To Joef and Pralay

[Fort_User]

Hi Guys,

I have been seeing you guys postings a lot. Even year 2002 postings...your contribution is there.

You guys are very strong in the After GC issues(especially leaving employer topic).

I beleive strongly you guys have lot of knowledge as well as lot of resources(web sites, friends, lawyers) to go through.

Just to conclude your opinion (ie leaving employer immediately is risky),

WHY DON'T YOU GUYS SPEND SOME TIME AND BRING REAL CASES.

Please don't say, it is not our duty etc...It would be really helpful to others.

Please try your level best.

 

[luckyandcurious]

JoeF,

Whatever Fort_users said make sense. It will help the people rather just time pass arguments.

So, whatever you (couple of other people like you) are writing all these things in this forum are for your sake to prove you are correct, but not to help others. If you can give some real examples, that gives you more strength to your arguments. So, you don't have to struggle everytime when such kind of "After GC" threads pop up.

I like your arguments and some nice suggestions in this forum and people respect you for that But, why don't you just bring a single real case if not many.

 

[TheRealCanadian]

I like your arguments and some nice suggestions in this forum and people respect you for that But, why don't you just bring a single real case if not many.

With respect, the Marcoux case from 1967 is clearly germane, and answers your question directly. An immigrant left his job shortly after arriving the US, and INS took him to court. He was able to keep permanent residency by proving to the BIA's satisfaction that he had the necessary intent.

It clearly demonstrates that a) INS has a problem with EB immigrants leaving right away; and b) that length of time doesn't matter, but intent does.

What more do you want?

 

[luckyandcurious]

I don't argue if don't have solid real examples though I know I am right.

 

[pralay]

WHY DON'T YOU GUYS SPEND SOME TIME AND BRING REAL CASES.

Please don't say, it is not our duty etc...It would be really helpful to others.

Please try your level best.

It's a forum. We discuss based whatever we get from websites, and whatever we understand. As we mentioned earlier several times, we don't have access to fancy services like Lexis-nexis, westlaw or any other similar services. If you want to know about case details either you need to have access for those kind of services or talk to someone (e.g. immigration lawyer) who has access it them. Some of the forum members try to portray me as jobless, but I am not. I don't spend more time than the time required to post/reply a message plus 5-10 minutes of googling. So if I need to try my "level best" I really need to be jobless
Of course there are forum members who claims to have access to Lexis-nexis. But instead of providing information honestly, he is rather trying to prove himself right in the name of "research" (but nothing to complain about it because he paid for it and it's upto him to do whatever he wants to do). However, sometimes pandora box gets opened unintentionally. In above post TheRealCanadian already gave reference to that case (Marcoux: http://boards.immigration.com/showpost.php?p=1320996&postcount=29 and I already explained how this case is related to intent http://boards.immigration.com/showpost.php?p=1321370&postcount=45 ). I doubt Wurzbach would post this case in this forum if he understood it well (and that's why it is not honest "research"). And I don't think this is the only case available. There could be some more. But we don't have access to those kind of cases.

 

[dimag_mari]

Merry Christmas

 

[wurzbach]

It clearly demonstrates that a) INS has a problem with EB immigrants leaving right away; and b) that length of time doesn't matter, but intent does. What more do you want?

Read the first case in my Final Answers and clean up your mind now.

1) INS did not make any problems with any GC holders' intent in light of changing job right away after they get the GCs since 1968.

2)The applicants can rightly preserve their private intent to change their job in the future (including after getting GC) at the time of entry when they intended to get GCs based on the certified positions. Even their private intents are disclosed to INS, INS cannot refuse to adjust his status based on his private intents not working for the employer in the future.

---------------------------------------------------------------------
YUI SING TSE and Debbie Siu-Mai Tse, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

596 F.2d 831

March 26, 1979


OPINION: [*833]

Petitioner appeals from an order of the Board of Immigration Appeals denying his application for adjustment of status, directing deportation, and granting voluntary departure.

Petitioner was admitted to the United States on a student visa in January, 1971. In March, 1973, [**2] on application of a Chinese restaurateur in Vancouver, Washington, the Department of Labor issued an alien employment certification under section 212(a)(14) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(a)(14) (Supp.1978), authorizing petitioner's employment as a Chinese specialty cook.

Petitioner then applied under section 245 of the Act, 8 U.S.C. § 1255 (Supp.1978), for adjustment of status to that of a permanent resident claiming entitlement to a sixth preference immigrant visa under section 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6) (Supp.1978). Section 203(a)(6) makes such visas available to persons, "who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage [**3] of employable and willing persons exists in the United States;" provided they have complied with the labor certification requirements of section 212(a)(14).

