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I-140 Immigrant Petition for Alien Worker

Frequently Asked Questions - Form I-140

  1. I-140 Withdrawal vs NOIR in AC21 Context
  2. Ability to Pay
  3. Qualifying Degrees for EB-2
  4. I-140 Successor-in-Interest
  5. Multiple I-140 Approvals and Linking to I-485
  6. Distinction between unauthorized employment, failure to maintain status and unlawful presence
  7. I-140 Expedite requests
  8. I-140 Petition and Inability to Pay
  9. Premium Processing not available to multi-national executives and managers
  10. I-140 Evidence for Ability to Pay
  11. Green Card through Consular Processing with Approved I-140
  12. I-140 Petition Through Premium Processing
  13. Premium Processing Availability for Second I-140 Filing
  14. Online Master's Courses for EB-2 Filings
  15. Proving the Ability to Pay Wages
  16. Spouse of an O-1 - next step to Green Card
  17. Can I process I-140 with previous company
  18. Can approved I-140 be revoked?
  19. Switching Jobs after I-140 approval
  20. H-1 extension beyond 6 years
  21. Can I change jobs and file PERM and I-140 under EB-2
  22. Job Change after I-140
  23. Can my employer file a I-140 after I quit or he terminates me?
  24. Approval of I-140
  25. Out of Status
  26. Importance of having continuity of employment/pay stubs
  27. EB3 to EB2 and I-140 Refile
  28. Use of priority date
  29. H1 6th Yr - Labor Approved - NO I-140
  30. I-140 Denied
  31. Current USCIS procedures for PD transfer and AOS
  32. AC-21 Ability to pay
  33. I-140 application, experience certificate
  34. I-290B AAO Process case online status question
  35. I-140 may get revoked. What happens to priority date?
  36. Obtaining H-1 Extension beyond 6 years
  37. RFE after the I-140 was approved
  38. H-1 Extension based upon spouse's 140; Child born in USA
  39. USCIS Finally correct 140 Premium Policy
  40. GC future job; H-1 ext. revocation upon 140 denial, etc
  41. Multiple I-140 filings
  42. Employers and Employees -- H-1 or EAD?
  43. CIS Reinstates Limited I-140 Premium Processing
  44. If I-140 gets revoked/denied does my H-1 extension get canceled?
  45. Expected I-140 denial
  46. Can an unrelated Masters degree get me an EB2?
  47. What to do if an I-140 gets rejected?
  48. Laid off - Now what ???
  49. Supervisory review
I-140 Withdrawal vs NOIR in AC21 Context

A couple of questions I have in extension to the I-140 withdrawal by employer are below. If I have I-1485 pending for more than a year via company A and I join company B using my ">EAD/AC21:
a. what will be the impact if Company-A decides to withdraw/cancel/dissolve the I-140?
b. Is there a possibility for a NOIR to occur on the I140 which had been approved in 2011? If yes what is the impact in either cases?

What are the measures I need to take in either case?

a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

b. Oh yes.

You can just make sure the employer vigorously responds to an NOIR, if needed.

Ability to Pay

1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence?

2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability?

3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status?

4. Why are prorated net assets not sufficient evidence to support ability to pay?

5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period.  Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence.  If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.

4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay.  Prorating is not provided for in any policy, regulation, or statute.  Therefore, only current assets should be included in the calculation.

5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid.  It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.

Qualifying Degrees for EB-2

What degrees qualify for EB-2?

In June 2007, the USCIS clarified what is considered to be equivalent to a U.S. Master’s Degree for Employment-Based Category 2. Each petition and its supporting documentation are examined on a case-by-case basis and degree equivalencies are based on the evidence presented with the individual case. However, the below is provided as a general outline:

1. U.S. Master’s Degree – As long as it is in the field required, no additional document is required.

2. Four-year Bachelor’s Degree + two-year Master’s Degree (India) – With degrees in the same or related fields, this will generally be considered the equivalent to a U.S. Master’s Degree and no additional document is required.

3. Three-year Bachelor’s Degree + three-year Master’s Degree (India) – With degrees in the same or related fields, this will generally be equivalent to a U.S. Master’s Degree and no additional document is required.

4. Three-year Bachelor’s Degree + one-year postgraduate diploma + two-year Master’s Degree (India) with degrees in the same or similar field - This would generally be considered the equivalent of a Bachelor’s Degree plus one additional year of education. Therefore, the beneficiary would also need to have five years' progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the three-year Bachelor’s Degree, it is possible that this would be considered the equivalent to a U.S. Master’s Degree and there would be no need to establish five years' progressive experience.

5. Three-year Bachelor’s Degree + two-year Master’s Degree (India) – Generally, this would be the equivalent of a Bachelor’s Degree + one year and would require five years' progressive experience to qualify under the 2nd preference (EB-2) category. 

6. Three-year Bachelor’s Degree + two-year Master’s Degree (India) + five years' progressive, post-Master’s Degree experience – Generally, the educational degrees would be determined to be the equivalent of a U.S. Bachelor’s + one year and the beneficiary would meet the statutory requirement.

7. Three-year Bachelor’s Degree + two-year Master’s Degree + one-year postgraduate diploma (India) – Generally, this would be the equivalent of a Bachelor’s Degree + one year and would require five years' progressive experience to qualify under the 2nd preference category (EB-2). If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the three-year Bachelor’s Degree or the two-year Master’s Degree, it is possible that this would be considered the equivalent to a U.S. Master’s Degree, and there would be no need to establish five years' progressive experience.

The petition must include documentation, such as an official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty. The post-baccalaureate experience should reflect increasing or advancing levels of responsibility and knowledge in the specialty. The profession should be an occupation for which a baccalaureate degree or its foreign equivalent is the minimum requirement for the entry in the field.

