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Please Comment On The Uscis Questions

Discussion in 'General discussion about executive action' started by Ron Gotcher, Apr 2, 2015.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Recently, the USCIS held a public listening session in which they sought public comment on a number of proposals in connection with the administration’s proposed administrative relief. At the start of the session, they asked a number of specific questions. At the end of the session, they invited those who were not able to comment during the session to send their comments via email.

    Below, I have reproduced the specific questions asked. If you wish to comment, you may do so by sending your thoughts to Public.Engagement@uscis.dhs.gov. They are moving forward with administrative changes and this is your opportunity to make your voice heard.

    1. What are the most important policy and operational changes that would streamline and improve the process of employment-based beneficiaries’ applying for adjustment of status to that of a lawful permanent resident while in the United States?


      a. What are some ideas for modernizing and improving the immigrant visa process for employment-based beneficiaries?​

    2. USCIS is currently working with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability. What are some ideas for modifying the Visa Bulletin system for employment-based immigration?

    3. If possible to extend employment authorization (EAD) eligibility to beneficiaries of approved Form I-140 petitions who are unable to file for adjustment of status due to visa unavailability, what should be the timeframe after approving an I-140 petition for conferring an EAD?

    4. Should a beneficiary’s priority date and porting eligibility be preserved when the petitioner withdraws an otherwise approved or approvable I-140 petition and/or terminates its business? How should the portability provisions be crafted to allow for this?

    5. What are some ideas for improving how USCIS evaluates “same or similar” in an AC21 analysis of two jobs?

      a. Should USCIS implement an application process, which would include a form and fee, to request AC21 portability (e.g. pre-adjudicate whether a new position is the same or similar as the I-140 position)?​

    6. What are the concerns, if any, of Form I-140 petitioning employers with regard to increasing the flexibility of USCIS’ analysis of INA 204(j) portability?

    7. What are the concerns, if any, of Form I-140 petitioning employers with regard to increasing the flexibility of the Form I-140-related work authorization eligibility for beneficiaries of approved Form I-140 petitions?

    8. What are the concerns, if any, with satisfying the eligibility criteria for EB-2 national interest waivers?
    a. What are some ideas for standards for granting a national interest waiver, including waivers for foreign inventors, researchers and founders of start-up enterprises to benefit the U.S. economy?​


    Please take this opportunity to let them know your thoughts on these subjects.
     
    speedracer likes this.
  2. don012001

    don012001 Junior Member

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    Ron, did USCIS ever asked so much feed back and comments BEFORE, publishing any rule?

    If not, will these comments and feedback from stakeholders be taken as input for the final rule and publish the final rule without any scope for another round of public comments? Because,
    1. I140 EAD rule is not going to add (introduce) any new labor force to the market, hence no general public comments are needed.
    2. Also stakeholders (Employers) comments are already taken before crafting the rule

    Thank you;
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I don't know if it will do any good, but if we don't comment, we only have ourselves to blame if they do something strange and later say that there was little or no public comment.
     
  4. GeorgeCostanza

    GeorgeCostanza Guru

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    We definitely have to comment, that's for sure. No excuse not to.
     
  5. mar212011

    mar212011 Well Regarded Member

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    Still more comments? i was hopeful we passed that stage
     
  6. GeorgeCostanza

    GeorgeCostanza Guru

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    Me too. Totally surprised that they're asking for more comments. But....we gotta do what we gotta do. Cost of not doing is far greater.
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    This stuff deals with nuts and bolts questions, like USCIS prior approval of AC21 portability (really dumb idea).
     
  8. GeorgeCostanza

    GeorgeCostanza Guru

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    Ron, this is our chance to let USCIS know that prior approval of AC21 is a bad, bad idea. Is it OK for us to let them know that as part of our response to these questions?
     
  9. mar212011

    mar212011 Well Regarded Member

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    is there a timeline to comment period
     
  10. cuckoo

    cuckoo Super Moderator

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    Her are my answers to some of the questions above; Inviting comments from Ron and other members here:
    3.Applicants with visa numbers available are able to file EAD with the I-485 application. Shouldn't the backlogged applicants be able to file EAD immediately after I-140 approval?As for portability, backlogged applicants should ideally be able to port 6 months after the I-140 approval to give them the same flexibility as applicant in current categories.

    6 & 7. As to employer's concerns on portability, why should employers of Indian and Chinese employees have a say in how long their immigrant employees be in captive employment to fulfill their (perceived) obligation to their employers when employees of other nationalities are free to port 6 months after I-485 filing?
     
  11. avatar

    avatar Junior Member

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    lol. I wonder how long this will drag out.
     
  12. jdoe99

    jdoe99 Well-Known Member

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    Ron,
    This may be a naive way of looking at allocation. Can the following system work as a suggestion to stream line and modernize:

    • The priority date is always current as technically all the visas are never allocated till the end of the year. In the worst case, the last month can have a "U" if visas run out.
    • So everyone, regardless of country can apply for concurrent 140 and 485
    • the processing timeframe is set based on country, caps, and is allocated in a monthly manner. so it moves in a timely manner with no retrogression thus making the system transparent
    • spillovers are done the way uscis deems is the best way to allocate all by the end of the year
    • end result is that there is no need for the additional ead frameworks, uscis has a better view of demand, all countries are on par as far as 140&485 are concerned
    • more $$$ upfront, so uscis can plan resources better for the long run
     
    Last edited: Apr 3, 2015
  13. don012001

    don012001 Junior Member

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    Ron, my point is...