Petitioner's application for adjustment of status was denied. The Service instituted deportation proceedings. In January, 1974, in the course of these proceedings, petitioner renewed his application for adjustment of status. At a hearing held July 24, 1975, petitioner disclosed that he had applied and been accepted for admission to dental school, and would enroll in the fall. He testified it would require four years to complete dental school, and that he intended to continue working as a full-time Chinese specialty cook to support himself and his family while attending school.

The immigration judge denied petitioner's request for an adjustment of status and ordered petitioner deported. The Board affirmed on the ground that petitioner was ineligible for an adjustment of status because he planned to become a dentist rather than to continue to work as a cook.

A petition for adjustment of status raises two issues: whether petitioner is eligible for the relief sought; and, if so, whether relief should be granted as a matter of discretion. In this case the Board decided petitioner was ineligible for relief; no exercise of discretion was involved. The Board's decision did not rest upon resolution [*834] of a factual conflict; the facts we have recited are undisputed. n4 The Board held petitioner ineligible as a matter of law because he intended to change his occupation in the future from that identified in the labor certificate upon which his eligibility for a visa was based. HN2The question is one of law: whether the Board applied the appropriate legal standard. Marino v. INS, 537 F.2d 686, 690 (2d Cir. 1976). See Kovac v. INS, 407 F.2d 102, 104 (9th Cir. 1969); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, § 8.15 at 8-96 (Rev.ed.1978).

An alien seeking permanent resident status is assimilated to the position of an applicant for entry, See, e. g., Hamid v. INS, 538 F.2d 1389 (9th Cir. 1976); Talanoa v. INS, 397 F.2d 196, 200 (9th Cir. 1968), and therefore must be eligible for the preference category relied on at the time his application for adjustment of status is acted on. Cf. 1 C. Gordon & H. Rosenfield, Supra, § 3.5j at 3-56. See also Immigration & Nationality Act, § 204(e), 8 U.S.C. § 1154(e) (1970); 8 C.F.R. § 205.1 (1977).

 

[wurzbach]

Petitioner claimed a sixth preference visa was immediately available to him under section 203(a)(6). The Board held that because petitioner intended to change his occupation from Chinese specialty cook if and when he completed dental school, his petition for a sixth preference visa was no longer valid.

Taken together, sections 212(a)(14) and 203(a)(6) are designed to permit aliens capable of performing jobs for which American workers are not available to come to this country, while protecting American workers from the competition of aliens entering the United States to take jobs American workers could fill. See Maceren v. District Director, 509 F.2d 934, 936 n.2 (9th Cir. 1974); Gordon & Rosenfield, Supra, §§ 2.27g, 2.40(a), at 2-210, 2-289; Matter of Poulin, 13 I&N 264, 266 (1969).

The second and potentially conflicting interest involved is the interest of an alien granted permanent resident status in the opportunity to earn a living, to improve his economic circumstances, and to engage in common occupations, without unreasonable limitation or invidious discrimination. Cf. Gordon & Rosenfield, Supra, §§ 1.34, 3.6g, at 3-93-4. This interest was reflected in a regulation of the Department of Labor in effect when the Board rendered its decision in this case which provided that "(t)he terms and conditions of the labor certificate shall not be construed as preventing an immigrant properly admitted to the United States from subsequently changing his occupation, [**7] job, or area of residence." 29 C.F.R. § 60.5(f) (1976). Addressing the question of an alien's freedom to change occupations, the court in Castaneda-Gonzalez v. INS, 183 U.S.App.D.C. 396, 412, 564 F.2d 417, 433 n.36 (1977), noted the previous existence of this regulation and said: "(a)ny other interpretation could raise serious constitutional issues as to the extent to which employment opportunities may be restricted on the basis of alienage."

In the present case, the Board looked solely to whether at the moment of entry the alien intended to change from the certificated employment, and concluded that petitioner was not entitled to preference as an immigrant because his intention at "entry" was to change employment, though only in the distant future and upon a condition that might not be satisfied. The standard applied by the Board was entirely subjective. It was both too narrow and too rigid to accommodate the interests to be protected.

It is appropriate to require that the alien intend to occupy the certificated occupation [*835] for a period of time that is reasonable in light both of the interest served by the statute and the interest in freedom to change [**8] employment. But to hold, as the Board did in this case, that an alien is not eligible for admission as a preference immigrant when his intention at entry is to engage in the certified employment unless and until he can complete the educational and other requirements for advancement to the profession of dentistry, a period of four years, fails to recognize that both the interest underlying the grant of preference and the interest in freedom of opportunity for self-improvement would be substantially served by petitioner's admission.

