Retrogression and NIW

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hashitoxicosis

Registered Users (C)
I have another 7 months to go to finish the 5yrs of NIW. I see that EB2 India has retrogrssed to jan 2002 now. Does this mean i am screwed for a while? Anyone with first hand experience?
 
Were you able to file your I485?. I heard, u cant file I485 with I140 NIW if u r retrogressed?
I have 7 months to complete my 3 years, but dont know when I will able to file I485........................
Retrogression sucks
 
Ya,unfortunately u will have to wait for priority date to get current to get GC. Look at the bright site, u atleast have the option t0 invoke AC21 to change jobs and move around since your 485 is filed.
 
frustration, thou art retrogression

I'm not sure how AC-21 would be applicable here; The I-140 is self petitioned, so the requirement is for you to complete 5 years in "National Interest" (i.e in a HPSA, etc) If you change jobs before 5 yrs are up, you will need to find another employer offering a similar job, essentially meeting the same requirements for NIW. Since you dont have an I-485 filed, you will need to transfer your H-1B, which should not be that difficult.

The crucial question is when you complete 5 years and move to another job, what happens then? I have had differing opinions on this issue; one lawyer pointed out that as a physician if you have worked for the full 5 yrs in the HPSA area(s) and can justify the "National Interest", you are then free to join any employer and any job. Another lawyer contends that since GC has not yet been adjudicated, if, at the time that it is, you cannot justify the job you are in then as being in the same "National Interest" then there is a risk of them denying the GC.

So weigh your options and aseess your back up plans. A valid H-1B through all of this will always serve you as a good fall back option, so I would suggest even if you have an I-485, dont exercise the EAD option for yourself; Instead, exercise the dual intent privilege and continue on H-1B.
Hope this helps!
 
hashitoxicosis said:
I have another 7 months to go to finish the 5yrs of NIW. I see that EB2 India has retrogrssed to jan 2002 now. Does this mean i am screwed for a while? Anyone with first hand experience?
Click to expand...


Well, from your situation, fast forward 10 months, nothing changes with retrogression and that is my position! It sucks big time. It looks like you are still fairly well positioned with a priority date of early 2003. I don't even have that, advised by my lawyer at the time, since I was on a waiver, I could file NIW after 3 yrs! Talk about screwed! I didn't know better then. The term priority date wasn't even in my vocabulary.

Those who did not file 485 are in an even worse position since their 485 petition cannot be filed until dates are current. So essentially your 485 won't even be processed while you are stuck in retrogression and furthermore you have to remain in H1b status.

Jupiturn, Interesting legal opinions on the post 5yr term scenario. I tend to believe the first one.................(admittedly I am biased since I am in that situation!), however the law is pretty clear about the 5yrs HPSA/MUA service for fulfilling the requirements of the NIW 140 approval. The 485 approval would then be based on the NIW 140 all other things being equal.
Unlike other employer based 140 petitions, the physician NIW is the only 140 petition I am aware of that sets a finite time period for satisfying the criteria.
Anything that goes against this would almost invariably lead to a legal challenge, and dare I say (with my meager legal brains) be a strong legal case as well. Of course, none of us would like to be in the scenario of being a plaintiff in that situation.

Ideally the H1b visa will allow you to "live to fight another day" in case of a 485 mess up. However your need for a H1b sponsorship will inevitably weaken your negotiating position in a job search as well. Additionally remaining in H1b status will limit you to your sponsoring employer and reduce moonlighting options, business options etc. Also if your 485 is denied for any serious cause, you stand a minimal chance in my view of a H1b extension as well. Those points need to be weighed up.

Incidentally, I had a phone consultation with my lawyer today (one that specializes in physician cases and belongs to a group of lawyers that deals with physician immigration) about this exact situation. She said most of her clients have not been called for interviews at 485 adjudication. An approval notice simply came to their mail box after their term was up and evidence to this effect sent in to the USCIS. However EB retrogression of this magnitude is a relatively new animal. She nor any lawyer she knows has ever encountered a 485 denied post physician NIW 140 5 yr term completion.


Of course each person needs to weigh up their individual situation and with adequate legal advise. I am merely posting my experience/opinion here. I'm of the view that if your 5yrs are up and you have vastly better options, you should consider taking it, given the severity of the retrogression and the minimal risk involved.
 
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I have been on EAD last 3 yrs, never extended my H1.

Worst case scenario I will have to work with EAD for a while.

Thank fully my job isn't too bad. Just want this darn thing to come to an end

oh well
 
I am done with the 3 years of J1 waiver and finish 5 years of NIW in July 2008. My priority date is Jan 2004. Trying my best to be patient with retrogression and not use EAD for a fellowship. To my knowledge using EAD nullifies your H1.
Question: Does using Advance Parole has any bearing on the H1?
 
