Discussion - RIN 1615-AC05 - Retention of EB-1, EB-2, and EB-3 Immigrant Workers etc

[abcx13]

This is the proposed rule. Someone posted a link on Siskind's blog.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-32666.pdf

[CleanSock]

Murhty.com link :
http://www.murthy.com/2015/12/30/newsflash-proposed-rule-would-provide-improve-job-flexibility-grace-periods-and-more/

I don't even know what to think about it.

[abcx13]

I skimmed most of the doc. It seems mostly useless unless DoS sets the Visa Bulletin dates such that everyone ends up with an EAD.

I guess it's useful in that you can switch jobs after 6 years on H1B but the new employer would still need to file a new I140 at some point (unless you had adjusted status while at the original petitioning employer).


Everything else about PD retention seems to be already there. The part where DHS tries to better define same or similar occupation and require a certification on the Supplement J might be worse than the current situation.

In short, I see very limited benefit unless everyone can file for AoS, and even then there may be no benefit over and above what is already possible.

What a slap in the face. It's totally ridiculous that ROW can get a GC right away but not if you're IC. We need to have per country limits removed so that this becomes everyone's problem.

[abcx13]

Oh Law Firm says this:


12/30/2015: Portability of Approved I-140 Petition Under the Proposed Rule of Modernization

The proposed rule indicates that those with the approved I-140 petition will enjoy portability of the approved I-140 petition once 180 days pass from the date of the I-140 approval. If the approved petition is withdrawn by the sponsoring employer within 180 days of the I-140 approval, the USCIS will revoke the approved I-140 petition and he/she will not be able to use it for portability or for I-485 application in the future using the approved petition. Meanwhile, if he/she ports after 180 days of approval of the I-140 petition, even if the sponsoring I-140 petition employer withdraws the approved petition, the USCIS will not be able to revoke the approved I-140 petition and such approved I-140 petition will remain valid unless it revokes based on its determination of misrepresentation or fraud or error of the agency in approval. For the reasons, practically the proposed rule requires that the beneficiary of the approved I-140 petition should not change employment for 180 days, even if for a same or similar occupational classification. Inasmuch as he/she changes the employment after 180 days of I-140 approval, the new employer does not have to sponsor another PERM application and another I-140 petition to keep him or her without affecting his/her green card eligibility. One catch is that unlike the current law, the new employer will have to certify that the job is a same or similar job and the job will continue to exist through the time of approval of his/her green card application. Under the current law, I-140 sponsoring employer and the foreign worker must attest to such facts, but not for the new employer who hires a foreign worker using the approved I-140 portability. Another catch is that because of the restrictive requirement of EAD eligibility for such foreign workers, as this reporter reported earlier, the proposed rule practically asks the foreign workers to keep working for a new employer using one of the employment authorized nonimmigrant visa classifications.

But my understanding is that the part about not having to re-file PERM and I140 is only true if you were able to file an I485 for AoS while still at the original petitioning employer. If OH is right, then the rule would be a great benefit, but as far as I can tell, he's not right.

Maybe we should have a coordinated message that we can send during the comment period?

[Jonty Rhodes]

From whatever limited information that I am gathering on this from various sources, it seems to be not so useful rule and won't be helpful to most of the people. On the contrary, it may end up increasing paperwork and be more of a hassle. But since there are 180 pages, I will wait for the experts to dissect it further.

[dec2010]

IMHO, this rule is very limited and i would be curious to know % population that will benefit from it.

[Immigo]

https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-32666.pdf - trying to interpret this particular section on page 65/66, as I am not convinced with Greg and Murthy's interpretation.


Such a petition, however, cannot on its own serve as the basis for obtaining an
immigrant visa or adjustment of status as there is no longer a bona fide employment offer
related to the petition. Id. In such cases, the beneficiary will need a new immigrant visa
petition approved on his or her behalf, or a new offer of employment in section 204(j)
portability cases, in order to obtain an immigrant visa or adjust status.