The Board's approach is not required either by the statute or by the Board's regulations.

The language of the statute does not bar a test that looks to the underlying interests. Section 212(a)(14) of the Act speaks in terms of labor scarcity and absence of adverse impact on wages and working conditions at the time of certification; nothing in the language bears upon the length of commitment required of the beneficiary. See Matter of Cardoso, supra, 13 I&N Dec. at 230. Section 203(a)(6) of the Act limits preference to persons capable of performing labor "not of a temporary or seasonal nature," but the reference is to the nature of the employment [**9] itself, which must be permanent in character. Cf. Matter of Smith, 12 I&N Dec. 772 (1968). The job for which petitioner was certificated was not "temporary or seasonal"; and the Board did not assert the contrary either in its decision or in brief or argument in this court.

As we have suggested, construing the statute to require that the alien intend to remain in the certified employment permanently would raise substantial constitutional problems. See generally Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976). HN5Moreover, the rule that deportation statutes are to be construed in favor of the alien is "fully applicable" where the question is eligibility for adjustment status rather than deportability. See Marino v. INS, Supra, 537 F.2d, at 691 & n.5. These considerations dictate that absent a clear requirement that preference petitions be invalidated solely because the alien intends to change occupations at some time in the future, we should not so read the statute.

HN6 [**10] The pertinent regulation ( 8 C.F.R. 204.4(b)), provides that a petition to classify an alien as a sixth preference immigrant shall remain valid for as long as the supporting labor certification is valid and unexpired, provided there is no change in the respective intentions of the prospective employer and the beneficiary that the beneficiary will be employed by the employer in the capacity indicated in the supporting job offer.

Petitioner's labor certificate was valid and unexpired. The intention of the original employer and petitioner remained that petitioner would be employed in the certified job as a Chinese specialty cook. See note 2. On its face section 204.4(b) does not require that petitioner intend to remain in the certified job forever that he entertain no intention to change his job or occupation at any time in the future. The regulation requires only that at the time of entry both the employer and the employee intend that the latter will be employed in the job upon which the labor certification is based a condition satisfied in this case.

The two prior Board decisions cited in support of the ruling in this case are obviously distinguishable. The petitioner [**11] in Matter of La Pietra, 13 I&N Dec. 11 (1964), did not possess the skills upon which the labor certification was based. The petitioner in Matter of Kim, 13 I&N Dec. 16 (1968), was not engaged in the practice of pharmacy for which he sought preference status under section 203(a)(3) of the Act, and he did not intend to engage in this profession at any time in the future.

Balancing the interests involved in light of the undisputed facts, it is clear that petitioner is eligible under the statute for adjustment of status. Because the Board has not considered whether adjustment should be granted as a matter of discretion, [*836] the case must be remanded for further proceedings. See Lee v. INS, supra, 541 F.2d at 1386.

Reversed and remanded.

 

[pralay]

Clearly that you have not thrown the "theories" from the two real jobless idiots to the trash can completely (I doubt if you want to join them). Read the first case in my Final Answers and clean up your mind now.

Keep digging Mr. Fake Researcher (aka Snake Oil Salesman). You have not proved anything in intent issue. On the contrary you have proved that you start name calling and label people who disagree with you, as if execept you nobody can be correct.

In your theory was refuted.
http://boards.immigration.com/showthread.php?p=1319630#post1319630

1) INS did not make any problems with any GC holders' intent in light of changing job right away after they get the GCs since 1968.

Here you are inserting your infamous snake oil. There was no "right away" in this case. Read the case:

It is appropriate to require that the alien intend to occupy the certificated occupation [*835] for a period of time that is reasonable in light both of the interest served by the statute and the interest in freedom to change [**8] employment. But to hold, as the Board did in this case, that an alien is not eligible for admission as a preference immigrant when his intention at entry is to engage in the certified employment unless and until he can complete the educational and other requirements for advancement to the profession of dentistry, a period of four years, fails to recognize that both the interest underlying the grant of preference and the interest in freedom of opportunity for self-improvement would be substantially served by petitioner's admission.​

 

[wurzbach]

...who disagree with you, as if execept you nobody can be correct........

Poor pralay, you are not disagreeing with me; YOU ARE DISGREEING WITH THE LAW and insisting on using your great imaginary to fabricate "theories" to poison others.

 

[pralay]

Poor pralay, you are not disagreeing with me; YOU ARE DISGREEING WITH THE LAW and insisting on using your great imaginary to fabricate "theories" to poison others.

I disagreed with your labels "right away after getting GC" and "research". That is not what that case said (therefore I don't disagree). You inserted that part as your snake oil. You do not understand the fact is that "indefinite" and "forever" are not same thing.

