EB2 Predictions (Rather Calculations) - 2012

[dce.deepak]

I believe to live and to work are two different things.

Also guys, in the perm application section H there is a question (#17), which says:
"does the job require the alien to live on the employer's address? yes, no"

I think if the answer is no, most likely there shouldn't be any problem

[Kanmani]

No and No - the reason being the labor is filed to a certain location and AC21 doesn't kick in until after 6 months since 485 is filed.

Q

I think the new company could extend his H1b for 3 more years using the approved I-140 of the old company.

http://www.murthy.com/chatlogs/ch122710_P.html ( First Question)

Please clarify me if I have misunderstood.

[qesehmk]

Kanmani

Thank you for siting this. Very useful. I think (not 100% sure), that would be quite restrictive for USCIS to use 140 from another employer to extend H1 with another one because the assumption there is that the GC process with the former is still in progress.

In this case, since the employer is shut down, i am not sure that it will be valid... but hey ... one can try!

Q

I think the new company could extend his H1b for 3 more years using the approved I-140 of the old company.

http://www.murthy.com/chatlogs/ch122710_P.html ( First Question)

Please clarify me if I have misunderstood.

[familyguy]

good point

I believe to live and to work are two different things.

[TeddyKoochu]

Kanmani

Thank you for siting this. Very useful. I think (not 100% sure), that would be quite restrictive for USCIS to use 140 from another employer to extend H1 with another one because the assumption there is that the GC process with the former is still in progress.

In this case, since the employer is shut down, i am not sure that it will be valid... but hey ... one can try!

Kanmani / Q I know of one example first hand. He is my close friend we both joined our consultancy company on the same day. He left the company to take up FTE with another company however my company told him that they will revoke his I140 however looks like did not keep their promise. My friend recently obtained his 3 Yr extension as opposed to 1 Year that he was expecting based on time left on H1 thanks to the I140 from the old company. So this is a little grey area but works.

[TeddyKoochu]

Teddy

I agree with your 2500 per month total including porting for the rest of 2007 and 2008. Its not that our PD is in 2009 and my heart really wishes to see a lower number ahead of ours ,while calculating I always listen to my mind . I have already discussed about the multiple perm scenarios , adding to that, when Satyam became M.Sat , it withdrew all its deployment from US. It was during recession and people didnt get enough time to switch companies. Almost 90% had their Gc process started at that time .

Thank you for your deviation towards optimistic siders.

Kanmani, Thanks, our objective here is to arrive at a agreeable number based on numbers and then align our beliefs accordingly. Tonyromo proved beyond any reasonable doubt that the ratio of perms - I485 is really 1, even Veni has worked on this very extensively earlier and given us this axiom. My original assessment was based on the Jul inventory which is actually an anomaly due to various special factors prevailing at that time. I tried to bake the porting in the figure to make it simple. Very happy that we all agree, in fact the discussion was really helpful, you are right when doing this we should forget our own PD's and case totally. Lets sincerely hope that the next bulletin also has some more forward movement so that more people can file 485, CO is barely at 30K looks like.

[GhostWriter]

Nishant/Teddy/Q
One question and may be it has been discussed before. Lets say by the end of Sep 2012, 30K EB2-IC 485s are filed but only 20K are processed and approved and the remaining 10K 485s are pending inspite of the best efforts of USCIS to process the cases. Lets say the SOFAD for the year turns out to be 30K. What happens to the 10K extra available visas. Do they go to EB3 or are they put in a separate buffer and can be used later in next financial year when the cases are approved. What is the official rule in this scenario.

[suninphx]

Kanmani, Thanks, our objective here is to arrive at a agreeable number based on numbers and then align our beliefs accordingly. Tonyromo proved beyond any reasonable doubt that the ratio of perms - I485 is really 1, even Veni has worked on this very extensively earlier and given us this axiom. My original assessment was based on the Jul inventory which is actually an anomaly due to various special factors prevailing at that time. I tried to bake the porting in the figure to make it simple. Very happy that we all agree, in fact the discussion was really helpful, you are right when doing this we should forget our own PD's and case totally. Lets sincerely hope that the next bulletin also has some more forward movement so that more people can file 485, CO is barely at 30K looks like.

