's) for employees no longer working with the company and they want to substitute it for current employees.

Note: contrary to what people think; it is better for us to do labor from scratch and file 140. there is more money involved in that rather then labor substitution. Just in case anyone has this type of thinking.

Good to know that you charge way less for labor substitution cases than regular filing... And you might have had a good insite into all this substitution cases as you are doing 25 of them in a single weekend.

But most (attorney + employer) team charge a lot of money to do substitution cases .. somewhere around $25,000. But for regular cases there fees are around $4000.


Quick question -- when you do labor substitution without revoking the earlier application .. is that not multiple filing of 140 on the same labor?

Thanks
 
No wonder ...

Good to know that you charge way less for labor substitution cases than regular filing... And you might have had a good insite into all this substitution cases as you are doing 25 of them in a single weekend.

But most (attorney + employer) team charge a lot of money to do substitution cases .. somewhere around $25,000. But for regular cases there fees are around $4000.


Quick question -- when you do labor substitution without revoking the earlier application .. is that not multiple filing of 140 on the same labor?

Thanks

UN,

You claim to have done 25 labor subs over one weekend and then you constantly claim that "labor sub" is not a problem. You are not even a lawyer and probably don't charge as much, we can only imagine how many lawyers must be actively after labor sub cases and charging people all sorts of fees. Its a cash cow for everyone.

Its understandable for a person to protect ones interests by down playing things that they know to be a problem but for you to constantly claim that labor sub is not a problem is ludicrous. Labor sub is a problem and will continue to be a problem till the loop hole is closed and the gravy train is stopped. Labor sub was supposed to be a good thing but in its current form it is totally flawed and needs to go as soon as possible.

saras
 
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Gurus,
My friend is on H1 for 6 years.Labor perm approved in March 2005.EB 2 India.Once he starts 7 year extension and his priority date does not become current what option will he have in case he is laid off.
Thanks
 
In case of lay off H1 extension would be possible if Labor was filed 365 days before the end of 6th year period. Since PD is not current extensionw ould be possible for 3 year term.

You have not stated if I-140 is filed and approved. If yes then your friend will own the priorit date of March 2005 ( unless the old employer revokes this I-140)

Hope this helps.


Gurus,
My friend is on H1 for 6 years.Labor perm approved in March 2005.EB 2 India.Once he starts 7 year extension and his priority date does not become current what option will he have in case he is laid off.
Thanks
 
Tooo Late

Finally it seems to be happening ... really good news.

The Top 2 reasons that I believe for retrogression (especially for Indians) are

1. California Service Center's pilot program to issue GC to every one who could apply for a 485 with in a few weeks. Had they been slower, or even normal, they would'nt have been so many people who started in 2001 but are still waiting while there are so many who started in 03, 04 and already got GCs. Added to that TSC and NSC were way too slow.

2. Labor Substitution, I personally know 5 people who used Sub LC and got green cards. Couple of them came in last 4 years to US. I know that the Labor on which I got GC was also used for someone else as a Sub-Labor. So, I know about 6 LC Subs myself, wonder how many more are out there.

As suggested by some that there are fewer LC Subs with a current PD date, LC Sub ban might have too late, the damage is already done.
 
This is classic case of griping.

You have a 485 pending when you shouldn't and are the beneficiary of mistake of uscis not denying your 485.

Your 485 should have been denied when you downgraded from eb2 to eb3 and it wasn't filed when visa dates are current. Now, you are pointing fingers at others...nice.

At this juncture, I would like to add this invaluable quote to our further thinking. Luckily I did not have to search too much this time.

First; i can tell by peoples postings as to how much experience they have;simply by the advice they are giving and what type of exposure they have in coming to their conclusions.;....
 
For UN

UN,

Could you please take a look at my post meant for you on Page 4 (Impact on 7th yr extension). I would really appreciate your valuable suggestion!!!!

Thanks
PK
 
Don't take this regulation.....with blind faith that it will get implemented ....

remember the saga last year....the same saga is repeating this year...

Remember last year...
Feb 10, 2006 - OMB review completed
Feb 13, 2006 - published to Federal Register

WELL, IT VANISHED AWAY LAST YEAR....I suspect it might do the same possibly...

My take on it - be wary...and act for the worst case scenario - if gets enacted...

http://www.murthy.com/news/n_subreg.html

As regular MurthyDotCom and MurthyBulletin readers are aware, the U.S. Department of Labor (DOL), was working on a regulation to end the labor substitution process. This was reported in our August 26, 2005 MurthyBulletin article, Proposal to End LC Substitution and Require Prompt I-140 Filing, available on MurthyDotCom. Action on this regulation stalled, apparently in part due to strong opposition. It has come to our attention, however, that the regulation completed the Office of Management and Budget review process on February 2, 2006.