The references to "such a petition" and "In such cases" is for the scenario where the Employer has revoked the petition or has gone out of business. I interpret it as below:

When the priority date become current:

1) If original I-140 is not revoked (and employer has not gone out of business) - one can file AOS without the need for new PERM and I-140. New I-485 Form J will need to be attested by new Employer.
1.1) After 180 days pass from the filing of I-485 and if I-140 is still not revoked (and original employer still in business), All good - will not need to file another PERM/I-140 even if I-140 is subsequently withdrawn.
1.2) If I-140 is revoked (or employer goes out of business) before 180 days have passed since I-485 filing, need new PERM and I-140.

2) If original I-140 revoked (or employer has not gone out of business) - one CANNOT file AOS without new PERM and I-140 as revoked I-140 represents there is no longer a bona fide employment offer related to the petition.

Appreciate your inputs. Please let me know if I have missed something in the document.

[Suva2001]

DHS published a document for Legal immigrants like us on 12/31/2015. Senator Sessions is against this rule.

DHS document - https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-32666.pdf
Sen Sessions - http://www.sessions.senate.gov/public/index.cfm/2016/1/chairman-sessions-issues-statement-on-new-obama-executive-action-to-shred-immigration-caps

It seems this is favorable to people like us waiting in the line. Does anybody has any idea of what kind of relief it gives us?

Thanks

[abcx13]

Can you guys please post comments on this proposal here. I just posted one.

https://www.federalregister.gov/articles/2015/12/31/2015-32666/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled

[Spectator]

I'm not sure if people have seen this document that was uploaded yeaterday: Regulatory Impact Analysis (http://www.regulations.gov/contentStreamer?documentId=USCIS-2015-0008-0270&disposition=attachment&contentType=msw12)

Just to pull out some of the figures in the publication:

a) The EB1 figures for FY2011 are incorrect and therefore the total number for the FY. Can DHS not error check their own figures!! I haven't cross checked the other FY figures.

b) USCIS estimate of applicants with an approved I-140 and an I-485 pending for 180 days or more:

Table 4: Applicants with an Approved Form I-140 and a Pending Form I-485 Application for 180 Days or More

Employment-Based Preference Category ---------------- No.
Advanced Degree or Alien of Exceptional Ability -- 14,220
Skilled and Professional Workers ----------------- 12,386
National Interest Waiver ---------------------------- 797
Multinational Executive or Manager ------------------ 763
Other Worker ---------------------------------------- 739
Outstanding Professor or Researcher ----------------- 216
Total Blank ------------------------------------------ 45

Grand Total -------------------------------------- 29,166

Source: USCIS, Office of Performance and Quality, as of May 2, 2015.

That seems a low ball estimate to me.

c) Backlog Estimate (as of June 2015 VB)

Table 7: Employment-Based Waiting List for Principal Beneficiaries of an Approved Form I-140 who are Present in the U.S., as of June 2015

Employment-based Preference

Country of Birth --- EB-2 --- EB-3 --- EB-3 --- Total
China ------------- 3,804 -- 2,591 ------ 4 --- 6,399
India ------------ 97,853 - 52,014 ----- 53 - 149,920
Mexico ---------------- - ------ - ------ - ------- -
Philippines ----------- - -- 9,257 ----- 79 --- 9,336
Other Countries ------- - ------ 3 ------ - ------- 3

Total ----------- 101,657 - 63,865 ---- 136 - 165,658

Source: USCIS analysis.

For EB2-I that is for cases with a PD of Oct 1, 2008 and later.
For EB3-I that is for cases with a PD of Jan 22, 2004 and later.

USCIS do not appear to have made any attempt remove duplicates etc, so this appears to be be a high end estimate of principal applicants. Even so, it is a very large figure for India. A further Table in the document adds estimated numbers of dependents.

There are further calculations within the document as well. I've only pulled out some of them, particularly as I-140 data broken down by Country is such a rare beast.

