Labor Immigration Law

United States Labor Immigration Law News and Analysis

AC21 Articles

USCIS Issues a Flood of RFEs on Pending I-485 Applications

Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based primary Form I-485, Application to Adjust Status, cases.    Our office has been receiving such RFEs and we have been hearing from readers and clients who have also been affected by this large-scale RFE event.    Unlike the similar mass-RFE event from June 2013, this time the RFEs seem to be more accurately drafted, do not include dependents and include request for renewed Form I-693 medical exam documents.

Similar or Identical I-485 RFEs

It appears that the majority (if not all) of these RFEs were issued by the Texas Service Center and most appear to be for EB-2 India applicants.    In terms of substance, the RFEs appear to be almost identical and seek information and clarification on a few points – (1) evidence of continuous employment authorization in the U.S. from the date the I-485 application was filed to the date of the RFE; (2) a current (and original) employment verification letter from the original sponsoring employer or, in cases of AC21 porting to a new employer, from the new employer; and (3) request for updated I-693 medical exam form.

Maintaining Employment Authorization

The RFE requests proof of employment authorization starting from the date the I-485 was filed until the present.   For many people this evidence would include copies of Employment Authorization Documents (EAD) or H-1B (or other employment-authorized status) approval notices/Form I-94 cards.   In many instances, I-485 applicants continue to maintain their H-1B status even after they file I-485 (and obtain EAD) or even after they switch an employer pursuant to AC21.    In other cases, I-485 applicants simply drop their H-1B and continue employment pursuant to a valid and uninterrupted EAD.

With this RFE, USCIS is trying to determine whether I-485 applicants may have been employed without authorization during the time the I-485 has been pending.   The significance is that in those cases where the I-485 applicant is deemed to have been employed without authorization (or without status) for more than 180 days since the last entry into the U.S., the government may deny the I-485 application under section 245(c).    Please see our article on this bar to adjustment and the section 245(k) defense.

As a result, special attention should be paid to ensuring that complete employment authorization history is provided.  If there are any gaps, we urge extreme caution.

Original Employment Verification Letter

The RFE also asks for an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   The EVL should be in original, on employer letterhead, and should confirm that the job offer described in the I-140 petition exists (for sponsoring employers).   In situations where the I-485 applicant has ported their I-485 to a new employer (or to the same employer but on a different position) pursuant to AC21, the RFE seeks an EVL from the new employer confirming that the new position is same or similar to the position noted in the I-140 petition.

As mentioned above, the EVL should be in original, currently-dated, describe the title and duties of the position, the salary, the minimum educational or training requirements, and the date the employment began (or will begin).

Updated I-693 Medical Exams

Finally, the RFEs are seeking an updated set of I-693 medical exam forms, completed by a designated Civil Surgeon, and in a sealed envelope.   The reason the medical exams are included in this set of RFEs is that USCIS not automatically renew the validity of the I-693 medical exams this year and, as a result, a number (or all) relevant I-693 medical exam forms expired because they were valid for only one year.

As a background, USCIS had a policy of automatically renewing the validity of timely-filed I-693 medical exams.  However, as of this year, USCIS did not renew this policy, resulting in a number of I-693 medical exams expiring.   As a result, USCIS is seeking a new Form I-693 as part of this RFE wave.

Attorney Assistance with Preparing RFE Response

Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Conclusion

There is much speculation as to what is the USCIS intent in generating so many RFEs in such a short period of time without, in many cases, careful consideration of the facts of a specific case.    We will not speculate since and we do not yet have an official position from USCIS.    For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations for forward movement in EB-2 India in the next few months), responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Employment Authorization for Certain H-4 Dependents – Analysis of Proposed Rule

Last week we reported on the announcement of the proposed rule which would allow certain H-4 dependent spouses to apply for and obtain work authorization.     Our article generated tremendous interest and feedback from clients and readers but at that time we did not have the actual proposed rule so we could not answer any specific questions about the details and the mechanics of the process, if or when, it becomes part of the regulations.     The text of proposed rule has been published in the Federal Register and now we are able to provide more details and analysis of the proposal.

Proposal for Employment Authorization for Certain H-4 Dependent Spouses

First, we should highlight and reiterate that at this point this is only a proposed rule.     Until and unless this rule becomes part of the relevant regulations, there would be no framework and possibility for H-4 spouses to apply for work authorization.

