Philadelphia Backlog Elimination Center Tracking
- Thread starter gp111
- Start date
it could be INS's mistake. However applicants are supposed not to take advantage of that and it involve certain risk. INS is address LC subsitute issue, so I assme they are realizing what's going on.
http://www.murthy.com/chatlogs/chat1213_P.html
Chat User : Hi, Muthyji. What is the priority date for a case using substitute labor? Is it the priority date of the original labor or the date of the I-140?
Attorney Murthy : Although, generally by law, the USCIS is supposed to give the date of the new I-140 filing, we have seen that they have been granting the PD from the original LC given for an earlier employee. So, although it may be possible to take advantage, the USCIS position is that their error does not guarantee the new substituted person may take advantage of something not allowed under law. So be prepared, even if the case has been filed, that it may not get approved if the USCIS realizes its error!
http://www.murthy.com/chatlogs/chat1213_P.html
Chat User : Hi, Muthyji. What is the priority date for a case using substitute labor? Is it the priority date of the original labor or the date of the I-140?
Attorney Murthy : Although, generally by law, the USCIS is supposed to give the date of the new I-140 filing, we have seen that they have been granting the PD from the original LC given for an earlier employee. So, although it may be possible to take advantage, the USCIS position is that their error does not guarantee the new substituted person may take advantage of something not allowed under law. So be prepared, even if the case has been filed, that it may not get approved if the USCIS realizes its error!
bassfisherman said:
GC_from_NJ
Registered Users (C)
Document
A useful document to get all your answers with the impact of recent retrogression for EB1/EB2/EB3 folks. A must read for all the folks who are stuck in this BEC hole.
A useful document to get all your answers with the impact of recent retrogression for EB1/EB2/EB3 folks. A must read for all the folks who are stuck in this BEC hole.
Congrats! SKIP
Congratulations!!! and thanks for sharing the news. Since yours is EB-2/RIR, I hope you receive your hard copy soon. Even otherwise inform your lawyer, and start the paperwork for I-140/485. Schedule your medical exam. That way if you get hard copy even on Sept 28th, you can file for I-485 and take advantage of EAD/AP. I wish you good luck.
I hope we see some momentum in PBEC cases.
mdgc2001
Congratulations!!! and thanks for sharing the news. Since yours is EB-2/RIR, I hope you receive your hard copy soon. Even otherwise inform your lawyer, and start the paperwork for I-140/485. Schedule your medical exam. That way if you get hard copy even on Sept 28th, you can file for I-485 and take advantage of EAD/AP. I wish you good luck.
I hope we see some momentum in PBEC cases.
mdgc2001
SKIP said:
GC_from_NJ
Registered Users (C)
There will definitely be a big jump in the PD's specially since there are almost NO applications pending since '98. This was done basically for the benefit of the 2001/2002 folks who still have not got their LC (most of the SWA cases) cleared to be in the queue (FIFO).
In the process 2005 onwards and PERM folks are screwed big time because now they will have to wait atleast 2-3 years to file 485.
In the process 2005 onwards and PERM folks are screwed big time because now they will have to wait atleast 2-3 years to file 485.
GCTitan said:
The reasons given on www.immigration-law.com
09/15/2005: Visa Number Retrogression and State Department Background Explanation
* Our review of the State Department reports indicates that the current visa number problem has been created by three factors, among others: One is the USCIS acceleration of reduction of processing times of EB-485 during the past one year in order to meet the Bush commitment of processing time reduction to 6 months by September 30, 2006. Readers may want to revisit our report on this issue a few days back. Between 2004 and 2005, the backlogs were reduced more than 69%, from close to 4 million cases to only 1 million cases of entire EB cases. The cases which they have adjudicated included many oldest backlog cases. Since the 6-month processing time must be achieved by September 30, 2006, the demand for visa number will continuously rise and heavy. That is why the State Department predicted in October Visa Bulletin a limited movement of visa number during FY 2006. Secondly, the Congress passed a legislation giving 50,000 special numbers to nurses and physical therapists which they can recapture from the unused employment visa numbers between 2001 and 2004. The recapturable number in early 2005 was approximately 110,000. The problem is that the State Department uses regular visa EB-3 quota numbers before they deplete the recapture numbers for the nurses and physical therapists. Obviously there were huge number of oldest cases for nurses waiting for a long line of EB-3 who started taking out the EB-3 numbers. Good news is that the impact from this second factor may gradually alleviated because of the limited period allowed in the legislation and soon-to-be exhausted recapture numbers. Thirdly, the deterioration of EB-3 visa numbers has added a pressure on EB-1 and EB-2 as increased number of Chinese and Indians sought EB-1 and EB-2 options. Old timers will remember that when the visa number retrogressed in the 1990s, the Chinese and Indians experienced exactly same problem. In fact, one time EB-2 number became worse than EB-3 number for the Chinese. As time moved on, such unusual movement of the visa numbers between EB-2 and EB-3 gradually subsided and it is expected that the history will repeat itself and the retrogression for EB-1 and EB-2 is expected to be alleviated as time moves on. The State Department may give us further predictions in the future, but we have decided to post the State Department's reports in the Visa Bulletin on the Employment Visa allocation prediction and its background explanation to give readers some sense out of the current crisis. This reporter hopes that this posting will help the readers' body temperature a little bit down and come out of the mental state of "blue." We will have to keep a "positive" attitude in this kind of crisis and should not allow emotional depression overwhelm our lives.
