pachai_attai
08-15 03:48 PM
Yes. I used AC21 in Sep 2005. (after 140 approval and 180 days period). I applied for 485 on 29th Dec 2004.
wallpaper Ducati 848 EVO
Bhaskar_80
05-21 04:45 PM
Hi,
Yes. PERM is taking close to 7 months if not stuck in Audit. My case was filed on 10/12/2009.
My employer saw that the status of my case changed to Certified in the following website
yesterday. So approximately it is taking b/w 7 to 8 months which is good news.
http://www.plc.doleta.gov/splash.cfm
Can anybody let me know, how long will it take to get the approval notice in hand.
Thanks and Regards
Yes. PERM is taking close to 7 months if not stuck in Audit. My case was filed on 10/12/2009.
My employer saw that the status of my case changed to Certified in the following website
yesterday. So approximately it is taking b/w 7 to 8 months which is good news.
http://www.plc.doleta.gov/splash.cfm
Can anybody let me know, how long will it take to get the approval notice in hand.
Thanks and Regards
yabadaba
08-21 03:29 PM
sunny how much money have you saved up? whats your networth?
2011 2011 Ducati 848 EVO Superbike
gbof
08-01 08:31 PM
Thank you for your valuable input.
So in other words, visa numbers for the entire family are NOT assigned right away with the family if one has to go for an interview. The worst part was that the interview was due to a missing medical which was filed by us but misplaced by USCIS.
Re. 8 C.RR. Sec. 205.1(a)(3)(i)(C) is for Family based visa, hers is EB based (piggy backing on mine) Does this mean I should really consider filing a 130 to convert to family based?
Congressman can't help in ending this "humanitarian" trauma while I am still alive?
You seem o be enormously worried. Everyone knows dealing with uscis is a torture of a different kind. I will say Just relax and have good faith.
God Bless Our Family
So in other words, visa numbers for the entire family are NOT assigned right away with the family if one has to go for an interview. The worst part was that the interview was due to a missing medical which was filed by us but misplaced by USCIS.
Re. 8 C.RR. Sec. 205.1(a)(3)(i)(C) is for Family based visa, hers is EB based (piggy backing on mine) Does this mean I should really consider filing a 130 to convert to family based?
Congressman can't help in ending this "humanitarian" trauma while I am still alive?
You seem o be enormously worried. Everyone knows dealing with uscis is a torture of a different kind. I will say Just relax and have good faith.
God Bless Our Family
more...
gcisadawg
04-13 10:22 AM
I have recently switched the job using AC21. I have to move my 401K from my old previous company but here is the issue: in my new company I will not be eligible for the 401 till I complete 6 months with the new company.
If thinking of moving it to IRA account, please let me know what is the procedure involved?
I will really appreciate if some can suggest me what are my other options.
Thanks,
You have multiple options.
1> Just keep the money with your old company. This is possible if the balance is above 5K.
You can shift as soon as you set up a new 401K plan with your new company. Check with your current HR if they allow this. In my company, they do allow this.
2> Shift the money to a new/exsisting IRA.
Either case, first open the account and ask your current 401K custodian to write a cheque to new 401K/IRA custodian. If they write a cheque directly to you, they may withhold tax.
If you don't deposit within specific time period then you would incur tax and 10% penalty.
-GCisaDawg
If thinking of moving it to IRA account, please let me know what is the procedure involved?
I will really appreciate if some can suggest me what are my other options.
Thanks,
You have multiple options.
1> Just keep the money with your old company. This is possible if the balance is above 5K.
You can shift as soon as you set up a new 401K plan with your new company. Check with your current HR if they allow this. In my company, they do allow this.
2> Shift the money to a new/exsisting IRA.
Either case, first open the account and ask your current 401K custodian to write a cheque to new 401K/IRA custodian. If they write a cheque directly to you, they may withhold tax.
If you don't deposit within specific time period then you would incur tax and 10% penalty.
-GCisaDawg
snathan
05-04 11:24 PM
I would also recommend to go through an attorney as the cost is not worth to lose your status...
more...
amsgc
05-29 08:13 PM
The highlighted statement doesn't seem to be correct. You can have more than one employer file an H-1B petiton for you.
Until the time you left your university employer, you were in status with the original H-1B (cap exempt).
Now, you need to either get the job back at the university, or ask the consultant outfit (A) to employ you.
Could you state the reason given my USCIS for denying the H-1B petition filed by consultant (B)?
Also, I would refrain from using the word "transfer", as there is no such thing. It is always a new petition, with request to not count it in the yearly cap.
Get a good attorney to solve this issue as practically speaking, you were out of status from period of 2006-2008 as your Company A's Approval overrided your university H1.
USCIS is expecting that you submitted Company A's Approval for transfer instead of University's H1B Approval
This is not a legal advise. Please get in touch with a immigration attorney.
Until the time you left your university employer, you were in status with the original H-1B (cap exempt).
Now, you need to either get the job back at the university, or ask the consultant outfit (A) to employ you.
Could you state the reason given my USCIS for denying the H-1B petition filed by consultant (B)?
Also, I would refrain from using the word "transfer", as there is no such thing. It is always a new petition, with request to not count it in the yearly cap.