Proposed Rule.   DHS is proposing to allow employment authorization to certain H–4 dependent spouses of principal H–1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment.  Eligible H-4 spouses would spouses of H–1B nonimmigrants if the H–1B nonimmigrants are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I–140) or have been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Section 106(a) and 106(b) of AC21 allow H-1B status extension of the H-1B nonimmigrant is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

Rationale Behind the Proposed Rule.   By proposing employment authorization for certain H-4 spouses,  DHS believes that this proposal would further encourage H–1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents, to the detriment of their U.S. employer, because their H–4 nonimmigrant spouses are unable to obtain work authorization. This proposal would also remove the disincentive for many H–1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring status as a lawful permanent resident of the United States.

H-4 Children Not Included.   It should be noted that the proposed rule explicitly states that H-4 dependent children will not be eligible for EAD under this proposed rule.

Mechanics of the Proposed H-4 Spouse EAD Application Process

The proposed rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees, photos and supporting documents to establish eligibility for this new class of EAD.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The proposed rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Documentation of Eligibility.   Since the EADs under this proposed rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    The proposed rule mentions that in addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Rulemaking Process Timeline – When Would This Rule Become Effective?

The proposed rule is now subject to public review and comment.  This comment period is scheduled to end on July 11, 2014 (see the rule text for information on how you can submit comments to this proposed rule – anyone can do so).    Once the comment period closes, DHS would review the comments and either revise the rule in response to concerns or seek to publish a final rule.     The final rule, once published, will have a future effective date.

At this time it is not clear if or when this rule would become effective — but it is unlikely that H-4 spouses would be able to file EADs before the summer’s end.    Please stay tuned to our website or newsletter for more updates on the timeline and the effective date for this rule over the next couple of months.

Conclusion

We welcome DHS’s publication of the proposed rule and we believe that many eligible H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).    However, we would like to again caution that these are only the proposed (and not the final) rules.     Our office will monitor this process over the next weeks and provide additional updates, including estimates and actual dates of when such EAD applications can be filed.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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USCIS Proposes Rules Allowing Employment Authorization to Certain H-4 Spouses

Over the past few weeks (and months, really), there has been some chatter about a possible change in the regulations to allow certain H-4 spouses to apply for and obtain work authorization.   In a press release today, the Department of Homeland Security (DHS) has announced that the proposed rules are to be published for review and comment very soon.     Under one of the proposed rules, H-4 spouses would be allowed to request employment authorization in cases where the H-1B worker spouse has already started their green card process.    Similarly, certain E-3, H-1B1 (Chile and Singapore) rules are being changed to allow such workers to continue to remain in the US.

Proposed Rule Would Allow Employment Authorization to Spouses of H-1B Workers Who Have Started Green Card Process

According to DHS, this proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

Under current rules, the H-1B work authorization given to a worker does not extend to H-4 status dependents. The change proposed by DHS would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (more articles on AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposed Rule Would Allow E-3, H-1B1 and CW-1 Workers More Flexibility to Remain in the U.S.

Another proposed rule change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.     It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3 (Australia),  H-1B1 (Chile or Singapore), or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

Important Note:   Proposed Rules Are Not Law (Yet)

We would like to caution our clients and readers that this is only the initial step in the process of the change in the rules.   These are only the proposed rules.  The proposed notices will be published soon (we will provide an update once they are) for the public review and comment period.   After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way.   Only once the final rule has been released and published by DHS would these rules become the law.

As a result of this rulemaking process, it may be months before these rules go into effect.  There may be an additional period to allow USCIS to adjust their systems/processes to accept the new employment authorization benefit which is proposed to certain H-4 spouses.

Conclusion

We welcome DHS’s announcement of the proposed rules and we believe that many H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).    However, we would like to caution that these are only the proposed (and not the final) rules.     Our office will monitor this process over the next weeks and provide updates, including links and analysis of the actual proposed rules, when they are published.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Visa Bulletin Predictions and Comments by Charles Oppenheim – EB-2 India to Advance, Finally (April 2014)

On behalf of our clients and readers we are always trying to obtain any reliable information on the movements in the cutoff dates for the upcoming Visa Bulletins.    The best source of this information is the Mr. Charles Oppenheim who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and who is actually the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.    Mr.  Oppenheim had just recently shared some thoughts about the anticipated cutoff date movements in the next few Visa Bulletins and we are happy to share this information with our clients and readers.

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.   Also, it is too early in the fiscal year to be able to determine how many unused EB-1 visa numbers there will be to “drop down” into the EB-2 category.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 India.  This is the major headline from Mr. Oppenheim’s comments –  EB-2 India is likely to move forward to January 1, 2008 during the August or (more likely) September Visa Bulletin.   This movement will aim to utilize all of the available visa numbers for the fiscal year that may be unused by other categories (possibly 5,000 or more, but fewer compared to prior years).

