Proposed Substitution Elimination Rule Released

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Aakash28

Registered Users (C)
Please help...Proposed Substitution Elimination Rule Released

Hello experts,

Here is the link to this -
http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/06-1248.htm

I did concurrent filing of I-485/I-140/I-765 under labor substitution last year. The receipt date for all 3 was 3/18/2005. I got married and filed for my wife's I-485 on July 17, 2005.

1) Now as per this article March 28th 2005 is the date. I am not able to understand what exactly it means?

2) I got my I-140 approved recently a week back. Now does it mean that my i-485 case will be rejected? Also my wife's case was filed after March 28th?? What's going to heppen to her??

3) Out priority dates are current - (September 2000 - as per March 2006 bulletin). Even if we get our I-485 cases approved it seems that they can still cancel our Green Cards as per this rule which is effective retrospectively. Please suggest??

4) I just received a medical RFE on my wife's i-485 - as I never submitted one - I got her medical done back in June 2005 but was unable to submit it on time with the rest of the application because of June 30th deadline for retrogression. Would it be OK to submit her medicals that I got done back in June 2005 - or should I get new one - as I spent over $500 over it????

Experts please help.....
 
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You have nothing to worry. The proposed amendment rule clearly states -

"The first amendment would prohibit the substitution of
alien beneficiaries on pending applications for permanent labor
certification and on approved permanent labor certifications not yet
filed with DHS"

In your case, you have already filed with DHS (meaning your I-140 and I-485). So there is no cause for concern.
 
Thanks catch_22_4_GC,

But I read that the rule -
"..... would apply to permanent labor certification applications and approved certifications filed under both the regulation effective March 28, 2005, and any prior regulation implementing the permanent labor certification program...."

Also at - http://www.immigration-law.com/Canada.html - I have read the following -
".....
02/12/2006: Questions of Substitutions Not Affected by the Forthcoming Substitution Elimination Regulation

The preamble of the proposed regulation provides that this regulatory change would not affect substitutions approved prior to the final rule's effective date. Accordingly, the following substitutions which have been approved prior to the final rule's effective date may or may not be affected:
Cases which are pending at the Backlog Elimination Centers for which the employer had requested and either SWA or Regional Certifying Offer allowed to amend ETA 750 and approved such amendment before March 28, 2005. Clearly will not be affected;
Cases which are pending at the Backlog Elimination Centers for which the employer had requested or will request amendment of ETA 750 substituting the alien's name, and the BEC would have approved such amendment before the final rule's effective date. BEC's returning of ETA 750 to the employer to amend and return to the BEC may or may not comfort with the requirement. The DOL may argue that BEC may have to "approve" the "amended" ETA 750 to meet the requirement of "substitution approved." However, one may argue that the act of returning ETA 750 to the employer to amend the alien name constitutes an approval of substitution. Additionally, BEC may also have to rule on the situation involving appeal of denial of the amendment before the BALCA.
When the employer has already obtained certification of the labor certification application, there may be following groups of people who intend to substitute and whose future needs the agency's further action on this regulation because of the ambiguity in the definition of "substitution approved":
(1) Employer filed I-140 petition for the substituting beneficiary but the I-140 has yet to be approved on the final rule's effective date. Simple Receipt Notice of I-140 may or may not comfort with the requirement of "substitution approved." However, again this should remain an issue which the DOL and the USCIS will have to resolve.
(2) Employer filed I-140 petition for the substituting beneficiary, which has been approved prior to the final rule's effective date. This would be a classical case of "substitution approved."
(3) Employer filed I-140 petition for the original beneficiary which has been either approved or pending. As part of the substitution process for such situation, employer withdraws the I-140 petition and at the time files a new I-140 petition for the substituting beneficiary. If no decision has been made on the approval of withdrawal and the new I-140 petition, the answer to the question turns to foregoing question (1). If the USCIS issues revocation letter, but the new I-140 is still pending, it may be considered another classical case of "substitution approved," similar to the foregoing question (2).
(4) Employer filed I-140 petition for the substituting beneficiary prior to the final rule's effective date, but USCIS denied I-140 on the issue of alien's qualification to meet the labor certification qualification requirement and the appeal of the decision is pending before AAO prior to the final rule's effective date. There may arise two conflicting arguments: One argument would be that the USCIS has approved the employer for the substitution but denied I-140 petition based on the merit of I-140 petition. Opposing argument would be that the USCIS failed to approve the substitution before reaching the merit. Obviously, the first argument sounds more persuasive and convincing, but we will have to wait and see.
(5) Employer filed I-140 petition for the substituting beneficiary, which has been denied on the issue of the employer financial ability to pay the proffered salary. I-140 was filed prior to, but denial was made post to, the final rule's effective date. Clearly, the denial was handed down the employer's qualification issue and not on the substitution nor the substituting alien's qualification issues. Arguably, the act of USCIS reaching merits of the I-140 implies that the USCIS approved the substitution, because unless they approved the substitution, there could not have adjudication of the I-140 on the merits. However, we will still have to wait and see what DOL and USCIS would say on the situation.
It is anticipated that the ambiguity of the language "substitution approved" prior to the final rule's effective date may generate a host of litigation in the future unless the DOL would revise or clarify or define the language clearly in the final regulation. Please stay tuned. ....."