Get a good attorney to solve this issue as practically speaking, you were out of status from period of 2006-2008 as your Company A's Approval overrided your university H1.
USCIS is expecting that you submitted Company A's Approval for transfer instead of University's H1B Approval
This is not a legal advise. Please get in touch with a immigration attorney.
2010 2011 Ducati 848 EVO Wallpaper
gparr
July 25th, 2005, 07:06 PM
I enjoy shooting white objects, particularly snow and white flowers, because it's difficult to get the exposures right and to avoid blowing out highlights. However, I'm never happy with the results I get when I process the images in Photoshop. Below is a shot of an Angel's Trumpet bloom I shot the other day. The challenge is to download the RAW file (link below) and process it to either show me that it can be better than my effort or to confirm for me that I'm on target with my image processing. If you post your version, please also post details of what you did in Photoshop so I can try to replicate it. Have fun and thanks.
Gary
Download the RAW file:
http://www.gparr.com/images/gparrraw.zip
http://www.dphoto.us/forumphotos/data/500/angeltrump03.jpg
Gary
Download the RAW file:
http://www.gparr.com/images/gparrraw.zip
http://www.dphoto.us/forumphotos/data/500/angeltrump03.jpg
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roseball
03-29 04:15 PM
How long the process took before filing? How much time for PWD alone?
It took almost 6 months.....But typically it only requires around 3-4 months (considering PWD response in 1-2 weeks)....My PWD was filed in the first week of Jan and it took about 3 weeks to get a response back it seems, though I am not aware of the exact dates as I was not involved in this whole process. I only came to know about it due to my frequent emails to my manager and attorney asking for status..:-)......Mine is a large corporation (400k+ employees) so things move really slow process wise....I felt from start to filing of PERM, it should take about 4 months max...But it really depends on the number of resumes received and the time taken to screen them....If candidates are found who have to be interviewed, it could take a little more time....
It took almost 6 months.....But typically it only requires around 3-4 months (considering PWD response in 1-2 weeks)....My PWD was filed in the first week of Jan and it took about 3 weeks to get a response back it seems, though I am not aware of the exact dates as I was not involved in this whole process. I only came to know about it due to my frequent emails to my manager and attorney asking for status..:-)......Mine is a large corporation (400k+ employees) so things move really slow process wise....I felt from start to filing of PERM, it should take about 4 months max...But it really depends on the number of resumes received and the time taken to screen them....If candidates are found who have to be interviewed, it could take a little more time....
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gc_chahiye
11-04 11:26 PM
Situation - During the month of July, I filed my 485 when all categories were current. Got my receipt too. Missed wife's application because her papers were not ready. Now priority dates have retrogressed again.
Saving grace - Our H1/H4 are in order with many long years left on them.
Question - Can I file my wife 485 now as a dependent, even though "my" PD is not current yet. The core point is that, does the concept of PD applies to the dependent 485 applications too?
unfortunately under current laws/regulations the dependent can only file when the PD of the primary applicant is current. So you'll need to wait for your PD to become current again to be able to file your wife's petition.
Saving grace - Our H1/H4 are in order with many long years left on them.
Question - Can I file my wife 485 now as a dependent, even though "my" PD is not current yet. The core point is that, does the concept of PD applies to the dependent 485 applications too?
unfortunately under current laws/regulations the dependent can only file when the PD of the primary applicant is current. So you'll need to wait for your PD to become current again to be able to file your wife's petition.
more...
shivaniraina
07-21 02:20 PM
You are exempt from the cap:) . Your immigration lawyer can confirm this.
I was on HIB till 2005. I quit my job sometime last year as I was pregnant and we moved to another city. I went back to a new job/new company/new HIB early this year even though quota was exhausted. However, i had no problem is getting the approval as people holding HIB previously in 6 years do not count under quota. The only difference is that you will have to wait for the approval before you join new job unlike visa transfer. I had consulted several lawyers before i decided to quit my job.
I was on HIB till 2005. I quit my job sometime last year as I was pregnant and we moved to another city. I went back to a new job/new company/new HIB early this year even though quota was exhausted. However, i had no problem is getting the approval as people holding HIB previously in 6 years do not count under quota. The only difference is that you will have to wait for the approval before you join new job unlike visa transfer. I had consulted several lawyers before i decided to quit my job.
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mmanurker
10-17 03:36 PM
Payroll tax is same as employer tax. There are 2 or 3 components of the taxes that employer pays such as Social security ( employer portion), unemployment tax, Medicare ( employer portion)
also employer will need to pay for payroll company such as ADP a fee to maintain payroll, do filings
Thanks Surabhi......So does my assumption correct in terms of the percent tax an employer pays which is between 8 to 12% depending on the state he is operating which inlcudes all the components you mentioned except the payroll company fee(i,e ADP or intuit or etc)? The reason I ask this is b'coz I am also planning to work on W2.
also employer will need to pay for payroll company such as ADP a fee to maintain payroll, do filings
Thanks Surabhi......So does my assumption correct in terms of the percent tax an employer pays which is between 8 to 12% depending on the state he is operating which inlcudes all the components you mentioned except the payroll company fee(i,e ADP or intuit or etc)? The reason I ask this is b'coz I am also planning to work on W2.
more...
