Disclaimer:
1) Mr. Khanna is a good lawyer and everyone who received legal service from him should appreciate his diligent work.
2) welcome Mr. Khanna himself and any other person who bears no faith for personal attack to comment on my post.
3) I would not response to any comments from JoeF and Pralay who cannot live without posting the last comment for each topic. And this could be my last post for the next two months because I have more important things to do.
"The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits. Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary"
------These sentences have become bible of some people here who hold the different opinion with me. but unfortunately, after careful reading of this opinion, you can find this opinion is based on speculation other than the law. Especially, this opinion mistakenly puts the burden to prove the "permanent basis" for LPR on employee. Let's see waht are the problems.
"The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases."
-----this statment is basiclly correct. To get LPR, you need to prove to INS that there is a permanent employment (classifications other than EA and NIW) for you or you have the opportunity to find a permanent employment (EA and NIW). But "accepting a job on a permanent basis" does not require the employee to prove that the job is permanent (North American Industries, Inc. v. Feldman, 722 F.2d 893). To prove the permanent basis of the employment is up to the employer in light of the employer's needs. The nature of the duty or the employee's intent to work for the employer permanently shares no burden to prove the permanency of employment.
"What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. "
----if these words were to spoken to employers who want to bring some aliens to woth for them, they are correct. But if these words were to answer employee's confusion, they are not correct. Employee bears no burden to prove that his employment would be permanent (North American Industries, Inc. v. Feldman, 722 F.2d 893). So his vonluntary behavior of changing job after he receives the green card does nothing to do with the "permanency" of the employment.
"So what is the answer? No one really knows. Each case has to be determined upon its own merits."
----this answer is too sloppy for a lawyer who has built up a good reputation. if "no one really knows", how can "each case has to be determined upon its own merits"? for each case to be determined on its own merits, there must be some definite answers, right?
Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary"
----clearly, by this answer, Mr. Khanna puts the burden to prove "permaneny" on the employee. Beyond this problem, there is another one with this statement. According to Mr. Khanna, the burden to prove "permanency" extends to the time after you receives your green card. This clearly contradicts with the code and intention of Congress. Normally, the timeframe to prove "permanency" is at the stage of labor certificate. Approval of LC indicates that the employer has a permanent position that no citizens (and LPRs) can fit. But in practice, INS requires the employer to keep the position permanent untill the approval of the employee's application of I-485. due to the long time waiting of the processing of I-485, the burden on the employer to keep the job permanent for several years is too heavy. So, by AC21, congress allowed different employers to share the burden. Asking the employer (or employee ) to prove the permanency of the position for an indefinite time after the approval of LPR is a very heavy burden that Congress does not want to see.
1) Mr. Khanna is a good lawyer and everyone who received legal service from him should appreciate his diligent work.
2) welcome Mr. Khanna himself and any other person who bears no faith for personal attack to comment on my post.
3) I would not response to any comments from JoeF and Pralay who cannot live without posting the last comment for each topic. And this could be my last post for the next two months because I have more important things to do.
"The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits. Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary"
------These sentences have become bible of some people here who hold the different opinion with me. but unfortunately, after careful reading of this opinion, you can find this opinion is based on speculation other than the law. Especially, this opinion mistakenly puts the burden to prove the "permanent basis" for LPR on employee. Let's see waht are the problems.
"The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases."
-----this statment is basiclly correct. To get LPR, you need to prove to INS that there is a permanent employment (classifications other than EA and NIW) for you or you have the opportunity to find a permanent employment (EA and NIW). But "accepting a job on a permanent basis" does not require the employee to prove that the job is permanent (North American Industries, Inc. v. Feldman, 722 F.2d 893). To prove the permanent basis of the employment is up to the employer in light of the employer's needs. The nature of the duty or the employee's intent to work for the employer permanently shares no burden to prove the permanency of employment.
"What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. "
----if these words were to spoken to employers who want to bring some aliens to woth for them, they are correct. But if these words were to answer employee's confusion, they are not correct. Employee bears no burden to prove that his employment would be permanent (North American Industries, Inc. v. Feldman, 722 F.2d 893). So his vonluntary behavior of changing job after he receives the green card does nothing to do with the "permanency" of the employment.
"So what is the answer? No one really knows. Each case has to be determined upon its own merits."
----this answer is too sloppy for a lawyer who has built up a good reputation. if "no one really knows", how can "each case has to be determined upon its own merits"? for each case to be determined on its own merits, there must be some definite answers, right?
Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary"
----clearly, by this answer, Mr. Khanna puts the burden to prove "permaneny" on the employee. Beyond this problem, there is another one with this statement. According to Mr. Khanna, the burden to prove "permanency" extends to the time after you receives your green card. This clearly contradicts with the code and intention of Congress. Normally, the timeframe to prove "permanency" is at the stage of labor certificate. Approval of LC indicates that the employer has a permanent position that no citizens (and LPRs) can fit. But in practice, INS requires the employer to keep the position permanent untill the approval of the employee's application of I-485. due to the long time waiting of the processing of I-485, the burden on the employer to keep the job permanent for several years is too heavy. So, by AC21, congress allowed different employers to share the burden. Asking the employer (or employee ) to prove the permanency of the position for an indefinite time after the approval of LPR is a very heavy burden that Congress does not want to see.
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