So it states that people who have I-140 approved before the effective date - But I am confuesd about what the effective date is - Is it March 28th 2005 or would it be Aptil 14 2006 when the "Final Rule" gets published?? Beacuse if it's former date than I am screwed.....Experts please help... and advise as to what exactly is the effective date as per this rule as the language is too confusing,,,

Thanks
 
Aakash28 said:
Thanks catch_22_4_GC,

But I read that the rule -
"..... would apply to permanent labor certification applications and approved certifications filed under both the regulation effective March 28, 2005, and any prior regulation implementing the permanent labor certification program...."
Click to expand...

By 'approved certification', they mean approved LC and not approved I-140. In your case, you directly applied for I-140 with the original beneficiary LC. This kind of filing is different from the one where the employer had filed an LC but before it gets approved he asks for beneficiary substitution by an amended filing. This happened for BEC cases.

In your case, you are way past all that and it would not affect you at all.
 
Thanks catch_22_4_GC,

But the following still is very confusing....
"...the following subsititutions which have been approved prior to the final rule's effective date may or may not be affected:......
.....
cases for which the employer had requested to amend ETA 750 and such such amendment got approved before March 28th, 2005......
......
cases where emloyer filed I-140 petition for the substituting beneficiary which has been approved prior to the final rule's effective date..."

Now I remember fillling in ETA 750 Form when filing for I-485/I-140 - I do not know whether it was approved before March 28th 2005 or not??

Also what is the final rule's effective date?? Is it March 28th 2005 or would it be Aptil 14 2006 when the "Final Rule" gets published??

Please suggest....

Thanks
 
You had I140 approved already. Then you become a lucky one. You have nothing to worry about. That's all.
 
Basically it's saying that this would apply to PERM and non PERM labor cases. Remember march 28th 2005 is the PERM implementation date so it's saying it will apply to both the cases. I dont think we have to worrie abut it. Mine is also labor subsitution.


Aakash28 said:
Thanks catch_22_4_GC,

But the following still is very confusing....
"...the following subsititutions which have been approved prior to the final rule's effective date may or may not be affected:......
.....
cases for which the employer had requested to amend ETA 750 and such such amendment got approved before March 28th, 2005......
......
cases where emloyer filed I-140 petition for the substituting beneficiary which has been approved prior to the final rule's effective date..."

Now I remember fillling in ETA 750 Form when filing for I-485/I-140 - I do not know whether it was approved before March 28th 2005 or not??

Also what is the final rule's effective date?? Is it March 28th 2005 or would it be Aptil 14 2006 when the "Final Rule" gets published??

Please suggest....

Thanks
Click to expand...
 
This is the best thing that could happen to all immigrants. employer can no longer substitute labors. However they still can revoke I-140 but not use the underlying LC for substitution. Only Sick employers will do that now.
 
Not exactly right. If you have an approved I140 and your I485 has passed 180 days, your I140 is unlikely revoked. But, it is right. The employer may have no way to sell the LC as “substitute.”
 
This proposed rule comes from DOL only, not previously joint proposal from DOL and USCIS. It is still too early to tell how USCIS treats those sub-LC I-140 cases. I wonder why USCIS is not in this picture.
 
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