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8/03/2006: Multiple I-140 Petitions with One Underlying EB-2 Labor Certification Application and Need for Uniform Policy
* The multiple I-140 petiions (EB-2 and EB-3) using single certified EB-2 labor certification application had been a long standing policy of legacy INS and current USCIS until the NSC announced in a recent AILA-NSC liason meeting that the NSC would not allow such multiple petitions. The immigration practitioners including this reporter have actually witnessed denial of one of the two petitions concurrently filed for the reason that one labor certification had been used by another concurrenly filed I-140 petition. This practice not only deviates from the agency's long standing tradition based on an age-old memorandum of the agency, but also contradicts with the practice of the TSC. Last month, the TSC disclosed that the agency did not have any problem of accepting and processing multiple I-140 petitions based on a single underlying certified EB-2 labor certification application. Additionally, the TSC also stated that in the event that multiple petitions were not filed concurrently but in different times, the petitioner could file the second and subsequent I-140 petition without withdrawing the previously filed another I-140 petition. Indeed, the TSC policy is consistent with the agency's traditional practice.
* There is no logic that one labor certification should support one I-140 petition. One labor certification should not produce two green cards nor take out two immigrant visa numbers. Inasmuch as the agency is mandated not to approve the two I-485 applications or two immigrant visas based on the same certified labor certification application, the intent of the legislation is satisfied. The Service Centers have a sophiscated system that checks the record of the specific labor certification to see whether any I-485 or immigrant visa has been granted based on the labor certification application before they adjudicate each I-485 application. Accordingly, there is no room for the abuse by the immigrants using one certified labor certification application for multiple green cards.
* Immigrants file the multiple I-140 petitions using single labor certification application in such times as the current situation when the immigrant visa numbers are heavily retrogressed and the future of the immigrant visa numbers for each category is not predictable. Because of the benefits that accompnay the filing of I-485 applications and their need for minimizing hardship during the period of retrogression, they want to file both EB-2 and EB-3 using EB-2 labor certification application. In earlier days, Chinese EB-2 labor certification beneficiaries one time experienced EB-2 retrogression worse than EB-3. During the time, in order for them to file I-485 application using EB-3 favorable number, they filed multiple I-140 petitions which allowed them to file at least I-485 applications along with the applications for EAD and Advance Parole. Even though such unsual movement of visa numbers between EB-2 and EB-3 did not last too long, some EB-2 people took advantage of the opportunity to file I-1485 using EB-3 petition. Guess what! History repeats itself. As of this month, Indians are experiencing the same. For them EB-2 numbers are totally unavailable, while EB-3 numbers are available even though the cutoff date is April 1, 2001. Those with EB-2 priority date earlier than April 1, 2001 may want to file multiple I-140 petitions along with the concurrent I-485 applications. Some earlier EB-2 labor certification filers start getting the labor certification application approvals by the BECs with the priority dates earlier than April 1, 2001. Certainly, they may want to file multiple EB-2 and EB-3 petitions, and using EB-3 I-140 petition filing, they will also file concurrent I-485 application along with EAD and Advance Parole applications. The reason why they want to file both EB-2 and EB-3 is that they can transfer pending I-485 application to EB-2 later on once the EB-2 visa numbers start moving faster than EB-3 and EB-2 visa number becomes available for him. The NSC's practice leads to deprivation of such opportunities to the immigrants without clearly defined public interest or justification. We urge the NSC leaders to reconsider their current restrictive policy and join the TSC in this area of practice.
8/03/2006: Multiple I-140 Petitions with One Underlying EB-2 Labor Certification Application and Need for Uniform Policy
* The multiple I-140 petiions (EB-2 and EB-3) using single certified EB-2 labor certification application had been a long standing policy of legacy INS and current USCIS until the NSC announced in a recent AILA-NSC liason meeting that the NSC would not allow such multiple petitions. The immigration practitioners including this reporter have actually witnessed denial of one of the two petitions concurrently filed for the reason that one labor certification had been used by another concurrenly filed I-140 petition. This practice not only deviates from the agency's long standing tradition based on an age-old memorandum of the agency, but also contradicts with the practice of the TSC. Last month, the TSC disclosed that the agency did not have any problem of accepting and processing multiple I-140 petitions based on a single underlying certified EB-2 labor certification application. Additionally, the TSC also stated that in the event that multiple petitions were not filed concurrently but in different times, the petitioner could file the second and subsequent I-140 petition without withdrawing the previously filed another I-140 petition. Indeed, the TSC policy is consistent with the agency's traditional practice.
* There is no logic that one labor certification should support one I-140 petition. One labor certification should not produce two green cards nor take out two immigrant visa numbers. Inasmuch as the agency is mandated not to approve the two I-485 applications or two immigrant visas based on the same certified labor certification application, the intent of the legislation is satisfied. The Service Centers have a sophiscated system that checks the record of the specific labor certification to see whether any I-485 or immigrant visa has been granted based on the labor certification application before they adjudicate each I-485 application. Accordingly, there is no room for the abuse by the immigrants using one certified labor certification application for multiple green cards.
* Immigrants file the multiple I-140 petitions using single labor certification application in such times as the current situation when the immigrant visa numbers are heavily retrogressed and the future of the immigrant visa numbers for each category is not predictable. Because of the benefits that accompnay the filing of I-485 applications and their need for minimizing hardship during the period of retrogression, they want to file both EB-2 and EB-3 using EB-2 labor certification application. In earlier days, Chinese EB-2 labor certification beneficiaries one time experienced EB-2 retrogression worse than EB-3. During the time, in order for them to file I-485 application using EB-3 favorable number, they filed multiple I-140 petitions which allowed them to file at least I-485 applications along with the applications for EAD and Advance Parole. Even though such unsual movement of visa numbers between EB-2 and EB-3 did not last too long, some EB-2 people took advantage of the opportunity to file I-1485 using EB-3 petition. Guess what! History repeats itself. As of this month, Indians are experiencing the same. For them EB-2 numbers are totally unavailable, while EB-3 numbers are available even though the cutoff date is April 1, 2001. Those with EB-2 priority date earlier than April 1, 2001 may want to file multiple I-140 petitions along with the concurrent I-485 applications. Some earlier EB-2 labor certification filers start getting the labor certification application approvals by the BECs with the priority dates earlier than April 1, 2001. Certainly, they may want to file multiple EB-2 and EB-3 petitions, and using EB-3 I-140 petition filing, they will also file concurrent I-485 application along with EAD and Advance Parole applications. The reason why they want to file both EB-2 and EB-3 is that they can transfer pending I-485 application to EB-2 later on once the EB-2 visa numbers start moving faster than EB-3 and EB-2 visa number becomes available for him. The NSC's practice leads to deprivation of such opportunities to the immigrants without clearly defined public interest or justification. We urge the NSC leaders to reconsider their current restrictive policy and join the TSC in this area of practice.