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yabadaba
06-28 09:08 AM
^^^^^
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newuser
05-10 09:34 PM
We recently had the same problem for my in-laws appointment (Hyd). The calendar shows the dates are avaiable, but when we are about to make the actual appointment, the hyperlinks are missing on the calendar. VFS did acknowledge this issue when I called their customer support no. There said to try after couple of hours ( or may be days) and it did work.
Save the applications and try to schedule the date at a latter time. Call the customer support no on VFS website. Sometimes they would to try to schedule appointment. In my case, it didn't work even for the Customer Service Rep also.
Best of luck.
Save the applications and try to schedule the date at a latter time. Call the customer support no on VFS website. Sometimes they would to try to schedule appointment. In my case, it didn't work even for the Customer Service Rep also.
Best of luck.
more...
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meridiani.planum
11-03 01:50 AM
Hi,
My employer applied for my H1b Extension and the case was received on Aug 5th by USCIS. The online status still shows the case to be in "Initial Review". Out of curiosity, I called USCIS and they told me that they can only reveal information abuot the case to my employer. So I called my employer and they gave me a shocking news - They had received an RFE about a month ago and they "forgot" to inform me. They are not revealing me the details of the RFE.
We have to respond to the RFE by Nov 3rd, and since I had a change of project(I did provide the previous client letter when we had originally applied for H1b extension) they are asking me to get a client letter and other proofs within a day!!!! My client is taking its on time and I do not think I will get the client letter to send it in time.
1) What are my options here? Not knowing what the RFE is, being told about the RFE with just 2 days remaining, can I threaten to take any legal action against my employer?
2) Is it my right to get a copy of the RFE?
3) How come the case status did not change on USCIS website?
My current visa expires on Nov 20th. Please advice ASAP!
sorry to say but your employer is useless. by playing around with your H1 petition he is messing around with your legal status in the US. Since he has already proven himself untrustworthy, I would suggest you move on asap: find another job and transfer your H1. Since you already have a client, should be easier to get a transfer done. Also, do the transfer with premium processing even if you have to pay $1k out of your own pocket.
P.S: H1 is his own petition, you are just the beneficiary. You dont have a right to see the RFE and he does not have an obligation to share information about it with you. Thats the legal part. morally and ethically the way he is acting sucks.
My employer applied for my H1b Extension and the case was received on Aug 5th by USCIS. The online status still shows the case to be in "Initial Review". Out of curiosity, I called USCIS and they told me that they can only reveal information abuot the case to my employer. So I called my employer and they gave me a shocking news - They had received an RFE about a month ago and they "forgot" to inform me. They are not revealing me the details of the RFE.
We have to respond to the RFE by Nov 3rd, and since I had a change of project(I did provide the previous client letter when we had originally applied for H1b extension) they are asking me to get a client letter and other proofs within a day!!!! My client is taking its on time and I do not think I will get the client letter to send it in time.
1) What are my options here? Not knowing what the RFE is, being told about the RFE with just 2 days remaining, can I threaten to take any legal action against my employer?
2) Is it my right to get a copy of the RFE?
3) How come the case status did not change on USCIS website?
My current visa expires on Nov 20th. Please advice ASAP!
sorry to say but your employer is useless. by playing around with your H1 petition he is messing around with your legal status in the US. Since he has already proven himself untrustworthy, I would suggest you move on asap: find another job and transfer your H1. Since you already have a client, should be easier to get a transfer done. Also, do the transfer with premium processing even if you have to pay $1k out of your own pocket.
P.S: H1 is his own petition, you are just the beneficiary. You dont have a right to see the RFE and he does not have an obligation to share information about it with you. Thats the legal part. morally and ethically the way he is acting sucks.
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dupedinjuly
07-15 02:07 AM
http://www.nytimes.com/2007/07/15/us/politics/15immig.html?_r=1&ref=us&oref=slogin
A Little-Known Group Claims a Victory on Immigration
July 15, 2007
A Little-Known Group Claims a Victory on Immigration
By ROBERT PEAR
WASHINGTON, July 14 � When a comprehensive immigration bill collapsed last month on the Senate floor, it was a victory for a small group that had been lobbying Congress for a decade to reduce the number of immigrants � legal and illegal � in the United States.
The group, Numbers USA, tracked every twist and turn of the bill. Its members flooded the Senate with more than a million faxes, sent through the organization�s Web site. It supplied arguments and information to senators opposing the bill.
�It was a David-and-Goliath struggle,� said Roy H. Beck, the president of Numbers USA, who had been preparing for this moment since 1996, when he wrote a book titled �The Case Against Immigration.�
Supporters of the bill included President Bush, the United States Chamber of Commerce, the high-tech industry, the Roman Catholic Church, many Hispanic organizations, farmers, restaurants, hotels and the construction industry.
�The bill had support from the opinion elite in this country,� Mr. Beck said. �But we built a grass-roots army, consumed with passion for a cause, and used the power of the Internet to go around the elites and defeat a disastrous amnesty bill.�
The measure, which died on June 28, would have offered legal status and a path to citizenship to millions of illegal immigrants and created a new temporary worker program while increasing border security.