[vyruss]

USCIS do not appear to have made any attempt remove duplicates etc, so this appears to be be a high end estimate of principal applicants. Even so, it is a very large figure for India. A further Table in the document adds estimated numbers of dependents.

There are further calculations within the document as well. I've only pulled out some of them, particularly as I-140 data broken down by Country is such a rare beast.

This is indeed a nightmare situation for India. Even if you assume a conservative 30% as duplicates, once you apply the dependent factor of 2.3, the outstanding looks to be over 130k of applicants with approved 140's. If the average Visa allocation to India is around 16k per year, people on the tail end of the 130k are looking at 8-9 years for GC. The norm all these days was about 6 years form the date of initial filing. We are seeing 7 years these days now that a lot of 2009 folks are still waiting. So 9 years is probably not a bad estimate. Dire.

[abcx13]

I'm not sure if people have seen this document that was uploaded yeaterday: Regulatory Impact Analysis (http://www.regulations.gov/contentStreamer?documentId=USCIS-2015-0008-0270&disposition=attachment&contentType=msw12)

Just to pull out some of the figures in the publication:

a) The EB1 figures for FY2011 are incorrect and therefore the total number for the FY. Can DHS not error check their own figures!! I haven't cross checked the other FY figures.

b) USCIS estimate of applicants with an approved I-140 and an I-485 pending for 180 days or more:

Table 4: Applicants with an Approved Form I-140 and a Pending Form I-485 Application for 180 Days or More

Employment-Based Preference Category ---------------- No.
Advanced Degree or Alien of Exceptional Ability -- 14,220
Skilled and Professional Workers ----------------- 12,386
National Interest Waiver ---------------------------- 797
Multinational Executive or Manager ------------------ 763
Other Worker ---------------------------------------- 739
Outstanding Professor or Researcher ----------------- 216
Total Blank ------------------------------------------ 45

Grand Total -------------------------------------- 29,166

Source: USCIS, Office of Performance and Quality, as of May 2, 2015.

That seems a low ball estimate to me.

c) Backlog Estimate (as of June 2015 VB)

Table 7: Employment-Based Waiting List for Principal Beneficiaries of an Approved Form I-140 who are Present in the U.S., as of June 2015

Employment-based Preference

Country of Birth --- EB-2 --- EB-3 --- EB-3 --- Total
China ------------- 3,804 -- 2,591 ------ 4 --- 6,399
India ------------ 97,853 - 52,014 ----- 53 - 149,920
Mexico ---------------- - ------ - ------ - ------- -
Philippines ----------- - -- 9,257 ----- 79 --- 9,336
Other Countries ------- - ------ 3 ------ - ------- 3

Total ----------- 101,657 - 63,865 ---- 136 - 165,658

Source: USCIS analysis.

For EB2-I that is for cases with a PD of Oct 1, 2008 and later.
For EB3-I that is for cases with a PD of Jan 22, 2004 and later.

USCIS do not appear to have made any attempt remove duplicates etc, so this appears to be be a high end estimate of principal applicants. Even so, it is a very large figure for India. A further Table in the document adds estimated numbers of dependents.

There are further calculations within the document as well. I've only pulled out some of them, particularly as I-140 data broken down by Country is such a rare beast.


Including dependents there are 195k EB2-I with approved I-140s waiting for AoS!!! 40k total EB2 visas before spillover and India gets what, 20k per year if we are lucky, 10-15k otherwise? We are screwed without reform.

Also, Spec, how do you know that in the second table the EB2I stats are for PD after Oct 1, 2008? Is that an estimate based on your sense that everything before that date has already been cleared? EDIT: Never mind, I see the doc has a note that says that "the data set was further refined to include only individuals with priority dates that were on or after the cutoff dates identified in the DOS June 2015 Visa Bulletin indicating when a visa is available."

