brav
07-31 11:20 AM
After going through all this , now we are hearing discussions that it is safe to maintain a H1B, (just) in case the 485 gets denied.
I for one would take my chances and switch from H1B to EAD.
I for one would take my chances and switch from H1B to EAD.
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ksairi
08-16 02:41 PM
--------------bump--------------
GcInLimbo
11-19 12:08 AM
Nope. H1 was rejected after 2 and half years of processing. I don't know the reasons for the rejection.
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EB3_SEP04
08-27 05:33 PM
Hi,
My company filed for I-140 around Dec-2007. During first week of Sep-2008 USCIS case status page was showing "I-140 is approved". After that since third week of Sep-2008 case status page is showing "Documents mailed to applicant".
But neighter my lawyer not my employer had received the approval notice in mail.
How to obtain the duplicate or copy of this approved I-140? What form need to be submitted? where? and how much time it takes?
Thanks,
Even an entry level lawyer knows how to request\obtain a document that USCIS has sent but is not received. I suspect they are not telling the truth because they don't want to give you a copy.
If the lawyer simply calls USCIS 800 number on the I-140 receipt notice and provides relevent information they would at least send a COPY if not original or duplicate.
My company filed for I-140 around Dec-2007. During first week of Sep-2008 USCIS case status page was showing "I-140 is approved". After that since third week of Sep-2008 case status page is showing "Documents mailed to applicant".
But neighter my lawyer not my employer had received the approval notice in mail.
How to obtain the duplicate or copy of this approved I-140? What form need to be submitted? where? and how much time it takes?
Thanks,
Even an entry level lawyer knows how to request\obtain a document that USCIS has sent but is not received. I suspect they are not telling the truth because they don't want to give you a copy.
If the lawyer simply calls USCIS 800 number on the I-140 receipt notice and provides relevent information they would at least send a COPY if not original or duplicate.
more...
forever_waiting
03-06 10:44 PM
Deadline added to this initiative to decide whether to proceed or not.
please see post below for details.
http://immigrationvoice.org/forum/forum14-members-forum/1599353-want-to-file-485-when-pd-is-not-current-gather-here-104.html#post2412248
Since this is a brand new initiation why don't we make a fresh thread for it? Right now this thread is so full of bumps that many may not actually read this message.
Also, should we at some point agree on what letter must be written?
[QUote = ashwin_27]
As suggested by several members on this thread, IV has set a goal of April 30th, 2011 to determine if there is even enough appetite within the EB community to proceed with this USCIS Admin Fix initiative or not.
As we know the initial goal was to use this survey to determine how many members will be benefitted by I-485 filing without current priority date. Rough calculations using PERM data showed that at least 50-70K folks are waiting to file I-485 since July 2007 (around 5K-6K out of this number are those with PDs prior to June/July 2007 missed the July 2007 boat).
So far we have had around 1200 such members respond. We need to see support of at least 5000 members in order for IV to launch the public action items. These action items include, but are not limited to, writing en-masse (i.e. in thousands) over 2-3 weeks to several concerned departments about the need for this USCIS administrative fix. Few other very interesting proposals/ideas are also being considered. All we need is our folks to BELIEVE that this initiative is worth investing in.
The IV forum is the best place for the impacted EB community to gather and that is why the number of votes on the survey is a great indication of our frustration and motivation to work with IV for this important admin fix.
So, we now have a Deadline and an Objective. It is up to our impacted members to decide on whether to still stick to silly excuses (why should I become a member, why should i vote on survey etc etc.) or DO something about getting this admin fix. It is surprising that we are not more desperate for this fix and are not convincing and pushing IV harder and harder to start working with USCIS to allow I485 filing with current PD (and all the benefits like EAD, AP that go with it).
Are we more comfortable with the alternative - Waiting endelesslly to file I-485 (at least 2-5 years for post July 2007 folks from any category), keep depending on H1B extensions in an uncertain immigration scenario where H1B RFE's, rejections, visa denials due to "admin processing" etc are on a steep rise? The choice is ours to make.
