EB2 Predictions (Rather Calculations) - 2012

[EB2Dec2007]

Hello folks,

Can we create an LLC or an S Corporation or any other form of company if you are on an EAD?

I got my EAD in March 2012. Please advise.


Thanks!

You can create a LLC or C corp but not S corp. Here is some research I did a while back

Qualification for S corporation status

In order to make an election to be treated as an S corporation, the following requirements must be met:
• Must be an eligible entity (a domestic corporation, or a limited liability company).
• Must have only one class of stock. (See Common Stock vs Preferred Stock)
• Must not have more than 100 shareholders. • Spouses are automatically treated as a single shareholder. Families, defined as individuals descended from a common ancestor, plus spouses and former spouses of either the common ancestor or anyone lineally descended from that person, are considered a single shareholder as long as any family member elects such treatment.
• Shareholders must be U.S. citizens or residents, and must be physical entities (a person), so corporate shareholders and partnerships are to be excluded. However, certain tax-exempt corporations, notably 501(c)(3) corporations, are permitted to be shareholders.

• Profits and losses must be allocated to shareholders proportionately to each one's interest in the business.

If a corporation that has elected to be treated as an S corporation ceases to meet the requirements (for example, if as a result of stock transfers, the number of shareholders exceeds 100 or an ineligible shareholder such as a nonresident alien acquires a share), the corporation will lose its S corporation status and revert to being a regular C corporation.

[RGVJSR]

Dear Members,

Kindly excuse me if this is posted as off thread topic.My spouse was nearing full term pregnancy and planning to go on FMLA leave. Both of us are in AOS pending status and working with EAD. Can she claim DI benefits during this leave ? Will it affect our GC approval at later stage ? Please share the information U have.
Thanks for your time and attention.
-RGVJSR

[vizcard]

Dear Members,

Kindly excuse me if this is posted as off thread topic.My spouse was nearing full term pregnancy and planning to go on FMLA leave. Both of us are in AOS pending status and working with EAD. Can she claim DI benefits during this leave ? Will it affect our GC approval at later stage ? Please share the information U have.
Thanks for your time and attention.
-RGVJSR

First of all, congratulations and all the best with the rest of the pregnancy.

To answer your question -
Yes - As long as she maintains employment status with her employer and she gets the DI through a program from her employer. That's what I've been told anyway.I would strongly recommend to check with her HR / Benefits provider to confirm. Check with your lawyers too (I'm assuming you were the primary on the GC app).

[qesehmk]

If she is beneficiary on your application - then there is absolutely no problem at all since it is not a requirement that secondary applicant be employed.

Even if she is primary and you are beneficiary - I am 99% confident that FMLA is applicable to AOS candidates and that FMLA leave by itself shouldn't be disruptive or hamful to 485 approval.

Dear Members,

Kindly excuse me if this is posted as off thread topic.My spouse was nearing full term pregnancy and planning to go on FMLA leave. Both of us are in AOS pending status and working with EAD. Can she claim DI benefits during this leave ? Will it affect our GC approval at later stage ? Please share the information U have.
Thanks for your time and attention.
-RGVJSR

[shashimohan]

Hello,
Thank you for this forum. Gurus please can you provide suggestions. My problem is as follows: I am in my 7th year of H1 with I140 approved. I have been offered a new position by another firm, but as per this new firms immigration team, they cant transfer my H1 at this stage and have to wait for pending I485 for 6 months. Please let me know if there is any other option or does this suggest, I have to wait to make a switch till I485 is pending for 6 months.

[vizcard]

Hello,
Thank you for this forum. Gurus please can you provide suggestions. My problem is as follows: I am in my 7th year of H1 with I140 approved. I have been offered a new position by another firm, but as per this new firms immigration team, they cant transfer my H1 at this stage and have to wait for pending I485 for 6 months. Please let me know if there is any other option or does this suggest, I have to wait to make a switch till I485 is pending for 6 months.

They can transfer the H1 if they want to. But they would have to restart the GC process. You will still retain your current PD. If you wait the 6 months, you can work on EAD and not have to do anything else. That's a personal choice.

