Priority date for Substitute labor
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will_prevail
Registered Users (C)
Priority Date for Substitite Labor
The Priority Date for Substitute Labor is the Date of I-140. Both Rajiv Khanna and Sheela Murthy are of the same opinion.
Rajiv Khanna in one of his FAQ clearly mentions this. I have listed the FAQ below. See Q3 and Rajiv's answer to that.
Sheela Murthy also has the same opinion. However BCIS is constantly and with regularity taking the PD of the original labor for processing substitute labor cases. But this is a mistake and should not be taken as given. Please see the reply of Sheela Murthy in one of her weekly chats below.
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http://www.immigration.com/faq/green3.html#483
Is it possible for an employer to take an already
approved labor certification of an employee(say A) and
file an I-140 for another employee(say B) if B is
fully qualified for the position as described in the
labor certification as of the date of filing.
Q1.Does that mean both A and B should have the same
salary apart from qualification and experience?
Q2.If they don't have same salary and B has already
got I-140 approved and going to file I-485 does this
cause any issues in future?
Q3.What will be the employee's priority date if we,
the employer, substitute him on an existing labor
certification? Does he "inherit" the priority date
from the labor cert?
A168 Yes. Substitution is possible if the
employee who wishes to substitute was fully qualified
for the position as described in the labor
certification as of the date of the filing of the
labor certification.
A1. The employer is required to pay at least the
salary stated on the labor cert.
A2. Approval of 140 does not bar substitution, but two
people can NOT use the same labor cert to get the
green card.
A3. There is no inheritance. The priority date will be
the date of filing of the I-140 for substitution.
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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!
-------------------------------------------------------------------------
The Priority Date for Substitute Labor is the Date of I-140. Both Rajiv Khanna and Sheela Murthy are of the same opinion.
Rajiv Khanna in one of his FAQ clearly mentions this. I have listed the FAQ below. See Q3 and Rajiv's answer to that.
Sheela Murthy also has the same opinion. However BCIS is constantly and with regularity taking the PD of the original labor for processing substitute labor cases. But this is a mistake and should not be taken as given. Please see the reply of Sheela Murthy in one of her weekly chats below.
-----------------------------------------------------------------------
http://www.immigration.com/faq/green3.html#483
Is it possible for an employer to take an already
approved labor certification of an employee(say A) and
file an I-140 for another employee(say B) if B is
fully qualified for the position as described in the
labor certification as of the date of filing.
Q1.Does that mean both A and B should have the same
salary apart from qualification and experience?
Q2.If they don't have same salary and B has already
got I-140 approved and going to file I-485 does this
cause any issues in future?
Q3.What will be the employee's priority date if we,
the employer, substitute him on an existing labor
certification? Does he "inherit" the priority date
from the labor cert?
A168 Yes. Substitution is possible if the
employee who wishes to substitute was fully qualified
for the position as described in the labor
certification as of the date of the filing of the
labor certification.
A1. The employer is required to pay at least the
salary stated on the labor cert.
A2. Approval of 140 does not bar substitution, but two
people can NOT use the same labor cert to get the
green card.
A3. There is no inheritance. The priority date will be
the date of filing of the I-140 for substitution.
-------------------------------------------------------------------------
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!
-------------------------------------------------------------------------
Last edited by a moderator:
Priority Date for Substitite Labor
Hi All,
I have applied my I-140 on 2nd Dec 2004 and planning to apply 485 in few days based on the substitute labor which priority date was June 2001. Now based on this discussion, I am getting scared. Can I able to apply now or not? I really appreciate your valueble comments on this.
Hi All,
I have applied my I-140 on 2nd Dec 2004 and planning to apply 485 in few days based on the substitute labor which priority date was June 2001. Now based on this discussion, I am getting scared. Can I able to apply now or not? I really appreciate your valueble comments on this.
will_get_there
Registered Users (C)
gcaaa11,
If you apply 485 and they consider your 140 date as PD then they will return your 485 papers along with all the checks so no harm will be done. You should try it. If they take your labor date as PD than you will be OK.
Infact your case would be a good test case here.