    In case of H4 EAD they published the initial rule and invited comments, then reviewed the comments and published the final rule.

    In this case (assume: I140 EAD) ,
    1. Comments/feedback is already invited and going to be incorporated in the rule.
    2. And it's not going to add new work force to the market, hence general public comments may not be needed.

    Will USCIS directly publish the final rule (without going through the 8-9 steps of the OMB rule making) after this feed back from stakeholders (Employers and employees)? When is a different question....

    Thank you for the inputs....
     
  14. speedracer

    speedracer Guru

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    Is there a deadline on when to submit the comments??
     
  15. MarkSells

    MarkSells Member

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    1. The most important policy change to benefit employment based beneficiaries will be to allow filing of I-485 and EAD even when priority date is not current. I came to USA in 2005 to do MS in Computer Engineering. After that I was offered employment by US company and have been working since 2007 in one of biggest employer of USA. My green card was promptly filed by employer but, because of delays by DOL, my I-140 was only approved in 2011. Since, then I have been waiting for my priority date to get current. This delay is affecting me personally and professionally. I am constrained to not travel abroad because I have to get a new visa stamped after every couple of years. The worst part is I don’t know when I will be able to file I-485 let alone when I will get green card. Allowing people like me to file for I-485 will help tremendously. Also, such rule should come into effect sooner rather than taking years to just make this change.

    a.
    i. On I-140 approval allow filing for I-485 with immediate effect. Issue EAD and travel documents

    ii. If employee has worked 5 years for USA based employer, then there should be no restriction to work on same/similar job after filing I-485 or getting GC unless I-140 is revoked by USCIS based on fraud and not employer.

    iii. If employee has worked 7 years for tier 1 USA based employer(s) on high salary, employees petition should be allowed to be converted to self-petition with no requirement for employer

    iv. EB1-C category should only be for multinational managers with high salary. If the salary is less than EB2 petitions from same area then EB1-C should be denied. Same for EB2 vs EB3 where EB2 salary should be > Eb3

    v. There should be no provision to petition EB case based of future job offer or employee(s) currently employed should get preference in some way


    2.
    a. Visa bulletin should have accurate prediction on when I485 can be applied for priority dates

    b. There should be separate dates for adjustment of status and consular processing cases. Dates of consular processing should be kept significantly behind adjustment of status as consular processing cases are for people who are currently not in USA and are not working for US employer. Currently consular processing cases get undue advantage and get approved earlier than adjustment of status cases while they are less deserving

    c. USCIS should not allow porting of priority date between EB3 and EB2. Priority date should only be allowed to be ported within same classification


    3. EAD should be conferred immediately on I-140 approval as currently people for ROW can file for I-485/I-140 consecutively and they get their EAD along with I-140 approval. There is no reason to have any time limit for employees from China/India as ROW does not have any wait. If EAD can only be issued after some time of I-140 approval because of political/technical reason etc. then another option would be to allow after 6 years of H1B when employer files for H1B extension based on I-140 approval.


    4. Beneficiary’s priority date and portability should be preserved unless USCIS detects a fraud in which employee colluded with employer.
     
  16. green Apple TX

    green Apple TX New Member

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    It's my view:
    adding 5 yrs or 7 yrs gives extra pain to us, we need to restrict timeline with employer as less as possible.

    please send comments to USICS questions, mark a copy to Leon and Lori

    I have sent like below, it can be used as template but you can modify the wording according. If you don't like something, feel free to modify your response.



    Public.Engagem., Leon.Rodriguez@uscis.dhs.gov, Leon.Rodriguez@dhs.gov, Lori.Scialabba@dhs.gov, uscis
    Hi,

    Thanks for your email. Pls find my comments to your questions.


    What are the most important policy and operational changes that would streamline and improve the process of employment-based beneficiaries� applying for adjustment of status to that of a lawful permanent resident while in the United States?

    a. What are some ideas for modernizing and improving the immigrant visa process for employment-based beneficiaries?

    Comment: 1.Unused Visa recapture 2. counting only primary member for green card, not all family members (re-interpretation) 3. Immediately issuing EAD+AP once I140 is approved, EAD should be for both applicant and dependents including job portability, accepting promotions, out of country travel. This EAD should have validity at least for 3 years

