Quote:
Originally Posted by gcq
Currently it is in practice, Chinese are downgrading their eb2 to eb3 without a perm. As Spec mentioned, I have seen that AILA- USCIS exchange, don't know where to locate now.
PS: Thanks Matt :)
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Quote:
Originally Posted by gcq
Currently it is in practice, Chinese are downgrading their eb2 to eb3 without a perm. As Spec mentioned, I have seen that AILA- USCIS exchange, don't know where to locate now.
PS: Thanks Matt :)
gcq,Quote:
Originally Posted by gcq
As far as I m concerned, there is no such thing as an EB2 PERM (or EB3 PERM for that matter). The PERM is basically just a statement of the minimum requirements for the job, the wage to be paid for that job and attesting that no US Citizen or LPR holder was available to fill the position.
The question of whether it meets the minimum requirements for EB2 or EB3 is only a matter that USCIS can determine. USCIS are looking at:
a) Do the minimum requirements in the certified PERM qualify for the Category requested in the I-140?
b) Does the beneficiary possess the minimum requirements for the Category requested in the I-140?
USCIS often make this point in AAO decisions. e.g. in this decision:
or in more detail in this decision in the section titled "The Roles of the DOL and USCIS in the Immigrant Visa Process".Quote:
It is noted that, although DOL certified the ETA Form 9089, its role is limited to determining whether there are sufficient workers who are able, willing qualified and available, and whether the employment of the alien will adversely affect the wages and working conditions of workers in the United States similarly employed. Section 212(a)(5)(A)(i) ofthe Act; 20 C.F.R. § 656.1(a).
It is left to USCIS to determine whether the offered position and the beneficiary qualify for the requested preference classification, and whether the beneficiary satisfies the minimum requirements of the offered position as set forth on the labor certification.
Quote:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda-Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In tum, DOL has the authority to make the two determinations listed in section 212(a)(14).
The necessary result of these two grants of authority is that section 212(a)(l4) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations.
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983).
Just because a PERM certification may satisfy the requirements to file under EB2 does not compel the I-140 to be filed under that Category.
Applicants for the position would still have to meet the requirements of the PERM, so it eliminated nobody if the I-140 was filed under EB3 rather than EB2.
The job has not changed, the minimum requirements have not changed, nor has the PW that must be paid for it.
What you touch on is the objection that some EB3 have to the practice, since an EB3 number will be used for a job that no "ordinary EB3 qualified" person could apply for due to the minimum requirements of the PERM.
To answer Kanmani's query, a PERM only becomes invalid if it is not used to support an I-140 filing within 180 days of certification. Once that condition is met, it remains valid for further I-140 filings against it.
Hello Teddy , Q and old timers ,
I had abandoned my GC in late 2011 and returned to India due to some emergency health issues of some family members. Then had a PD of June 2007 in EB2. Working in India now as a senior architect in a semiconductor company and have restarted the process with PERM process last week. I am planning to port my I140 PD from EB2 2007 to the new I-140 to be filed.My profile is that of a Senior architect with 4 individual patents(single inventor).
Do I have a reasonable chance of a consular interview in 2015 ? Any risks that you see ? I see delays in PERM labor adjucation as a problem of me missing the window when my PD would be current.
Arnab - welcome to forum. I think you do have a good chance in late 2015. The dates have already retroed in 2005 but they should spring back in Q4. Good luck.
Quote:
Originally Posted by arnab222
Does anyone think President is going to act on EO for legal immigration (As per today's statement)?
Please move to Relevant thread after answered. I have posted this in RFE thread but no traction there.
Hello All,
not sure if they continue to issue Visa's still last date.
I received bunch of emails (as well as case status updates on website) that my I485 is approved, card production stage etc on 29 th October and another one today (3 nov)
my PD is july 3 - 2008.
However there is no update on the status of my wife and daughter. I am primary applicant and they both are dependents.
their status remained same as "RFE response Review" for over two months.
since the dates are retrogressed, i was worried they will not get it this year.
is that a possibility? my understanding was that they process family together.
spoke to L2, he has no clue.