If you apply 485 and they consider your 140 date as PD then they will return your 485 papers along with all the checks so no harm will be done. You should try it. If they take your labor date as PD than you will be OK.
Infact your case would be a good test case here.
labor_jun2003
Registered Users (C)
Which service center you are planning to apply ?
Last edited by a moderator:
will_get_there
Registered Users (C)
UnitedNations,
Wish you were a Lawyer not a CPA
though in my view you are better than many lawyers.
We all really appreciate your participation in all the forums.
Wish you were a Lawyer not a CPA
though in my view you are better than many lawyers.We all really appreciate your participation in all the forums.
Thanks
Thanks Unitednations,
My PD is printed as i-140 receipt date on my FP notice. I asked a lawyer ( not the one who is working on my case)
and they said PD will be i-140 receipt date but not original LC receipt date. I believed it. but Only after seeing your posting
and on your advise I contacted my attorney who is working on my case ( he too believes that it should be LC receipt date).
Now he filed a request for correcting my PD that was mistakenly printed as i-140 receipt date. They filed the request on last
week of December 2004. I am awaiting results now. I will keep updating this forum on my PD correction issue.
Unitednations thanks for your help again.
Greeny
Thanks Unitednations,
My PD is printed as i-140 receipt date on my FP notice. I asked a lawyer ( not the one who is working on my case)
and they said PD will be i-140 receipt date but not original LC receipt date. I believed it. but Only after seeing your posting
and on your advise I contacted my attorney who is working on my case ( he too believes that it should be LC receipt date).
Now he filed a request for correcting my PD that was mistakenly printed as i-140 receipt date. They filed the request on last
week of December 2004. I am awaiting results now. I will keep updating this forum on my PD correction issue.
Unitednations thanks for your help again.
Greeny
ak_new_member
Registered Users (C)
unitednations said:
Unitednations,
Hats off to your knowledge!!
We don't know what is really going to prevail as regard to the PD for substitute labor cases, but it sounds to be totally unjustified on part of USCIS if, PD in such cases is the original labor date. This would mean that if I apply today using a substitue labor with PD < 01/01/2002, I will get approved faster than the people waiting for 2-3 years.
Just disgusting....the way this process works.
ak_new_member,
Don't want to hurt your feelings...but look at the facts.
I140 application is not yours. It is your employer petition. If your employer used the substitute labor for you/me/somebody, means that employer already waited for the Labor application to get approved. And now he is applying for the I140. Meanwhile the employee left and hence he is using the same approved labor for you.
On the contrary, if USCIS does not consider original PD, employer has to wait another decade to get his alien into his payroll.
Think again.
NOTE : my I140 is not a labor substitution. My own labor, which took 2 years 9months to get approved. If I waited for that long, means, my employer also waited that long.
Don't want to hurt your feelings...but look at the facts.
I140 application is not yours. It is your employer petition. If your employer used the substitute labor for you/me/somebody, means that employer already waited for the Labor application to get approved. And now he is applying for the I140. Meanwhile the employee left and hence he is using the same approved labor for you.
On the contrary, if USCIS does not consider original PD, employer has to wait another decade to get his alien into his payroll.
Think again.
NOTE : my I140 is not a labor substitution. My own labor, which took 2 years 9months to get approved. If I waited for that long, means, my employer also waited that long.
ak_new_member
Registered Users (C)
Vangaru,
It is not a question of my feelings but a question of just or unjust. Even though the petition is for the employer, does that mean that after getting the green card the employee will work for the employer forever.
Doesn't this substitution business along with the retention of PD give rise to some unethical practices, a fact which has been brought about by a leading immigration lawyer. Consider this - I am working for an employer who didn't give me a substitute labor for whatever reason. But another employee who joined two years after me got an already approved labor and jumps ahead of me. Is that fair?
The green card is for an immigrant and not just a worker. You adopt the country and not the employer.
It is not a question of my feelings but a question of just or unjust. Even though the petition is for the employer, does that mean that after getting the green card the employee will work for the employer forever.
