Surge of Older PD’s

E

eBhola

Registered Users (C)
Surge of Older PD’s

AC-21 was good for us … gave a sort of great freedom to look for better jobs... freedom to hop around before one gets that dream card.

Well, the employers were happy too … as soon as the guy left the company using AC-21... they quicky learnt the trick of luring in new employee showing the pre-approved labor.Lot of guys was lured in... Some employer charged a hefty sum for the favor; some paid a lower salary…

Ok till now it worked well for both the employee and employer… every one is happy to some extent.

But this trend has caused a surge on older PD’s …. The guys who cut short stands to gain... and guys who waited in for labor to get approved …. Well for him the wait might be longer.

Lately USCIS has become very efficient (to some extent) on approving 140... This has caused this problem to compound even further… The same guys who used the substitution labor to get 140 … jumped to another company using AC-21.The employer gets another new guy in…. and the cycle goes on.

This by example:

Dave works for ABC LLC … get labor approved and files in 140 and 485... Say his PD is 1/1/2002. Moves to another company using AC21.
ABC LLC gets another guy Pandey who applies for 140 & 485 using Dave’s labor... so he gets the PD of 1/1/2002. After 6 months he gets 140 approved and later moves to another company using AC-21 … Company ABC LLC hires another guy and so he gets the PD of 1/1/2002 too.

Meanwhile Guy from M&M applies for labor in 1/1/2003... Waits his turn at labor... applies for 140 and 485 and what... his PD is 1/1/2003... In the world of retrogression... this guy is stuck … all other (smarter) guys who used Substitution labor have effectively moved up the ladder.

This whole process has created a big surge in guys whose PD are somewhere in between 2000 to 2002... Both in EB2 and EB3 categories.

The USCIS in the beginning of each fiscal year does a re-order of all the documentary qualified application… They actually reorder by when the application became qualified but when it comes to approval for retro effected countries... PD is what will govern the end game. The multi PD generated by a single labor might cause the genuine guy waiting in the line to cascade down even further …..

So for most .. the longer U wait in the line for Ur date to become current --- you are actually moving backwards as new guys are coming in with better PD dates.

Is AC-21 a boon or curse?
 
Last edited by a moderator:
The problem is not Labor Substitution. The problem is with the attachment of priority dates when the labor gets substituted. Ideally, I140 application is the stage when labor gets attached to an individual as such, so the priority dates for a substituted labor has to be the I140 receipt\notice date. However, USCIS has been using the labor dates as PDs for substituted labors too. I remember reading an article sometime back in Murthy.com or on Khanna's site talking about this.
 
Confused

I thought that if I leave my company using AC-21 and my company revokes my I140, I lose my PD. If that is true, then only the person (the new recruit at my current job) would be able to use the PD on the approved LC.

Am I missing something?
 
ebhola's example (chain usage of LC) situation may not possible. One LC is for one I-140. Only one 485/140 will be approved for one LC.
 
AC-21 portability is limited. I don't see how it could give freedom to move around as you mentioned. It is much better than nothing of course and it is useful in case one is exposed to hostile environments or lay offs and need to move on.
However, for most us, people with OK jobs, the restrictions on AC21 usually make thoughtful people reluctant to use it. I talked to my lawyer about this and the laws which govern AC21 portability is new and uncertain to a number of people, such as priority dates retention, etc. Actually some of them are not even laws, they are just memos. One is taking a risk making a serious decision to transfer jobs guided by memos, since those are not concrete. Tell me, who wants to take risks to jeorpardize this length greencard process after all these hassle and years ? If it is a somewhat minor risk, I wouldn't take unless I have to.


eBhola said:
Surge of Older PD’s

AC-21 was good for us … gave a sort of great freedom to look for better jobs... freedom to hop around before one gets that dream card.

Well, the employers were happy too … as soon as the guy left the company using AC-21... they quicky learnt the trick of luring in new employee showing the pre-approved labor.Lot of guys was lured in... Some employer charged a hefty sum for the favor; some paid a lower salary…

Ok till now it worked well for both the employee and employer… every one is happy to some extent.

But this trend has caused a surge on older PD’s …. The guys who cut short stands to gain... and guys who waited in for labor to get approved …. Well for him the wait might be longer.

Lately USCIS has become very efficient (to some extent) on approving 140... This has caused this problem to compound even further… The same guys who used the substitution labor to get 140 … jumped to another company using AC-21.The employer gets another new guy in…. and the cycle goes on.