* January 2005 Report: EB-3 Retrogression, Cutoff Date and Background of Cutoff Date Decision:
o The American Competitiveness in the Twenty-First Century Act (Title I of Pub. L. 106 - 313 enacted on October 17, 2000) contained several provisions intended to increase the availability of Employment-based numbers. Pub. L. 106-313 recaptured those Employment-based numbers that were available but not used in Fiscal Years 1999 and 2000, creating a “pool” of 130,107 numbers which could be allocated to applicants in the Employment First, Second, and Third preference categories once the annual Employment-based numerical limit has been reached. Approximately 101,000 of these “pool” numbers remain available for use during FY-1005. Pub. L. 106-313 also removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.
o Changes in CIS processing procedures during the past two years created a significant backlog of cases and a consequent reduction in demand for numbers.
During the time that the Employment-based categories have remained “Current” many tens of thousands of applicants have become eligible to file for adjustment of status. Last summer, CIS notified Congress of its intent to eliminate its current backlogs by the end of FY-2006. As a result of the CIS backlog reduction effort, we are now experiencing very heavy visa demand as CIS has begun to process cases to conclusion. Section 201(a)(2) of the Immigration and Nationality Act states that not more than 27 percent of the Employment-based annual limit may be used in each of the first three quarters of a fiscal year. Based on the current rate of demand, the 27 percent level for the first quarter of FY-2005 will be exceeded by the end of December.
o It has therefore become necessary to impose an Employment-based Third preference cut-off date for January in order to limit number use during the second quarter. Many of the cases have priority dates that are several years old, and the cut-off date represents the first priority date that cannot be accommodated for final processing. The cut-off date will apply only to the following chargeability areas: China-mainland born, India, and Philippines. Cut-off date movement during the remainder of FY-2005 depends on the extent of future visa demand. No specific predictions are possible at this time.
* February & March 2005 Report: EW Retrogression, Cutoff Date and Background Explanation:
o During fiscal year 2005, 5,000 visa numbers are provided by law for use in the Employment-based Third preference “Other Worker” (EW) category. This annual limit is divided into twelve approximately equal monthly allotments. If there are sufficient numbers to satisfy all demand, the category can be considered "current". Whenever demand exceeds the supply of numbers available for allotment in a particular month, the category must be considered to be “oversubscribed” and a visa availability cut-off date is established.
o Continued heavy applicant demand, primarily for CIS adjustment of status cases, is expected to require the oversubscription of the EW category in the near future. This action will be necessary in order to hold EW number use within the FY-2005 annual numerical limit. The establishment of an EW cut-off date beginning as early as March cannot be ruled out, and would apply to all chargeability areas.
* May & June 2005 Report: EW Retrogression, Unavailability and Background Explanation in May and June 2005:
o The imposition of that date has not had the desired effect and the level of demand remains excessive. Therefore, it is likely that the cut-off date will retrogress or numbers become “unavailable” in the near future.
Continued................
