I got my J-1 waiver last year(October 2000)and now working in a MUA/HPSA on H-1 B. My son who is on H-4 turns 21 in Feb 2004, going to attend Hons Program as an undergraduate from September this year. I talked to a lawyer, who suggested that instead of going through NIW for Green card, which will take another 4 years by which time I will not be able to get a Green card for my son as a dependent, I should try for employment based route( EB3) through a permanent job offer from my employer. The problem I am facing is that my employer is hesitent to sign a contract for a permanent job offer, as he thinks that I may become his liability for rest of my life in US. Can he put any provisions for terminating my job in the contract, so that he is at peace that he can fire me later on. On my part I have no problems in leaving him after I get my Green card. Any ideas or suggestions to convince my employer that I will not be his liability forever after I get my Green card. The main reason I wish to go trhough EB3 is so that my son is included as my dependent for the GC.
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Urgent Help needed
- Thread starter Aparajita
- Start date
No Title
Your position needs to be "permanent" i.e. your position should continue to exist indefinitely. Your employer does NOT have to state that he wishes to employ you permanently. he just needs to state that he has a permanent position which he wants to offer to you.
As a practical matter he does not have to include your employment contract in the Labor certification packet. I myself had a 3 year contract only. My contract like most contracts stated that I could be terminated with 3 months notice from either side for no cause.
it appears that your employer has never done labor Certs before . Have him talk to a knowledgeable attorney. Nobody in USA gets "permanent" employment but there are a lot of permanent positions.
another thing. as a physician you will qualify as EB2 ( advanced degree professional) and not as a EB3. So make sure you have your attorney seek proper classification. It might be important later if you are from India.
Your position needs to be "permanent" i.e. your position should continue to exist indefinitely. Your employer does NOT have to state that he wishes to employ you permanently. he just needs to state that he has a permanent position which he wants to offer to you.
As a practical matter he does not have to include your employment contract in the Labor certification packet. I myself had a 3 year contract only. My contract like most contracts stated that I could be terminated with 3 months notice from either side for no cause.
it appears that your employer has never done labor Certs before . Have him talk to a knowledgeable attorney. Nobody in USA gets "permanent" employment but there are a lot of permanent positions.
another thing. as a physician you will qualify as EB2 ( advanced degree professional) and not as a EB3. So make sure you have your attorney seek proper classification. It might be important later if you are from India.
No Title
Thanks SudhirS, Martina and everyone else,
After reading all this I have again talked to my employer. He has also talked to my attorney and has agreed to sign my form for ALC. And yes, it is EB2 category. It was my mistake to type EB3 in the original message.
My second question for all the experts is- at what level of the whole procedure my son is assured of a GC as my dependent. He turns 21 in Feb 2004 and I finish my 3 yr J1 waiver in October 2003. Supposing we start the process of ALC by the end of this month. And I am from India.
Thanks SudhirS, Martina and everyone else,
After reading all this I have again talked to my employer. He has also talked to my attorney and has agreed to sign my form for ALC. And yes, it is EB2 category. It was my mistake to type EB3 in the original message.
My second question for all the experts is- at what level of the whole procedure my son is assured of a GC as my dependent. He turns 21 in Feb 2004 and I finish my 3 yr J1 waiver in October 2003. Supposing we start the process of ALC by the end of this month. And I am from India.
No Title
You have to complete the Labor Cert and the I-140 stage(a few months) before your son turns 21. then you will be able to include him when you either apply for an immigrant visa at the consulate in India or your adjustment of status petition.
You can also apply for an NIW. As soon as you ge the approval you can apply for Adjustment of status including your son in your petition.
However time is on your side. If you do RIR labor Certification you could potentially get the labor cert approved within next 6 months. the next step- the Immigrant Petition(I-140) should take another couple of months. then apply for the immigrant visa at the US consulate in India around June 2003 and set up interview one day after your 3 years of J-1 waiver are over. You can file the paperwork at the consulate in India before the 3 years are up but can only interview after the 3 years are up.
You will then be free to find a new job and move on. If you do NIW you are stuck for 5 years in an underserved area.
You have to complete the Labor Cert and the I-140 stage(a few months) before your son turns 21. then you will be able to include him when you either apply for an immigrant visa at the consulate in India or your adjustment of status petition.
You can also apply for an NIW. As soon as you ge the approval you can apply for Adjustment of status including your son in your petition.
However time is on your side. If you do RIR labor Certification you could potentially get the labor cert approved within next 6 months. the next step- the Immigrant Petition(I-140) should take another couple of months. then apply for the immigrant visa at the US consulate in India around June 2003 and set up interview one day after your 3 years of J-1 waiver are over. You can file the paperwork at the consulate in India before the 3 years are up but can only interview after the 3 years are up.
You will then be free to find a new job and move on. If you do NIW you are stuck for 5 years in an underserved area.
No Title
SudhirS,
Thanks a lot for your helpful reply.