I-140 Successor-in-Interest

Is any action required when an I-140 sponsoring employer undergoes acquisition, merger, or restructuring?

If the I-140 petition is still pending, then USCIS needs to be notified in writing of the change. If the I-140 is already approved, then an amendment needs to be filed by the successor-in-interest petitioner. Note that the successor-in-interest petitioner must take over the rights and liabilities of the earlier petitioner, including the immigration matters. Successor-in-interest cases can be tricky and generally need to be addressed by an attorney. For additional details, please see the attached USCIS <memo< from August 2009.

Multiple I-140 Approvals and Linking to I-485

When there are multiple I-140 approvals, how do you link the appropriate approval to the pending I-485 petition?

If an I-485 is already pending, a newly approved I-140 can be linked to it by sending a written request to the USCIS. Include all information and relevant copies to clearly explain the transfer of the I- 485 petition to a different I-140 approval.

Distinction between unauthorized employment, failure to maintain status and unlawful presence

Has ">USCIS clarified the distinction between unauthorized employment, failure to maintain status, and ">unlawful presence.

USCIS has provided the following clarification:

Background: A Form I-485, Application to Register Permanent Residence or Adjust Status, seeks to accord Lawful Permanent Resident (LPR) status to an alien who is the beneficiary of an approved employment-based (EB) or other immigrant visa petition, such as Form I-140, Immigrant Petition for Alien Worker. Section 245 of the Immigration and Nationality Act (the Act), as amended, is the statutory basis for adjustment, which is discretionary and regulated by U.S. Citizenship and Immigration Services (USCIS). 

To adjust, an alien in the U.S. must apply, have an immigrant visa immediately available to them, and be admissible. They must also undergo a medical examination, security checks and, in some instances, an interview. An alien is not entitled to adjustment and a denied Form I-485 may not be appealed; however motions may be filed. Common grounds for the denial of an EB Form I-485 include failure to maintain a lawful status and/or engaging in unauthorized employment after admission. Much less common, yet noteworthy due to the lengthy statutory bars entailed, are denials due to unlawful presence.

This clarification will address maintenance of lawful status, unauthorized employment, and unlawful presence as applied to adjustment under section 245 of the Act. (The information provided herein does not supersede existing USCIS statute, regulation, or existing policy. For additional information on the topics herein, readers should refer to official USCIS statute, regulation, field manuals, and binding policy.) Since lawful status and employment authorization are not required for adjustment under section 245(i) of the Act, emphasis will be given to sections 245(a) and (k) of the Act, under which the majority of EB applicants presently adjust.

Section 245 Overview: Sections 245(a), (k) and (i) of the Act provide the three main “avenues” to adjustment. Eligibility under a specific section is contingent largely on the applicant’s means of entry to the U.S., maintenance of status, employment authorization (if applicable), admissibility under section 212 of the Act, and submission of required initial evidence. Section 245(c) of the Act describes the classes of aliens who are restricted from adjustment. These provisions are further applied by Title 8, Code of Federal Regulations, part 245, and Chapter 23.5 of the Adjudicator’s Field Manual. EB adjustments are also subject to a number of binding Service policy memoranda and precedent decisions.

Section 245(a) of the Act applies to an alien who: 

Is not restricted under sections 245(c), (d), (e), or (f) of the Act, or Title 8 CFR Part 245.1(c) (includes alien crewmen, transit without visa aliens, K-1 fiancées, conditional permanent residents, aliens in removal proceedings, inadmissible aliens without waivers and other classes), and

Is present in the U.S. pursuant to a lawful entry (admission), and

Has maintained, continuously, a lawful status from the time of their last admission until filing for adjustment, and

Is in a lawful status upon filing for adjustment, and

Has not, at any time since their last admission, engaged in unauthorized employment.

A number of otherwise eligible aliens fail to maintain lawful status or engage in unauthorized employment after their admission, or they may not be in a lawful status upon filing for adjustment. This renders them subject to the restrictions under sections 245(c)(2), (7) and (8) of the Act and therefore ineligible to adjust under section 245(a).

Section 245(k) of the Act provides certain preference aliens with limited relief from the aforementioned restrictions. The full section is as follows:

(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)
(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien's admission.

Section 245(i) of the Act, which was created and extended, respectively, by Public Laws 105-119 and 106-554, permits certain aliens who are further restricted under section 245(c) of the Act [and generally ineligible to adjust under sections 245(a) or (k)], to overcome those restrictions.

Examples include applicants who failed to maintain a lawful status or engaged in unauthorized employment for more than 180 days; aliens who entered without inspection; crewmen and transit without visa (TWOV) aliens. The sunset of this provision was on April 30, 2001. However, section 245(i) remains available to an adjustment applicant who:

Is the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001 (or is a grandfathered alien), and

Has failed to maintain, continuously, a lawful status and/or engaged in unauthorized employment for more than 180 days since their last entry, or is otherwise restricted from adjustment under certain sections of 245(c) of the Act, and

Was physically present in the U.S. on December 20, 2000 (applies only to principal applicants whose visa petition or labor certification was filed between 1/14/1998 and 4/30/2001), and

Completes a Supplement A to Form I-485, and

Pays a penalty fee of $1,000 (if aged 17 or older at filing).

Under section 245(i) of the Act, an alien remains eligible to adjust regardless of unlawful entry, failure to maintain status or unauthorized employment. However, such aliens may be subject to the accrual of unlawful presence, which shall be discussed in that section.

FAILURE TO MAINTAIN STATUS

Title 8, CFR Part 245.1(d)(1) defines “lawful immigration status” to include nonimmigrant status (e.g. B2, F1, H1B, J1, L1A), refugee status and asylum. Temporary protected status (TPS) granted under section 244 of the Act and F-1 student occupational practical training (OPT) are also considered lawful status for adjustment purposes. Examples of persons not in lawful status include aliens who entered without inspection, aliens whose nonimmigrant status has expired, and parolees who were not inspected and admitted.