09/15/2005: Visa Number Retrogression and State Department Background Explanation
* Our review of the State Department reports indicates that the current visa number problem has been created by three factors, among others: One is the USCIS acceleration of reduction of processing times of EB-485 during the past one year in order to meet the Bush commitment of processing time reduction to 6 months by September 30, 2006. Readers may want to revisit our report on this issue a few days back. Between 2004 and 2005, the backlogs were reduced more than 69%, from close to 4 million cases to only 1 million cases of entire EB cases. The cases which they have adjudicated included many oldest backlog cases. Since the 6-month processing time must be achieved by September 30, 2006, the demand for visa number will continuously rise and heavy. That is why the State Department predicted in October Visa Bulletin a limited movement of visa number during FY 2006. Secondly, the Congress passed a legislation giving 50,000 special numbers to nurses and physical therapists which they can recapture from the unused employment visa numbers between 2001 and 2004. The recapturable number in early 2005 was approximately 110,000. The problem is that the State Department uses regular visa EB-3 quota numbers before they deplete the recapture numbers for the nurses and physical therapists. Obviously there were huge number of oldest cases for nurses waiting for a long line of EB-3 who started taking out the EB-3 numbers. Good news is that the impact from this second factor may gradually alleviated because of the limited period allowed in the legislation and soon-to-be exhausted recapture numbers. Thirdly, the deterioration of EB-3 visa numbers has added a pressure on EB-1 and EB-2 as increased number of Chinese and Indians sought EB-1 and EB-2 options. Old timers will remember that when the visa number retrogressed in the 1990s, the Chinese and Indians experienced exactly same problem. In fact, one time EB-2 number became worse than EB-3 number for the Chinese. As time moved on, such unusual movement of the visa numbers between EB-2 and EB-3 gradually subsided and it is expected that the history will repeat itself and the retrogression for EB-1 and EB-2 is expected to be alleviated as time moves on. The State Department may give us further predictions in the future, but we have decided to post the State Department's reports in the Visa Bulletin on the Employment Visa allocation prediction and its background explanation to give readers some sense out of the current crisis. This reporter hopes that this posting will help the readers' body temperature a little bit down and come out of the mental state of "blue." We will have to keep a "positive" attitude in this kind of crisis and should not allow emotional depression overwhelm our lives.
* January 2005 Report: EB-3 Retrogression, Cutoff Date and Background of Cutoff Date Decision:
o The American Competitiveness in the Twenty-First Century Act (Title I of Pub. L. 106 - 313 enacted on October 17, 2000) contained several provisions intended to increase the availability of Employment-based numbers. Pub. L. 106-313 recaptured those Employment-based numbers that were available but not used in Fiscal Years 1999 and 2000, creating a “pool” of 130,107 numbers which could be allocated to applicants in the Employment First, Second, and Third preference categories once the annual Employment-based numerical limit has been reached. Approximately 101,000 of these “pool” numbers remain available for use during FY-1005. Pub. L. 106-313 also removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.
o Changes in CIS processing procedures during the past two years created a significant backlog of cases and a consequent reduction in demand for numbers.
During the time that the Employment-based categories have remained “Current” many tens of thousands of applicants have become eligible to file for adjustment of status. Last summer, CIS notified Congress of its intent to eliminate its current backlogs by the end of FY-2006. As a result of the CIS backlog reduction effort, we are now experiencing very heavy visa demand as CIS has begun to process cases to conclusion. Section 201(a)(2) of the Immigration and Nationality Act states that not more than 27 percent of the Employment-based annual limit may be used in each of the first three quarters of a fiscal year. Based on the current rate of demand, the 27 percent level for the first quarter of FY-2005 will be exceeded by the end of December.
o It has therefore become necessary to impose an Employment-based Third preference cut-off date for January in order to limit number use during the second quarter. Many of the cases have priority dates that are several years old, and the cut-off date represents the first priority date that cannot be accommodated for final processing. The cut-off date will apply only to the following chargeability areas: China-mainland born, India, and Philippines. Cut-off date movement during the remainder of FY-2005 depends on the extent of future visa demand. No specific predictions are possible at this time.
* February & March 2005 Report: EW Retrogression, Cutoff Date and Background Explanation:
o During fiscal year 2005, 5,000 visa numbers are provided by law for use in the Employment-based Third preference “Other Worker” (EW) category. This annual limit is divided into twelve approximately equal monthly allotments. If there are sufficient numbers to satisfy all demand, the category can be considered "current". Whenever demand exceeds the supply of numbers available for allotment in a particular month, the category must be considered to be “oversubscribed” and a visa availability cut-off date is established.
o Continued heavy applicant demand, primarily for CIS adjustment of status cases, is expected to require the oversubscription of the EW category in the near future. This action will be necessary in order to hold EW number use within the FY-2005 annual numerical limit. The establishment of an EW cut-off date beginning as early as March cannot be ruled out, and would apply to all chargeability areas.