My 2 cents - Unless your PD is before Dec 2007, I would take the job and try to convince them to transfer the H1 and restart the GC process. Labor will probably take a year max. Then you can always file I140 with premium processing and 485 later or if you are current, you can file concurrently. There's also the factor that the company may not sponsor GC immediately so that's got to be established up front.

PS: My guess is that new firm doesn't want to spend the money to the entire immigration process (H1 transfer, Labor, I140, I485, etc.). If it really is a money issue, you could offer to split the bill or something like that.

[Spectator]

Make of it what you will. I haven't fully digested it myself yet. http://www.immigration-information.c...4215#post74215

New information just posted by AILA

Visa Office Update on Priority Dates and Demand (Updated 6/27/12)

Cite as "AILA InfoNet Doc. No. 12012349 (posted Jun. 27, 2012)"

On Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars Committee member, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and beyond with Charlie Oppenheim of the Visa Office. Here are notes from that discussion:

2012 and 2013 News

In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates for China-Mainland born and India, which are currently "unavailable," will move to August or September 2007 (China may be slightly better). It is unlikely that the cut-off dates will move forward at all for the first two quarters of FY2013. If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year.

Mr. Oppenheim's office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up for adjudication in October 2012, and it will take some time to get through them.

EB-2 worldwide will be current in October 2012.

If USCIS approves many pending cases during the month of June, the worldwide EB-2 category may retrogress or become unavailable for the rest of the year.

Why did the priority dates move ahead so far and then retrogress so drastically?

USCIS encouraged Mr. Oppenheim's office to move the categories forward so much in January, February, and March of 2012. USCIS reported that they had a lot of approved petitions but they were not receiving enough I-485s.

USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted, since there already appeared to be heavy demand.

In February, the demand had already increased 50%. In addition, USCIS said that they believed that adjudication of EB-1 cases would be at the same rate as last fiscal year, and this was not the case. It could be due to the fact that many EB-1 cases had very long adjudication times with USCIS. In addition, EB-5 usage has been higher this year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2.

Applicants from China and India who filed will be waiting years for adjudication of their I-485s.

USCIS also advised a 4-6 month timeline in the processing of I-485s, and then they processed a lot of cases in 3 months, which increased the demand as well for visa numbers this fiscal year.

The group of cases that were filed in July and August of 2007, when all employment-based categories were made "current," were all completed by November 2011, and at that point, Mr. Oppenheim's office had to depend on USCIS estimates for adjudication of cases. Mr. Oppenheim's office had no pre-adjudicated cases that gave him a point of reference to determine what was left or pending.


Mr. Oppenheim's office has been very clear that they do not like retrogression.


Going forward:

Another problem with trying to predict the demand is that no one is keeping statistics on EB-3-EB-2 "upgrades." Upgrades continue to be a big "wildcard," as no one knows how many are being used per year and no one is tracking it. Mr. Oppenheim confirmed his previous comments that both cases for a person remain open (so it looks like two numbers are being used) if a person is upgrading from EB-3 to EB-2, and only when the green card is approved does the duplicate file number go away. At that time, Mr. Oppenheim's office is told by USCIS to cancel a pending EB-3 case.

Mr. Oppenheim's office believes that there are 10,000 to 15,000 numbers used for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to approve China and India adjustments that were EB-3-EB-2 upgrades. The actual break down was 2,800 from India and 500 from China.

All of these cases had priority dates before 2007, so clearly, they were upgrades. For example, 363 of the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005 priority date. In March 2012, alone, over 1,000 numbers were used for applications from the worldwide quota that had priority dates before 2010, so these were likely upgrades as well.

USCIS previously insisted that the number of upgrade cases was insignificant.

Mr. Oppenheim's office tries to use 13,500 visas per quarter for all EB cases. This office already has more than 17,000 in line for FY2013.

[openaccount]

Spec-

This clearly confirms that EB3-EB2 porting for IC are at a minimum of 5-6k( it could be >6k) per year

so based on what happened this year and the current demand, i think it is almost impossible for EB2I to even cross Dec2007 PD in FY2013

[shashimohan]

Thank you vizcard. The new firm will only apply for green card after an year of employment, in that case how can they even transfer the visa because the extension is currently just because of the gc process in place. I might be sounding funny, but dont know how things work when one is in 7th year of visa.