EB-3 Rest of World (ROW).  This category has seen increased demand over the past few months (due to the significant movements) and it is unlikely that there will be forward movement in the short term.  In fact, if demand continues at its current pace, there may be a retrogression as early as June 2014.   Retrogression is possible for the last quarter of fiscal year 2014 (Jul-Sep 2014) and this is a call for all EB-3 ROW applicants who are current to file their I-485s as soon as possible.

EB-3 China.    As a result of many EB-2 China applicants “downgrading” to EB-3 it is expected that EB-3 China will see some retrogression over the next month or two.

EB-5 China.  Mr. Oppenheim suggested that the demand for EB-5 is high and a cutoff date may be introduced in August or September.   Retrogression for EB-5 China is “inevitable” given the high number of EB-5 pending applications for Chinese nationals.

Visa Bulletin Predictions – Family-Based

Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.

FB-2A.   Demand is starting to increase; as a result, FB-2A Mexico will retrogress soon.  FB-2A ROW is also likely to retrogress, perhaps back to 2012 in the June or July 2014 Visa Bulletin.

FB-2B.  Due to low demand currently, additional forward movement is expected.

Note on Timing of NVC Fee Invoices

Mr. Oppenheim noted that the National Visa Center (NVC) is sending our requests for fee payments about 8 to 12 months in advance of the priority date becoming current (this is change to the previous practice of doing so 12-18 months in advance).    When applicants pay the fee earlier after receipt of the fee invoice, Mr. Oppenheim is able to “see” the demand earlier and adjust the demand in the category accordingly, eliminating the need of major forward movement, followed by a retrogression.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions would give hope to some, while disappoint others.   Our EB-2 India clients would find Mr. Oppenheim’s predictions encouraging given the fact that there was no movement in EB-2 India for a long time.  A forward movement in this category would allow EB-2 India and China applicants to become eligible to file I-485 applications who would later be eligible to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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February 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004

The U.S. State Department has just released the February 2013 Visa Bulletin which is the fifth Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement (again) in EB-2 India.   Many have been looking forward to this Visa Bulletin in order to gauge the anticipated rate of the forward movement in EB-2 India over the next months; unfortunately, it seems that EB-2 India may continue to face a very slow (if any) forward movement over the next months.  There is continued notable forward movement in EB-3 China of almost two months.

Summary of the February 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all now current.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by five (5) weeks to January 15, 2008.
  • EB-3 ROW and EB-3 Mexico move forward by six (6) weeks to March 15, 2007.  EB-3 Philippines moves forward by only one (1) week to August 22, 2006, EB-3 China  moves forward by seven (7) weeks to November 15, 2006, while EB-3 India  moves forward by only one (1) week to November 15, 2002.
  • The “other worker” category moves forward by six (6) weeks for ROW and Mexico to March 15, 2007.  It moves forward by one (1) week at August 22, 2006 for Philippines and remains unchanged (again) at July 1, 2003 for China.  It moves forward by one (1) week for India to November 15, 2002.

Summary of the February 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by three (3) weeks to January 15, 2006.   FB-1 Mexico moves forward by only one (1) week to July 15, 1993 and FB-1 Philippines moves forward by ten (10) weeks to March 8, 1998.
  • FB-2A moves forward by one (1) month to October 22, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by five (5) weeks to October 8, 2010.
  • FB-2B ROW, China and India all move forward by five (5) weeks to January 15, 2005.  FB-2B Mexico moves forward by three (3) weeks to December 15, 1992 while FB-2B Philippines moves forward by one (1) month to May 15, 2002.

No Progress in EB-2 India – Confirms Our Expectations for a Very Slow Forward Movement in the Future?

Similar to the past two to three months, many in the EB-2 India community have been eagerly anticipating to see what the February 2013 Visa Bulletin would look like in an effort to “predict” how quickly the cutoff dates in EB-2 India would move in the future.   Unfortunately, the February 2013 Visa Bulletin does not bring good news.   The continued lack of any movement in EB-2 India this month is a strong indication that there is simply too high of a demand in the EB-2 India category and that the Department of State would move the cutoff dates forward very slowly in order to allow USCIS to approve the (high) number of EB-2 cases filed and pending.    This is the Department of State’s way to “control” the demand of visas in this category (number of new I-485 filings) and to allow USCIS to work through the number of filed and pending I-485 applications in this category (many of whom are by now eligible for AC21 porting, however).