I am in a similar situation, NIW completed 9/07, but stuck in retrogression. My PD is 8/04, so it may be a while (it was soooooo close- April 2004- who knew that it would be pushed back 2+yrs???) I guess if you are from India, CIS figured....5 yrs is not enough.... the 'banwas' has to be 14 yrs! (o boy, i hope not!) I am moving to a new job in Jan 2008, armed with my H1 and EAD and AP.... and i will be working in a facility that qualifies as a HPSA, so the whole question about "National Interest" would be settled. By the way, technically one can use H-1B (to work with the sponsoring employer) and simultaneously use EAD (to work as an independent contractor i.e moonlighting, consulting etc or to work for another employer).
I have done everything by myself so far, using the do it yourself sticky on this forum. So far, it seems to have worked.......One question for the forum, i need your input...
Although I have completed 5 yrs, I have not recd any RFE yet; anyone in such a situation? is it because of retrogression? Do you guys think I should contact CIS?
 
once you use EAD your H1b is finished. you have to get a new H1b (cap/non capped) before switching from EAD.
However, you could use AP to work either on EAD or H1b.
I think you could legally challenge NIW in this retrogressed situations. Because NIW is a contract between the physician and the department. talk to some good lawyer.
 
as soon as you USE (if you use only) EAD, your h1b's are gone. In addition, you cannot have multiple status at same time. You cannot hold h1b status for real job and moonlighting using ead. if you wish you could do both with EAD or get H1b for both
 
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To have H1-B so that if I-485 is rejected she'll not go out of status- this is correct.

I mentioned a word "USE". if you don't use your EAD your H1b is not finished and you can keep on renewing it until you get 485 approved. you can also renew your EAD as well. Using is one thing and having is another.
 
NIW and retrogression

Folks,

I am in the same situation as many of you. My 5 years will be over in June and my priority date is not going to be current forever....

Some of us at the Immigration Voice forum have chosen to be proactive about physician immigration issues. We formed an iv-physicians chapter and are fortunate to have the backing and resources of IV behind us. With these resources and with the active help and support of attorneys from the IMG forum we have been an active part of discussions initiated by key senate offices to reform the process of immigration for physicians who serve in the national interest. These discussions are at a critical stage and a draft bill has been prepared. Success in this mission will help all of us get a GC in a timely manner. We have been privileged enough to have a seat at the table in meetings of the task force in DC.
Unfortunately details are sensitive and cannot be posted on any public forum (including IV).

As the convener of the IV-physicians group I would like to cordially invite affected physicians to join us. Your experience, expertise and participation will immeasurably strengthen the group and help us achieve our goals despite this extremely different environment.

In order to join, here is what is needed...please bear with me here...due to the fact that we release information that is provided in confidence by key legislators, no anonymous members are allowed:

name, location, immigration situation in brief, telephone number
iv user name (available free when you register- if you do not have one- go to www.immigrationvoice.org)

This is a google group so using your gmail id to join would be helpful for you but is not mandatory. Please open the following :
http://groups.google.com/group/iv-physicians
and select "contact the owner", please write with the requested info.

our blogspot (needs help and updating) is at http://iv-physicians.blogspot.com/

Please join up...our strength is in numbers and in self help....

Many thanks to Rajiv Khanna, Greg Siskind, Robert Aronson and other attorneys that have provided help and support for skilled immigration reform.
 
After 5 years...what?

"The crucial question is when you complete 5 years and move to another job, what happens then? I have had differing opinions on this issue; one lawyer pointed out that as a physician if you have worked for the full 5 yrs in the HPSA area(s) and can justify the "National Interest", you are then free to join any employer and any job. Another lawyer contends that since GC has not yet been adjudicated, if, at the time that it is, you cannot justify the job you are in then as being in the same "National Interest" then there is a risk of them denying the GC."

I have looked for an answer everywhere.
One prominent attorney that deals with physicians a lot told me I can do anything i want after 5 years. There is a posting on the web from Sheila Murthy suggesting the same. My own attorney (also a famous physician's counsel) is much more conservative and tells me USCIS has never ruled on this. is there any definite answer? can we get one from USCIS?

Wish Rajiv could weigh in on this.....
 
Paskal,
I have however seen the clause stating the requirement for NIW. It is pretty straight forward. Unlike other categories your requirement is tied to the actual five years of work, not visa numbers. So As soon as you complete the tenure you are done. However, issuing visa(god knows how long) will happen only after the name check/visa availability. As long as you met the requirement , you should be ok. otherwise you can challenge these cases in the court.
I always wondered why physicians are not represented as agressively as nurses. Is this because physicians are not demanding ? You should request them to insert a clause in the legislation to associate a physician cases to either into schedule A category or with no visa number limitations. To be honest, your group is one of the hard pressed category in this immigration debate.
 
true

thanks desi2007

you are right. the law is written for 5 years. i think the problem is that USCIS likes to take the narrowest interpretations...when when they are clearly not supported. their original NIW regulations are a case in point.

we are trying to change the nature of physicians immigrations...that's why i am reaching out for support...there are good reasons why nurses have more support than we do...we need to help ourselves! we are making good progress btw, if all goes well, we will all be in a much better position.
 
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