Discussion in 'General discussion about executive action' started by Ron Gotcher, Apr 2, 2015.
So why say anything at all? lawyers are going to pay to hear vague ideas??
He is the luncheon speaker. People who don't know any better will be motivated to attend because they think he might say something useful.
The fact that he will be luncheon speaker at a non-governmental event on a crucial day, when the fate of his programs will be decided, shows the seriousness (or lack thereof, if you are not the "sarcastic type") of the entire situation.
Bureaucrats are cautious in the extreme. He is likely afraid that if he were to say something like "We plan to have a rule promulgated this spring" he will get sued if it isn't out by June 20th.
You are right Ron.. which why time is always measured in "Soon", "Very Soon" and "Later"
Which translate into human-speak as "someday", "never", and "why do you bother to ask?"
ere are the comments I sent out:
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?
ANSWER: (1). More and more communication should be transacted electronically, by e-mail or via online portals. It is not unusual for beneficiaries to spend 2-4 weeks to receive a document mailed by USCIS, be it RFEs, rejections, or approval noticies after being electronically notified of them. This prolong the wait periods for simplest of things by several months. For example, waiting for PERM approval notice to be able to file I-140, waiting for H1B petition approvals to arrive to go for visa at the consulate, waiting for I-140 approval to file H1B extension. It is also not unusual for critical communications fromm USCIS, such as an RFE, a denial, or a rejection to get lost after it has been supposedly mailed. If it us possible for the USCIS to provide an e-mail or online notification about a communication or approval, why is it not possible to provide a copy of the communication or approval/denial itself. Further, why should the beneficiary or sponsor have to provide documentary proof of a document/approval to USCIS when the agency itself issued that document. Ither government agencies provide such documents online and allow responses to filed online eliminating months from the to and fro process. For example, USPTOs PAIR system.
(2) USCIS customer services treat beneficaries with undue hostility and refuse to provide them with any all information regarding their employer's petition (I-140), stating that the information will only be provide to the employer or their lawyer. This often leads to undue exploitation of the beneficiary at the hands of the employer or their lawyer on often trivial matters. This policy of USCIS should be changed.
(3) Consulates often create undue hurdles for beneficiaries with long pending employment based petitions when they visit home country and have to go for visa renewal at tge local consulate. Sometimes the beneficiary is stranded unexpectedly for months when a 221g is issued citing administrative processing (mysterious reasons that the beneficiary will not be informed if). Visas should be revalidated within the US to avoid such harassment of beneficiaries.
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?
ANSWER: Applicants with visa numbers available are able to file EAD with the I-485 application. The backlogged applicants should be able to file EAD immediately after I-140 approval.
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?
ANSWER: Yes. Backlogged category beneficiaries should ideally be able to port 6 months after the I-140 approval to give them the same flexibility as beneficiaries in current categories.
I am not sure about portability of approvable I-140. The Yates memo of 2005 provided for such portability. However, going by that memo, I tried to port (in 2009) after more than 6 months had passed since the filing of concurrent I-140 & I-485 petitions. An RFE was issued in my case which was replied to with appropriate responses and evidence. However, the petitions were denied in Jan. 2010 because "the petition [I-140] must have been approved by USCIS ....". Later, that reasoning was repeated in the Matter of Al Wazzan in Oct 2010. Thus, the USCIS acted completely contrary to the Yates memo which provided:
"If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:
A. Review the pending I-140 petition to determine if the preponderance
of the evidence establishes that the case is approvable or would have
been approvable had it been adjudicated within 180 days. If the
petition is approvable but for an ability to pay issue or any other issue
relating to a time after the filing of the petition, approve the petition on
its merits. Then adjudicate the adjustment of status application to
determine if the new position is the same or similar occupational
classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post-filing
issue such as ability to pay, an RFE can be sent to try to resolve the
issue. When a response is received, and if the petition is approvable,
follow the procedures in part A above.
USCIS adjudicators have refused to consider contents of any responses to RFE after finding that the beneficiary ported off of a pending I-140. Unless it can be assured that the adjudicators and AAO would follow the law, allowing portability of unapproved I-140s would be detrimental for the beneficiaries, giving them theoretical options that vanish after they have relied on them.
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)?
ANSWER: The job market is too fluid and fast moving to allow for such a process. The job may disappear before such adjudication is made. Moreover, the employee could lose his/her current job if the current employer finds out about such application before the employee beneficiary has secured the new position leaving them in a worse situation. This pre-adjudication would essentially deter beneficiaries from porting even if USCIS could some how adjudicate fast enough to keep pace with the job market.
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?
ANSWER: Employers should not have an undue advantage over Indian and Chinese beneficiaries (the only backlogged categories) when beneficiaries of other nationalities can port after 180 days after I-485 filing. Why should employers have a say in how long their immigrant employees, Indian and Chinese beneficiaries stay 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?
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