Thanks
Satya
Oct 3, 2014 Inventory.
http://www.uscis.gov/sites/default/f..._2014_10_3.pdf
So, EB2-I still has about 20K pending prior to May 1, 2010. Very interesting. Spillover was less than anticipated in FY 14?
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Thanks for your understanding.
SO estimation is anywhere between 9k-13k.
Oct 2013 Oct 2014 Diff Std Allocation Est. SO
EB2-I 32539 20263 12276 2802 9474
EB3-I 34336 29422 4914 2802 2112
Demand reduced by 236 for PD between May 2009 and May 2010 for EB-2I
So estimated SO based on the numbers is 9238. Ofcourse this includes new filers/porters who filed between July-Sep 14 (Assuming around 3000-4000)
So adding this to 9238 will give anywhere between 12k-13k.
People may differ on the amount of new filers/porters so the final number may vary.
For EB3-I demand reduced by 2112 excluding the std allocation. There may be new filers or USCIS found files out of nowhere :) (I see in some months of 2003, no of cases increased) , looks like porting is between 3k-4k for the FY.
I have not included the per country allocation based on FB spillover allocation per category per country.
Gurus please opine.
Thanks Civilengineer.Quote:
Originally Posted by civilengineer
Spec,
What do you make out of the inventory? I do see 3k+ pending cases in 2008. Can we assume that this inventory is sort of "interim" and the pending cases would further reduce in the next issue (whenever that is)
Iatiam
The latest inventory show over 20000 for EB2 before May 2010. Is it possible that these numbers will be lower by the next inventory? This is because the recent approvals may not figure into this data yet.
Thanks civilengineer!Quote:
Originally Posted by civilengineer
Spec - have you come across anything which tells us about amount of spillover EB could be getting from FB? (if any at all?)
So between the inventory published in July and Oct, there are no major surprises except EB2ROW where the demand is a bit higher than one would've expected.
It looks like the inventory is as of 10/3. Except October approvals it is pretty clear inventory. In October this year quota might be used. If this is true what could be the final inventory pending as of now?
Quote:
Originally Posted by iatiam
I'm not around for a few days.
I'll comment next week when I'm back and have had a chance to look at the new Inventory figures.
Nope. The approvals starting this October are from FY 15 numbers. The max it could have is 2800. And, we have about 3K-4K porting every year. The new porting will take care of the approvals in Oct 14. So, in 2015 summer, inventory will be about the same. 20K pending inventory - 2.8K approvals in Oct + 3K porting for 9 months = 20K approx in summer of 2015. Oct 2014 approvals won't make any dent to pending inventory come summer.Quote:
Originally Posted by vyruss
Missed the boat by just two months this year, I am still behind 9000 people in the queue guys, intimidating! I hate you all.
I know it is frustrating. The end never seems to be in sight...does it!Quote:
Originally Posted by Kanmani
However with everything said and done, I have high confidence your GC will come by Sept 2015. 9000 is not a bad number for EB2I. And the spillover will be > 0. As spec had said, EB2I movement is too sensitive to a slight variation in processing. A 5K variation here and there can push the EB2I date and open the gate for many deserving and long awaiting people.
December 2014 Visa bulletin is out guys.............http://travel.state.gov/content/visa...mber-2014.html
:(Quote:
Originally Posted by Kanmani
Well if it makes you feel any better.. I hate you too. ;)
I don't even have an EAD. I can't switch jobs. Been waiting for ever(feels like it) and now you hate me.. :) why do you hate me? :eek:
Hang in there.
AC 21 Employers are not bound by PERM wage offer. The job must be same or similar, but the new AC 21 employers are not required to pay PERM wages, nor even prove that they can pay the wages.Quote:
Originally Posted by sportsfan33
That is my understanding. Please correct me if I am wrong.
Kanmani/Spec - Agree/Disagree? This question might become material for me in coming days - so I am very interested in your opinions. P
Quote:
Originally Posted by nbk1976
imdeng,Quote:
Originally Posted by imdeng
Honestly speaking I didn't want to answer this question, thought of writing you a pm, later I ended up writing here what I think.
