Ever since the news was reported that the substitutions would be eliminated in the near future, there appears to be a frenzy of filing of the substitution I-140 petitions. However, those who consider change of employment to seize the opportunity of the substitution through the new employers should realize that there are two big risks involved in hastily jumping into an action.
One involves the issue of the employer's financial ability to pay the proffered wage at the time of filing of the labor certification application and at the time of filing of substitution I-140 petition. Most of the substitution labor certification were filed years back with the old priority date. At the time the country experienced a serious down-turn of the economy and the businesses struggled to survive. Consequently, there may be a large number of businesses who filed the labor certification applications with a financial record that did not meet the financial ability to pay the proffered wage standards. Additionally, over the years, USCIS has hardened its stance on this requirement and more or less ruthlessly and strictly and narrowly applied the requirement. As a consequence, most of the cases of I-140 denials for the past two years involved the employer's inability to meet this standard. When one files a substitution I-140 petition, the employer will have to establish its financial eligibility from all the way back until the time of I-140 petition. Unlike other information, the financial picture of a corporation is a top business secret and not accessible by the alien employees.
The second risk involves the USCIS change of interpretation of EB-2 and EB-3 statutory requirements, particularly the "education" requirement in the labor certification applications. In old days, the legacy INS adopted more or less flexible policies or interpretation. Consequently, when the legal counsels for the employers drafted the labor certification applications, they followed the rules and policies of the time. Unfortunately, since then the USCIS, including AAO, has adopted a restrictive and narrower interpretation of the requirements, posing a serious challenge to the eligibility of the I-140 petition for the original alien beneficiaries after years of struggle to obtain the labor certification applications from the Backlog Elimination Centers. Accordingly, some of the labor certification applicants who filed the application in early years have lately faced denial of I-140 petitions because of the changes in the USCIS interpretation and policies over the years which no one could anticipate at the time of the labor certification application.
By now, everyone knows what these issues are: (1) Definition of "equivalent" in education requirement; (2) Definition of "Bachelor's Degree"; (3) Definition of "Master's Degree"; Definition of "Bachelor's Degree" in the context of "Bachelor's degree plus 5 years of progressive experience" requirement to make an EB-2 case. These changes have affected Indians more than other nationalities because of the educational systems in India. Currently, there is some indication or anticipation that the USCIS HQ may loosen up the standards on these issues, but the Service Centers, particularly Nebraska and Texas Service Centers, take a very narrow interpretation and produce a lot of denials on these issues.