 

[Fort_User]

When i started this thread, i expected very different answers/discussions, good case studies etc.

But, this thread also following the same discussions which people are already sick.

TheRealCanadian tried to bring some case studies...but, 1967 case is too old.

Every year we see lot of changes in USCIS terms and conditions, during 1967, two years one should work to the employer rule was there.

Now the scenario is different. AC21 rule is there. No two years working condition is there.

So, pl bring some cases which is suitable to current scenario.

A sketch is equal to 1000 lines of writing. Same thing here. A practical case can provide solid proof. Try guys.

 

[TheEnquirer]

good luck fort_user........
its time you realize that people would rather waste hours and hours arguing here to strut themselves rather than doing something useful.......

on the other hand- a forum/blog - mimicks real life. which is multidimensional - like a relationship. its not always that the brain that works. people need some emotional outlet too you know. you never know whats happening in these peoples life. ( it could be as simple as they are bored or as complex as they had a problem childhood- and need to vent)

When i started this thread, i expected very different answers/discussions, good case studies etc.

But, this thread also following the same discussions which people are already sick.

TheRealCanadian tried to bring some case studies...but, 1967 case is too old.

Every year we see lot of changes in USCIS terms and conditions, during 1967, two years one should work to the employer rule was there.

Now the scenario is different. AC21 rule is there. No two years working condition is there.

So, pl bring some cases which is suitable to current scenario.

A sketch is equal to 1000 lines of writing. Same thing here. A practical case can provide solid proof. Try guys.

 

[TheEnquirer]

LOL. There are obviously a number of people who need an outlet, and for lack of a better target, they troll here...

There we go. I said so.

p.s: expecting a timewasting stupid reply soon.

 

[luckyandcurious]

Hey JoeF

JoeF,

So, You are saying you don't want to spend time and money for this, that's OK.
But, have you realized that you spent the time to respond (Defend your self) to the threads is many times more than the time you could spend to find the real one solid latest case. I know you helped many people many times, but when you reply to this specific thread (like "Leaving after GC"), neither people pay attention nor interested to read your thread unless you have solid example, so your responses are just for your sake(again to defend). Here I am not discouraging you, rather I am suggesting you to be more specific by giving at least one solid real example, so you can shut some of the people mouth.

 

[TheRealCanadian]

TheRealCanadian tried to bring some case studies...but, 1967 case is too old. Every year we see lot of changes in USCIS terms and conditions, during 1967, two years one should work to the employer rule was there.

Again, apart from your arbitrary decision that a 1967 case is "too old", what grounds do you have for claiming that the precedent no longer applies? Is racial segregation in education legal again because the precedent striking that down is even older? Can the courts no longer strike down unconstitutional legislation because the precedent for that is over two hundred years old?

The case is on topic. It clearly indicates that intent is required, and a specific time with the employer is not. The fact that it is old and "a lot has happened since then" is not relevant on its own, unless the precedent has clearly been superceded by another court decision or legislation. Age in and of itself means nothing.

Right now, I've managed to prove my case prima facie. It's now incumbent on someone else to clearly prove what specific statute or court decision has made the 1967 BIA ruling invalid.

 

[wurzbach]

The case is on topic. It clearly indicates that intent is required, and a specific time with the employer is not.

Several points deserve readers' attention in reading Matter of Marcoux (decided in August 1968) and YUI SING TSE (1979).

1). Around 1970's, there were two lines of cases about employee's intent. Cases in line with Marcoux found that the employees had the intention to work for the employers at the time of admission and held that later change of job did not affect the employees' PR; cases in the other line found that the employees did not have the intent to work for the employers and held that INS can infer employees' intent by their switching to other jobs after admission. But no employees in the second group had ever worked for the sponsoring employers before admission (in one case a guy worked one day for his employer after entering US as immigrant, he lost and was deported).

2) so it is right that what matters is at the time of admission, you must have the intent to work for the employer. But this requirement cannot be read as that you are required to work for the employer PERMANENTLY OR ANY SPECIFIED LENGTH OF TIME. The 1979 case by the 9th Circuit clearly addressed this point.

3) for most people who worked for their employers years before receiving employment-based green cards, the fact that you stay with your employer after GC does little more in evidencing your intent at the time of admission because your intent can be readily proved by your longtime staying with your employer before you get GC.

4) As aliens, you are still under the protection of US Constitution. The public policy of free employment and preventing servitude is equally, if not more, important as the public policy of protecting US labor market and US workers.

5) In no cases where the employee's intent was a issue, fraud or misrepresentaion allegations were raised by INS. So, do not be scared by these evil words.