Teddy thank you for all guidance.
One question- are we projecting 2500/month density for whole 2008 or only till Jun/Jul 2008?

[qesehmk]

Thanks Teddy. That is a good hope for the person in question.

A slight complication here is that the company that filed (assuming its the Richmond office that filed) has folded. If true, when USCIS scrutinizes the underlying 140 as the basis for H1 extension, that could be a problem. But honestly if the parent company wants to retain this guy, they can IMHO make an argument to USCIS that the 140 is still valid since although operations are folded, the person will continue to use Richmond as his primary location.

The question is - does the company want to fulfil this or do they want to extend his GC process!!

Kanmani / Q I know of one example first hand. He is my close friend we both joined our consultancy company on the same day. He left the company to take up FTE with another company however my company told him that they will revoke his I140 however looks like did not keep their promise. My friend recently obtained his 3 Yr extension as opposed to 1 Year that he was expecting based on time left on H1 thanks to the I140 from the old company. So this is a little grey area but works.

[SaturnRing]

Kanmani, My spouse has done this twice with 2 different big attorneys and everyone including USCIS agrees that as long as you have some I140 (approved state and not revoked yet), they let you extend 3 yrs in H1. Even for a different employer.

Spouse has I140 from company A
We have extended 3 yrs based on that for company B's H1B
we have extended 3 yrs based on that for company Cs H1b

[Kanmani]

Teddy thank you for all guidance.
One question- are we projecting 2500/month density for whole 2008 or only till Jun/Jul 2008?

Suninphx
The total IC perms in the years 2007 and 2008 are almost similar with the diff of 1300 approx is negligible too.

[suninphx]

Suninphx
The total IC perms in the years 2007 and 2008 are almost similar with the diff of 1300 approx is negligible too.

Ok that makes sense.

Is demand destruction included in these calculations or it's on top of this. ( I am going to read Teddy's post again)

[SaturnRing]

Kanmani, My spouse has done this twice with 2 different big attorneys and everyone including USCIS agrees that as long as you have some I140 (approved state and not revoked yet), they let you extend 3 yrs in H1. Even for a different employer.

Spouse has I140 from company A
We have extended 3 yrs based on that for company B's H1B
we have extended 3 yrs based on that for company Cs H1b

And also to add, we have to give up Spouse's PD (Sep 2007), since Company C said they will sponsor GC after 6 months and we just switched to Company C in Jun 2011.

[mesan123]

Hi,

Actually for H1B extension USCIS is not scrutinising the I-140 we use. When i moved for fulltime employement last year, i got RFE because my fulltime company applied for 3 years H1b where in i had only 2 years left in my 6 years. in that RFE uscis asked whether i had any approved I-140 to get 3 year extension.

My friend got 3 years extension with I-140 from different company....So i dont know whether it is grey area or whether it is valid...but USCIS accepts the any valid I-140 for 3 year extensions

Thanks Teddy. That is a good hope for the person in question.

A slight complication here is that the company that filed (assuming its the Richmond office that filed) has folded. If true, when USCIS scrutinizes the underlying 140 as the basis for H1 extension, that could be a problem. But honestly if the parent company wants to retain this guy, they can IMHO make an argument to USCIS that the 140 is still valid since although operations are folded, the person will continue to use Richmond as his primary location.

The question is - does the company want to fulfil this or do they want to extend his GC process!!

[vizcard]

This is a personal "what if" scenario but may be relevant to others.

My PD is 8/20/2008 and my current H1 expires 11/30/2012. I obviously have to renew my H1 to be on the safe side. But is there a logical cut off point where it doesnt make sense to apply for an extension?

As an example, if I hypothetically get current by April and I apply in the first week of April, I could "EXPECT" EAD by Aug or Sept. in such a scenario does it make sense to apply for a H1 extension? What arguments could be made pro/con such a move?