    USCIS is currently working with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability. What are some ideas for modifying the Visa Bulletin system for employment-based immigration?
    Comment:1. Allocate visas immediately, not to wait till mid or end of year 2. recapture unused visa every year 3. predict/propose visa movements , remove country quota
    If possible to extend employment authorization (EAD) eligibility to beneficiaries of approved Form I-140 petitions who are unable to file for adjustment of status due to visa unavailability, what should be the timeframe after approving an I-140 petition for conferring an EAD?
    comment: It should be immediately after i140 approved, giving time like 90 or 180 days gives bad sign to employers and many employers might miss use it. If at all you want to consider timeline to make employers happy, then it should be 1 or max 1.5 years from which employee is working for that employer ( NOT FROM ANY date of i140 approval) i.e he should be working for employer for at least 1 year. But I favor allocation I140 immediately rather than any time wait
    Should a beneficiary�s priority date and porting eligibility be preserved when the petitioner withdraws an otherwise approved or approvable I-140 petition and/or terminates its business? How should the portability provisions be crafted to allow for this?
    Comment: Yes, once I140 approved, employee should not be tied to employer; Pre-registration (concurrent filing) would be allowed, hence while filing I140,EAD application would be filed and once I140 approved, he should be moved to EAD status on USCIS system even though it takes some time to receive a physical EAD card.

    What are some ideas for improving how USCIS evaluates �same or similar� in an AC21 analysis of two jobs?

    a. Should USCIS implement an application process, which would include a form and fee, to request AC21 portability (e.g. pre-adjudicate whether a new position is the same or similar as the I-140 position)?

    Comment: This clause should be removed. Once I140 approved, he can do any work like a green card holder, he can start a company, if person working on IT,now he can work on marketing or DJ or professor etc

    What are the concerns, if any, of Form I-140 petitioning employers with regard to increasing the flexibility ofUSCIS� analysis of INA 204(j) portability?
    Comment: No concern but most welcoming and a best decision
    What are the concerns, if any, of Form I-140 petitioning employers with regard to increasing the flexibility of the Form I-140-related work authorization eligibility for beneficiaries of approved Form I-140 petitions?
    Comment: No concern but most welcoming and a best decision
    What are the concerns, if any, with satisfying the eligibility criteria for EB-2 national interest waivers?

    a. What are some ideas for standards for granting a national interest waiver, including waivers for foreign inventors, researchers and founders of start-up enterprises to benefit the U.S. economy?

    Comment: All I140 approved should be granted
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    There is no deadline I'm aware of, but you should submit your comments as soon as possible. There are no "right" answers. If you have strong feelings about something, send them to the USCIS.
     
  18. Nandakumar

    Nandakumar Senior Member

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    Hi Ron, any inside news on the Business Immigration publications? Now that H1B cap is reached today, can we expect some movement on the March 19th sessions advancements? or is there a time line where they will take all comments and do after a month or two? :( :(
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Who knows what those clowns will do. They asked for amicus briefs about three years ago for an EB1A case. They just got around to deciding it and the decision doesn't really add much to the debate or body of knowledge.
     
  20. speedracer

    speedracer Guru

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    Please POKE holes in the rational - also some are repeated in next questions but I choose to hammer them again and again to sink them in..


    1. What are the most important policy and operational changes that would streamline and improve the process of employment-based beneficiaries' applying for adjustment of status (AOS) to that of a lawful permanent resident while in the United States?

    There are multiple ways to improve the process:

    #1 - Transparency: It is ok to admit that Green Card (GC) visa numbers are lost due to processing delays. First step of the solution is acknowledging the problem. The whole process should be tracked from application received to GC delivered. Even as the file is picked up by the Visa Officer should be documented and status should be updated on the system – e.g. “File at VO – estimated processing time XX days”

    #2 – Efficiency: Most of the process is paper-based, it can be easily automated and tracked. Less human involvement equals lesser errors and improved response times. AOS is final step and its only adjustment from H1 to PR, it shouldn’t be complicated and adjudication should take less than 4 months. A billion dollars computer system and agency shouldn’t take 6 – 12 months? 4 months is plenty of time to process AOS once the bottleneck are cut due to human errors and inter-agency communication is improved, at-least for the cases that are straightforward.

    #3 – Right to be Free: Most employers don’t file or start the GC process the very first day that the employment begins, the process begins either after the 1st year or in many cases 5th year of employment depending upon the H1b visa term. Current process doesn’t allow for seamless change in employment to benefit the economy or innovation in USA, if the candidate changes employment after I-140 approval, he/she has to restart the whole process, which is cumbersome and unnecessary. Most H1b’s change jobs in same or similar jobs or there is a progression of career so if H1b changes job, the I-140 should not be redone. Employers use this as a tool to repress the h1b and keep the Beneficiary like a slave until EAD or even further with the threat of lawsuits or threat of revoking I-140 is very common. Once approved the employer shouldn’t be able to revoke 140 unless there is fraud. IF there is a time limit on the duration of period as to which the Beneficiary can leave employer without the threat of losing 140 where employers claim monetary loss due to employee leaving, any such time period should be counted from the first day of employment and NOT i-140 approval date.

    #4 – Medicals – Form 693: the health of US citizens is the most important priority and it shouldn’t be compromised. The new form 693 is only valid for 12 months, which leads to process problems. This also causes undue financial burden of redoing the medicals. For a family of 4 people the cost could run to $1000 each time they have to do medicals. IF the processing time go beyond 12 months, which it has in many cases, then medicals need to be redone. This can be resolved if USCIS commits to complete the AOS process in 4 months or less and/or max of 12 months.
     

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