And would the first table be for PD up to the highest PD ever reached for EB2-I? So May 1, 2010? That implicitly assumes that anyone eligible for filing by then would have already filed. That is there are 14k filers (excluding dependents) who have not been greened with PDs before May 1, 2010?

[Spectator]

Including dependents there are 195k EB2-I with approved I-140s waiting for AoS!!! 40k total EB2 visas before spillover and India gets what, 20k per year if we are lucky, 10-15k otherwise? We are screwed without reform.

Also, Spec, how do you know that in the second table the EB2I stats are for PD after Oct 1, 2008? Is that an estimate based on your sense that everything before that date has already been cleared? EDIT: Never mind, I see the doc has a note that says that "the data set was further refined to include only individuals with priority dates that were on or after the cutoff dates identified in the DOS June 2015 Visa Bulletin indicating when a visa is available."

And would the first table be for PD up to the highest PD ever reached for EB2-I? So May 1, 2010? That implicitly assumes that anyone eligible for filing by then would have already filed. That is there are 14k filers (excluding dependents) who have not been greened with PDs before May 1, 2010?abcx13,

Firstly, I would say that we have to be careful taking USCIS figures with blind faith. There's no explanation of exactly how they were compiled.

As I said in my post, I think the 195k is something of an over estimate, since many people have more than one I-140, both spouses have I-140 etc. Nonetheless, the figure will be very high. I agree with your prognosis. It's a sobering thought.

I assumed the first table included dependents, but USCIS does not specify either way. Not all the number would be Indian. Those that are will span several years of PD looking at the VB COD history. Many could be Chinese with the way the EB2-C COD has bounced about. It reached 15DEC13 at one point (it moved rapidly to 01JUN13 in June 2015) and is now 01FEB12. Similarly, many ROW cases cross 180 days unadjudicated.

[abcx13]

abcx13,

Firstly, I would say that we have to be careful taking USCIS figures with blind faith. There's no explanation of exactly how they were compiled.

As I said in my post, I think the 195k is something of an over estimate, since many people have more than one I-140, both spouses have I-140 etc. Nonetheless, the figure will be very high. I agree with your prognosis. It's a sobering thought.

I assumed the first table included dependents, but USCIS does not specify either way. Not all the number would be Indian. Those that are will span several years of PD looking at the VB COD history. Many could be Chinese with the way the EB2-C COD has bounced about. It reached 15DEC13 at one point (it moved rapidly to 01JUN13 in June 2015) and is now 01FEB12. Similarly, many ROW cases cross 180 days unadjudicated.

Yeah, I think even if the duplication in the 195k number is a third, which is probably too high an assumption, we're screwed.

As for the first table, you're right that not all of EB2 number would be Indian. But I suspect it's mostly IC, no, considering EB2-ROW is generally current and that the majority of AoS cases are probably adjudicated in less than 180 days? And then of the EB2-IC, it should be mostly India since I don't think China has anywhere near the density India does and also has later PDs in the Visa Bulletins. I am also implicitly assuming that anyone who was ever current took the opportunity to file a 485. I suspect the first table doesn't include dependents b/c it would be too low relative to the table which shows there are some 195k EB2-I people incl. dependents (203k total incl. C and ROW) waiting to file I-485s. But who knows... the 2nd table does show that the Indian demand is off the charts. The Chinese demand is much more manageable.

It strikes me that if we wanted, we could probably file FOIA requests to get this data from USCIS.

EDIT:

http://www.foia.gov/report-makerequest.html
http://www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/how-file-foia-privacy-act-request/how-file-foiapa-request

I can draft a request if we can come up with requirements.

[Light@EOT]

Gurus-

I know everyone is dis-appointed with the proposed rule;

Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High- Skilled Nonimmigrant Workers.

But I am trying to figure out other positive changes that are in it. (looking for bright spots, eternal optimist)

what are the changes / improvements to the same or similar job clause and related issues like promotion and career growth in the new rule -

are they doing anything here? anything positive for us in this?

Please move to the correct thread, if this is not the correct one.
Thank you guys