[Spectator]

Spec-

This clearly confirms that EB3-EB2 porting for IC are at a minimum of 5-6k( it could be >6k) per year

so based on what happened this year and the current demand, i think it is almost impossible for EB2I to even cross Dec2007 PD in FY2013

openaccount,

At 6k, unless EB2-I gets a lot more visas than I am thinking at present or a large number of early cases do not get adjudicated, it looks very difficult.

I still need to look at what was said a bit more and think it through though. For example, March 2012 was not a "normal" month. USCIS were in hyperdrive in February and March.

Even CO said no figures are being kept by USCIS. If his "guess" is anywhere near accurate, then it is sobering news. First thoughts are it sounds a little high, although the numbers we have been using are probably too low in light of the information.

In many ways, CO's comments on EB2-C and EB2-ROW numbers were at least as interesting.

[pch053]

Doesn't CO's estimate of 10,000 to 15,000 numbers used for Eb3->EB2 upgrades every fiscal year seem to be on the higher side? We don't see EB3 pending #'s decreasing at that rate, even considering that there are more CP cases for EB3 as compared to EB2. It also seems that they won't be opening the floodgates for EB2-I/C folks anytime soon; the PD's will move forward more based on demand - supply ratio.

[Spectator]

Doesn't CO's estimate of 10,000 to 15,000 numbers used for Eb3->EB2 upgrades every fiscal year seem to be on the higher side? We don't see EB3 pending #'s decreasing at that rate, even considering that there are more CP cases for EB3 as compared to EB2. It also seems that they won't be opening the floodgates for EB2-I/C folks anytime soon; the PD's will move forward more based on demand - supply ratio.

pch,

I agree CO seems to overestimate the numbers based on what we can deduce the numbers might be (which is only for India anyway).

On the other hand we do not see the entire picture and really I don't think we have been considering either China or ROW as having any significant Porting numbers.

That latter point is more interesting to me. Suddenly, WW using 30k a year may not be so unfathomable and we may have been underestimating EB2-C numbers.

We always seem to come back to Teddy's original figure of 6k for India. Add half as many for all other Countries and we approach the lower bound of CO's "guesstimate".

Remember, IC only had 6 months where Porting applications could be approved this year. The door was slammed shut in early April by internal retrogression to Unavailable.

[openaccount]

hr 3012 could be one of the reasons for surge in EB ROW porting numbers this year

[justvisiting]

A WW EB-3 who applied in say, 2008, would have never filed an I-485 and would not appear in the USCIS inventory. If that applicant upgrades to EB-2, which until now has always been current, he would have not appeared in that demand data either.

[Spectator]

A WW EB-3 who applied in say, 2008, would have never filed an I-485 and would not appear in the USCIS inventory. If that applicant upgrades to EB-2, which until now has always been current, he would have not appeared in that demand data either.

justvisiting,

A very well made point.

[pch053]

I think Spec and justvisiting's points make a lot of sense and the overall porting #'s (I+C+ROW) might very well reach 9K (6K from I + 3K from C + ROW). Plus, as mentioned, for ROW, the range of porting dates will span PD's from 2006 - 2011/2012 whereas for I + C it will be PD's in the range of 2002 - 2007. Since their data never made it to UCIS inventory, I think it will be tough to get a ballpark of how many ROW's with post Aug'07 PD has ported from EB3 -> EB2.

[Mavrick]

"Mr. Oppenheim's office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. "

Do we agree that there are only 17K demand for EB-2(all) post Jan 2009(Jan 2009 - April 2010)? I for some reason think the figures are low because if we take out ROW from the equation, the numbers will go down to roughly 15K

[vishnu]

ya thesse grand CO predictions are so random
if indeed it is just 17k, i would actually be quite optimistic for date movement...
the 15000 porting figure sounds very high, and if so, then eb3 inventory should reduce dramatically (which has not materialized?)

[vizcard]

Thank you vizcard. The new firm will only apply for green card after an year of employment, in that case how can they even transfer the visa because the extension is currently just because of the gc process in place. I might be sounding funny, but dont know how things work when one is in 7th year of visa.