As a final reminder - please act and convince your friends/colleagues to participate in this initiative and send ivcoordinator@gmail.com the details requested below.
Please keep following and participating on this thread to show your desperation for this fix.
please see post below for details.
http://immigrationvoice.org/forum/forum14-members-forum/1599353-want-to-file-485-when-pd-is-not-current-gather-here-104.html#post2412248
Since this is a brand new initiation why don't we make a fresh thread for it? Right now this thread is so full of bumps that many may not actually read this message.
Also, should we at some point agree on what letter must be written?
[QUote = ashwin_27]
As suggested by several members on this thread, IV has set a goal of April 30th, 2011 to determine if there is even enough appetite within the EB community to proceed with this USCIS Admin Fix initiative or not.
As we know the initial goal was to use this survey to determine how many members will be benefitted by I-485 filing without current priority date. Rough calculations using PERM data showed that at least 50-70K folks are waiting to file I-485 since July 2007 (around 5K-6K out of this number are those with PDs prior to June/July 2007 missed the July 2007 boat).
So far we have had around 1200 such members respond. We need to see support of at least 5000 members in order for IV to launch the public action items. These action items include, but are not limited to, writing en-masse (i.e. in thousands) over 2-3 weeks to several concerned departments about the need for this USCIS administrative fix. Few other very interesting proposals/ideas are also being considered. All we need is our folks to BELIEVE that this initiative is worth investing in.
The IV forum is the best place for the impacted EB community to gather and that is why the number of votes on the survey is a great indication of our frustration and motivation to work with IV for this important admin fix.
So, we now have a Deadline and an Objective. It is up to our impacted members to decide on whether to still stick to silly excuses (why should I become a member, why should i vote on survey etc etc.) or DO something about getting this admin fix. It is surprising that we are not more desperate for this fix and are not convincing and pushing IV harder and harder to start working with USCIS to allow I485 filing with current PD (and all the benefits like EAD, AP that go with it).
Are we more comfortable with the alternative - Waiting endelesslly to file I-485 (at least 2-5 years for post July 2007 folks from any category), keep depending on H1B extensions in an uncertain immigration scenario where H1B RFE's, rejections, visa denials due to "admin processing" etc are on a steep rise? The choice is ours to make.
As a final reminder - please act and convince your friends/colleagues to participate in this initiative and send ivcoordinator@gmail.com the details requested below.
Please keep following and participating on this thread to show your desperation for this fix.
sammyb
11-15 09:53 AM
Simply and bluntly put
IV is we. If you are not there , there is no IV. We are in agony and pain. let us scream so high that even deaf may lend their ears.
What is at stake is you career. We have every thing to loose by doing nothing. I know, I have lost a whole lot. Probably I were better off moving to India after my MBA. I might have been doing much better there. But I am at the point where I cannot let got without trying. Have you reached that point yet?
Here is my personal story, if you think you can do better here without the Green Card. Think again! I have been slogging in this mess since 1999, even though I have world class qualifications (Full time MBA from a top US school, several years of work experience, PMP and marching toward CFA). All this are futile , if I don't have that stupid work permit with out any strings attached (Green Card)
Yes I do have EAD. But it is full of restriction. At least let us work together to remove that restriction..
I don't want any freaking loosers. Loosing is their nature. I want winners to work with me. Are you the one?
unless we join hands together and come forward nothing will change ...
because of personal reason I was not able to devote much time to IV recently ... will be involved more now onwards ...
IV is we. If you are not there , there is no IV. We are in agony and pain. let us scream so high that even deaf may lend their ears.
What is at stake is you career. We have every thing to loose by doing nothing. I know, I have lost a whole lot. Probably I were better off moving to India after my MBA. I might have been doing much better there. But I am at the point where I cannot let got without trying. Have you reached that point yet?
Here is my personal story, if you think you can do better here without the Green Card. Think again! I have been slogging in this mess since 1999, even though I have world class qualifications (Full time MBA from a top US school, several years of work experience, PMP and marching toward CFA). All this are futile , if I don't have that stupid work permit with out any strings attached (Green Card)
Yes I do have EAD. But it is full of restriction. At least let us work together to remove that restriction..
