substitution LC & Priority Date !!!

ati888

Registered Users (C)
The memo (priority dates retrogression) of Mr. Rajiv S.Khanna states that beneficiary of substituted labor certificate would get the same priority date.
I was just searching uscis.gov and I found this very interesting !
Now the question is: Who is wright?

Check this out!

d) Priority date. * * * If the United States employer substitutes another alien on a labor certification, the priority date shall be the date the employer requests the substitution.



" 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.
 
subsctitution LC & Priority Date

It is at the discretion of the department to set the priority dates. Although the priority date should be the date substituion is asked for, but I have seen in many cases that the PD is still the date from the actual LC. SO I guess if you are unlucky then you will get it accoridng to the law.
 
it seems like a proposal, can you post the link

ati888 said:
The memo (priority dates retrogression) of Mr. Rajiv S.Khanna states that beneficiary of substituted labor certificate would get the same priority date.
I was just searching uscis.gov and I found this very interesting !
Now the question is: Who is wright?

Check this out!

d) Priority date. * * * If the United States employer substitutes another alien on a labor certification, the priority date shall be the date the employer requests the substitution.



" 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.
 
I am totally aggree. Is it law or proposal.


The substitute LC has added in the recent retrogration mess. This should be ended immidiately. The fraud company should punish havily on this issue. If USCIS start punishing fraud employer, I think many many substitute LC cases will be withdrowen by employers.

Lets have movement to end fraud substitute LC cases
 
Fraud...

I Strongly Support this Movement... And even if they substitute they should have a priority date of I-140 reciept Date, not the original labour PD.. this way they can decrease the number of frauds... We are waiting here for years to get GC...and these people get GC in fron of US...

BTW we need to bring another movement to remove country limit on EB - Visas.. this way we dont have any issues with retrogression..
 
unitednations said:
That was from the mid 1990's. They tried to do away with it back then.

As you can see nothing happened. Powerful lobby, employers/lawyers got uscis to back down. Although the CFR states priority date is not transferrable between aliens, USCIS is only using this clause for people to meet other parts of immigration law. For example, if you subsitute a 245i labor (ie., filed prior to april 30, 2001), the new beneficiary will get that priority date for purposes of when they get the greencard. However, the substitution for the April 30, 2001 will not all for the new beneficiary to use that date to be grandfathered to get benefits of 245i.

Unitednations.....Do you think my case will fall under this category...I am pretty sure that the Labor my company used for me was filed before April 30th 2001. Please look at this thread....

http://boards.immigrationportal.com/showthread.php?t=193897
 
unitednations said:
Don't worry, you should get uscis to correct it. They will.

My point was priority date is the original date of the labor. Substitution doesn't matter. It only matters if you are trying to claim benefits of 245i which you are not.

Thanks Unitednations....I'll have to convince my lawyer to get it corrected then.
 
Okay, this rule is fine! What if some person's I-140 got denied after waiting for 3 years and he if he is running out of 6 years limit on H1B in another 3 months. Even he is able to find genuine pre-approved labor and uses that LC as substitution, isn't it difficult for him...if this rule is in effect? I mean again he should wait for so many years for his PD to become current in order to file his I-1485.
 
Last edited by a moderator:
satgym73 said:
Okay, this rule is fine! What if some person's I-140 got denied after waiting for 3 years and he if he is running out of 6 years limit on H1B in another 3 months. Even he is able to find genuine pre-approved labor and uses that LC as substitution, isn't it difficult for him...if this rule is in effect? I mean again he should wait for so many years for his PD to become current in order to file his I-1485.

its his/her bad luck. it may be their own mistake also. due to heavy misuse and fraud this proposal is a welcome one.

no stage in gc is rejected unless there is a real cause:

1. labor will get rejected if:
a) company misrepresents facts such as number of "employees" and branch (virtual office or satellite location), revenue
b) company tries to file during the period in which dol has debarred this employer from filing such petitions.

2. i-140 will get rejected if:
a) the applicant does not match the job duties mentioned in the labor.
b) inability to pay
c) company tries to file during the period in which dol/uscis has debarred this employer from filing such petitions
d) the underlying labor was used or being used by some other person
e) the underlying labor was manipulated in bad faith

3. i-485 will get rejected if:
a) applicant has violated his/her nonimmigrant status such as failure to maintain the visa status, unlawful presence, unauthorized employment, misrepresentation of facts
b) failure to qualify for ac-21 job portability
c) failure to abide ar-11 address change filing requirement
d) labor or i-140 was filed in bad faith or with misrepresented information. this clause is effective even after GC approval.
e) failure to abide finger printing requirement or interview or notice to appear
f) departing without valid advance parole without having qualified non-immigrant visa such as H1.

#1: purely employer related. employee has no take in it but if he/she investigates about this company then they can stay away from such company.
#2: this can be avoided if the employee investigate properly about the company prior joining them.
#3: mostly related to employee unless its related to fraud labor/employer.

also people no longer has to wait for many years to complete just i140 stage. with perm and i-140 they should be spending around 7 months to 18 months which is not big. even if they lost job they can always file another. with approved i140 you can carryover that date to your new greencard process without worrying about loosing priority date.

in essense this should be implemented to streamline everything properly.
 
OK, here's what I found out :

Request for Substitution.

On occasion, employers will request that a new alien be substituted for the alien listed on an individual labor certification because, for example, the original beneficiary named on the approved labor certification application no longer intends to work for the petitioning employer. In such substitution filings, the petitioning employer will file an immigrant petition on behalf of the new employee based on the approved labor certification, seeking to retain the priority date of the original labor certification filing. The priority date for a petition that is supported by a labor certification substitution is the earliest date the certification was accepted for processing by the DOL. Labor certifications substitutions are allowed ONLY if the original beneficiary named on the approved labor certification, or any previously substituted alien, have not obtained an employment-based immigrant visa (or adjustment of status) based on that labor certification application.

The substituted beneficiary must have met all of the minimum education, training, or experience requirements as stated in Part A of the original individual labor certification at the earliest time the original labor certification application was submitted to the state employment office or to DOL.

See page 21 of this memo :

http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf

======================================================

Which means one will be able to retain the original PD even on a labor substitution ...
 
Top