Some theoretical background
First of all, you have to decouple the H1 process from the EB GC process. I think Q and others have reiterated that GC is for "future employment". H1 is for current employment. A company can apply for GC even when one is on OPT (post US-based degree).

As for H1, any H1 past 6 yrs is based on an approved Labor (1 yr) or approved I140 (3 yrs). Once you have an approved H1, you can work regardless of whether or not there is an underlying GC application. So if you change jobs pre-180 days, the likely scenario is that your current company will cancel the underlying I140. However, that won't impact your current H1B as it already has been approved. You may now work on the H1B (appropriately transferred) till the expiration date or further extend it using an approved Labor or I140.

Point of warning - you cannot extend your current H1 if you don't have an approved Labor or I140. That is the only difference between the first 6 yrs and past that.

Your case
There is also another potential solution to your situation. I don't know the exact mechanics (perhaps someone else can explain in more detail). But if you can convince your current company to not cancel the underlying I140, you could transfer your H1, start work at the new company and then once the 180 days are up, you change your "sponsoring employer" to the new company.

Sorry for the long post but I tried to put in as many details. If you need more info, just PM me separately and we can keep this thread to calculations.

[openaccount]

Another problem with trying to predict the demand is that no one is keeping statistics on EB-3-EB-2 "upgrades." Upgrades continue to be a big "wildcard," as no one knows how many are being used per year and no one is tracking it. Mr. Oppenheim confirmed his previous comments that both cases for a person remain open (so it looks like two numbers are being used) if a person is upgrading from EB-3 to EB-2, and only when the green card is approved does the duplicate file number go away. At that time, Mr. Oppenheim's office is told by USCIS to cancel a pending EB-3 case.

well looks like USCIS is delaying in reporting porting cases to DOS .

Spec, could this be the reason for less(i think it is 1500 or 2000) EB3 visa usage in FY2011. As USCIS is not able to report porting cases CO cannot see actual EB3 demand as some numbers might have been already approved in EB2, this might have resulted in less EB3 consumption in 2011

[Mavrick]

Thanks, Vishnu.

Q & Spec, any thoughts?

[Spectator]

"Mr. Oppenheim's office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. "

Do we agree that there are only 17K demand for EB-2(all) post Jan 2009(Jan 2009 - April 2010)? I for some reason think the figures are low because if we take out ROW from the equation, the numbers will go down to roughly 15K

Mavrick,

I read that to mean that DOS is aware of 17k Demand for all EB2-IC cases of all PDs and Worldwide applicants with a PD later than Jan 1, 2009.

In fact the Worldwide numbers should be close to zero (consisting only of cases reported by Consulates for August), since no AOS cases can become pre-adjudicated until July 1, 2012 - any AOS cases will simply be approved and not fall to the Pending file we know as the Demand Data.

EB2-Worldwide cases would only begin to hit the Demand Data in any numbers if DOS has already made EB2-Worldwide Unavailable internally already. I don't think that happened, even though EB2-Worldwide case approvals have slowed down, judging by Trackitt.

[Spectator]

ya thesse grand CO predictions are so random
if indeed it is just 17k, i would actually be quite optimistic for date movement...
the 15000 porting figure sounds very high, and if so, then eb3 inventory should reduce dramatically (which has not materialized?)

vishnu,

That is 17k as of June 19, 2012, which will contain a few hundred Worldwide numbers at best.

By October, the number will be massively larger.

[IsItWorthTheTrouble]

So, based on CO's statements, what's the likely cut-off month when FY13 ends? Also, in light of this statement, should we expect a 'retrogression' in the next bulletin that USCIS wouldn't be able to get the dates back to May '10 by spring '13.

[qesehmk]

The 15K cliam is a bit outrageous. However, I am 100% confident that the ONLY way it could be true is IFF (if and only if!) EB3IC from 2007-8-9-10 have been converting to EB2 and it started showing up only after all these date movements of EB2IC.

If you think about it - that gels very well with out original theory of 3-6K total porting per year.

So while that may be true - I am not quite worried ... since then that 15K is already baked into all the filings until 2010 for EB2IC.

Makes sense? Critique this.

Thanks, Vishnu.

Q & Spec, any thoughts?