>>>>>>
http://www.murthy.com/news/n_faqsub.html

Q. Where can I see this proposed regulation?
©MurthyDotCom
A. It was published in the February 13, 2006 Federal Register. The Federal Register is available online. The particular Regulation is available in text and PDF format, under the Employment and Training Administration. It is entitled, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity.
 
I am guessing - just like last year, it may get published as proposed regulation with 60 day comment period...

But, it might be possible that it might be published as a final rule...since the 60 day comment period finished last year....hmm??
 
Ok, we sampled in a way such that we do not incur much field costs.. and we only sampled IT guys working in big companies as contract employees ( non US citizens .. or mostly citizens of India). We assumed here that direct employees may not go for sub labor.
We just asked 2 questions
1> Did you file for your own labor?
2> Did you use sub labor?
We choose 5 companies in DC-Baltimore area who actively hire contract IT labor..

I think the sampling you had may produce a bit biased result.
You picked only 5 companies. What if one of those was actively using sub labors and a lot of people you sampled was from that company ? Whether somebody uses sub labor or not is more likely to depend on sponsor company. The companies which use sub labor does it a lot, those which does not use it will never use it. SO, you should have sampled a lot more companies.


Why don't you run poll on this board. People here is from a lot of different companies which have different policies and you'll find the result closer to reality.
My take is we won't see that big percentage of sub labor.
 
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UN referred to document that was already published. That's indeed proposed rule. OMB cleared final rule. Final rule should be published in Federal Register.
So you are right, it's not done deal, but there is only 1 step to go and this step could be completed as soon as tomorrow or could be delayed.

voldemarv, U are right....it looks like it's a final rule....Man, this rule is for real....

>>>>>>>>

OIRA Conclusion of EO 12866 Regulatory Review

RIN: 1205-AB42 Received Date: 01/26/2007
Title: Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity
Agency/Subagency: DOL / ETA Stage: Final Rule
Concluded Action: Consistent with Change Concluded Date: 04/27/2007
Legal Deadline: None Economically Significant: No
Publication Date: Unfunded Mandates: No
Major: No Related To Homeland Security: No
Regulatory Flexibility Analysis Required: No Small Entities Affected:
Federalism Implications: No


>>>>>>>>
OIRA Conclusion of EO 12866 Regulatory Review

RIN: 1205-AB42 Received Date: 05/12/2005
Title: Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse
Agency/Subagency: DOL / ETA Stage: Proposed Rule
Concluded Action: Consistent with Change Concluded Date: 08/10/2005
Legal Deadline: None Economically Significant: No
Publication Date: 02/13/2006 Unfunded Mandates: No
Major: No Related To Homeland Security: No
Regulatory Flexibility Analysis Required: No Small Entities Affected:
Federalism Implications: No

Disclosure Accessibility Privacy Policy Contact Us

>>>>>>>>>
 
Your point is?

First; i can tell by peoples postings as to how much experience they have;simply by the advice they are giving and what type of exposure they have in coming to their conclusions. Most 99.9% of the people have very little exposure to even make any judgment on how things are working.

Regarding labor substitution - most companies do not do them; even the indian consulting companies. They try to file labors/140's for employees as a defensive mechanism because they know if they don't then person will leave.

Many people who are at permanent jobs whose company won't sponsor them for greencard; try to go the future base route with a particular company. Sometimes they decide to join and sometimes they decide not to.

USCIS has a good way of dealing with companies who file too much labor substitution. They just deny it on ability to pay or they add up all the cases together and look at company financials in that way. I know because this is what I do. All of the service centers add up the companies cases together; they even go ahead and deny approved cases later.

i can tell you that in six months; you will see a lot of people crying about how their 140's got denied due to ability to pay. Then they will coming running to me and I will tell them; this is what you get when you substitute.

--------------------------------------------------------

You know why lobbying for immigration by people going for the greencard doesn't work? Because all of you want a solution that only fits your particular case. No one looks at the greater good. When people talk about community; they are only talking about themselves. The people who haven't used labor substitution want it to go away. Other people who need it; don't want it to go away. There is too much conflict among people to make any meaningful change.