In terms of Form I-485 adjudication, lawful status is counted from the date of the alien’s last admission until the Form I-485 is filed. Any gaps or violations that occurred prior to the alien’s last admission or after Form I-485 was filed are not counted. (These limitations do not, in any way, bar USCIS from scrutinizing an applicant’s full immigration and employment history within the record of proceeding to otherwise determine admissibility or eligibility.) Lapses or violations totaling 180 days or less are permissible under section 245(k) of the Act. 

An alien fails to maintain lawful status when their status has expired, has been revoked, or has been terminated. In particular, an alien admitted as a nonimmigrant fails to maintain lawful status upon overstaying his or her authorized period of admission, as specified by the expiration date on the alien’s Form I-94 (Arrival/Departure Record) or Form I-797 (Notice of Action). Applicants also fail to maintain lawful status by violating the terms and conditions of their admission. This means that although the alien held (or was granted) a lawful status, he or she engaged in activities which violated the terms and conditions of that status.

Example 1: Marie, who is the beneficiary of an approved Form I-140 immigrant visa petition, was last admitted to the U.S. as a B-2 nonimmigrant visitor on April 15, 2006, valid until October 15, 2006. She was not granted any other status and filed her Form I-485 on January 15, 2007.

Marie was out of status from October 16, 2006, until filing for adjustment on January 15, 2007, a period of 91 days. She was also not in a lawful status at the time of filing her Form I-485. Consequently, she is a restricted alien as per sections 245(c)(2) and (7) of the Act and ineligible to adjust under section 245(a). However, Marie remains eligible to adjust under section 245(k) of the Act, because (k) does not require a lawful status upon filing and the aggregate period in which she failed to maintain a lawful status did not exceed 180 days.

Example 2: Lee, who is the beneficiary of an approved Form I-360 special immigrant (religious worker) visa petition, was last admitted as an R-1 nonimmigrant religious worker on April 10, 2005, valid until April 10, 2007. Lee worked for the petitioning religious organization until July 4, 2006, then quit to pursue a nursing degree. Lee was not granted any other status. Lee files a Form I-485 on April 1, 2007, with the intention of returning to his Form I-360 employer once approved.

By leaving the position that was the basis for his R-1 nonimmigrant status and attending school, Lee violated the terms and conditions of his admission from July 5, 2006, until filing for adjustment April 1, 2007, a period of 270 days. Consequently, Lee is a restricted alien as per sections 245(c)(2) and (8) of the Act and ineligible to adjust under section 245(a). Lee is also ineligible to adjust under section 245(k) of the Act, because the aggregate period in which he failed to maintain, continuously, a lawful status exceeded 180 days. Assuming Lee is further ineligible for section 245(i) relief, his Form I-485 would be denied.

Additional Considerations:

• Adjustment applicants who have been in the U.S. for extended periods may have multiple extensions of status (EOS) or changes of status (COS). If an EOS/COS is filed timely, but not approved until after the prior status has expired, the applicant will still be considered to have maintained a lawful status from the date the EOS/ COS was filed. The gap created by the period the EOS/COS request was pending with CIS should not be held against the applicant.

• If an alien’s EOS/COS request is denied, his or her lawful status is considered to have ended as of the original expiration date. A denied EOS/COS does not confer a “lawful status” for adjustment purposes or have the effect of such status.

• A previously filed Form I-485 that has been denied does not confer a “lawful status” for the purposes of re-filing for adjustment or have the effect of such status.

• As set forth in Title 8 CFR part 245.1(d)(2), an alien’s failure to maintain lawful status may be forgiven for a particular period, provided such failure was through no fault of their own or for technical reasons. However, the burden of proof remains with the alien.

 

UNAUTHORIZED EMPLOYMENT

The term “employment,” for adjustment purposes, means any service or labor performed by an employee for an employer within the U.S. Employment after admission must generally be authorized by USCIS. EB adjustment applicants are most often authorized by being admitted in (or granted) an employment-authorized nonimmigrant status (e.g. H1B, L1, R-1, TN). It is important to recognize that such nonimmigrant classifications confer both lawful status and authorization to work, specifically for the petitioning employer.

Certain aliens are authorized to work incidentally to their status, such as an F-1 nonimmigrant student who works on-campus as part of their study program. As per Title 8 CFR Part 274a.12, many classes of aliens, including asylees, refugees, certain nonimmigrant dependents and pending adjustment applicants, may also apply for an Employment Authorization Document (EAD). An EAD is generally not employer-specific.

Section 245(c)(2) of the Act bars from adjustment an alien who “continues in or accepts unauthorized employment prior to the filing of an application for adjustment of status…” Section 245(c)(8) further bars “any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.”

 

Section 274A(h)(3) of the Act, as amended, states:

(3) Definition of unauthorized alien. As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. 

Title 8, Code of Federal Regulations, Part 274a.12(c)(9) states:

An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CRF 274a.12 to engage in employment….

Additionally, Title 8, Code of Federal Regulations, Part 245.1(b) states, in pertinent part:

Restricted Aliens….

(10) Any alien who was ever employed in the United States without authorization of the Service….For purposes of this paragraph an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application…

Unlike lawful status, which is counted from the time of the alien’s last admission until the Form I-485 is filed, unauthorized employment is counted from the time of admission until the Form I-485 is approved. The filing of an adjustment application does not “stop the clock” for the purpose of assessing unauthorized employment.

Unauthorized employment begins when an alien accepts employment without Service authorization or continues to work after their existing authorization expires. Unauthorized employment ends upon the alien being granted authorization or the employment is terminated. For any periods in which USCIS determines the alien engaged in unauthorized employment, the alien bears the burden of establishing that such periods were authorized, or that he or she did not, in fact, engage in unauthorized employment. Again, as per section 245(k) of the Act, periods of unauthorized employment totaling 180 days or less may be forgiven. 