I don't want any freaking loosers. Loosing is their nature. I want winners to work with me. Are you the one?
unless we join hands together and come forward nothing will change ...
because of personal reason I was not able to devote much time to IV recently ... will be involved more now onwards ...
more...
sparky_jones
10-10 04:14 PM
No...if your current EAD expires and the new one hasn't arrived, you must stop working. it does not matter if you've applied for renewal and its pending. EAD does not work like H1B extension, where a 240 day period of automatic eligibility to continue working is available upon filing extension.
Is it possible to keep working Even u don't have EAD renewed ,but u have Reciept notice with u.. I mean eventually approval will come.
Is it possible to keep working Even u don't have EAD renewed ,but u have Reciept notice with u.. I mean eventually approval will come.
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Siboo
07-30 03:35 PM
When do you get FP notices?
Within 4-10 days, after the USCIS sent the FP notice.
Within 4-10 days, after the USCIS sent the FP notice.
more...
freddy22
07-13 11:07 PM
My son 18 and a green card holder since december 2005 - entered the US legally in 1999 lives with me his father - mother in other country - no ties to other country - UK:
He has a sister here - and me and other family members:
He was involved with taking snow mobiles last december and charged with midemeanors reduced from felonys - 2 felonys reduced on plea bargain:
He was sentanced to 3 years probation, and some days per week in jail which he served but is still on probation:
He picked up another charge when entering a friends house and was with another person who stole two items - a laptop and a wii - he was charged with burglary in 2nd class C felony - we have a attourney and hopefully can get it reduced to a misdemeanor:
He is currently in jail on $25,000 bail:
He appears in court on wednesday - we will ask for a bail reduction:
Obviously a violation of probation is filed and he has this new charge and the old charges he was put on probation for now hanging over him:
This kid was mixing with the wrong crowd and I need to get him away from that and will ask the judge to send him to boot camp where he will learn discipline, responsibility and grow up:
My questions are:
would he be depostable or would he face any involvement regarding immigration?
If his charges are misdemeanors including this felony reduced to a misdemeanor - meaning never having been convicted of a felony - does this constitute removal proceedings or involvement in possible deportation?
Your advice would be greatly appreciated
He has a sister here - and me and other family members:
He was involved with taking snow mobiles last december and charged with midemeanors reduced from felonys - 2 felonys reduced on plea bargain:
He was sentanced to 3 years probation, and some days per week in jail which he served but is still on probation:
He picked up another charge when entering a friends house and was with another person who stole two items - a laptop and a wii - he was charged with burglary in 2nd class C felony - we have a attourney and hopefully can get it reduced to a misdemeanor:
He is currently in jail on $25,000 bail:
He appears in court on wednesday - we will ask for a bail reduction:
Obviously a violation of probation is filed and he has this new charge and the old charges he was put on probation for now hanging over him:
This kid was mixing with the wrong crowd and I need to get him away from that and will ask the judge to send him to boot camp where he will learn discipline, responsibility and grow up:
My questions are:
would he be depostable or would he face any involvement regarding immigration?
If his charges are misdemeanors including this felony reduced to a misdemeanor - meaning never having been convicted of a felony - does this constitute removal proceedings or involvement in possible deportation?
Your advice would be greatly appreciated
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cox
June 18th, 2005, 01:50 PM
Do you have a lens that will let you get in closer? I'd like to see a portrait style shot of one of the birds with the odd bills.