* May & June 2005 Report: EW Retrogression, Unavailability and Background Explanation in May and June 2005:
o The imposition of that date has not had the desired effect and the level of demand remains excessive. Therefore, it is likely that the cut-off date will retrogress or numbers become “unavailable” in the near future.
Continued................
* June & July 2005 Report: EB-3 Retrogression, Unavailability and Background of Decision in June and July 2005:
o June Report: During the past month there has been a significant increase in the amount of numbers being used by Citizenship and Immigration Service (CIS) offices for adjustment of status applicants. This level of demand has significantly depleted the supply of Employment-based numbers available under the annual limit. Recent discussions with CIS have made it clear that their backlog reduction efforts will sustain or increase the current level of demand. Therefore, continued visa availability in the Employment-based categories cannot be guaranteed during the final quarter of FY-2005. If demand continues at the current rate, it will be necessary to oversubscribe many or all of the Employment categories on a Worldwide basis. Such oversubscription could result in the establishment of cut-off dates, retrogression of already established dates, or some categories becoming “unavailable”.
o July Report: The Employment Third and Third Other Worker categories have reached their annual limits and no further FY-2005 allocations are possible for the period July through September. With the start of the new fiscal year in October, numbers will once again become available in these categories. It is not possible to make any estimates regarding potential cut-off dates at this time.
o Impact of Nurses and Physical Therapist 50,000 Visa Number Recapture on EB-3 Visa Numbers Depletion Explanation: Title V, Section 502 of the REAL ID Act of 2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) provides for the recapture of 50,000 Employment-based immigrant visa numbers that were unused in fiscal years 2001 through 2004. Such numbers are to be made available to Employment-based immigrants described in the Department of Labor's Schedule A and their accompanying spouses and children. The immigrant classification for these 50,000 visa numbers has been designated as Schedule A Worker with the category symbol being “EX”. Beginning immediately, “EX” visa numbers may be allocated to Schedule A immigrants and their dependents only; all other immigrants within the Third preference will continue to use the traditional Third preference classification. Note that any Schedule A applicant will first be eligible for a visa number under the traditional Third preference cut-off date. “EX” visa numbers may be allocated to all Third preference Schedule A applicants from all countries, including China, India, and Philippines, only if their priority date is beyond the established Third preference cut-off date or if the Third preference category is “Unavailable”. The “EX” category is CURRENT, and will remain Current for the foreseeable future.
* August 2005 Report: EB-2, EB-1 Retrogression, Cutoff Date Prediction, and Background Explanation:
o Demand for numbers by CIS Offices for adjustment of status cases remains very high. As the end of the fiscal year approaches, it might be necessary to establish an Employment Second preference cut-off date for September to keep visa issuances within the annual numerical limits set by law. If required, such a cut-off date is likely to be limited to the China-mainland born and India chargeability areas.
* September 2005 Report: Explanation of Visa Number Allocation Decision in FY 2005:
o The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by the Citizenship and Immigration Service (CIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. On July 27th, CIS provided the required data to VO.
o The Department of State has determined the family and employment preference numerical limits for FY-2005 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2005 are as follows:
o Worldwide Family-Sponsored preference limit: 226,000
Worldwide Employment-Based preference limit: 148,449
o Under INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2005 the per-country limit is 26,211. The dependent area annual limit is 2%, or 7,489.
* September 2005 Report: Prediction of FY 2006 Visa Numbers:
o The backlog reduction efforts of both Citizenship and Immigration Services, and the Department of Labor continue to result in very heavy demand for Employment-based numbers. It is anticipated that the amount of such cases will be sufficient to use all available numbers in many categories. As a result cut-off dates in the Employment Third preferency category will apply to the China, India, and Philippines chargeabilities beginning in October, and it is possible that Mexico may be added to this list. In addition, it is anticipated that heavy demand will require the establishment of a Third preference cut-off date on a Worldwide basis by December.
o The amount of Employment demand for applicants from China and India is also likely to result in the oversubcription of the Employment First and Second preference categories for those chargeability areas. The establishment of such cut-off dates is expected to occur no later than December.
o The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date meovements are likely to be slow.
* October 2005 Report: Visa Cutoff Dates for EB-1, EB-2, EB-3, EW, and Limited Movement Prediction in FY 2006:
o Item D in the Visa Bulletin (number 85) announcing the September cut-off dates provided information regarding the prospects of visa availability during the early months of FY-2006. Many categories have become oversubscribed for October, and cut-off dates established due to continued heavy demand for numbers by CIS for adjustment of status cases. Forward movement of the cut-off dates in these categories is likely to be limited.