�Numbers USA initiated and turbocharged the populist revolt against the immigration reform package,� said Frank Sharry, executive director of the National Immigration Forum, a pro-immigrant advocacy group. �Roy Beck takes people who are upset about illegal immigration for different reasons, including hostility to Latino immigrants, and disciplines them so their message is based on policy rather than race-based arguments or xenophobia.�
Representative Brian P. Bilbray, Republican of California and chairman of the Immigration Reform Caucus, said, �We�re involved in weekly discussions with Numbers USA and other immigration-control groups as part of a team effort.�
Numbers USA had fewer than 50,000 members at the end of 2004, but now counts more than 447,000, with an increase of 83 percent since January alone.
Turning to the next phase of the debate, those members will push for enforcement of existing laws and new measures to curb the employment of illegal immigrants.
�Our No. 1 legislative goal is to begin a system of mandatory workplace verification, to confirm that every employee is a United States citizen or an alien authorized to work in this country,� said Rosemary E. Jenks, director of government relations at Numbers USA.
The organization wants to reduce immigration � as Mr. Beck says in the subtitle of his book � for �moral, economic, social and environmental reasons.�
He contends that immigrants and their children are driving population growth, which he says is gobbling up open space, causing urban sprawl and creating more traffic congestion.
Moreover, Mr. Beck asserts that immigrants and temporary workers, by increasing the supply of labor, have depressed wages in industries from meatpacking to information technology. Numbers USA has worked most closely with conservative Republicans, but in recent weeks has built alliances with Democrats who share the concern.
Numbers USA keeps a scorecard showing every vote by every member of Congress on immigration-related issues since 1989. The group assigns a letter grade to each member.
Lawmakers who received an A-plus were all Republicans and included Representatives J. Dennis Hastert of Illinois and Tom Tancredo of Colorado, a presidential candidate. The lowest grades � F-minuses � went to Democrats, including Speaker Nancy Pelosi and Representative Joe Baca of California, chairman of the Congressional Hispanic Caucus.
Numbers USA objects to proposals that increase the number of legal or illegal immigrants. It steers clear of debates over the allocation of visas.
�It does not matter to us whether a visa goes to a high-tech worker, a farm worker or the sibling of a U.S. citizen,� Mr. Beck said.
Numbers USA is one of many organizations fostered by John H. Tanton, an ophthalmologist from Michigan who has also championed efforts to protect the environment, limit population growth and promote English as an official language.
Critics like the Southern Poverty Law Center and Representative Chris Cannon, Republican of Utah, have described Dr. Tanton as a father of the anti-immigration movement. Mark A. Potok, a senior researcher at the law center, called Numbers USA the �kinder, gentler side of that movement.�
Mr. Beck said Numbers USA had been independent of Dr. Tanton since 2002. On the group�s Web site, Mr. Beck cautions against �immigrant bashing� and says, �Even illegal aliens deserve humane treatment as they are detected, detained and deported.�
In the fight over the Senate bill, Numbers USA had daily conference calls with conservative groups like the Heritage Foundation and the Eagle Forum.
For tax purposes, Numbers USA has two arms, an educational foundation and an advocacy group that lobbies Congress. Together, Mr. Beck said, they have a budget of $3 million this year, but will probably raise and spend $4.5 million.
Mr. Beck said that in the past the group received about two-thirds of its money from foundations like the Colcom Foundation of Pittsburgh and the Weeden Foundation in New York. Many of these foundations have an interest in conservation.
Numbers USA has raised the rest of its money from individual contributors over the Internet. The group collects detailed information on its members � their ethnic background, politics, religious affiliations, occupations and concerns � so it can choose the most effective advocates on any particular issue.
In a survey question on religion, the group said the information would be useful because many lawmakers were likely to respond better to people with �a very similar religious worldview.�
�This is our citizen army,� Mr. Beck said, pointing to a map that showed members of his group in every Congressional district.
Home
World U.S. N.Y. / Region Business Technology Science Health Sports Opinion Arts Style Travel Jobs Real Estate Automobiles Back to Top
Copyright 2007 The New York Times Company
A Little-Known Group Claims a Victory on Immigration
July 15, 2007
A Little-Known Group Claims a Victory on Immigration
By ROBERT PEAR
WASHINGTON, July 14 � When a comprehensive immigration bill collapsed last month on the Senate floor, it was a victory for a small group that had been lobbying Congress for a decade to reduce the number of immigrants � legal and illegal � in the United States.
The group, Numbers USA, tracked every twist and turn of the bill. Its members flooded the Senate with more than a million faxes, sent through the organization�s Web site. It supplied arguments and information to senators opposing the bill.
�It was a David-and-Goliath struggle,� said Roy H. Beck, the president of Numbers USA, who had been preparing for this moment since 1996, when he wrote a book titled �The Case Against Immigration.�
Supporters of the bill included President Bush, the United States Chamber of Commerce, the high-tech industry, the Roman Catholic Church, many Hispanic organizations, farmers, restaurants, hotels and the construction industry.