Important: Any overlapping days of unauthorized employment and unlawful status count only once against the 180 day aggregate of section 245(k), in favor of the alien.

 

Additional considerations:

• Routine absences from work, such as weekends, vacations, or sick leave do not interrupt unauthorized employment. The “aggregate” of section 245(k) refers to the sum of all such periods and not simply the actual workdays within a given period.

• Unauthorized employment is not stopped by departing the U.S. and reentering with a valid advance parole document (Form I-512). In accordance with section 245(k) of the Act, an alien can begin to accrue time against the 180-day period for violations that occurred on or after the alien’s last lawful admission. An alien who enters the U.S. pursuant to an advance parole is not “lawfully admitted” and, therefore, cannot benefit from a new 180- day period.

• Religious workers engaging in their qualifying occupation or vocation are considered to be “employed” for adjustment purposes and need authorization, even if their compensation is not monetary (room and board, stipends, health insurance, etc. are considered compensation).

UNLAWFUL PRESENCE

The unlawful presence statute was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (“IIRAIRA”). Unlawful presence is defined as an alien present in the U.S. after their “period of stay authorized by the Attorney General” expires, or present in the U.S. without having been admitted or paroled. Aliens who have been unlawfully present in the U.S. for more than 180 days may be inadmissible if they depart.

Unlawful presence, which is an inadmissibility under section 212(a) of the Act, is not the same as failure to maintain lawful status or unauthorized employment. It is an entirely separate concept, both legally and in terms of determining adjustment eligibility. Unlawful presence is pertinent to adjustment because an alien must be admissible in order to be eligible to adjust.

Section 212(a) of the Act states, in pertinent part:

(a) Classes of aliens ineligible for visas or admission. Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(9)…(B) Aliens unlawfully present.

(i) In general. Any alien (other than an alien lawfully admitted for permanent residence) who—

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, … is inadmissible.

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

(ii) Construction of unlawful presence. For the purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled…

Unlawful presence accrues when an alien in the U.S. is not in a “period of stay authorized by the Attorney General.” “Authorized” stay includes lawful status, such as nonimmigrant status, refugee status, TPS, and asylum. However, several additional periods qualify as “authorized” stays, including:

• Grants of voluntary departure;

• Grants of withholding or deferral of removal under the United Nations Convention Against Torture;

• Legalization and special agricultural worker applications for lawful temporary residence that are pending through an administrative appeal;

• Grants of withholding or suspension of deportation, or cancellation of removal;

• Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of PL 99-603 through administrative appeal;

• Grants of Temporary Protected Status and Deferred Enforced Departure; and

• Applications for adjustment of status under section 245 of the Act (including section 245(i)).

Additionally, there are several important statutory exemptions to unlawful presence:

• Aliens under age 18 do not accrue unlawful presence;

• Unlawful presence before April 1, 1997 (the enactment date of IIRAIA) is not counted;

• Accrual of unlawful presence stops upon filing of Form I-485 (unless the Form I-485 was filed solely to prevent removal);

• Aliens with timely filed pending EOS/COS applications do not accrue unlawful presence while their request is pending. If the EOS/COS is denied, unlawful presence resumes upon denial;

• An alien admitted as a nonimmigrant for duration of status “D/S,” particularly F-1 students and J-1 exchange visitors, do not accrue unlawful presence until CIS finds such a violation while adjudicating a benefit and notifies the alien in writing;

• Additional exemptions exist, including battered women and children described under section 212(a)(6)(A)(ii) of the Act and family unity beneficiaries.

The above exceptions aside, an alien who departs the U.S. after being unlawfully present for a period of more than 180 days (but less than one year) is inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three-year bar. An alien who departs the U.S. after being unlawfully present for more than one year is inadmissible under section 212(a)(9)(B)(i)(II) of the Act and triggers the ten-year bar. Unlawful presence is counted as continuous, not aggregate, time in the U.S. (Exception: Unlawful presence is counted in the aggregate for aliens subject to the permanent bar under section 212(a)(9)(C) of the Act. Specifically, an alien who accrues an aggregate of more than one year of unlawful presence in the U.S., then departs and re-enters without inspection, is barred permanently. The illegal entry must have occurred on or after April 1, 1997.) It is critical to note that the alien must depart in order to trigger the unlawful presence bars. In the absence of a departure, the accrual of unlawful presence is moot.

Section 212(a)(9)(B)(v) of the Act provides the (legacy) Attorney General with the sole discretion to waive the three- or ten-year unlawful presence bars, if the alien is the spouse or son or daughter of a U.S. Citizen (USC) or LPR. The alien must demonstrate that the refusal of their admission would result in extreme hardship to the USC or LPR spouse or parent. The dispensation of this waiver is rare and the burden of proof lies with the alien.

Example 1: John is admitted to the U.S. as a B-2 nonimmigrant visitor on October 30, 2001, with permission to remain until April 29, 2002. He files a timely request to extend his B-2 status on April 15, 2002. This request is denied on June 1, 2002. John does not have any other status and subsequently departs the U.S on February 10, 2003. On August 12, 2004, he is admitted as an H1B nonimmigrant specialty worker. A Form I-140 is later filed and approved on his behalf. John files his Form I-485 on March 10, 2007.

John was unlawfully present in the U.S. from June 1, 2002—the date his timely filed EOS was denied—until his departure February 10, 2003, a continuous period of 254 days. His departure, after being unlawfully present for more than 180 days, but less than one year, renders him inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three year bar. Provided John does not qualify for the waiver, his Form I-485 would be denied.

