Priority Date for Labor Substitution Cases

G

gcva

Registered Users (C)
Guys,
Can some one shed light on this as it is being speculated that USCIS/Department of State may impose Retrogression of 485s atleast in EB3 cased as early as Jan 2005..What will be the priority date for Labor Substitution cases..Is this 140 filing date or Original Labor filing date with SESA..?

Thanks
 
gcva said:
Guys,
Can some one shed light on this as it is being speculated that USCIS/Department of State may impose Retrogression of 485s atleast in EB3 cased as early as Jan 2005..What will be the priority date for Labor Substitution cases..Is this 140 filing date or Original Labor filing date with SESA..?

Thanks
Click to expand...
Original Labor filing date with SESA
 
In LC-Sub cases, PD is set to I-140 RD. Check following link, section (d):
http://boards.immigrationportal.com/showpost.php?p=920988&postcount=6

"Priority Date Valid Only with the Alien Beneficiary and Cannot be Transferred to Other Aliens"



gcva said:
Guys,
Can some one shed light on this as it is being speculated that USCIS/Department of State may impose Retrogression of 485s atleast in EB3 cased as early as Jan 2005..What will be the priority date for Labor Substitution cases..Is this 140 filing date or Original Labor filing date with SESA..?

Thanks
Click to expand...
 
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Thanks Jaisharma and usnycus.
But both gave complete different answers.Jaisharma, it seems yours is a labor substitution case and 140 got approved recently.Does USCIS mentions Priority date in 140 approval notice..?If so what date was there on your approval..?
Thanks
 
unitednations said:
I respectfully do not agree with this. Remember, priority date doesn't attach until 140 is approved.
... Correct. It's not attached but it's set the day LC/I-140/I-130 is applied.

In the context of the below section a 140 has to be approved and then revoked by uscis. If a 140 has never been approved for a beneficiary on that particular labor which is being substitued then the substituted beneficiary will keep original priority date of labor.
... PD is set when LC or an immigrant petition is submitted, unless beneficiary had a PD from previous petition. In case of LC Sub cases, petition is not filled till I-140 is applied.

PD is connected to alien not with the LC/140 or 130.

..............
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Priority Date for Labor Substition Cases

I just saw the thread which discussed rigoursly about the priority dates at the following link including uscis and unitednations.
"http://www.immigrationportal.com/showthread.php?t=137755&page=4&pp=15". As per the posts on this thread what UnitedNations saya to be true.As per the priority dates attached with the 140 approval petitions in some of the substited cases, the prioridy is set as the original Labor filing date.
For Example please read the information posted by sadin.

sadin
Registered User Join Date: Aug 2004
Posts: 3

PD Date?

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

Thanks for yur replies.

I just checked my 1-140 apprval notice to see if there is any PD mentined.

It is 2001 (when original labour was filed). I am not sure of validity.

EB3- Lab Sub
RD- Jan 5, 04
140 AD- July 04
FP1- Sept 04



Thanks
GCVA
 
unitednations said:
I respect immigration-law web-site. In the context of 7th year extension, Yates himself said that the substituted beneficiary will retain priority date of labor even if it was substited shortly before 6 years of h-1b was up for the substituted beneficiary. This would go against the counter of the interpretation of the relevant cfr.

Also, on immigration-law breaking news if you read his interpretation he said that the labor has to be substituted before the fifth year of the h-1b for the substituted beneficiary. Even though this contradicts yates and every other attorney with regards to this issue.

... I have not seen that memo from Yates. But looks like you are saying that:

1) LC was approved for employee A
2) Employer substittuted employee B for A
3) Employee B is eligible for 7th year extension.

Correct me if I am wrong?

If uscis used the priority date of 140 for substituted beneficiary then it would have far reaching impacts. Simply because in the ability to pay cfr it has to be met from priority date. If you could reset priority date then that cfr would only require ability to pay from 140 date and no one would get denied. Put it this way, if you had two people who filed labor from the same company and priority date of their labors was 2001 but 2001, 2002, 2003 company financials couldn't overcome ability to pay then all the company would have to do is to substitute both employees with each others labor, reset priority date to date of 140 and then start paying proferred wage on that date and they would get approved.

... I won't correlate "ability to pay" with PD. Burden to prove "ability to pay" from the day LC was filled falls on employer. Employer is attesting to the fact that no qualified US worker is available and willing to take the offered position. Employer needs to show ability irrespective of substitution or not.
Click to expand...
 
Go ahead. Create a thread in 485 forum. Let's see how it goes.

Also found following, thought you might be interested:

------------------------------------------------------------------
Check following paragraph at:
http://uscis.gov/lpbin/lpext.dll/inserts/fr/fr-2/fr-5573/fr-9599?f=templates&fn=document-frame.htm
------------------------------------------------------------------
One commenter objected to the interim rule on the ground that it had an impact on pending litigation involving substitution of labor certification beneficiaries by the employer. See Kooritsky v. Reich, No. 92-5277 (D.C. Cir. March 18, 1994). In the Kooritsky decision, the U.S. Court of Appeals for the District of Columbia invalidated on APA grounds a Department of Labor regulation which eliminated substitution of labor certification beneficiaries. The commenter argued that the interim rule adversely affected an employer's ability to substitute labor certification beneficiaries, because, under the interim rule, the substituted alien will not have the original priority date if the employer failed to file an employment-based petition before the October 1, 1993 deadline.
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Also check following paragraph at:

http://uscis.gov/lpbin/lpext.dll/in...21/fr-15576?f=templates&fn=document-frame.htm
-------------------------------------------------------------------
The Service has concluded that it is unfair to other aliens who seek to immigrate to the United States on employment-based petitions if the substituted alien gains the priority date of the original alien beneficiary, since those aliens would receive a later priority date than a substituted alien. Currently, in certain employment-based immigrant categories, such as the third preference "other worker" category, an alien who benefits from a labor certification substitution can immigrate ahead of another alien who has been waiting for an immigrant visa for several years. Not only would allowing substituted aliens to receive the earlier priority date be unfair to other intending immigrants, it would also be contrary to the Service's policy of assigning a priority date to the alien rather than to the employer (see 8 CFR 204.5(e)).