UN,

Your rambling post makes no sense. My point is very simple, labor substitution is a rampant problem and you are adding to the problem. For all the people you are helping you are doing a dis-service to the people who are getting pushed further behind due to endless delays. I also know your standard response, labor sub is not that prevalent and hence there is nothing wrong with it. I am sorry but your psuedo robin-hood approach doesn't work with me.

later,

saras
 
UN,

Your rambling post makes no sense. My point is very simple, labor substitution is a rampant problem and you are adding to the problem. For all the people you are helping you are doing a dis-service to the people who are getting pushed further behind due to endless delays. I also know your standard response, labor sub is not that prevalent and hence there is nothing wrong with it. I am sorry but your psuedo robin-hood approach doesn't work with me.

later,

saras

Cool down!. After all UN said his personal opinion in this case(except for that unwanted cursing on dcmetro22042). In my opinion (no statistics), after seeing many IT people in the last few years, I can say this, those who are getting cleared in India categories are predominantly LC subs. But I would still think LC subs would not constitute more than 30% max. May be I am wrong in the percentage, but for country quota countries it is good to have LC sub banned as soon as possible.

Its not even become a law, may be we should all take it bit easy.
 
USCIS has a way of dealing with these companies and has dealt with them appropriately. I have mentioned this in the past where uscis tried to revoke 44 approved I-140's. I have seen them deny an I-140 because company CEO was sponsoring his brother; I have seen uscis deny I-140 because company was "staffing" and no permanent job; I have seen uscis deny cases because company filed two I-140's on same labor and original beneficiary already got greencard; I have seen DOL investigate a company because they did not pay people; I have dealt with companies who got raided by DOL; I have dealth with companies who have gotten audited by IRS for per diems; for sending corp to corp money to India to flush their profits through this way; I can go on and on and on.

Now you may have context for postings earlier in the year when my position was a little strong of how system is gamed and everyone should be careful because if they tighten it and maybe they should then not many people will be getting a greencard; even those people who think they are doing it the right way.


Yes, there is some people who do game the system; have agents; attornies in line; try to get out of status people back in line. USCIS/DOl all know this and this is why they are tough. They can make it even tougher if they wanted to; however; all people want to do is make recommendations that fit their own needs because they think they are doing it the right way.

Spend some time on these boards and you will come to see all types of situations that people are trying to get out from; trying to get into eb2 even though they have a 3 year degree; chasing after labor substitution because they need wife to work; not leaving the country because they don't want to go for visa stamping because they are afraid consulate won't let them back in; primary has greencard but trying to get wife here on visitor visa or f-1; people working at small companies because they can't get traditional company to sponsor them for greencard, etc., etc.

Now; everyone thinks the miracle cure to get rid of retrogression is to ban labor substitution; without looking at the facts of how many people are really in USA in a non immigrant visa who are going for the greencard. That is the #1 reason; more people want greencard then who is eligible. That is #1, 2, 3, 4, 5, reason for retrogression.

I find that people are generally looking for a light at the end of the tunnel and what they think is wrong; once plugged will all of a sudden make things so right for them. I can tell you that until demand for permanent residency subsides then there isn't going to be much movement for employment base.

Every one knows it is a matter of demand vs supply. No need to write this big explanation. At the same time one can not justify labor subsitution. It is detoriated already unfair/broken system.
 
You would think people would know:). Be on the boards enough and you will start to get the idea that people are very selfish and want solution that only helps them.

I remember being in Public Accounting and turnover was a big issue. It was an up or out mentality. Every year you had to get promoted; people would leave to get different jobs because they would get a substantial pay increase, etc.

HR would do exhaustive studies of why people would leave (every 9 years close to 90% of a public accounting firm turns its staff over). #1 reason was pay scale and #2 reason was "up or out mentality". I used to gripe myself and so did everyone else.

Solution was to not make it up or out. If you wanted to stay a a manager for life you could do so. They bumped up salaries to exactly what you would make as if you left to go to JPMorgan, Lehman Brothers, etc. Problem was solved or so they thought.

Turnover of staff is exactly what it was before they changed everything to adhere to the complaints, reasons of employees leaving. Bottom line was people just needed a reason to gripe and when company took away those reasons; they found that the real reason people were leaving was because they didn't like the work. when everyone thinks retrogression is going to go away because of banning labor substitution; well they will be in for a rude surprise.

fyi; I don't particularly like labor substitution. I have seen too many people get into problems because of it (much more then I think it has helped).