�The bill had support from the opinion elite in this country,� Mr. Beck said. �But we built a grass-roots army, consumed with passion for a cause, and used the power of the Internet to go around the elites and defeat a disastrous amnesty bill.�
The measure, which died on June 28, would have offered legal status and a path to citizenship to millions of illegal immigrants and created a new temporary worker program while increasing border security.
�Numbers USA initiated and turbocharged the populist revolt against the immigration reform package,� said Frank Sharry, executive director of the National Immigration Forum, a pro-immigrant advocacy group. �Roy Beck takes people who are upset about illegal immigration for different reasons, including hostility to Latino immigrants, and disciplines them so their message is based on policy rather than race-based arguments or xenophobia.�
Representative Brian P. Bilbray, Republican of California and chairman of the Immigration Reform Caucus, said, �We�re involved in weekly discussions with Numbers USA and other immigration-control groups as part of a team effort.�
Numbers USA had fewer than 50,000 members at the end of 2004, but now counts more than 447,000, with an increase of 83 percent since January alone.
Turning to the next phase of the debate, those members will push for enforcement of existing laws and new measures to curb the employment of illegal immigrants.
�Our No. 1 legislative goal is to begin a system of mandatory workplace verification, to confirm that every employee is a United States citizen or an alien authorized to work in this country,� said Rosemary E. Jenks, director of government relations at Numbers USA.
The organization wants to reduce immigration � as Mr. Beck says in the subtitle of his book � for �moral, economic, social and environmental reasons.�
He contends that immigrants and their children are driving population growth, which he says is gobbling up open space, causing urban sprawl and creating more traffic congestion.
Moreover, Mr. Beck asserts that immigrants and temporary workers, by increasing the supply of labor, have depressed wages in industries from meatpacking to information technology. Numbers USA has worked most closely with conservative Republicans, but in recent weeks has built alliances with Democrats who share the concern.
Numbers USA keeps a scorecard showing every vote by every member of Congress on immigration-related issues since 1989. The group assigns a letter grade to each member.
Lawmakers who received an A-plus were all Republicans and included Representatives J. Dennis Hastert of Illinois and Tom Tancredo of Colorado, a presidential candidate. The lowest grades � F-minuses � went to Democrats, including Speaker Nancy Pelosi and Representative Joe Baca of California, chairman of the Congressional Hispanic Caucus.
Numbers USA objects to proposals that increase the number of legal or illegal immigrants. It steers clear of debates over the allocation of visas.
�It does not matter to us whether a visa goes to a high-tech worker, a farm worker or the sibling of a U.S. citizen,� Mr. Beck said.
Numbers USA is one of many organizations fostered by John H. Tanton, an ophthalmologist from Michigan who has also championed efforts to protect the environment, limit population growth and promote English as an official language.
Critics like the Southern Poverty Law Center and Representative Chris Cannon, Republican of Utah, have described Dr. Tanton as a father of the anti-immigration movement. Mark A. Potok, a senior researcher at the law center, called Numbers USA the �kinder, gentler side of that movement.�
Mr. Beck said Numbers USA had been independent of Dr. Tanton since 2002. On the group�s Web site, Mr. Beck cautions against �immigrant bashing� and says, �Even illegal aliens deserve humane treatment as they are detected, detained and deported.�
In the fight over the Senate bill, Numbers USA had daily conference calls with conservative groups like the Heritage Foundation and the Eagle Forum.
For tax purposes, Numbers USA has two arms, an educational foundation and an advocacy group that lobbies Congress. Together, Mr. Beck said, they have a budget of $3 million this year, but will probably raise and spend $4.5 million.
Mr. Beck said that in the past the group received about two-thirds of its money from foundations like the Colcom Foundation of Pittsburgh and the Weeden Foundation in New York. Many of these foundations have an interest in conservation.
Numbers USA has raised the rest of its money from individual contributors over the Internet. The group collects detailed information on its members � their ethnic background, politics, religious affiliations, occupations and concerns � so it can choose the most effective advocates on any particular issue.
In a survey question on religion, the group said the information would be useful because many lawmakers were likely to respond better to people with �a very similar religious worldview.�
�This is our citizen army,� Mr. Beck said, pointing to a map that showed members of his group in every Congressional district.
Home
World U.S. N.Y. / Region Business Technology Science Health Sports Opinion Arts Style Travel Jobs Real Estate Automobiles Back to Top
Copyright 2007 The New York Times Company
more...
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sriramkalyan
03-09 03:52 PM
That when he applies for 485 based on eb2 he has to request for eb3 priority
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needGCcool
09-04 10:10 AM
Yup, you have to wait. Do not send them anything without getting the RFE? This is what I was advised by the doctor we visited to get all the medicals done.
I have a question for you guys. My wife was pregnant when she took her medicals. So skin test was not performed on her. Do i need to wait for the RFE or is it possible to update USCIS with another I-693 with the TB test?
I have a question for you guys. My wife was pregnant when she took her medicals. So skin test was not performed on her. Do i need to wait for the RFE or is it possible to update USCIS with another I-693 with the TB test?