This by example:

Dave works for ABC LLC … get labor approved and files in 140 and 485... Say his PD is 1/1/2002. Moves to another company using AC21.
ABC LLC gets another guy Pandey who applies for 140 & 485 using Dave’s labor... so he gets the PD of 1/1/2002. After 6 months he gets 140 approved and later moves to another company using AC-21 … Company ABC LLC hires another guy and so he gets the PD of 1/1/2002 too.

Meanwhile Guy from M&M applies for labor in 1/1/2003... Waits his turn at labor... applies for 140 and 485 and what... his PD is 1/1/2003... In the world of retrogression... this guy is stuck … all other (smarter) guys who used Substitution labor have effectively moved up the ladder.

This whole process has created a big surge in guys whose PD are somewhere in between 2000 to 2002... Both in EB2 and EB3 categories.

The USCIS in the beginning of each fiscal year does a re-order of all the documentary qualified application… They actually reorder by when the application became qualified but when it comes to approval for retro effected countries... PD is what will govern the end game. The multi PD generated by a single labor might cause the genuine guy waiting in the line to cascade down even further …..

So for most .. the longer U wait in the line for Ur date to become current --- you are actually moving backwards as new guys are coming in with better PD dates.

Is AC-21 a boon or curse?
Click to expand...
 
AC-21 portability is limited. I don't see how it could give freedom to move around as you mentioned. It is much better than nothing of course and it is useful in case one is exposed to hostile environments or lay offs and need to move on.
However, for most us, people with OK jobs, the restrictions on AC21 usually make thoughtful people reluctant to use it. I talked to my lawyer about this and the laws which govern AC21 portability is new and uncertain to a number of people, such as priority dates retention, etc. Actually some of them are not even laws, they are just memos. One is taking a risk making a serious decision to transfer jobs guided by memos, since those are not concrete. Tell me, who wants to take risks to jeorpardize this length greencard process after all these hassle and years waiting for this greencard ?


eBhola said:
Surge of Older PD’s

AC-21 was good for us … gave a sort of great freedom to look for better jobs... freedom to hop around before one gets that dream card.

Well, the employers were happy too … as soon as the guy left the company using AC-21... they quicky learnt the trick of luring in new employee showing the pre-approved labor.Lot of guys was lured in... Some employer charged a hefty sum for the favor; some paid a lower salary…

Ok till now it worked well for both the employee and employer… every one is happy to some extent.

But this trend has caused a surge on older PD’s …. The guys who cut short stands to gain... and guys who waited in for labor to get approved …. Well for him the wait might be longer.

Lately USCIS has become very efficient (to some extent) on approving 140... This has caused this problem to compound even further… The same guys who used the substitution labor to get 140 … jumped to another company using AC-21.The employer gets another new guy in…. and the cycle goes on.

This by example:

Dave works for ABC LLC … get labor approved and files in 140 and 485... Say his PD is 1/1/2002. Moves to another company using AC21.
ABC LLC gets another guy Pandey who applies for 140 & 485 using Dave’s labor... so he gets the PD of 1/1/2002. After 6 months he gets 140 approved and later moves to another company using AC-21 … Company ABC LLC hires another guy and so he gets the PD of 1/1/2002 too.

Meanwhile Guy from M&M applies for labor in 1/1/2003... Waits his turn at labor... applies for 140 and 485 and what... his PD is 1/1/2003... In the world of retrogression... this guy is stuck … all other (smarter) guys who used Substitution labor have effectively moved up the ladder.

This whole process has created a big surge in guys whose PD are somewhere in between 2000 to 2002... Both in EB2 and EB3 categories.

The USCIS in the beginning of each fiscal year does a re-order of all the documentary qualified application… They actually reorder by when the application became qualified but when it comes to approval for retro effected countries... PD is what will govern the end game. The multi PD generated by a single labor might cause the genuine guy waiting in the line to cascade down even further …..

So for most .. the longer U wait in the line for Ur date to become current --- you are actually moving backwards as new guys are coming in with better PD dates.

Is AC-21 a boon or curse?
Click to expand...
 
I don't see any freedom and possilbility of hops with AC21 portability as you seem to belive. It is a limited provision that is more useful for people who is subject to lay offs or hostile enviroments, etc.

The rules that govern AC21 are new and some are not even laws, they are just memos. For most people with OK jobs, using AC21 bears a risk that many thoughtful people are wisely not willing to take.

eBhola said:
Surge of Older PD’s

AC-21 was good for us … gave a sort of great freedom to look for better jobs... freedom to hop around before one gets that dream card.

Well, the employers were happy too … as soon as the guy left the company using AC-21... they quicky learnt the trick of luring in new employee showing the pre-approved labor.Lot of guys was lured in... Some employer charged a hefty sum for the favor; some paid a lower salary…

Ok till now it worked well for both the employee and employer… every one is happy to some extent.