The movements (or the lack thereof) reflected in the February 2013 Visa Bulletin confirm the predictions and the comments made by Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State.   The lack of movement in EB-2 India confirms Mr. Oppenheim’s comments that EB-2 India will move very slowly over the next months.  Based on the significant retrogression of few months ago and the lack of any movement this month, combined with Mr. Oppenheim’s expectations, we expect that there will be very slow and gradual forward movement in this category over the next months.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the February 2013 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Rules Governing I-485 Portability to a New Employer Under AC21

In connection with the late 2011/early 2012 rush of adjustment of status (I-485) applications, mainly in the EB-2 India and China categories, and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   Many of these I-485 filers now become eligible for porting their I-485 green card process to a new employer because their I-485 has now been pending for more than 180 days.   As a result, we seek to remind some folks that their I-485 may be portable to a new employer, for a same or similar job, and to provide some guidance and clarifications on the main rules and options for porting one’s I-485 green card application to a new employer under AC21.

AC21 Background

The American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) provides in section 106(c) that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification.

Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

Should I Invoke AC21 and Notify USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing an Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something “wrong” with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for invoking AC21 proactively is to preempt an RFE in cases where there is also a change of address.  While not officially confirmed by USCIS, in some cases when there is change of address, in addition to change of employer, USCIS gets a notification of this address change (due to the requirement that a Form AR-11 must be filed with USCIS).    In some cases, USCIS has been issuing RFEs on the pending I-485 applications seeking information relating to AC21.

In addition to preempting an RFE, as discussed above, another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share very quickly with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

  • You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
  • Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
  • You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

How “Similar” Should the New Job Be?

Another critical question in connection with AC21 is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a somewhat recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

A salary discrepancy between the sponsored job and the AC21 job is also reviewed by USCIS — but the focus is to determine whether a substantial salary increase is cause by the passage of time, natural career growth or moving to a higher cost-of-living area (all of which are okay).   On the other hand, if a substantial salary discrepancy cannot be explained on some of these factors, it may suggest that the AC21 job is not “same or similar”.    In cases where there is substantial salary difference, an AC21 package should address the factors contributing to this salary increase.

Should H-1Bs Be Transferred or EAD Should be Used for Employment?

It should be noted that the analysis with respect to AC21 portability discussed herein does not necessarily depend on whether a new job is taken pursuant to EAD (based on the pending I-485 application) or pursuant to an H-1B transfer.   There are many case-specific factors which may affect the decision whether to work under EAD or H-1B — however, if all things are equal, we normally recommend that a new job be taken pursuant to an H-1B transfer.

The reason is that we recommend that foreign nationals who are I-485 applicants (and may otherwise be able to work using EAD) continue working and staying on the U.S. pursuant to H-1B status.   This way, in the event (however unlikely it may be) of an I-485 denial, the foreign national would be able to continue staying and working in the U.S. while the I-485 issues are addressed.   On the other hand, if one is employed with an EAD and the I-485 is denied, then this person (and family members) may need to leave the U.S. immediately, obtain H-1B extension (if possible) and H-1B stamp  before being able to return to the U.S.  — a situation which is certainly undesirable to employer and employee.

Travel Abroad

Another common two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer is 1) whether they can travel abroad using advance parole (AP) document issued when working with the former employer and 2) what should they respond, upon return, when questioned by a border agent about their employment situation.

First, it is worth reiterating the point made in the previous paragraph that it is better to continue working and traveling using H-1B (or L-1, as applicable) while waiting for I-485 approval and after changing employers under AC21.    Second, there is one major rule which warrants repeating – be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

AC21 was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application – including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a notification with USCIS (as discussed above).  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent upon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

Conclusion

As many I-485 applicants are now becoming eligible for AC21 porting to a new employer, we hope that many would first consider the pros and cons of AC21,  as discussed in this article, before jumping ship to a new employer.   There are significant issues and questions to be addressed before AC21 eligibility is confirmed — and considering that many, especially in EB-2 China and India, may have a long wait before their priority date becomes current, a decision to invoke AC21 is very important.

Our office is happy and available to assist with AC21 case analysis and with invoking AC21.   Please do not hesitate to contact us or consider our consultation options.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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EB-2 India and China Cutoff Dates Moved (“Internally”) Back to August 15, 2007; I-485 Filings Still Possible

We have written extensively over the past few weeks about the upcoming retrogression in the EB-2 India and China categories.   So, it should not come as a surprise that the Department of State has confirmed what we have anticipated and expected for a couple of weeks — namely, that the Department of State has “internally” moved back the cutoff dates for EB-2 India and China to August 15, 2007.