Example 2: Rita enters the U.S. as an F-1 nonimmigrant student on August 20, 2003, with permission to remain for the duration of her status (“D/S”). After attending school full time for one semester, Rita changes to part time, then drops out entirely. She spends the next sixteen months visiting friends across the U.S. and working as a house sitter. She then departs on July 1, 2005. After completing her degree abroad, Rita is admitted to the U.S. on July 30, 2007, as J-1 nonimmigrant exchange visitor. Shortly thereafter, a Form I-140 is approved on her behalf and she files for adjustment.

Although Rita violated her F-1 nonimmigrant status and engaged in unauthorized employment for over a year prior to her departure, she did not accrue unlawful presence because she was admitted for “duration of status” and CIS did not find the violation while adjudicating a benefit or notify her in writing. Her departure therefore did not render her inadmissible under section 212(a)(9)(B)(i)(II) of the Act and did not trigger the ten-year bar.

Further, her violation of status and unauthorized employment occurred prior to her most recent admission as a J-1 nonimmigrant. Provided she is otherwise eligible, her Form I-485 is approvable.

Other important unlawful presence considerations:

• The statutory unlawful presence bars under sections 212(a)(9)(B)(i) of the Act are not overcome by section 245(k) or (i) relief. Such an alien would still have to establish eligibility for the waiver;

• Departing the U.S. with a valid advance parole document (Form I-512) is considered a departure for unlawful presence purposes. Advance parole does not relieve the alien from being subject to unlawful presence.

For additional Service clarifications and policy regarding unlawful presence:

• AFM Chapter 30.1(d)

• March 27, 2003 memorandum by the CIS Chief, Inspections Law Division, Office of General Counsel:

“Interpretation of ‘Period of Stay Authorized by the Attorney General’ in determining ‘unlawful presence’ under INA section 212(a)(9)(B)(ii).”

• June 12, 2002 memorandum by the CIS Executive Associate Commissioner, Office of Field Operations: “Unlawful Presence.”

I-140 Expedite requests

What is the process for I-140 expedite requests?

Expedite requests are received through the USCIS NCSC customer service number. In cases of emergency where an AP is required, an INFOPASS appointment will be made possible at the local office. Usually, for expedite issues on I-485 applications for religious workers, the biometrics takes about 14 to 30 days. The lockbox, on the other hand, takes seven to ten days to issue a receipt. There is a sweep to bring up possible cases every two weeks.

I-140 Petition and Inability to Pay

What is the process for responding to USCIS’ concern about inability to pay in an I-140 petition?

According to USCIS, a letter is acceptable from a financial officer validating 100 employees and ability to pay. However, further information can be requested in case there are other reasons that show an inability to pay. Please keep in mind the employer in the RFE should be given the reason for the request. It is also important to know that USCIS might take the letter from the financial officer due to discretion.

Premium Processing not available to multi-national executives and managers

Why is Premium Processing not available to multi-national executives and managers? To exclude this group of aliens seems arbitrary and counter-intuitive.

USCIS has not yet finalized the system and has not announced when it will begin.

I-140 Evidence for Ability to Pay

What kind of evidence is acceptable to show ability to pay wages in an I-140?

The regulations state that for ability to pay wages, USCIS will accept copies of annual reports, federal tax returns, or audited financial statements. If the employer has more than 100 workers, a statement from a financial officer of the organization can be submitted to establish the ability to pay the proffered wage. Additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted and will be considered at the adjudicator’s discretion. Additionally, USCIS has verified that consolidated financial reports of a parent company in which the sponsoring employer is a subsidiary can be considered by adjudicators to evaluate petitioner's ability to pay wages. As these reports tend to be lengthy, employers should tab the relevant pages for adjudicator’s reference.

Green Card through Consular Processing with Approved I-140

Question 1. I have done MS from US and worked on H-1 for 5 years. Started GC process, I-140 approved with Priority date May 2011. Came to India for H-1 stamping and it was denied twice. If I apply for my H-1 and if I don't get H-1, then can my employer continue processing my GC through Consular Processing when I am in India. Also is there any law stating that my employer can not keep the I-140 when my H-1 has been expired & if it so then for how long can my employer keep my I-140 active?

Question 2. If my employer revoke my I-140 & if I come to US on any other visa, then Can I process my GC and port the ">PD ?

Answer 1. As long as the job offer exists and the employer is capable of paying the wages, the green card process can go on, even though you are not in USA. You should discuss this matter in detail with your lawyers to better understand the implications. Also, I-140's do not expire.

Answer 2. PD can be ported even if the 140 is revoked by employer. I have a video on this issue 

http://www.immigration.com/media/form-i-140/priority-dates-can-be-carried-forward-even-if-old-i-140-revoked

I-140 Petition Through Premium Processing

Should I file my I-140 petition through regular processing or premium processing?

Currently USCIS is accepting premium processing for certain I-140 categories. In addition to the regular filing fee, there is an additional $1,225.00 filing fee to upgrade to premium processing. If an I-140 is filed with premium processing, USCIS will issue a determination or an RFE within 15 calendar days.

Typically, these are some of the reasons when an I-140 should be filed through premium processing:
1) When an I-140 approval is needed to extend H-1 beyond the 6 years. Please see Rajiv’s blog entry for more information:
http://forums.immigration.com/entry.php?214-Obtaining-H-1-Extension-beyo...

2) If you would like to know the outcome of the I-140 as soon as possible.

3) When the priority date is current and the I-485 could be approved quickly.

4) When requesting priority date carry-over from a previously approved case and would have a current priority date when the new I-140 is approved. This would allow the I-485 to be filed faster.

Typically, these are some of the reasons when an I-140 can be filed through regular processing. To find out the current USCIS processing times, please visit:
http://www.immigration.com/processing-times-and-status-checks

1) If the priority date is not current, and therefore I-140 approval doesn’t benefit the applicant in any way.