But this trend has caused a surge on older PD’s …. The guys who cut short stands to gain... and guys who waited in for labor to get approved …. Well for him the wait might be longer.

Lately USCIS has become very efficient (to some extent) on approving 140... This has caused this problem to compound even further… The same guys who used the substitution labor to get 140 … jumped to another company using AC-21.The employer gets another new guy in…. and the cycle goes on.

This by example:

Dave works for ABC LLC … get labor approved and files in 140 and 485... Say his PD is 1/1/2002. Moves to another company using AC21.
ABC LLC gets another guy Pandey who applies for 140 & 485 using Dave’s labor... so he gets the PD of 1/1/2002. After 6 months he gets 140 approved and later moves to another company using AC-21 … Company ABC LLC hires another guy and so he gets the PD of 1/1/2002 too.

Meanwhile Guy from M&M applies for labor in 1/1/2003... Waits his turn at labor... applies for 140 and 485 and what... his PD is 1/1/2003... In the world of retrogression... this guy is stuck … all other (smarter) guys who used Substitution labor have effectively moved up the ladder.

This whole process has created a big surge in guys whose PD are somewhere in between 2000 to 2002... Both in EB2 and EB3 categories.

The USCIS in the beginning of each fiscal year does a re-order of all the documentary qualified application… They actually reorder by when the application became qualified but when it comes to approval for retro effected countries... PD is what will govern the end game. The multi PD generated by a single labor might cause the genuine guy waiting in the line to cascade down even further …..

So for most .. the longer U wait in the line for Ur date to become current --- you are actually moving backwards as new guys are coming in with better PD dates.

Is AC-21 a boon or curse?
Click to expand...
 
One 485 Approval per LC

eBhola,

I've a question about your post.

AFAIK, there can be many substitute applications that may be filed for 1 labor but once a 485 is approved, rest of them are going to be denied. It's one labor one 485 rule that works.

Now what you are saying is certainly possible and may result in retrogression because of applications filed but it will not use visa numbers. Actually becuase of combination of first PD then ND/RD (when dates have retrogressed), the first applicant's 485 will be approved and subsequent cases will be rejected. People using LC Subs run a very high risk because of this rule.

LC subs are safe only if there is no filing of 140/485 for the named applicant in LC. If 140/485 not filed then, AC 21 can not be used by the original applicant anyway.

Is there anyone else to clarify..
 
ebhola,

I am not sure if a company can reuse a Labor once it is approved AND an I-140 has been applied.

Like perm_lc mentioned , the labor gets attached to the I-140.

correct me if I am wrong.
 
There can be many substitute applications that may be filed for 1 labor but once a 485 is approved, rest of them are going to be denied. It's one labor one 485 rule that works.
Click to expand...

This might happen... do you have any case in mind .. where this happened.

I am not sure if a company can reuse a Labor once it is approved AND an I-140 has been applied.Like perm_lc mentioned , the labor gets attached to the I-140.
Click to expand...

Labor is being reused at greater rate in last year than in any years before. Its true that labor get attached to 140 ...
But here is a loop hole .. If one gets 140 approved and then gets past 180 wait time after 485 was applied .... If he changed his job and used AC21 ... which just states that he has changed to similar job. That all that he need to protect himself ... even if the employer withdraws his 140.
The employer at this point ... is like saying ... I wanted this guy for future employment but now is refusing to join .. in future.
Ok in that case as he need guys for future ... he reuses the labor for another candidate. As the employer has withdrawn the 140 against that labor .. he gets to file a new one.. meanwhile the AC21 protects the orignal filer and he continues with his GC journey.

I heard of cases where the original guys leaves(using AC21) and employer withdraws 140 ... If the employer applies for a new 140 against the same old labor ... and in the mean time the orignal guys 485 is approved... The second guy gets imd RFE on 140... Some say they have found a way around to get the 2nd 140 approved too..
 
Last edited by a moderator:
eBhola said:
This might happen... do you have any case in mind .. where this happened.



Labor is being reused at greater rate in last year than in any years before. Its true that labor get attached to 140 ...
But here is a loop hole .. If one gets 140 approved and then gets past 180 wait time after 485 was applied .... If he changed his job and used AC21 ... which just states that he has changed to similar job. That all that he need to protect himself ... even if the employer withdraws his 140.
The employer at this point ... is like saying ... I wanted this guy for future employment but now is refusing to join .. in future.
Ok in that case as he need guys for future ... he reuses the labor for another candidate. As the employer has withdrawn the 140 against that labor .. he gets to file a new one.. meanwhile the AC21 protects the orignal filer and he continues with his GC journey.
Click to expand...