My attorney thinks that we should go for Non-RIR route for labor Certificate. He did explain to me that RIR is shorter, but in my particular situation we should go for Non-RIR. He did try to explain to me that with Non-RIR we would be able to get an earlier priority date, as the priority dates for India are backlogged . He also found that our State DOL is processing both RIR and non RIR in 1-2 months time. Any opinions or advice would be most welcome.
SudhirS,
Thanks a lot for your helpful reply.
My attorney thinks that we should go for Non-RIR route for labor Certificate. He did explain to me that RIR is shorter, but in my particular situation we should go for Non-RIR. He did try to explain to me that with Non-RIR we would be able to get an earlier priority date, as the priority dates for India are backlogged . He also found that our State DOL is processing both RIR and non RIR in 1-2 months time. Any opinions or advice would be most welcome.
j1 madness
Registered Users (C)
No Title
Are the priority dates for India backlogged now???? Is it not current, maybe some one could explain.
Are the priority dates for India backlogged now???? Is it not current, maybe some one could explain.
No Title
it is hard to imagine a scenario where non RiR would be preferable to RiR. If you do non RiR( traditional labor cert) then DOL supervises the recruitment and all replies to the ad placed in JAMA would go directly to DOL. the employer would then need to offer the job to any green Card or Citizen who applies. With a ignorant/scared employer it might be the end of the story.
with RiR the employer advertises on his own and then files a summary recruitment report stating the recruitment efforts he has made and the results ( no citizens/green card were willing to take the job). he does not need to mention any specifics.
Your lawyer obviously does not know the priority date situation. priority dates for India are not backlogged and not expected to be backlogged for the foreseeable future. So that explanation for doing traditional labor Cert is inaccurate. you can check the priority dates by visiting http://travel.state.gov/visa_bulletin.html
in any case you cannot apply for immigrant visa or adjustment of status till your 3 years of J-1 waiver are up. So priority date is not going to be of any concern for you.
a common misconception about RiR is that the recruitment has to be FOR 6 months. It has to be done WITHIN previous 6 months and in my case consisted of 2 Ads in JAMA 1 month apart
the following is an overview which i copied from another lawyers website
"The Traditional Labor Certification Process
With traditionally filed cases, the state job service supervises recruitment to ensure that no American workers are available. A job order is placed in the state job bank, and employers must also place advertisements meeting certain requirements in newspapers or other approved print sources. Resumes and applications are filtered through the state labor office, and then forwarded to the employers. Employers report back to state offices on results of recruitment. If no available U.S. workers are available, the case is forwarded to a regional office of the national DOL for a determination.
The RIR Labor Certification Process
RIR processing has the same goal, but permits employers to conduct their own recruitment in a variety of ways, including newspaper advertisements, Internet advertisements, and job fairs. Employers must submit documentation with the application that demonstrates a pattern of recruitment during the preceding six-month period. The RIR application and supporting documentation are reviewed by the state office, and then forwarded to the regional office of the national DOL for a determination. By submitting an RIR request, the supervised recruitment stage of the labor certification process can be avoided. Moreover, both state and regional offices give RIR applications priority. As a result, these cases are processed much more quickly than traditionally filed cases. "
it is hard to imagine a scenario where non RiR would be preferable to RiR. If you do non RiR( traditional labor cert) then DOL supervises the recruitment and all replies to the ad placed in JAMA would go directly to DOL. the employer would then need to offer the job to any green Card or Citizen who applies. With a ignorant/scared employer it might be the end of the story.
with RiR the employer advertises on his own and then files a summary recruitment report stating the recruitment efforts he has made and the results ( no citizens/green card were willing to take the job). he does not need to mention any specifics.
Your lawyer obviously does not know the priority date situation. priority dates for India are not backlogged and not expected to be backlogged for the foreseeable future. So that explanation for doing traditional labor Cert is inaccurate. you can check the priority dates by visiting http://travel.state.gov/visa_bulletin.html
in any case you cannot apply for immigrant visa or adjustment of status till your 3 years of J-1 waiver are up. So priority date is not going to be of any concern for you.
a common misconception about RiR is that the recruitment has to be FOR 6 months. It has to be done WITHIN previous 6 months and in my case consisted of 2 Ads in JAMA 1 month apart
the following is an overview which i copied from another lawyers website
"The Traditional Labor Certification Process
With traditionally filed cases, the state job service supervises recruitment to ensure that no American workers are available. A job order is placed in the state job bank, and employers must also place advertisements meeting certain requirements in newspapers or other approved print sources. Resumes and applications are filtered through the state labor office, and then forwarded to the employers. Employers report back to state offices on results of recruitment. If no available U.S. workers are available, the case is forwarded to a regional office of the national DOL for a determination.
The RIR Labor Certification Process
RIR processing has the same goal, but permits employers to conduct their own recruitment in a variety of ways, including newspaper advertisements, Internet advertisements, and job fairs. Employers must submit documentation with the application that demonstrates a pattern of recruitment during the preceding six-month period. The RIR application and supporting documentation are reviewed by the state office, and then forwarded to the regional office of the national DOL for a determination. By submitting an RIR request, the supervised recruitment stage of the labor certification process can be avoided. Moreover, both state and regional offices give RIR applications priority. As a result, these cases are processed much more quickly than traditionally filed cases. "
j1 madness
Registered Users (C)
No Title
SudhirS, That was a valuable information, thanks for sharing with all of us. So one cannot apply I485 or for EAD till the 3yrs ( in my case it is 4yrs for the J1waiver)????