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go_guy123
08-24 04:52 PM
ILW.COM - immigration news: Ninth Circuit In Herrera v. <em>USCIS</em> Rules That Revocation Of I-140 Petition Trumps Portability (http://www.ilw.com/articles/2009,0825-mehta.shtm)
Ninth Circuit In Herrera v. USCIS Rules That Revocation Of I-140 Petition Trumps Portability
by Cyrus D. Mehta
As the Employment-based categories remain hopeless backlogged,1 especially for those born in India and China in the Employment-based Second Preference (EB-2) and for the entire world in the Employment-Based Third Preference (EB-3),2 the only silver lining is the ability of the applicant to exercise portability under INA � 204(j).
Under INA � 204(j), an I-140 petition3 remains valid even if the alien has changed employers or jobs so long as an application for adjustment of status has been filed and remains unadjudicated for 180 days or more and that the applicant has changed jobs or employers in the same or similar occupational classification as the job for which the petition was filed.
Stated simply, an applicant for adjustment of status (Form I-485) can move to a new employer or change positions with the same employer who filed the I-140 petition as long as the new position is in a same or similar occupation as the original position.4 This individual who has changed jobs can still continue to enjoy the benefits of the I-485 application and the ability to obtain permanent residency. � 204(j), thus, allows one not to be imprisoned with an employer or in one position if an adjustment application is pending for more than 180 days. A delay of more than 180 days may be caused either due to inefficiency with United States Immigration and Citizenship Services (�USCIS�), or more recently, due the retrogression in visa numbers in the EB-2 and EB-3 categories.
A recent decision from the Ninth Circuit, Herrera v. USCIS, No. 08-55493, 2009 WL 1911596 (C.A. 9 (Cal.)), 2009 U.S. App. LEXIS 14592,5 unfortunately, may render adjustment applicants who have exercised portability under INA � 204(j) more vulnerable.
In Herrera v. USCIS, the petitioner in this case, Herrera, was the beneficiary of an approved I-140 petition, which was filed under INA � 203(b)(1)(C) as an alien who seeks to work for a company �in the capacity that is managerial or executive.�6 At Herrera�s adjustment of status interview, the examining officer discovered that she was not truly employed in a managerial or executive capacity for the petitioning employer. The employer who filed the I-140 petition, Jugendstil, did not manufacture furniture, as it stated in the I-140 petition, but rather, engaged in interior designing services. Following the adjustment interview, and long after the adjustment application was pending for more than 180 days, Herrera exercised portability to a new employer. Unfortunately, a few months after she had exercised portability, the California Service Center (�CSC�) issued a notice of intent to revoke Herrera�s previously approved I-140 petition. This notice, which was sent to the prior employer that filed the I-140 petition, alleged that Herrera did not work in a managerial or executive capacity due to the size of the petitioning entity ( which had only 7 employees) and also because of her lack of managerial or executive job duties, which included visits to client sites. The CSC ultimately revoked the I-140 petition after giving Jugendstil an opportunity to respond. This indeed is anomalous, since the original I-140 petitioner, after the alien has exercised portability, may not have an incentive to respond. However, in this case, Jugendstil did appear to have an incentive to respond (and litigate the matter) as Herrera had �ported� to Bay Area Bumpers, an affiliate of Jugendstil. The Administrative Appeals Office (AAO) affirmed the denial, and so did the federal district court.
At issue in Herrera v. USCIS was whether the government�s authority to revoke an I-140 petition under INA � 205 survived portability under INA � 204(j). INA � 205 states, �The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.�
The Ninth Circuit agreed with the government that it continued to have the power to revoke a petition under INA � 205 even though the alien may have successfully exercised portability under INA � 204(j). The Ninth Circuit reasoned that in order to �remain valid� under INA � 204(j), the I-140 petition must have been valid from the start. If a petition should never have been approved, the petitioner was not and had never been valid. The Ninth Circuit also cited with approval an AAO decision, which previously held in 2005 that a petition that is deniable, or not approvable, will not be considered valid for purposes under INA � 204(j).7 Finally, the Ninth Circuit reasoned that if Herrera�s argument prevailed, it would have unintended practical consequences, which Congress never intended. For instance, an alien who exercised portability, such as Herrera, would be immune to revocation, but an alien who remained with the petitioning employer would not be able to be so immune. If the opposite were true, according to the Ninth Circuit, an applicant would have a huge incentive to change jobs in order to escape the revocation of an I-140 petition. Finally, the Ninth Circuit also examined the merits of the revocation, and held that the AAO�s decision was supported by substantial evidence.8
Based on the holding in Herrera v. USCIS, adjustment applicants who have exercised portability better beware in the event that the USCIS later decides to revoke your I-140 petition. 8 CFR � 205.2 (a), which implements INA � 205, gives authority to any Service officer to revoke a petition �when the necessity of revocation comes to the attention of the Service.� Also, under 8 CFR � 205.2(b), the Service needs to only give notice to the petitioner of the revocation and an opportunity to rebut. An adjustment applicant who has exercised portability may not be so fortunate to have a petitioner who may be interested in responding to the notice of revocation, leave alone informing this individual who may no longer be within his or her prior employer�s orbit.