* Those who may be interested in the visa number statistics upto FY 2004 may click here for the information.
o June Report: During the past month there has been a significant increase in the amount of numbers being used by Citizenship and Immigration Service (CIS) offices for adjustment of status applicants. This level of demand has significantly depleted the supply of Employment-based numbers available under the annual limit. Recent discussions with CIS have made it clear that their backlog reduction efforts will sustain or increase the current level of demand. Therefore, continued visa availability in the Employment-based categories cannot be guaranteed during the final quarter of FY-2005. If demand continues at the current rate, it will be necessary to oversubscribe many or all of the Employment categories on a Worldwide basis. Such oversubscription could result in the establishment of cut-off dates, retrogression of already established dates, or some categories becoming “unavailable”.
o July Report: The Employment Third and Third Other Worker categories have reached their annual limits and no further FY-2005 allocations are possible for the period July through September. With the start of the new fiscal year in October, numbers will once again become available in these categories. It is not possible to make any estimates regarding potential cut-off dates at this time.
o Impact of Nurses and Physical Therapist 50,000 Visa Number Recapture on EB-3 Visa Numbers Depletion Explanation: Title V, Section 502 of the REAL ID Act of 2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) provides for the recapture of 50,000 Employment-based immigrant visa numbers that were unused in fiscal years 2001 through 2004. Such numbers are to be made available to Employment-based immigrants described in the Department of Labor's Schedule A and their accompanying spouses and children. The immigrant classification for these 50,000 visa numbers has been designated as Schedule A Worker with the category symbol being “EX”. Beginning immediately, “EX” visa numbers may be allocated to Schedule A immigrants and their dependents only; all other immigrants within the Third preference will continue to use the traditional Third preference classification. Note that any Schedule A applicant will first be eligible for a visa number under the traditional Third preference cut-off date. “EX” visa numbers may be allocated to all Third preference Schedule A applicants from all countries, including China, India, and Philippines, only if their priority date is beyond the established Third preference cut-off date or if the Third preference category is “Unavailable”. The “EX” category is CURRENT, and will remain Current for the foreseeable future.
* August 2005 Report: EB-2, EB-1 Retrogression, Cutoff Date Prediction, and Background Explanation:
o Demand for numbers by CIS Offices for adjustment of status cases remains very high. As the end of the fiscal year approaches, it might be necessary to establish an Employment Second preference cut-off date for September to keep visa issuances within the annual numerical limits set by law. If required, such a cut-off date is likely to be limited to the China-mainland born and India chargeability areas.
* September 2005 Report: Explanation of Visa Number Allocation Decision in FY 2005:
o The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by the Citizenship and Immigration Service (CIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. On July 27th, CIS provided the required data to VO.
o The Department of State has determined the family and employment preference numerical limits for FY-2005 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2005 are as follows:
o Worldwide Family-Sponsored preference limit: 226,000
Worldwide Employment-Based preference limit: 148,449
o Under INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2005 the per-country limit is 26,211. The dependent area annual limit is 2%, or 7,489.
* September 2005 Report: Prediction of FY 2006 Visa Numbers:
o The backlog reduction efforts of both Citizenship and Immigration Services, and the Department of Labor continue to result in very heavy demand for Employment-based numbers. It is anticipated that the amount of such cases will be sufficient to use all available numbers in many categories. As a result cut-off dates in the Employment Third preferency category will apply to the China, India, and Philippines chargeabilities beginning in October, and it is possible that Mexico may be added to this list. In addition, it is anticipated that heavy demand will require the establishment of a Third preference cut-off date on a Worldwide basis by December.
o The amount of Employment demand for applicants from China and India is also likely to result in the oversubcription of the Employment First and Second preference categories for those chargeability areas. The establishment of such cut-off dates is expected to occur no later than December.
o The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date meovements are likely to be slow.
* October 2005 Report: Visa Cutoff Dates for EB-1, EB-2, EB-3, EW, and Limited Movement Prediction in FY 2006:
o Item D in the Visa Bulletin (number 85) announcing the September cut-off dates provided information regarding the prospects of visa availability during the early months of FY-2006. Many categories have become oversubscribed for October, and cut-off dates established due to continued heavy demand for numbers by CIS for adjustment of status cases. Forward movement of the cut-off dates in these categories is likely to be limited.