Doesn't this substitution business along with the retention of PD give rise to some unethical practices, a fact which has been brought about by a leading immigration lawyer. Consider this - I am working for an employer who didn't give me a substitute labor for whatever reason. But another employee who joined two years after me got an already approved labor and jumps ahead of me. Is that fair?
The green card is for an immigrant and not just a worker. You adopt the country and not the employer.
Is this justice??
ak_new_member,
I can understand what you are talking about. But think about my case. I am in 7th year and I still don't have labor. I am not even close to get the labor. My company applied labor but i am in one of those states where labors are pending for more than 3,4 years. But some companies opened (????) satellite offices in small states and people got their green cards in the span of 1-2 years where as people like me still struggling to get the labor. I don't have any bad feelings towards people who got labor/gc from these satellite offices. If this is not wrong then getting substitute labor is also not wrong when original labor emplyee left the company.
ak_new_member said:
ak_new_member,
I can understand what you are talking about. But think about my case. I am in 7th year and I still don't have labor. I am not even close to get the labor. My company applied labor but i am in one of those states where labors are pending for more than 3,4 years. But some companies opened (????) satellite offices in small states and people got their green cards in the span of 1-2 years where as people like me still struggling to get the labor. I don't have any bad feelings towards people who got labor/gc from these satellite offices. If this is not wrong then getting substitute labor is also not wrong when original labor emplyee left the company.
ak_new_member
Registered Users (C)
Valabor,
I very well understand your pain. We are in the same boat. My wife's state labor is also pending for 3 years.
There are lot of things which are not fair in this free country after all....
I very well understand your pain. We are in the same boat. My wife's state labor is also pending for 3 years.
There are lot of things which are not fair in this free country after all....
ak_new_member
Registered Users (C)
This is what I was talking about in one of my previous posting. I saw this ad on a news website.
***PReAPPROVED LABOR AVAILABLE***
by ***** F Ali on January 7, 2005 at 10:13:30 AM
**********01/07/05**********************
My compnay have a preapproved LC with priority date 11/2001.
It requires the personto be Sun certified on or before
11/28/01.If you qualify and are interested pls repond ASAP with resume and phone number to ****@yahoo.com.*******************************************************
***PReAPPROVED LABOR AVAILABLE***
by ***** F Ali on January 7, 2005 at 10:13:30 AM
**********01/07/05**********************
My compnay have a preapproved LC with priority date 11/2001.
It requires the personto be Sun certified on or before
11/28/01.If you qualify and are interested pls repond ASAP with resume and phone number to ****@yahoo.com.*******************************************************
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will_get_there
Registered Users (C)
ak_new_member,
It is very easy to say that substitute labor is a injustice for all others however if you see in detail most of the substitute labor guys like valabor and me are waiting in the GC queue for past 5 or more years. We have in in queue and thrown out of queue because of layoffs and we were most affected cause we were in slow labor states...
so don't talk about fairness since it is very very unfair for us to see the people in California getting their GC from scratch in only 90 days due to some pilot program and people like you and me waiting for years to see the green and in the process being oppressed by our consulting companies.
fairness and unfairness is a perception, law is a reality so stick to it.
It is very easy to say that substitute labor is a injustice for all others however if you see in detail most of the substitute labor guys like valabor and me are waiting in the GC queue for past 5 or more years. We have in in queue and thrown out of queue because of layoffs and we were most affected cause we were in slow labor states...
so don't talk about fairness since it is very very unfair for us to see the people in California getting their GC from scratch in only 90 days due to some pilot program and people like you and me waiting for years to see the green and in the process being oppressed by our consulting companies.
fairness and unfairness is a perception, law is a reality so stick to it.
ak_new_member
Registered Users (C)
will_get_there,
I have all my sympathy with you. The thing that I find unfair is the misuse that comes along with such provisions and the ease with which some companies make it a practice as is evident in the ad I mentioned in my last post. Neither you nor I make the rules. I was just voicing my opinion.
Good luck to you..
I have all my sympathy with you. The thing that I find unfair is the misuse that comes along with such provisions and the ease with which some companies make it a practice as is evident in the ad I mentioned in my last post. Neither you nor I make the rules. I was just voicing my opinion.
Good luck to you..