PS: question is based on the calculation that if they wanted a 35k intake, they would need to move 4-6 months.

[qesehmk]

mesan / saturnring, thank you.

Looks like this is quite easy and straightforward then. Nishant pls update us on how your case moves forward. It will be helpful to others.

Hi,

Actually for H1B extension USCIS is not scrutinising the I-140 we use. When i moved for fulltime employement last year, i got RFE because my fulltime company applied for 3 years H1b where in i had only 2 years left in my 6 years. in that RFE uscis asked whether i had any approved I-140 to get 3 year extension.

My friend got 3 years extension with I-140 from different company....So i dont know whether it is grey area or whether it is valid...but USCIS accepts the any valid I-140 for 3 year extensions

[TeddyKoochu]

Ok that makes sense.

Is demand destruction included in these calculations or it's on top of this. ( I am going to read Teddy's post again)

Sun I agree with Kanmani's observation of the similarity in 2007 and 2008 perm numbers. So this approximation of 2.5K per month including everything will work. Now this factor of 1 has been validated against the first half of 2007 when demand destruction may have just been regular. In 2008 especally the later half not really the earlier part the demand destruction may have been higher because of virtual stoppage of perm approvals. As of now for the range that is current we have not hit that zone it really starts from May - Jun 2008 observe the perm table. So if you like you can have an additional destruction factor to cater to the 2008 market and perm situation it will swing the calculation to the optimistic side IMHO.

[nishant2200]

At this point, I personally, can only vouch for you with a degree of certainty in Q1 FY 2013. If you get in anytime in FY 2012, you got lucky because of less density a month due to factors people are speculating, like demand destruction etc. and/or high SOFAD expectation based on low demand in other categories.

My advice: Go for your last H1 extension and obtain peace of mind, and avoid what if scenario. If you want to take chance, then I think they promise EAD/AP in 90 days from applying, so that's your worst case situation. But let me tell you, there is no penalty to them if they dont give you in 90 days...

ps: I just read your H1 expires on 11/30/2012, that's quite late dude, for some reason I read it as something early earlier on. theoritically I believe you can even work on H1 if you have applied for it and have receipt, so can delay applying till like last moment is it. I personally faced this dillema this year, my H1 expiring in October 2011, I still went ahead and applied for extension 6 months (max allowable) earlier than the expiry for peace of mind, and turned out right, I ended up needing it. You never know.

This is a personal "what if" scenario but may be relevant to others.

My PD is 8/20/2008 and my current H1 expires 11/30/2012. I obviously have to renew my H1 to be on the safe side. But is there a logical cut off point where it doesnt make sense to apply for an extension?

As an example, if I hypothetically get current by April and I apply in the first week of April, I could "EXPECT" EAD by Aug or Sept. in such a scenario does it make sense to apply for a H1 extension? What arguments could be made pro/con such a move?

PS: question is based on the calculation that if they wanted a 35k intake, they would need to move 4-6 months.

[nishant2200]

This is my understanding. They can have dates current such that say in the last month or two months of Q4 FY 2012, they are able to "attach" visa numbers to those applications, and approve them later on. Such a movement forward would be a big one, so that they can grab as many CP applications who have fees paid, as well as for AOS applications, some applications randomly who happen to be on the "top" of a officer's table would get more lucky for visa attachment, those who missed out being on top will hopefully get in next FY Q1 because CO is happily doing QSP these days. Approvals would start trickling in Q1 FY 2013 due to this.

ps: to be on top of the table, people speculate drop in your applications as early as possible, hence the rush to get in on the 1st. I still say, make sure nothing incomplete and properly reviewed, better to not get an RFE and reach application on the 4th, instead of something messed up and getting in on 1st.

Nishant/Teddy/Q
One question and may be it has been discussed before. Lets say by the end of Sep 2012, 30K EB2-IC 485s are filed but only 20K are processed and approved and the remaining 10K 485s are pending inspite of the best efforts of USCIS to process the cases. Lets say the SOFAD for the year turns out to be 30K. What happens to the 10K extra available visas. Do they go to EB3 or are they put in a separate buffer and can be used later in next financial year when the cases are approved. What is the official rule in this scenario.