* Those who may be interested in the visa number statistics upto FY 2004 may click here for the information.
Thanks chinglun, MDWaiter24 and Jaiatl for your quick inputs!
However, I think I was not clear about my questions in my previous post
I agree, my best strategy is to stick with my current RIR LC (PD Sept 2002) but this is only if my LC gets approved. When I examined my application sometime back I noticed several errors related to prevailing wage, field of study etc. Two lawyers independetly looked at my case and have both concluded that given these discrepencies there is a likelihood that my LC is not approved.
With switching RIR to PERM, the new applications will have identical errors and the likelihood of success.
Jaiatl, thanks for the memo link. On page 10, Q10. states there will be a new DOL memo to define extension criteria under PERM.
In light of all this:
Assumptions:
1. My RIR LC, PD 09/02, gets rejected (say) next month.
2. I need to refile PERM.
3. My current employer seems willing to file PERM but is still gearing up with the logistics. It is unsure how soon they can file (1-6 months, longer?)
4. My H1-B expires April 1, 2007, so I have 1.5 years remaining.
In light of these assumptions, my questions are restated
My questions:
(1). How late can I file PERM and not have to worry about my H1-B extensions? I've heard conflicting views:
(View a). I need to file PERM 365 days in advance ie. by April 2006 to qualify for H1-B extensions.
(View b). I can file PERM even after April 2006 and as long as I have PERM approved and I file for I-140 atleast one week before April 1, 2007, I can extend my H1-B based on a pending I-140.
Q: Which of these views is correct?
I'm looking at the worst case scenario that my current RIR application gets rejected (say in the next month or two) and my current company (or a new one) is not geared up to file PERM by April 2006. How do I extend my H1-B?
Thanks!
However, I think I was not clear about my questions in my previous post
I agree, my best strategy is to stick with my current RIR LC (PD Sept 2002) but this is only if my LC gets approved. When I examined my application sometime back I noticed several errors related to prevailing wage, field of study etc. Two lawyers independetly looked at my case and have both concluded that given these discrepencies there is a likelihood that my LC is not approved.
With switching RIR to PERM, the new applications will have identical errors and the likelihood of success.
Jaiatl, thanks for the memo link. On page 10, Q10. states there will be a new DOL memo to define extension criteria under PERM.
In light of all this:
Assumptions:
1. My RIR LC, PD 09/02, gets rejected (say) next month.
2. I need to refile PERM.
3. My current employer seems willing to file PERM but is still gearing up with the logistics. It is unsure how soon they can file (1-6 months, longer?)
4. My H1-B expires April 1, 2007, so I have 1.5 years remaining.
In light of these assumptions, my questions are restated
My questions:
(1). How late can I file PERM and not have to worry about my H1-B extensions? I've heard conflicting views:
(View a). I need to file PERM 365 days in advance ie. by April 2006 to qualify for H1-B extensions.
(View b). I can file PERM even after April 2006 and as long as I have PERM approved and I file for I-140 atleast one week before April 1, 2007, I can extend my H1-B based on a pending I-140.
Q: Which of these views is correct?
I'm looking at the worst case scenario that my current RIR application gets rejected (say in the next month or two) and my current company (or a new one) is not geared up to file PERM by April 2006. How do I extend my H1-B?
Thanks!
Jaiatl said:
pennwaiting
Registered Users (C)
Especially the big difference between Dallas and Philly BECs for CA cases.sb41 said:
Keviv4,
there is another thread dedicated for H1b extension topic, you might find more help there. And it's always worthwhile to consult a legal professional since your case is a little more complicated than usual.
http://boards.immigrationportal.com/showthread.php?t=182326
for your question, my limited understanding is it's very imporant to have PD older than 365 days no matter LC/140/485 stage you're in when your 6th year expires.
There could be an exception, if your 140 approved, but can't file 485 because of retrogression.
view a is abosolutely correct and safe.
view b is problematic.
source, pay attention both 2 conditions needed need to be satisfied.
http://www.linandvaldez.com/h1.asp
12. H-1B EXTENSION AFTER SIX YEARS
In addition to allowing applicant to work for new employer immediately after filing a new H-1B application, the most important provisions of The American Competitiveness in the Twenty-First Century Act (AC21) are those enabling H-1B holder to apply for extension after the six-year period in H-1B.
One Year Extension
Under AC21, H-1B holders can apply for extension of H-1B status one-year at a time after the six-year period if:
(i) the H-1B holder is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of status; and
(ii) 365 days or more have passed since the filing of a labor certificate application that is required for the alien to get employment-based green card, or 365 days or more have passed since the filing of the I-140 employment-based immigrant petition.