This Can not be done.. After 6 months employer can not withdraw I-140. It belongs to the applicant and I-485 can not be approved without I-140.
 
aix2005 said:
This Can not be done.. After 6 months employer can not withdraw I-140. It belongs to the applicant and I-485 can not be approved without I-140.
Click to expand...

What if the employer withdraws 140 before 6 months?
 
If the employer withdraws before 6 months then by law the guys 140 can be revoked and 485 denied ... for AC21 485 has to be pending for over 6 months and 140 approved .
 
Employer can play with LC or 140 in whatever manner at whatever time (6months before or after).The bottomline is, only one GC will be issued for one (person)labor certification. If first employee uses the AC21 correctly (after 6 months of 485), he will be the benefitted and protected, rest of them not.
 
Experts --- Please do comment.

I know couple of guys who swiched jobs and paid high $$$ to get a pre-approved labor ... I will wait and see if they get approved..

If 485 cannot be approved for multiple guys with the same labor ( in the circumtances discussed above in the thread)...

Do all substitute labor guys will have hard time in 485 stage?


Experts --- Please do comment.
 
perm_lc said:
Employer can play with LC or 140 in whatever manner at whatever time (6months before or after).The bottomline is, only one GC will be issued for one (person)labor certification. If first employee uses the AC21 correctly (after 6 months of 485), he will be the benefitted and protected, rest of them not.
Click to expand...


Man this is too confusing: think of this.

Emp001 from India EB3 -- Gets labor -- gets 140 -- applies 485 and moves out with AC21. Well protected from his employer. Emp001 is retrogressed and is waiting ... dreaming cut-Off dates.

EMP002 form Japan joins the same company and the employer says Hey a guy just left and I have got a labor with me ... EMP002 get 140 and as he is not retrogressed may get 485 approved too.



Hmm can this happen...What will happen to the EMP001?

I am just assuming things -- both might get 485?
 
Last edited by a moderator:
The recent memo address all the issue. I know one guy in this thread successfully done AC21.

The story is, the guy left the job 6 months after 140/485 pending (not even 140 was approved at the time he left) with the promise of employer will not revoke. The employer inturn revoked 140 once he left. INS sent notice of intension of denial of his 485. He appealed the 485, got success.

The poor guy used the LC second time did not complete the journey. The retrogression of visa is not a matter, in this issue. In this case, if the first emploee is an Indian and the second is a Japanese, still Indian's 485 will be approved whenever visa number available to him.
 
perm_lc said:
The recent memo address all the issue.

In this case, if the first emploee is an Indian and the second is a Japanese, still Indian's 485 will be approved whenever visa number available to him.
Click to expand...

That was a great story ... that means we are protected anyways .. even if the employer withdraws the 140.

can you give me the details of the new Memo which address that issue..

Are all the substitute labor guys are great risk at 485 stage.... as there is no way to tell if the original guy is still continuing or has abandoned/ withdrawn his application.
 
AC21 & PD

My understanding is if a person uses AC21 and employer revokes or withdraws his I-140, the person will lost his priority date. whenever visa numbers are current, at that time only his I-485 will approved.
meanwhile if the employer substitutes that labor with new employee, new employee will get priority date and that priority date is current, the new
employee's (assume his I-140 approved) I-485 will be approved. this is one
of the bad situation in visa number retrogession.

experts please clarify me if i am wrong.
 
eBhola said:
Surge of Older PD’s
This by example:

Dave works for ABC LLC … get labor approved and files in 140 and 485... Say his PD is 1/1/2002. Moves to another company using AC21.
ABC LLC gets another guy Pandey who applies for 140 & 485 using Dave’s labor... so he gets the PD of 1/1/2002. After 6 months he gets 140 approved and later moves to another company using AC-21 … Company ABC LLC hires another guy and so he gets the PD of 1/1/2002 too.

Meanwhile Guy from M&M applies for labor in 1/1/2003... Waits his turn at labor... applies for 140 and 485 and what... his PD is 1/1/2003... In the world of retrogression... this guy is stuck … all other (smarter) guys who used Substitution labor have effectively moved up the ladder.
Click to expand...

Say suppose Dave is from India... effected by retro...
Pandey is from Pakisthan...Not effected by retro....

So, based on one LC/GC rule..once Pandey gets approval (obiviously he will get earlier than dave since his PD is current), then Dave will get deniel....
 
You must log in or register to reply here.
Top