AC21 rules are generally the interpretations of the law used practically with the directions of various memos. As I dig deeper in to the practices of adjudicators, I don't really expect them having enlightened with all those information spread over the memos. What they do is simply shoot an RFE, you can't question them with a quote from the memo really, you must pay the attorney and reply them.
The pay difference of few thousands are negligible, but huge wage difference on the lower end might trigger a doubt, Adjudicators have every right to question us, additionally those memos guides them to make sure the job offer is genuine or not.
So I am going to explain hereafter on my point of view. Myself changing jobs using AC21 portability option, would try as possible I can to make sure, I never get an RFE. I know very well that offered wage is not the criteria there, same or similar job is the key point. I should make sure that the wage offered should not peep in the picture to send me an RFE. Would they send me an RFE? Why not? I can't just hold to one memo as an authority to end up in a RFE situation, when I am that close to getting an GC.
There are situations and successful cases who have changed jobs with a lower salary. It is based on how much comfortable you are on facing situations.
That's all I have. I am not really comfortable discussing further. I came up with the above is just for your sake. Good luck!
Thanks Kanmani. Appreciate your thoughts.
That may be so. But "same or similar" is a vague concept and you cannot rule out an adjudicator arguing it should transfer to your salary too. My criteria for "same or similar" contains fulfilling 3 things that I made sure held true for my own self when I switched jobs.Quote:
Originally Posted by nbk1976
1) Similarity: The type of job as described by the labor code in the PERM should be similar. This is the most important requirement. That means the answer to the question: "had this job been advertized, what would the labor code be?" should be same or similar labor code.
2) Salary: Of course, geographic area matters. If you went from Northern California/NYC to midwest/south, you will probably take a large salary reduction. There are always extraneous circumstances. However, once you factor out the cost of living adjustment etc., you better make sure you keep earning a similar wage. If your salary drops too much, it can arouse a suspicion on your original petition itself, and it might end up opening lots of cans of worms.
3) Job requirements: if your original petition was EB2 based, your new job should require the same qualifications as that of an EB2 job (bachelors+5 years, or masters). Again, this may not be stated explicitly anywhere in the AC21 memo, but a tough adjudicator will not buy that the job falls in the "same or similar category" unless this was satisfied.
AC21 Same or similar from USCIS itself.
http://www.uscis.gov/news/questions-...-act-2000-ac21
Quote:
Q2. How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:
The job duties of both positions
The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
The wages associated with each position
USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.
Quote:
Q4. The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?
A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a “substantial discrepancy” in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.
Section 1, Question 5 from the December 27, 2005 AC21 Memo references a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.
Hi,
My suggestion is talk to your local congressman or senator. Create a request through them.
Then I think you are good that's what I did it.
Thanks,
Shreya
Quote:
Originally Posted by sp2008
Thank you Shreya,
did you work for you?
Quote:
Originally Posted by shreyasai2004
It worked for me and one of my friend also.
Quote:
Originally Posted by sp2008
OFLC Q4 FY2014 PERM Disclosure Data Released
It can be found here.
I have updated all the posts in the PERM section to reflect the official figures.
thanks Spec!Quote:
Originally Posted by Spectator
Guys,
One quick question. Can dependent EAD holder work on two full time jobs at once for a period of one month or so? My wife's current company is closing down in December and she might get offer from another company soon. So she might be employed by two employers during the month of December. I am the primary applicant for GC.
Thanks.
With EAD, there is no restriction on the number of jobs that can be held or being unemployed even for primary.Quote:
Originally Posted by tendlya
If you are the primary applicant, you need to have a job offer when your I-485 is adjudicated.
EAD is almost like a green card.
Thanks gcq.
Did anyone analyze the demand data? Will June 2008 PD people who filed I-485 first time in 2014 get greened next year likely? Thanks in advance.
USCIS has released the performance data for the 4th Quarter of FY2014. The data available is as of Sept 30th.
There were 126,939 485 EB applications approved.
http://www.uscis.gov/tools/reports-s...ion-form-types
Am I reading it wrong. Shouldn't the approved numbers be 140K?Quote:
Originally Posted by Pundit Arjun
It excludes CP. So 150-126 = 24K is the CP number.Quote:
Originally Posted by jdoe99
Completely forgot about that :). thanks.