SudhirS, That was a valuable information, thanks for sharing with all of us. So one cannot apply I485 or for EAD till the 3yrs ( in my case it is 4yrs for the J1waiver)????
No Title
you can apply for the EAD/I-485 before 3 years are up only if you were never on J-1 status. However the case will not be processed completely i.e you wont get the actual Green Card till 5 years are over. If you are an ex J-1 & you do RiR/NIW then you cant apply for I-485 or Immigrant Visa ( consular processing) till 3 years are up. But you will get the GC soon after that ( faster if you do consular processing slower if you do adjustment of status).
You should apply for both NIW and Labor Cert simultaneously. Then if the labor cert gets approved you will not have to wait 5 years to get the GC. If it gets denied you still have the NIW to fall back upon.
As far as J-1 waiver is concerned it is still 3 years as far as INS is concerned. though your sponsor/employer might want you to work longer i.e 4/5 years.
you can apply for the EAD/I-485 before 3 years are up only if you were never on J-1 status. However the case will not be processed completely i.e you wont get the actual Green Card till 5 years are over. If you are an ex J-1 & you do RiR/NIW then you cant apply for I-485 or Immigrant Visa ( consular processing) till 3 years are up. But you will get the GC soon after that ( faster if you do consular processing slower if you do adjustment of status).
You should apply for both NIW and Labor Cert simultaneously. Then if the labor cert gets approved you will not have to wait 5 years to get the GC. If it gets denied you still have the NIW to fall back upon.
As far as J-1 waiver is concerned it is still 3 years as far as INS is concerned. though your sponsor/employer might want you to work longer i.e 4/5 years.
No Title
My lawyer also advised me to do traditional labor certification at first. He said that the RiR is uncertain, because it could be denied if DOL thinks that the recruitment process was not done well. It took me one year of waiting till I realized that it was not going to happen any time soon. I made him to withdraw my application and we filed RiR. It took me three months to put everything together and another six months waiting for DOL. The I-140 took me 8 months.
My lawyer also advised me to do traditional labor certification at first. He said that the RiR is uncertain, because it could be denied if DOL thinks that the recruitment process was not done well. It took me one year of waiting till I realized that it was not going to happen any time soon. I made him to withdraw my application and we filed RiR. It took me three months to put everything together and another six months waiting for DOL. The I-140 took me 8 months.
j1 madness
Registered Users (C)
No Title
Martina, could you give your timeline of your GC process. The date you started your J1 waiver job, have you filed I485 yet. It will be very informative to all of us. Thank you.
Martina, could you give your timeline of your GC process. The date you started your J1 waiver job, have you filed I485 yet. It will be very informative to all of us. Thank you.
No Title
J-1 research, 4 years
waiver
H-1B residency, 3 years
H-1B fellowship, 9 months
H-1B job at MUA since 10/98
traditional labor certification sent to DOL in 1/99
NIW filed 1/99
NIW denied 10/99
NIW appealed 11/99
traditional labor certification withdrawn 12/99
RiR recruitment started 1/00
RiR filed to DOL 3/00
NIW appeal accepted 4/00
O-1 visa approved 7/00
RiR approved by DOL 9/00
I-140 filed 11/5/00
I-140 approved 6/7/01
NIW appeal approved 6/01
CP interview 7/30/00
The end ? (~ 11 years)
The lesson? Never give up, use all your options.
J-1 research, 4 years
waiver
H-1B residency, 3 years
H-1B fellowship, 9 months
H-1B job at MUA since 10/98
traditional labor certification sent to DOL in 1/99
NIW filed 1/99
NIW denied 10/99
NIW appealed 11/99
traditional labor certification withdrawn 12/99
RiR recruitment started 1/00
RiR filed to DOL 3/00
NIW appeal accepted 4/00
O-1 visa approved 7/00
RiR approved by DOL 9/00
I-140 filed 11/5/00
I-140 approved 6/7/01
NIW appeal approved 6/01
CP interview 7/30/00
The end ? (~ 11 years)
The lesson? Never give up, use all your options.
j1 madness
Registered Users (C)
No Title
Martina, thank you for the quick reply. These are the facts I understand from your timeline, correct me if I am wrong.
= Your initial J1 waiver for research was completed before you got H1 for residency.
= So now you are not required to complete the 3 year underserved area job
= so as soon as your I140 was approved, you have things ready for CP interview for 7/30/01.
Thanks again.
Martina, thank you for the quick reply. These are the facts I understand from your timeline, correct me if I am wrong.
= Your initial J1 waiver for research was completed before you got H1 for residency.
= So now you are not required to complete the 3 year underserved area job
= so as soon as your I140 was approved, you have things ready for CP interview for 7/30/01.
Thanks again.