2) If any evidence is not available at the time the I-140 is filed, and would be available in the next few months. Examples include:
a. Financial information from the employer – if the latest tax returns are required to show ability to pay and the company has not yet filed. By the time the I-140 is reviewed and an RFE issued, the company would have had time to prepare and file the tax returns.
b. Experience letters – if there is a delay in getting the letters from previous employers. The employee would have several more months to acquire the letters by the time the USCIS issues an RFE.

Additional points to keep in mind when deciding to file regular processing or premium processing:
1) It is commonly believed that an I-140 filed under premium processing will receive additional scrutiny by USCIS. In our experience, this is not true - all I-140’s are reviewed the same way and issued an RFE if USCIS requires additional information or evidence.
2) An I-140 filed under regular processing can be upgraded to premium processing even after regular filing. The 15-day processing time starts when the request for upgrade is received.

Premium Processing Availability for Second I-140 Filing

When a second I-140 is filed, is Premium Processing available?

When a subsequent I-140 is filed by a successor-in-interest, USCIS can accept the Premium Processing request only if it has access to the original ETA 9089 PERM Approval.  If the USCIS cannot get access to the original, the Premium Processing will be rejected. 

To upgrade an I-140 filing that is in regular processing, the applicant must submit the I-907, the appropriate filing fee, and a copy of the I-140 Receipt Notice to the USCIS Service Center that has the I-140 petition pending.  If there is an attorney representative on the I-140, a G-28 must also be submitted.

 

Online Master's Courses for EB-2 Filings

Is an online Master's course acceptable for EB-2 filings?

USCIS has verified that an online Master's course can be acceptable for EB-2 Green Card filings, provided that it is from an accredited U.S. university. 

Click here< for Rajiv Khanna's blog entry on this topic.

Proving the Ability to Pay Wages

What is ability to pay wages and how do employers prove to the ">USCIS that they have the ability?

At the I-140 stage, USCIS requires documentation that the employer can afford the employee's proffered wage and will be able to continue doing so in the foreseeable future.  In this regard, employers must prove that: (1) the employer’s taxable income is equal to or greater than the proffered wage; or (2) the employer's net current assets are equal to or greater than the proffered wage; or (3) credible verifiable evidence that the employer is not only employing the beneficiary but also has paid, or is currently paying, the proffered wage.

For categories requiring labor certification, documentation must establish employer’s ability to pay employee’s wage from the date of filing the labor certification.  On the other hand, for categories not requiring labor certification, ability to pay must be established as of the date of filing the preference petition (such as Form I-140). 

USCIS requires strict compliance with these rules.  Consequently, cases in which the priority date is established by filing the labor certification, USCIS will reject the petition if the employer lacked the ability to pay from the date of filing.  There are no exceptions to this rule.  The rationale for this view is that an employer must make a realistic job offer at the time of filing the labor certification, and an inability to pay the proffered wage at that time means that no realistic job offer existed in the first place.

Establishing Ability to Pay Proffered Wage

USCIS uses three tests in determining an employer’s ability to pay.  Any of these tests, if satisfied, conclusively demonstrates ability to pay.

  1. Net Income Test: This is the standard test used in determining whether “the petitioner’s net income is equal to or greater than the proffered wage.”
  2. Net Current Assets Test: If the employer’s financial reports indicate net losses, it can still demonstrate ability to pay by submitting evidence indicating that the “petitioner’s net current assets are equal to or greater than the proffered wage.”  In this regard, net current assets have been defined as “a corporate taxpayer’s current assets less its current liabilities.”  Current assets include liquid cash, inventories, and receivables converted to cash within one year.
  3. Actual Payment Test: This test determines whether the “petitioner not only is employing the beneficiary but has also paid or is currently paying the proffered wage.”  This test is based on the assumption that if the employer has been paying employee’s wages in the past, then he will continue doing so in the future.

Employer’s ability to pay can be established by copies of audited annual reports, federal tax returns, or audited financial statements.  Additional evidence such as payroll records, W-2 forms, profit/loss statements, bank account records, or personnel records may also be requested by USCIS to verify ability to pay.  The most important document that USCIS requires in order to verify a net income sufficient to cover the employee's proffered wage is the corporate or business tax returns for the year starting when the labor certification was filed.

Furthermore, if the employer’s business is running at a loss, then evidence that the employee was already working for the employer at the time of filing the labor certification and that employer was able to cover employee’s proffered wage during this time can be important in establishing ability to pay.  That the employee’s proffered wage was paid even though the business was running a loss may not be persuasive evidence, however, unless the employer can produce evidence indicating that the company has since become profitable. 

The net income test is an onerous one, particularly given the propensity of most businesses to minimize net income for tax purposes.  When net income will not cover the proffered wage, however, the employer must substantiate his ability to pay in other ways, including market research studies showing the potential for future profitability or the availability of substantial investment capital from a parent company or new investor.  Significantly, however, courts have upheld USCIS’s decision to solely consider the federal tax returns for the year of filing the labor certification without regard to additional evidence.

USCIS may accept a statement from a financial officer of a medium or large employer, defined as any organization employing over a hundred (100) employees, evidencing the employer’s ability to pay, and this may serve as a substitute for other documentation such as federal tax returns.  For large employers, a statement from the financial officer and a copy of the organization’s annual financial report can be useful in establishing ability to pay.