People move jobs for different reasons. Yes, every immigrant who comes here, does not want to go back. It is just not H1b -> Green Card, but any immigrant, be it a student or a worker. The reason is simple. There is no need to. Someone who comes as a visitor will never want to settle unless he gets a rosy job offer. I have friends who were non IT and came for Masters from India. They were into some mass communication (Adevrtising, creative stuff) and I told them, these fields it is difficult for Indians to get jobs because advertising and marketing concepts are different here. They knew it better than me. But "they just want to make it here". They finished their master's and went jobless, started doing odd jobs and thats how they are now. They get money, send money home, they have nothing to do with INS, they got their DL, SSN, Credit cards when they got F1 visa. Now, there are millions like that. Those in such situations know that they may have to go back sometime. So they will support these CIR bills in a strong way because that is their hope.
H1b system - By applying all sorts of restrictions, the system is not getting better. There are jobs out there that are not getting filled and getting outsourced. Tightening Green cards citing immigrants as wroing doers may actually not be the right way to deal with things.

Closing loopholes is always a good thing to do and makes a system better, but just because businesses are misusing loopholes, does not mean that the entire immigrant community be blamed for some reason or the other.

You are a CPA and you must be knowing this concept called Legal Avoidance. Every corporate does that. 99% of the corporates operate only on this concpet. There is nothing called "good faith", offocurse there is something called business ethics which everyone must follow and obey. It all depends on where you draw a line and survival of fittest is what capitalism is all about.

While you say things that you see happening, there could be more to it :) H1bs are in the system and it benefits both the economy and the immigrant.

Banning L/C substitution may help, we always blame small companies for doing it, would we ever know how much big companies are misusing it? As you deal with Desi companies, you see shit from them, if you deal with big companies, maybe u see better shit from them.

:)
 
Okay 30%

Cool down!. After all UN said his personal opinion in this case(except for that unwanted cursing on dcmetro22042). In my opinion (no statistics), after seeing many IT people in the last few years, I can say this, those who are getting cleared in India categories are predominantly LC subs. But I would still think LC subs would not constitute more than 30% max. May be I am wrong in the percentage, but for country quota countries it is good to have LC sub banned as soon as possible.

Its not even become a law, may be we should all take it bit easy.

indian_gc_ocean,

Just as UN has his opinion, I have mine. Contrary to what UN keeps saying, few people on this forum are saying that Labor Substitution will magically fix retrogression. A majority of people are supporting the ban because it is one of the many factors that has added to the growing immigration problem. It is also obvious that people seeking sub labors and making money of the whole process will oppose the ban. Putting everyones personal interests aside, a loop hole such as labor sub that continues to strain a broken process should be banned. Some peope will suffer, some legitimate cases will be denied but thats what happens when laws are exploited. After all an equal number of people have suffered due to visas going to non-genuine labor sub applicants.

Coming back to your opinion that 30% are using labor subs. Even if we go with that number, in a time when 2800 visas are available within India EB3, 30% are being mis-used. Hell even 10 visas that are being used by someone who has just bought a sub labor is WRONG. That is the problem.

later,

saras
 
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Exactly ..

Finally it seems to be happening ... really good news.

The Top 2 reasons that I believe for retrogression (especially for Indians) are

1. California Service Center's pilot program to issue GC to every one who could apply for a 485 with in a few weeks. Had they been slower, or even normal, they would'nt have been so many people who started in 2001 but are still waiting while there are so many who started in 03, 04 and already got GCs. Added to that TSC and NSC were way too slow.

2. Labor Substitution, I personally know 5 people who used Sub LC and got green cards. Couple of them came in last 4 years to US. I know that the Labor on which I got GC was also used for someone else as a Sub-Labor. So, I know about 6 LC Subs myself, wonder how many more are out there.

As suggested by some that there are fewer LC Subs with a current PD date, LC Sub ban might have too late, the damage is already done.

You are absolutely right. One of the major problems for India EB3 was caused by the stupid "pilot programs" and the difference in processing times between Service Centers during '03, '04, '05. Those that got lucky (mostly '03, '04 cases) got approved withing 6 months. So newer PDs took away visa numbers and the older PDs are left behind. Its all water under the bridge now. As for labor sub ban coming to late, it is never to late to do the right thing. Yes the damage may have already been done but atleast this particular loophole will be plugged.

later,

saras
 
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......
Banning L/C substitution may help, we always blame small companies for doing it, would we ever know how much big companies are misusing it? As you deal with Desi companies, you see shit from them, if you deal with big companies, maybe u see better shit from them.

:)

I would have to agree with this. In the last one/two years I have seen few big companies recruiting people enmasse on their sixth year H1B and then doing name transfer on the existing pending LCs. One is a major networking company and the other is major telecom company. Not many companies are perfect, finally it effects the applicant who goes straight forward into the GC process.
 
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