AC21, however, does not clarify whether a person can apply for the one-year extension if he has labor certificate application filed and pending for over one year. That issue has been addressed. Following the passage of AC21, the Congress in November of 2002 passed "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215). According to the Act, H-1Bs can extend H-1B one year at a time as far as the labor certificate is pending for over 365 days. The extension can be filed even if the labor certificate has not been approved.
Three-Year Extension
Under AC21, H-1B holders can apply for extension of H-1B status in three-year increment after the six-year period if:
(i) The H-1B holder has an approved I-140 but can not apply for adjustment of status because of per-country limits, i.e. employment-based immigrant visa priority date is not current.
The scenario a priority date is not current typically occurs to people from China or India only. For now, however, this is not a problem because all the employment-based priority date is current worldwide.
there is another thread dedicated for H1b extension topic, you might find more help there. And it's always worthwhile to consult a legal professional since your case is a little more complicated than usual.
http://boards.immigrationportal.com/showthread.php?t=182326
for your question, my limited understanding is it's very imporant to have PD older than 365 days no matter LC/140/485 stage you're in when your 6th year expires.
There could be an exception, if your 140 approved, but can't file 485 because of retrogression.
view a is abosolutely correct and safe.
view b is problematic.
source, pay attention both 2 conditions needed need to be satisfied.
http://www.linandvaldez.com/h1.asp
12. H-1B EXTENSION AFTER SIX YEARS
In addition to allowing applicant to work for new employer immediately after filing a new H-1B application, the most important provisions of The American Competitiveness in the Twenty-First Century Act (AC21) are those enabling H-1B holder to apply for extension after the six-year period in H-1B.
One Year Extension
Under AC21, H-1B holders can apply for extension of H-1B status one-year at a time after the six-year period if:
(i) the H-1B holder is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of status; and
(ii) 365 days or more have passed since the filing of a labor certificate application that is required for the alien to get employment-based green card, or 365 days or more have passed since the filing of the I-140 employment-based immigrant petition.
AC21, however, does not clarify whether a person can apply for the one-year extension if he has labor certificate application filed and pending for over one year. That issue has been addressed. Following the passage of AC21, the Congress in November of 2002 passed "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215). According to the Act, H-1Bs can extend H-1B one year at a time as far as the labor certificate is pending for over 365 days. The extension can be filed even if the labor certificate has not been approved.
Three-Year Extension
Under AC21, H-1B holders can apply for extension of H-1B status in three-year increment after the six-year period if:
(i) The H-1B holder has an approved I-140 but can not apply for adjustment of status because of per-country limits, i.e. employment-based immigrant visa priority date is not current.
The scenario a priority date is not current typically occurs to people from China or India only. For now, however, this is not a problem because all the employment-based priority date is current worldwide.
keviv4 said:Thanks chinglun, MDWaiter24 and Jaiatl for your quick inputs!
However, I think I was not clear about my questions in my previous post
I agree, my best strategy is to stick with my current RIR LC (PD Sept 2002) but this is only if my LC gets approved. When I examined my application sometime back I noticed several errors related to prevailing wage, field of study etc. Two lawyers independetly looked at my case and have both concluded that given these discrepencies there is a likelihood that my LC is not approved.
With switching RIR to PERM, the new applications will have identical errors and the likelihood of success.
Jaiatl, thanks for the memo link. On page 10, Q10. states there will be a new DOL memo to define extension criteria under PERM.
In light of all this:
Assumptions:
1. My RIR LC, PD 09/02, gets rejected (say) next month.
2. I need to refile PERM.
3. My current employer seems willing to file PERM but is still gearing up with the logistics. It is unsure how soon they can file (1-6 months, longer?)
4. My H1-B expires April 1, 2007, so I have 1.5 years remaining.
In light of these assumptions, my questions are restated
My questions:
(1). How late can I file PERM and not have to worry about my H1-B extensions? I've heard conflicting views:
(View a). I need to file PERM 365 days in advance ie. by April 2006 to qualify for H1-B extensions.
(View b). I can file PERM even after April 2006 and as long as I have PERM approved and I file for I-140 atleast one week before April 1, 2007, I can extend my H1-B based on a pending I-140.
Q: Which of these views is correct?