Specific Factors Considered by USCIS

In evaluating an employer's ability to pay, USCIS employs the following guidelines:

  • When the employer hires several employees, the ability to pay must be established for the beneficiary, as well as all other employees, for whom a petition (both immigrant and non-immigrant) has been filed.
  • When the employer's taxable income is at least as large as the proffered wage, USCIS generally assumes employer’s ability to pay.
  • When the employer's taxable income is negative, or less than the proffered wage, and the employee is not already working for the petitioner, but the employer's balance sheet shows a sufficiently favorable ratio of total current assets to total current liabilities, USCIS generally assumes employer’s ability to pay.
  • When the employer's tax return shows a taxable income before net operating loss, and a net operating loss deduction followed by taxable income, USCIS considers the taxable income before the net operating loss number to evaluate ability to pay.
  • If the employer is a sole proprietor, USCIS will consider the sole proprietor's personal assets and liabilities in adjudicating the ability to pay.
  • If the employer asserts that the hiring of the beneficiary will cause the employer's income to increase, and that beneficiary will be paid from that increased income, USCIS will consider whether the employer has made a credible argument based on the projected figures (such a contention does not automatically overcome the problem of a presently unprofitable company).
  • A positive retained earning does not automatically lead to favorable finding regarding ability to pay.
  • Depreciation can be added to the taxable income and USCIS will consider the sum of these two figures to evaluate the ability to pay.

USCIS also advises employers to provide an explanation in the company support letter as to how the evidence demonstrates an ability to pay.  The employer should highlight the relevant figures and explain these figures, if necessary, by using the guidelines listed above.

Ability to Pay Wages - Examples

A)    The employee has been working with the sponsoring employer since 2007, earning a salary of $80,000 per year.  The labor certification was filed 06/01/2008 with a proffered wage of $79,000.  As the employer is already paying the proffered wage to the applicant, ability to pay wages has been demonstrated.

B)     The employee has been working with the sponsoring employer since 2007, earning a salary of $60,000 in 2007, $70,000 in 2008, $80,000 in 2009, and $90,000 in 2010.  The labor certification was filed 02/20/2007 with a proffered wage of $80,000.  The employer paid a salary to the beneficiary equal to or exceeding the proffered wage in 2009 and 2010.  Therefore, in 2007 and 2008, since the employer has not paid the proffered wage to the applicant, the employer must be able to show ability to pay the difference in the wage.  In 2007, the employer must show at least $20,000 net profit or net current assets in their federal tax returns to show ability to pay wages.  In 2008, the employer must show $10,000 net profit or net current assets to show ability to pay.

C)    The employer sponsored a green card for a future employee who is not currently working with the company.  The labor certification was filed in February 2008 with a proffered salary of $70,000.  Then the applicant joined the employer in April 2009 and earned a salary of $50,000 in 2009 and $70,000 in 2010.  Therefore, for 2008, the employer must show the full amount of $70,000 in their net profits or net current assets to show ability to pay wages.  Then for 2009, the employer has to show only $20,000 net profits or net current assets to show ability to pay wages for 2009.  For 2010, ability to pay wages has been met based on the salary paid.

D)    The employer filed five green cards in 2009 for five employees.  Each employee was being paid $60,000 and each green card had a salary of $75,000 as the proffered wage.  Therefore, the employer must be able to show $75,000 [($75,000 - $60,000) * five employees] net profits or net current assets in the 2009 federal tax returns.

Spouse of an O-1 - next step to Green Card

I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Can I process I-140 with previous company

I got I-140 cleared through current company and labor approved from previous company. Can I process I-140 through previous company (to get ">PD to 2008)?

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

Can approved I-140 be revoked?

My current employer has filed for my greencard. My I-140 was approved last year. I have 2 more years on my H-1B. I want to change employers and want to know whether: My current employer can revoke my I-140 for changing companies? Even if they do so, can I maintain my Priority Date?

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

Switching Jobs after I-140 approval

I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12,

1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)?

2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

H-1 extension beyond 6 years

My situation. I work for company A
1. My 6th yr H1-B ends in Dec 2011
2. Labor approved ( ">PD May 2010) and I-140 (applied Sep 2010) pending - EB3
3. Once my I-140 gets approved (hopefully) my lawyer's plan to apply for a 3 yrs extension some time next year (Till Dec 2014).
After/If I do get my extension for 3yrs with my company A, then Can I change my job to company B in 2012(who is willing to do my labor and I-140 again).

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

Can I change jobs and file PERM and I-140 under EB-2

Can I change jobs and file PERM and I-140 under EB2 instead prior EB3 with the new employer. How risky the situation is? I can stay with my current employer, but it is going to take at another 3 years to get my GC under EB3. My ">PD is Feb 2007.

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

Job Change after I-140

I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Can my employer file a I-140 after I quit or he terminates me?

I am currently employed on a H1B visa ( 7th yr extension). My employer had applied for Labor back in Jan 2009 but it hasn’t yet been approved. my employer now intends to terminate my employment by the end of the year ( lay offs/ I could quit voluntarily ) Can they still file for a I-140 ( based on a future job offer)? I would like to maintain my priority date. Also can a prospective employer file for a H1B extension based on a pending/approved labor after I no longer work for the current firm?

Both things are possible as long as the I-140 is filed in good faith. I have doubts about the I-140 approval if the job ceases to exist even temporarily.

Approval of I-140

My I-140 has been approved. My company is working on the getting the green card done. My question is can I quit my job with my current company and get a job in a new state and a new company? Does this affect the status of the green card application. Any idea of how long will it take after this step.

CHANGING EMPLOYER WITHOUT I-140 APPLICATION
If a person changes employers without ever applying for I-140, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer.

WHAT IF I-140 IS DENIED
The PD cannot be transferred

CHANGING EMPLOYER AFTER I-140 APPROVAL

If a person has received an I-140 approval through an employer, the priority date then belongs to him or her, unless the I-140 is revoked for reasons of fraud. The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

Out of Status

How many months gap is permisible for H-1 and also in GC process if person is on H-1 ?

I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last ">co. is supporting by keeping her I-140 as such ( no revock )

(Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Importance of having continuity of employment/pay stubs

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

EB3 to EB2 and I-140 Refile

I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business.