[sugada]

I have a concern in my present GC processing.
I am working with company A who filed PERM and later I-140 in EB2 which got approved but my priority date is Feb 2011. I am sure its a long waiting line for me. However I am getting offers to join another company B and wanted to know what I need to expect from this new employer to continue my PD. I think it is about AC-21 portability, can any of you let me know the steps involved in this portablility and what I have to ask from my new employer and their HR or lawyer. I appreciate taking interest in answering my concern, with best regards.
sugada

[nishant2200]

I have a concern in my present GC processing.
I am working with company A who filed PERM and later I-140 in EB2 which got approved but my priority date is Feb 2011. I am sure its a long waiting line for me. However I am getting offers to join another company B and wanted to know what I need to expect from this new employer to continue my PD. I think it is about AC-21 portability, can any of you let me know the steps involved in this portablility and what I have to ask from my new employer and their HR or lawyer. I appreciate taking interest in answering my concern, with best regards.
sugada

Please try to obtain the copy of I-140 approval notice from employer, that will be used to port your PD, or at least the case receipt number.

Company B has to again through entire process from beginning for GC, only thing lawyer will do is attach copy of prior I-140 approval notice of company A and request USCIS to use older PD on the new I-140. If you don't get copy of prior I-140 approval notice, I have heard that just knowing the case receipt number also has worked. 2011 is surely long way off, don't lose opportunity. I personally wasted a lot of time sitting around with same employer. As long as you have confidence new employer won't have problems doing EB2, go ahead.

ps: sugada, are you sogaddu's cousin

[GhostWriter]

Thanks Nishant. This would make sense. Since 2007 this would be the first year when they will have to do a huge number of approvals so it might eventually come down to this scenario.

This is my understanding. They can have dates current such that say in the last month or two months of Q4 FY 2012, they are able to "attach" visa numbers to those applications, and approve them later on. Such a movement forward would be a big one, so that they can grab as many CP applications who have fees paid, as well as for AOS applications, some applications randomly who happen to be on the "top" of a officer's table would get lucky. Approvals would start trickling in Q1 FY 2013 due to this.

[nishant2200]

Thanks Nishant. This would make sense. Since 2007 this would be the first year when they will have to do a huge number of approvals so it might eventually come down to this scenario.

Sure man, no one will complain in EB2IC!

If you guys see trackitt 485 forum, good to see EB1 etc reaction on our big moves

[mygctracker]

Folks,

Found below info from CIS CFR regarding Submitting Secondary evidence & affidavits. If I interpret this correctly, it says when Birth Certificate details are incomplete or unavailable, Secondary evidence is Church or School Records. If Secondary Evidence also is not available, then 2 Sworn affidavits come into play. I think this is in line with what Nishant's Lawyer told him. Tear it apart.

(2) Submitting secondary evidence and affidavits .


(i) General . The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required docum ent and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.


(ii) Demonstrating that a record is not available . Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicat es this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where USCIS finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement. (Amended effective 6/18/07; 72 FR 19100 )


http://www.uscis.gov/ilink/docView/S...0-0-11565.html

Thanks.

[DonDron]

Guys, I am kind of in dilemma here and need some advice. My priority date is in June and I am hoping it to be current in next bulletin. The problem is wife is currently out of US and I am planning to join her late in Dec. We are planning to coming back in Feb. Now the things I am unclear about is :

1. Can I go out of country immediately after applying I-485?
2. What are the chances that PD will remain current for me in January 2012? (I don't want my wife to cut her trip short and come back in Dec. She is couple of important functions to attend - like her brothers wedding) I was hoping I could file my wife's AOS after she comes back. Is this a good idea?
3. How long generally lawyers take to prepare the I-485 application and file?
4. Should we file together (either in December or when we come back )?

Am I missing any point that I should consider in this situation?

Help will be really appreciated.