Thanks for the suggestions guys. Nik, I was actually using a 600mm + 1.4x for the birds since Avocets and Stilts are pretty shy. These are just small versions, though. Ask and ye shall receive; here's a portrait cropped from another shot. For the full size (a little bigger, 1200x1200) go to my gallery :)
http://www.dphoto.us/forumphotos/data/887/medium/Avocet_call_C_crop_Nik.jpg (javascript:;)
Thanks for the suggestions guys. Nik, I was actually using a 600mm + 1.4x for the birds since Avocets and Stilts are pretty shy. These are just small versions, though. Ask and ye shall receive; here's a portrait cropped from another shot. For the full size (a little bigger, 1200x1200) go to my gallery :)
http://www.dphoto.us/forumphotos/data/887/medium/Avocet_call_C_crop_Nik.jpg (javascript:;)
more...
i4u
07-26 09:29 AM
I ported from EB3 to EB2 recently and if its all goes well, my PD of May 06 might be current. Is there any way one can determine if their finger prints, photographs, security checks, etc., are valid and the application is pre-adjudicated and ready for approval.
Since, I ported recently I didn't notice any LUD's in my I-485 application. Any thoughts. Please share your experiences.
have you tried infopass?
Since, I ported recently I didn't notice any LUD's in my I-485 application. Any thoughts. Please share your experiences.
have you tried infopass?
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reddymjm
05-21 04:46 PM
I applied for renewal on May 19th. My EAD expires on August 23. So, I guess I'll have to follow your renewal process to see if mine will arrive in time.
If you are working on EAD and if you do not get your new ead 10 days prior to the expiry of the old one please take an infopass and they will email the IO working on it to approve. Couple of my friends did that and got their approvals in a day or two.
If you are working on EAD and if you do not get your new ead 10 days prior to the expiry of the old one please take an infopass and they will email the IO working on it to approve. Couple of my friends did that and got their approvals in a day or two.
more...
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kandhu
01-02 02:27 PM
Hi Everybody,
I know that nobody has an answer for my question, but still i would like to get the views/inputs from the seniors here , who have experience with USCIS.
When do you think a person with PD of Nov 2007 ,EB3 from India, would be able to file for 485??
Welcome to the GC journey!
My GUESS is atleast 5 to 8 years with the current laws.
(I may be too optimisic. It may be even 10+ years !)
I know one of the things that IV is figting for is to apply for I485 even when the dates are not current. (This is just one of the many things that IV is fighting for. Review the below thread for detailed info)
http://immigrationvoice.org/forum/showthread.php?t=16298&highlight=year
So please continue to Support & Contribute to IV.
Hope you have a less wait time.
I know that nobody has an answer for my question, but still i would like to get the views/inputs from the seniors here , who have experience with USCIS.
When do you think a person with PD of Nov 2007 ,EB3 from India, would be able to file for 485??
Welcome to the GC journey!
My GUESS is atleast 5 to 8 years with the current laws.
(I may be too optimisic. It may be even 10+ years !)
I know one of the things that IV is figting for is to apply for I485 even when the dates are not current. (This is just one of the many things that IV is fighting for. Review the below thread for detailed info)
http://immigrationvoice.org/forum/showthread.php?t=16298&highlight=year
So please continue to Support & Contribute to IV.
Hope you have a less wait time.
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pandu_hawaldar
09-09 01:04 PM
looks like the website is created in July end. Contact address from FL. It seems to be associated wit telecall (a company, I don't know much..google). I found this by checking whois domain lookup...for this free india call thingy...just an fyi.....don't know how safe?
more...
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joshraj
10-06 09:37 AM
Anyone with July 27 File Date, Please update receipt recd or not recd
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wandmaker
12-07 11:19 PM
I applied I-485 and have recieved EAD in Sept, 2007. Now early next year (i.e. Jan/Feb 2008) I plan to go out of US for a year to complete an academic course. During that time, I would have to renew my EAD so that I can get back and start working. Anyone who has some experience or knowledge how this can be done from outside US... or is there a process to follow before I leave.
Also I am told that I might receive another finger printing request duirng the same time I am out of this country, any idea !!
(1) You can renew your EAD while you are outside the country (2) you should come back before your AP expires or get back with the valid visa (3) if you e-file your EAD you will get a finger printing notice, you will have to goto ASC to give your picture. Paperfiling does not trigger EAD unless your FP expires, which is usally 15 months from your last FP.
Also I am told that I might receive another finger printing request duirng the same time I am out of this country, any idea !!