Department of State Confirms EB-2 India and China “Internal” Retrogression Even Before the Official May 2012 Visa Bulletin is Released

Mr. Charlie Oppenheim, the Chief of Visa Control at the State Department, has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later.  It should be noted that immigrant visa applicants processing in the month of April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.

USCIS to Continue Accepting I-485 Applications for Adjustment of Status; Pending I-485 Will be Preadjudicated

Despite this “internal” retrogression, Mr. Oppenheim has confirmed that USCIS will continue to accept for the rest of the month of April new I-485 applications for adjustment of status for Indian and Chinese nationals with priority dates prior to the date established in the April 2012 Visa Bulletin.

Those filed and pending I-485 cases with priority dates of August 15, 2007, or later, should not see any approvals over the next few months.   Instead, those cases will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded to Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012.

Conclusion

Many EB-2 India and China I-485 applicants will be disappointed by the fact that no new I-485 approvals will come for at least several months.   However, the fact that EB-2 India and China cutoff dates moved so significantly over the past several months has allowed many applicants to file their (and their families’) I-485 applications.   Among the immediate benefits of an I-485 filing are advance parole and work permit documents, in addition to ability to port a pending I-485 to a new employer under AC21.

As we enter the last 20-25 days of the current cutoff dates, we urge those EB-2 India and China applicants who are eligible to file their I-485s due to a current (as of the April 2012 Visa Bulletin) priority date to aim to do so as soon as possible and in any case before the end of the month.    Please contact us if we can be of any assistance in the process.

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AC21 Green Card Process Porting: How Similar Should the Jobs Be?

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

Computer Systems Analysts – 15-1051.00

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H-1B Employer Transfer After I-94 Expiration and “Bridging” of Transfer Petitions

“Bridging” is when successive H-1B portability (transfer) petitions are filed for an alien while the previous H-1B petitions remain pending and while the period on the initial I-94 card has expired.   We have a number of clients who are currently “bridging” their H-1B petitions and in light of the increased number of inquiries, it may be helpful to outline the process.

Most often the questions of “bridging” arise when an employee files an H-1B transfer application from Employer A to Employer B.  While the A->B transfer application is still pending and the Employer A I-94 card has expired, the employee wishes to start work for Company C and as a result, a portability transfer application is filed (B->C).  Under the Aytes Memorandum of December 27, 2005, the employee can start work for Employer C upon filing of the Employer C transfer petition; however, under the “bridging” rule, for the Employer C petition to be approved, every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the employee’s nonimmigrant status (I-94 date) has expired while the A->B or B->C petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

As a result, if I-94 has expired and if A->B H-1B transfer is denied, then this would cause the B->C H-1B transfer to be denied because the alien’s authorized presence would no longer be supported by the A->C H-1B transfer.

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Premium Processing for I-140s Expanded

About 6 months ago, USCIS made premium processing available to certain cases where the I-140 beneficiary is in danger of  H-ing out. (Our original stories.)  USCIS has just announced that it is expanding the I-140 premium processing program.  Currently, only beneficiaries who are in H-1B status at the time of  the filing of the I-140 may request premium processing.  The new program, which becomes effective March 2, 2009, will allow beneficiaries who have reached or are reaching the limitation on their stay in H-1B nonimmigrant status to request premium processing.

Eligibility Criteria

I-140 Premium Processing, starting March 2, 2009, will be available to beneficiaries who, as of the date of filing the premium processing request:

  • are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
  • have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
  • are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (which allows beneficiaries to extend H-1B in 3-year increments if I-140 is approved and a visa number is not immediately available); and
  • are ineligible to extend their H-1B status under section 106(a) of AC21.

Documents Needed by USCIS to Determine Eligibility

USCIS has indicated that certain documents are helpful to determine the premium processing eligibility of a particular  I-140 application:

  • Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;
  • A copy of the relating Form I-140 petition receipt notice if the form was previously filed; and,
  • A copy of the labor certification approval letter issued by the Department of Labor, if filing under the EB-2 or EB-3 classifications.

Conclusion

By expanding the premium processing program for I-140s, USCIS effectively expands the window in which the premium processing request may be filed.  Previously,  only holders of valid H-1B status who had 60 days or less remaining on their status were eligible.  Now, under the new rule, premium processing can be filed 60 days before the expiration of H-1B status or after it expires.

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