Archive for May, 2008

I-140 Portability

May 30, 2008

You filed your I-485 under the July 2007 Visa Bulletin (VB No. 107). It has been more than 180 days. You cannot stand your employer, and have found a new employer who will continue the process. Can you Port your I-140 under AC21?

Below are some pointers to consider before you switch employers:

1. Is your I-140 approved?

If your I-140 is not approved yet, you need to decide if that case will be approvable. You have to decide if your first employer who sponsored you have the ability to pay, a valid job offer, etc.

If your first I-140 is approved already then porting becomes much easier

2. Is the new job same and similar?

The new ported job has to be same and similar. Both those jobs have to have the same DOT Code (for RIR and traditional cases) or SOC Code (for PERM cases), and the salary range offered in the underlying Labor certification has to be within a similar range. It is much better to have a copy of your original labor certification and the I-140 approval or receipt notice, to determine if the new job is same and similar.

  1. What if my first Employer withdraws the I-140?

It is not a problem if your first employer withdraws the I-140 after 180 days of the filing of the I-485.

  1. Can you port to a different Geographical location?

Yes, you can take a new job anywhere in the US and port the I-140

5. Should the new employer have the ability to pay?

Although technically the only factor that counts is whether the two employments are same and similar, the question of whether the new employer has the ability to pay can be a factor in adjustment of status

  1. What’s the worst case scenario?

If the I-140 Portability is denied for some reason, you can always retain the Priority date of the old labor for the adjustment under 8 C.F.R 204.5(e). But you have to start with a fresh PERM filing. This means if your 6 years of H-1B are over, you might have to go back to your home country until you can get your green card.

Mississippi, the Deep South and the Illegal Aliens

May 16, 2008

In 2005, when Hurricane Katrina struck Mississippi, the Gulf Coast was devastated. The State had to rebuilt. Illegal Immigrants came in droves, found construction jobs and worked to rebuild the State. Mississippi slowly started regaining its former self back on the backs of this cheap labor. Fast forward to 2008. Their state was rebuilt. The deep south began to start disliking these “illegal alien.” Their only crime….. they already rebuild the State, there was not much left to be built. So the State passed one of the strictest laws against illegal aliens. All big businesses must submit to e verification Social Security Checks. Strict penalties are levied on businesses that employ people not authorized to work in the US.

The illegal immigrants are leaving. We can only hope that no other hurricanes/natural disasters strikes Mississippi again.

Treaty Visas

May 14, 2008

Treaty Visas

The US Government signs treaties with various countries for nationals of those countries to come over temporarily.

These are strictly non immigrant visas and do not lead to Permanent Residency.

They can be filed either with the United States Citizenship and Immigration Service in the United States (as an extension or change of status) or with the Consular Posts

Note: India does not have any of these treaty benefits.

E-1 (Treaty Trader)

REQUIREMENTS:

  1. The applicant must be a National of the Treaty Country
  2. The Company in the US must have more than 50% of ownership in the foreign country
  3. Must be engaged in TRADE ie, international exchange of goods, services, and technology
  4. The Trade must be SUBSTANTIAL
  5. The Trade must be principally between the US and the Treaty Country (ie more than 50%)
  6. The Applicant must be employed managerial position or possess essential skills-similar to L-1 Requirements

E-2 (Treaty Investor)

REQUIREMENTS

1. The applicant must be a National of the Treaty Country

2. The Company in the US must have more than 50% of ownership in the foreign country

3. The Investment must be substantial—- We will need to trace the source of that investment from the foreign country

4. The Investment cannot be marginal- (a) must generate a net profit and (b) Create US Jobs

5. The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed

6. Investor must be in a supervisory/managerial position

Caveats

  1. Both these visas continue until such time as the business continues
  2. The dependent wife and children can live in the US
  3. Please see list of necessary documents at the end of this page

E-3- for Australians

Given to 10, 500 Australian Nationals. Very similar to H-1B visa, except that these are Temporary and cannot convert to the Green Card

The Procedure and Requirements are the same as the H-1B, ie Certified LCA, Educational Requirement, Professional Job, etc. Please read those requirements in the H-1B section of this web page.

VWP

Citizens of certain nations (Mostly European nations, Japan, and Singapore) do not need a Visa to visit the US. The allowable time limit for this Visa Waiver is a maximum of 90 days. This cannot be extended from the US, nor be converted to any other type of visa. Applicants must have a machine readable passport

New PERM Filings

May 6, 2008

From June 01, 2008, all PERM Applications will be filed in Atlanta. Right now the PERMS from the Western part of the country was filed in Chicago, while the Eastern half had Atlanta.

The Centralization will ensure the same standard for all PERMS in the US. Also, hopefully the Perms can be adjudicated expeditiously. Time was when labor certificate was a totally regionally affair, with different regions having different rules. But we are fast becoming one nation, under technology. So this move to one center will hopefully be better and eliminate regional differences.

The PERM Game

May 1, 2008

The Perm process is like a game. The basic proof is that there are no qualified Americans to do the job, and hence we must give permanent residency to the alien so that she can complete the job. To do this, the employer has to “test the market” by advertising and trying to recruit Americans, and if that fails then it proves that there are no qualified applicants in that area to do the job. But this recruitment process is very unlike what a real life employer would do, despite what the DOL (that is the Department of Labor, not the Dummies on Life) would say.

First there are strict requirements of who can do the job. Under the DOL guidelines Bill Gates, Steve Jobs or Michael Dell would not be able to perform a “professional” software job, because they do not possess a degree.

There are series of hoops and you negotiate through, the job title, the job description, the requirements (the all important EB-2 or 3) the OES (Obviously Enormously Stupid Department which takes every job and categorizes them arbitrarily into 4 job zones) and the prevailing wage category. None of this is natural, none of it real world. Its just your ability to play the game right. Its a great game for us, English majors who could never shoot an actual hoop.

Then you advertise in the Sunday Newspaper, who reads those anymore? Maybe the dinosaurs at the DOL still do, but when was the last time a computer professional actually looked at a newspaper?

Oh yes, and the all important SWA ads sites, the Department of Labor’s job search web site. I wonder what the google ranking for those web sites are for specific search terms. I typed in “tech jobs in Texas” and did not see workintexas web site in the first page. Did anyone ever get an actual job from that web site?

Of course if you play this game right, and jump through all the hoops, you can file your case. But then comes the certifying officer. I wonder under the trickle down brain theory, what the IQs are for federal officers. The chief executive was rejected by St John’s School, Houston, got into Yale through legacy, and probably has an IQ of about 100. So what does my certifying Officer have?