1. The new company B is in same County and State(but different cities).
2. I Will be doing similar or same work in a similar position.
3. H1B transfered from Company A to Company B.
1) Can company B use Company A Labor certicate and refile the I-140 again?
2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

Use of priority date

I am on an H1B Visa and my wife is on H4. She is about to finish her nursing school. My I140 is pending along with both our 485's. My question is.. if my wife finds an employer who is willing to file an I140 for her can we use my priority date and the already applied I485's to get the green card? My priority date is sept 2001. EB3.

Your wife cannot transfer your priority date to her case.

H1 6th Yr - Labor Approved - NO I-140

My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140.
Is there any option left for me?

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

I-140 Denied

My I-140 got Denied on Aug 17 on Ability to pay after a ">RFE.Reason for Denial is "Employer had filed more than 30 cases since sep 2008, and company's net Asset $4M(approx) AND Liablity $2M (approx) and so the net "LIABILITY" is $1M (4-2=1 but they have calculate as -1).30 cases with $1M libality is not sufficient to support this Immigrant , company needs more than $3M to support 30 cases. The truth is (as per my employer) that we have filed 29 cases since 2006 and not sep 2008 also company has more funds and the numbers 4M and 2M are incorrect.What can be done ?

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

Current USCIS procedures for PD transfer and AOS

Recenlty we submitted my NOID response for my 485. Today called ">USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file
1.EB3 ">PD,2002
2.EB2 PD,2005.
They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now.
Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

AC-21 Ability to pay

I have changed employer using AC-21. I-140 appoved - Jan'09. I-485 filed July 2007. ">PD June 2007, EB-3 ROW. My previous employer will not withdraw my approved I-140. I am current working on ">EAD with my current employer. My current employer filed for Bankruptcy under chapter 11. Do you think I might have an issue of ability of pay when I renew my AP and EAD. Thank you in advance for your help.

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

I-140 application, experience certificate

I am asked by my lawyer to obtain experience letters from my 2 previous employers in their letter head and signed by someone from HR. Is this something that is required for the application of I-140?

In my view, these letters should be obtained BEFORE the PERM application is even started. It can be one of the required and key pieces of evidence in I-140. But the preparation to deal with this issue has to be made even before the PERM application is drafted.

I-290B AAO Process case online status question

I am looking for your advice here, my online case status for denied I-140's appeal I-290B as "The I290B NOTICE OF APPEAL TO THE COMMISSIONER was transferred and is now being processed at a ">USCIS office." this status is there for past 19 months with no further updates, recenetly opened SR recieved response saying my case is pending at AAO office in washington, which one is correct,Is my case transfered back to USCIS or still with AAO any idea. is there anyway to expedite my denied/appeal I-140 I am on 7th year H1b extension. Incase appeal denied what are the options I have.

Call AAO directly. They should be able to tell you what is going on. If the case was transferred back to CIS, that is at least partly good news. That means the appeal was not denied. As to options, you need to make an appointment for consultation with your own lawyers or us.

I-140 may get revoked. What happens to priority date?

This is regarding my husband. My Husband's GC is filed through Employer A. His LC & 140 got approved. We did not file 485. He recently got a good job opportunity and transfered his visa to Employer B. We have priority date of Nov 2007 in EB2. But Employer A may revoke the 140 as my husband is no longer an employee of company A. We do have the copy of approved 140 with us. Employer B is wiling to start his GC process this year. Can we port the old 140's priority date even though the original 140 is revoked? Will it be lost if approved 140 is revoked?

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

Obtaining H-1 Extension beyond 6 years

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and

RFE after the I-140 was approved

1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got ">RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can ">USCIS go back and raise RFE's in this manner?

2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

USCIS Finally correct 140 Premium Policy

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15<

The second memo from USCIS is attached.

 

GC future job; H-1 ext. revocation upon 140 denial, etc

I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to ">RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july

I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Multiple I-140 filings

Our community member spring09 says:

Hi Rajiv,
Thanks in advance. I have an question and keeping me up during nights.
I am working on H1 with comp A, who has filed for my I-140 in Feb-08.
And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have ">EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B.
Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140.

Thanks again.

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

Employers and Employees -- H-1 or EAD?

Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the ">LCA salary as mentioned on my W2, would switching to ">EAD with my sponsoring employer help with getting away from this restriction?

Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B.

Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

CIS Reinstates Limited I-140 Premium Processing

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html<

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

Expected I-140 denial

Thanks in advance for your help. My current situation is this :
1. Applied for I140 and received ">RFE<
2. RFE requires Employer's 2007 tax document and my recent W2
3. There is a salary difference in W2 and Labor ( salary < Labor = 7000 USD) and the company was in loss for the fiscal year 2008.
4. This is my 6th year in H1 B and it expires in October,2009

My questions are:

1. Can I transfer my H1 B to another Employer at this situation and apply for my new Labor?
2. If Labor is approved, can I file my I140 premium and apply for 7th year extension?
3. How long will it take to cancel the current I140?

Please help me out regarding this situation.

Thanks and awaiting for your valuable suggestions.

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

Can an unrelated Masters degree get me an EB2?

When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.

The simple answer is yes, the degree must be related. In the past, we have received many EB2 approvals requiring Masters degree. Now, such approvals are unreliable. Your degree seems to be related. Agribusiness and business... hmmm. I believe an EB2 argument can be made. The labor cert should be prepared in such a way so that if EB2 is rejected, EB3 is still safe. Do bear in mind, all submissions made to DOL MUST be true. Ultimately, it is the employer who must decide.

What to do if an I-140 gets rejected?

Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a ">RFE in Sep 2008 and reply recieved by the ">USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are:

1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending?
2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009?
3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then?
4. If at all everything is rejected what can I do to start residency in july if I match?

If all else fails what are my options to continue working in the US?
My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Laid off - Now what ???

Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) ">EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Supervisory review

Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for ">USCIS.When I did ">infopass was told that case is under supervisory review,what does this mean.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

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