Finally, of most concern, is whether every revocation dooms the adjustment applicant who has �ported� under INA � 204(j). Not all revocations are caused by the fact that the petition may have not been valid from the very outset. For instance, under the automatic revocation provisions in 8 CFR � 205.1(a)(3)(iii), an I-140 petition may be automatically revoked �[u]pon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions.� An employer may routinely, out of abundant caution, decide to inform the USCIS if its employee leaves, even though he or she may legitimately assert portability as a pending adjustment applicant. Such a revocation of the I-140 ought to be distinguished from Herrera v. USCIS as the I-140 was valid from its inception but for the fact that the employer initiated the withdrawal. Similarly, another ground for automatic termination is upon the termination of the employer�s business.9 It would not make sense to deny someone portability if the petitioning entity, which previously sponsored him or her, went out of business, but was viable at the time it had sponsored the alien. Indeed, one Q&A in the Aytes Memo, supra, at least addresses the issue of an employer�s withdrawal:10
�Question 11. When is an I-140 no longer valid for porting purposes?�
Answer: An I-140 petition is no longer valid for porting purposes when:
1. an I-140 is withdrawn before the alien�s I-485 has been pending 180 days, or
2. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.�
It is hoped that Herrera v. USCIS, a classic instance of bad facts making bad law, does not affect those whose petitions have been revoked after the original employer submitted a withdrawal after an I-485 application was pending for more than 180 days. The Aytes Memo makes clear that this should not be the case. Less clear is whether a revocation caused by the termination of the employer�s business should have an impact on an adjustment applicant�s ability to exercise portability.11 The Aytes Memo seems to suggest that such a person who has exercised portability may be jeopardized if the I-140 petition is revoked. It is one thing to deny portability to someone whose I-140 petition was never valid, although hopefully the individual who has ported ought to be given the ability to challenge the revocation in addition to the original petitioner.12 On the other hand, there is absolutely no justification to deny portability when revocation of an I-140 petition occurs upon the business terminating, after it had been viable when the I-140 was filed and approved, or when the employer submits a notice of withdrawal of the I-140 petition after the I-485 has been pending for more than 180 days.
Ninth Circuit In Herrera v. USCIS Rules That Revocation Of I-140 Petition Trumps Portability
by Cyrus D. Mehta
As the Employment-based categories remain hopeless backlogged,1 especially for those born in India and China in the Employment-based Second Preference (EB-2) and for the entire world in the Employment-Based Third Preference (EB-3),2 the only silver lining is the ability of the applicant to exercise portability under INA � 204(j).
Under INA � 204(j), an I-140 petition3 remains valid even if the alien has changed employers or jobs so long as an application for adjustment of status has been filed and remains unadjudicated for 180 days or more and that the applicant has changed jobs or employers in the same or similar occupational classification as the job for which the petition was filed.
Stated simply, an applicant for adjustment of status (Form I-485) can move to a new employer or change positions with the same employer who filed the I-140 petition as long as the new position is in a same or similar occupation as the original position.4 This individual who has changed jobs can still continue to enjoy the benefits of the I-485 application and the ability to obtain permanent residency. � 204(j), thus, allows one not to be imprisoned with an employer or in one position if an adjustment application is pending for more than 180 days. A delay of more than 180 days may be caused either due to inefficiency with United States Immigration and Citizenship Services (�USCIS�), or more recently, due the retrogression in visa numbers in the EB-2 and EB-3 categories.
A recent decision from the Ninth Circuit, Herrera v. USCIS, No. 08-55493, 2009 WL 1911596 (C.A. 9 (Cal.)), 2009 U.S. App. LEXIS 14592,5 unfortunately, may render adjustment applicants who have exercised portability under INA � 204(j) more vulnerable.
In Herrera v. USCIS, the petitioner in this case, Herrera, was the beneficiary of an approved I-140 petition, which was filed under INA � 203(b)(1)(C) as an alien who seeks to work for a company �in the capacity that is managerial or executive.�6 At Herrera�s adjustment of status interview, the examining officer discovered that she was not truly employed in a managerial or executive capacity for the petitioning employer. The employer who filed the I-140 petition, Jugendstil, did not manufacture furniture, as it stated in the I-140 petition, but rather, engaged in interior designing services. Following the adjustment interview, and long after the adjustment application was pending for more than 180 days, Herrera exercised portability to a new employer. Unfortunately, a few months after she had exercised portability, the California Service Center (�CSC�) issued a notice of intent to revoke Herrera�s previously approved I-140 petition. This notice, which was sent to the prior employer that filed the I-140 petition, alleged that Herrera did not work in a managerial or executive capacity due to the size of the petitioning entity ( which had only 7 employees) and also because of her lack of managerial or executive job duties, which included visits to client sites. The CSC ultimately revoked the I-140 petition after giving Jugendstil an opportunity to respond. This indeed is anomalous, since the original I-140 petitioner, after the alien has exercised portability, may not have an incentive to respond. However, in this case, Jugendstil did appear to have an incentive to respond (and litigate the matter) as Herrera had �ported� to Bay Area Bumpers, an affiliate of Jugendstil. The Administrative Appeals Office (AAO) affirmed the denial, and so did the federal district court.