I'm looking at the worst case scenario that my current RIR application gets rejected (say in the next month or two) and my current company (or a new one) is not geared up to file PERM by April 2006. How do I extend my H1-B?
Thanks!
You need to have one LC pending for 365 days for one year H1B extension after 6th year. If your RIR is rejected before 1 Sept 2006, you will not be able to extend H1B.
If you feel your RIR will be rejected, file PERM for the EXACTLTY same job profile from same company and withdraw you old RIR. This will keep your priority date and you will have possibly of H1B extension based on old priority date. Or you should file PERM 365 days before you H1B expiry.
I guess you van file H1B extension only 6 month before expiry.
If you feel your RIR will be rejected, file PERM for the EXACTLTY same job profile from same company and withdraw you old RIR. This will keep your priority date and you will have possibly of H1B extension based on old priority date. Or you should file PERM 365 days before you H1B expiry.
I guess you van file H1B extension only 6 month before expiry.
keviv4 said:Thanks chinglun, MDWaiter24 and Jaiatl for your quick inputs!
However, I think I was not clear about my questions in my previous post
I agree, my best strategy is to stick with my current RIR LC (PD Sept 2002) but this is only if my LC gets approved. When I examined my application sometime back I noticed several errors related to prevailing wage, field of study etc. Two lawyers independetly looked at my case and have both concluded that given these discrepencies there is a likelihood that my LC is not approved.
With switching RIR to PERM, the new applications will have identical errors and the likelihood of success.
Jaiatl, thanks for the memo link. On page 10, Q10. states there will be a new DOL memo to define extension criteria under PERM.
In light of all this:
Assumptions:
1. My RIR LC, PD 09/02, gets rejected (say) next month.
2. I need to refile PERM.
3. My current employer seems willing to file PERM but is still gearing up with the logistics. It is unsure how soon they can file (1-6 months, longer?)
4. My H1-B expires April 1, 2007, so I have 1.5 years remaining.
In light of these assumptions, my questions are restated
My questions:
(1). How late can I file PERM and not have to worry about my H1-B extensions? I've heard conflicting views:
(View a). I need to file PERM 365 days in advance ie. by April 2006 to qualify for H1-B extensions.
(View b). I can file PERM even after April 2006 and as long as I have PERM approved and I file for I-140 atleast one week before April 1, 2007, I can extend my H1-B based on a pending I-140.
Q: Which of these views is correct?
I'm looking at the worst case scenario that my current RIR application gets rejected (say in the next month or two) and my current company (or a new one) is not geared up to file PERM by April 2006. How do I extend my H1-B?
Thanks!
Philly Vs Dallas
I do not understand it. Why is Philly lagging far behind dallas. People in Dallas with PD MAR 2003 have received final reviews/certifications on their cases. Why is Philly struck with Apr/May 2002. From a practical point of view, what might be causing philly to be so slow in approvals. Is it because they were busy entering data and generating 45-day letter. What now. Its better if they come up with a forecast or a bulletin. I remember apr2002 mentioned both PBEC's have been asked to synch up. Month after month passes by but PBEC does not seem to show any positive activity. Getting on to my nerves
I do not understand it. Why is Philly lagging far behind dallas. People in Dallas with PD MAR 2003 have received final reviews/certifications on their cases. Why is Philly struck with Apr/May 2002. From a practical point of view, what might be causing philly to be so slow in approvals. Is it because they were busy entering data and generating 45-day letter. What now. Its better if they come up with a forecast or a bulletin. I remember apr2002 mentioned both PBEC's have been asked to synch up. Month after month passes by but PBEC does not seem to show any positive activity. Getting on to my nerves
Employer change with approved I140
As per this memorandum, it does bode well for ppl stuck in this quagmire...
If this came from Rajiv Khanna, it should hold water!!!
CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.
If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
As per this memorandum, it does bode well for ppl stuck in this quagmire...
If this came from Rajiv Khanna, it should hold water!!!
CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.
If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
PBEC far behind DBEC in approving cases
Dallas BEC finished processing all the 2002 PD cases, and started working on 2003 Cases, Where as PBEC is stuck at 2001 cases.
When DOL started sending cases to BECS, They said 2 BECS will process cases based on FIFO
Is there any thing we can do legally to solve this Issue
Dallas BEC finished processing all the 2002 PD cases, and started working on 2003 Cases, Where as PBEC is stuck at 2001 cases.
When DOL started sending cases to BECS, They said 2 BECS will process cases based on FIFO
Is there any thing we can do legally to solve this Issue
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