(1) You can renew your EAD while you are outside the country (2) you should come back before your AP expires or get back with the valid visa (3) if you e-file your EAD you will get a finger printing notice, you will have to goto ASC to give your picture. Paperfiling does not trigger EAD unless your FP expires, which is usally 15 months from your last FP.
more...
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seahawks
08-05 09:57 PM
Who gets the AP (Advance parole) document from USCIS , candidate or lawyer who filed it ?
Filed using G28
My AP went to the lawyer.
My Receipt went to the lawyer too.
FP notice came to me, copy to lawyer.
EAD approved, expecting card it to come to me.
Hope this helps.
Filed using G28
My AP went to the lawyer.
My Receipt went to the lawyer too.
FP notice came to me, copy to lawyer.
EAD approved, expecting card it to come to me.
Hope this helps.
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arihant
12-28 11:08 AM
All the gurus on this forum,
I have this questions and I have feeling some of you are considering doijng this;;;;
My I-140 and 485 was concurrently filed in Dec2002. I-140 got approved. 485 is pending.
As i decided that this GC process should not hold me captive i went ahead made plans for my MBA education. Now I have an admission from INSEAD france for classes starting 2007.
IF my employer gives me Pesonal Leave of Abscene for one year....without pay
can I take off for studies without impacting the GCprocess?
Since I will be moving out of my residenec should I inform the INS of a new address friends) so that they can send EAD/AP etc..
I would love to connect to anyone who is similar situation......
PLEASE respond
:(
Why is your 485 case pending since 2002? Is it stuck in Name Check or due to retrogression. I thought that 485 cases are progressing relatively fast as long as the case is not affected by retrogression and is not stuck in the black hole called "name check"!
I have this questions and I have feeling some of you are considering doijng this;;;;
My I-140 and 485 was concurrently filed in Dec2002. I-140 got approved. 485 is pending.
As i decided that this GC process should not hold me captive i went ahead made plans for my MBA education. Now I have an admission from INSEAD france for classes starting 2007.
IF my employer gives me Pesonal Leave of Abscene for one year....without pay
can I take off for studies without impacting the GCprocess?
Since I will be moving out of my residenec should I inform the INS of a new address friends) so that they can send EAD/AP etc..
I would love to connect to anyone who is similar situation......
PLEASE respond
:(
Why is your 485 case pending since 2002? Is it stuck in Name Check or due to retrogression. I thought that 485 cases are progressing relatively fast as long as the case is not affected by retrogression and is not stuck in the black hole called "name check"!
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pappu
03-12 11:21 AM
After a long 5 years I finally received 485 case approved letter for both my case and my spouse's case. However the online status still shows pending. Is this common?. How long would it take for the online case status to be updated.
EB2- PB Dec2003
485 Filed date: 08/02/07
Texas service center
Congrats.
Could you update your profile please to help others
EB2- PB Dec2003
485 Filed date: 08/02/07
Texas service center
Congrats.
Could you update your profile please to help others
psaxena
02-04 04:21 PM
Hi, Everyone says I am in and I am in . no one says how and when.
So I decided to step up for this. Guys please send the list of the members with contact information who are willing to meet & greet. I'll then plan for some place to get together.
We are just a few indians in AZ , atleast we should meet and it will be good social networking and also will be a big step forward for the cause that we all are together at this portal.
All the best, looking forward to meet everyone.
So I decided to step up for this. Guys please send the list of the members with contact information who are willing to meet & greet. I'll then plan for some place to get together.
We are just a few indians in AZ , atleast we should meet and it will be good social networking and also will be a big step forward for the cause that we all are together at this portal.
All the best, looking forward to meet everyone.
gc_bulgaria
10-09 04:18 PM
http://www.immigration-law.com/
10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication
When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer’s ability to pay the prevailing wage."
(1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
(2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physical location restrictions.
(3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
Remember that when there is a portability issue, two things can ensue. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.
10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication
When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer’s ability to pay the prevailing wage."
(1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
(2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physical location restrictions.
(3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
Remember that when there is a portability issue, two things can ensue. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.
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