Providing a priority date based on an employer's substitution of a labor certification beneficiary also carries the potential for fraud and abuse. Continuing this practice may encourage the creation of a market for labor certifications, particularly in categories in which there is a lengthy wait to receive an immigrant visa. For instance, it is conceivable that the original alien beneficiary might be induced to engage in the fraudulent practice of selling his or her status as a labor certification beneficiary to a substituted alien.



The Service, therefore, proposes to set the priority date for an alien who has been substituted for another alien on a labor certification as the date the employer requested the substitution. This proposed rule will be fair to other aliens who apply under employment-based immigrant categories, and would be consistent with the Service's policy of according a priority date to the alien rather than to the employer, thereby eliminating an inducement to commit fraud.
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fyi - I have got my 140 approved using labor substitution and the priority date on my 140 approval notice is the labor PD date (2001).

Thanks
 
gcva said:
Thanks Jaisharma and usnycus.
But both gave complete different answers.Jaisharma, it seems yours is a labor substitution case and 140 got approved recently.Does USCIS mentions Priority date in 140 approval notice..?If so what date was there on your approval..?
Thanks
Click to expand...

On my approved I-140 which was applied in June 2003 (labor substitution) priority date is March 1997 (Priority date on labor)

I hope this answers the question and debate.
Thanks
 
Hi gurus

I am going for labor substitution. will you please clarify me following doubts:

1.which is my priority date? is Lc filed date or I140 filed?

2.LC which I am going to use require only Bachelors and 2 years of experience. I have Bachelors (3 years from india) and masters (2 years from india) in computerscience and have 3 years experience. will it be any problem using this LC?

3. In LC under experience, previous IT guy mentioned 10 years of experience. where as I have only three years of experience. In LC under job offer require (14 th column) only 2 years of experience.will it cause any problems in my I140/I485 stages?

I appreciate your information. Thanks in advance.
 
Gc Pain said:
I am going for labor substitution. will you please clarify me following doubts:

1.which is my priority date? is Lc filed date or I140 filed?
----LC filed date

2.LC which I am going to use require only Bachelors and 2 years of experience. I have Bachelors (3 years from india) and masters (2 years from india) in computerscience and have 3 years experience. will it be any problem using this LC?

-----You have more than LC requirement So you are good to go

3. In LC under experience, previous IT guy mentioned 10 years of experience. where as I have only three years of experience. In LC under job offer require (14 th column) only 2 years of experience.will it cause any problems in my I140/I485 stages?
----No it does not matter what experience previous IT guy had. As Long as Column 14 says 2 years and you have it before priority date you are good.

I appreciate your information. Thanks in advance.
Click to expand...


see ---- for Answers
 
Priority Date

Same with me as sg1973.

My I-140 approval notice states, the substituted Labor priority date.
Definitely not the 140 filling date.
 
Hi All gurus there

jaisharma_99: Thanks for your humble advice.

Please shed lsome light on some of following doubts:

1.Labor Certification is from Chicago office and I am working for New Jersey client and living in new jersey. They want to use this labor certification for me as substitute and file I140/I485? can I able to file I140/485 at vermont service center? (My company has head quarters in NJ and branch office in chicago.)

2. What is your best advice, will I go for vermont or Nebraska region?

3. My H1B is going to expire in 6 months. Nebraska is very slow now a days, I want to go for vermont. Is this good idea?

Thanks in advance for your information.
 
Gc Pain said:
jaisharma_99: Thanks for your humble advice.

Please shed lsome light on some of following doubts:

1.Labor Certification is from Chicago office and I am working for New Jersey client and living in new jersey. They want to use this labor certification for me as substitute and file I140/I485? can I able to file I140/485 at vermont service center? (My company has head quarters in NJ and branch office in chicago.)

2. What is your best advice, will I go for vermont or Nebraska region?

3. My H1B is going to expire in 6 months. Nebraska is very slow now a days, I want to go for vermont. Is this good idea?

Thanks in advance for your information.
Click to expand...

Please check the following thread and pdf. I think it answers your questions.

http://boards.immigrationportal.com/showthread.php?t=146973

Thanks
 
unitednations said:
I saw it. Unfortunately/fortunately for substituted members it looks like uscis is doing it differently by giving labor substitution cases the priority date of substituted labor.
Click to expand...

Sometimes people have not got PD on notices. What would you call it? :D As long as the PDs are current - it doesn't matter, once it retrogresses, laws, memos and guidelines will come into play. TSC sent out approval notices in error and it took just one statement to fix it! Fortunately or unfortunately no one can claim to be approved. The rules will be clearer when dates retrogress in couple of weeks .

485 cases should be adjudicated by PD. Would you say this is happening today? Perhaps no - ,because dates are current!

Anyway check out this one:

1995/Employment-Based Immigrants [60 FR 29771][FR 18-95]

This is official.
 
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UN,

You have disappointed me terribly. You owe me dinner. I did not expect you to get confused in law and interim rule/regulation(proposed and/or final).

Anyway I accept the topic is open but for the time being I will go with what usnycus has already stated.
 
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