At issue in Herrera v. USCIS was whether the government�s authority to revoke an I-140 petition under INA � 205 survived portability under INA � 204(j). INA � 205 states, �The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.�
The Ninth Circuit agreed with the government that it continued to have the power to revoke a petition under INA � 205 even though the alien may have successfully exercised portability under INA � 204(j). The Ninth Circuit reasoned that in order to �remain valid� under INA � 204(j), the I-140 petition must have been valid from the start. If a petition should never have been approved, the petitioner was not and had never been valid. The Ninth Circuit also cited with approval an AAO decision, which previously held in 2005 that a petition that is deniable, or not approvable, will not be considered valid for purposes under INA � 204(j).7 Finally, the Ninth Circuit reasoned that if Herrera�s argument prevailed, it would have unintended practical consequences, which Congress never intended. For instance, an alien who exercised portability, such as Herrera, would be immune to revocation, but an alien who remained with the petitioning employer would not be able to be so immune. If the opposite were true, according to the Ninth Circuit, an applicant would have a huge incentive to change jobs in order to escape the revocation of an I-140 petition. Finally, the Ninth Circuit also examined the merits of the revocation, and held that the AAO�s decision was supported by substantial evidence.8
Based on the holding in Herrera v. USCIS, adjustment applicants who have exercised portability better beware in the event that the USCIS later decides to revoke your I-140 petition. 8 CFR � 205.2 (a), which implements INA � 205, gives authority to any Service officer to revoke a petition �when the necessity of revocation comes to the attention of the Service.� Also, under 8 CFR � 205.2(b), the Service needs to only give notice to the petitioner of the revocation and an opportunity to rebut. An adjustment applicant who has exercised portability may not be so fortunate to have a petitioner who may be interested in responding to the notice of revocation, leave alone informing this individual who may no longer be within his or her prior employer�s orbit.
Finally, of most concern, is whether every revocation dooms the adjustment applicant who has �ported� under INA � 204(j). Not all revocations are caused by the fact that the petition may have not been valid from the very outset. For instance, under the automatic revocation provisions in 8 CFR � 205.1(a)(3)(iii), an I-140 petition may be automatically revoked �[u]pon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions.� An employer may routinely, out of abundant caution, decide to inform the USCIS if its employee leaves, even though he or she may legitimately assert portability as a pending adjustment applicant. Such a revocation of the I-140 ought to be distinguished from Herrera v. USCIS as the I-140 was valid from its inception but for the fact that the employer initiated the withdrawal. Similarly, another ground for automatic termination is upon the termination of the employer�s business.9 It would not make sense to deny someone portability if the petitioning entity, which previously sponsored him or her, went out of business, but was viable at the time it had sponsored the alien. Indeed, one Q&A in the Aytes Memo, supra, at least addresses the issue of an employer�s withdrawal:10
�Question 11. When is an I-140 no longer valid for porting purposes?�
Answer: An I-140 petition is no longer valid for porting purposes when:
1. an I-140 is withdrawn before the alien�s I-485 has been pending 180 days, or
2. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.�
It is hoped that Herrera v. USCIS, a classic instance of bad facts making bad law, does not affect those whose petitions have been revoked after the original employer submitted a withdrawal after an I-485 application was pending for more than 180 days. The Aytes Memo makes clear that this should not be the case. Less clear is whether a revocation caused by the termination of the employer�s business should have an impact on an adjustment applicant�s ability to exercise portability.11 The Aytes Memo seems to suggest that such a person who has exercised portability may be jeopardized if the I-140 petition is revoked. It is one thing to deny portability to someone whose I-140 petition was never valid, although hopefully the individual who has ported ought to be given the ability to challenge the revocation in addition to the original petitioner.12 On the other hand, there is absolutely no justification to deny portability when revocation of an I-140 petition occurs upon the business terminating, after it had been viable when the I-140 was filed and approved, or when the employer submits a notice of withdrawal of the I-140 petition after the I-485 has been pending for more than 180 days.
misha
07-12 01:13 PM
Question for July I-485 filers.
Did anybody receive I-485 July Rejection Notice by mail?
Did anybody receive I-485 July Rejection Notice by mail?
ilwaiting
09-27 11:26 AM
Unless one were being paid a EB2 salary back then but employer filed you in EB3.
this is a hot topic right now..!!
many of us who filed our labor right in the age-old days, atleast me,had no idea of EB2/3 category and it will affect our life so drastically. The paralegal/attnys just filed it(at that point of time just filing the LC was crucial..)
anyway,for retaining the old EB3 PD for the later EB2 date..should the salaries match..?? obviuosly, they wouldnt...?? then how will this be doable..
In no way,this situation can be treated as a substituted labor...
So may I take it from this thread, bottom line that we cant do it..
this is a hot topic right now..!!
many of us who filed our labor right in the age-old days, atleast me,had no idea of EB2/3 category and it will affect our life so drastically. The paralegal/attnys just filed it(at that point of time just filing the LC was crucial..)
anyway,for retaining the old EB3 PD for the later EB2 date..should the salaries match..?? obviuosly, they wouldnt...?? then how will this be doable..
In no way,this situation can be treated as a substituted labor...
So may I take it from this thread, bottom line that we cant do it..