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Uscis Releases Policy Memo On L1b Today

Discussion in 'Definitional changes/clarifications' started by cuckoo, Mar 24, 2015.

  1. cuckoo

    cuckoo Super Moderator

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    I think the general public hardly understands or cares for the nitty gritty of EB immigration to care either way. The right wingers dislike all immigration, at least to the extent it is non-white. The question is whether EB immigrants, who have benefited from or hope to benefit from EB categories should be pointing fingers st and jostling each other to keep others out or get ahead in the line by accusing of abuse, real or perceived, most often the latter.
     
  2. cuckoo

    cuckoo Super Moderator

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    With Uber exceeding taxis, we new yorkers don't particularly need immigrant taxi drivers.:)
     
  3. Kamakazee

    Kamakazee Super Moderator

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    That will always remain since there is always a classification. EB2s blame EB1C abuse and porters from EB3s. EB3s blame the spillover law change. ROW oppose H.R.213 as they have to wait longer. The list goes on.
     
  4. ARam

    ARam Guru

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    cuckoo..I'm hoping you were joking...the same argument can be made in many quarters if New York needs more "high skilled" immigrants...Kamakazee and Ron agree 100% with your analysis.
     
  5. cuckoo

    cuckoo Super Moderator

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    And with that, we drag each other down, which does not mostly help us get ahead either. Time to grow up. If the Indian industry and government was somehow able to lobby with the administration to make L1B somewhat easier, good for them and their prospective employees. Blocking it would not help backlogged EB2, EB3 applicants any which way.
     
    Last edited: Mar 26, 2015
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I've always believed that preventing you from getting something doesn't do anything to improve my life. We need to pull together to help everyone.
     
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  7. s_gan

    s_gan Super Moderator

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    Agree that that spillover rule change has been unfair to EB3 but porting pre-dates spillover rule change. Porting has to go and spillover numbers should be allocated equally to both EB2 and EB3.
     
  8. speedracer

    speedracer Guru

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    on the bright side.. the administration has started acting on the EO elements , it is safe to assume that they have received and reviewed the study from various agencies and now they are building a roadmap to achieving the various goals mentioned in Nov 2014..
    also, lets not get into EB1C fights and EB porting or spillover.. its mistake of past policies .. no immigrants were involved so no point arguing between us.. the people who did it were just not forward thinking to foresee the issues.. and thats all I am going to say and move past.. to look at the bright side..
     
  9. Kamakazee

    Kamakazee Super Moderator

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    Agree.
     
    Last edited: Mar 26, 2015
  10. s_gan

    s_gan Super Moderator

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    The idea of PD porting from EB3 to EB2 is completely flawed.

    Law states clearly that PD can be ported only if the job is same or similar category. if the job is same or similar how the same position qualify for both EB3 and EB2 ?
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It says nothing of the sort:

    8 CFR 204.5(e):
    Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien. [Emphasis added]
     
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  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Some individuals have read this language to mean that any revocation results in a loss of the earlier established priority date. This interpretation is incorrect. The USCIS, in the Adjudicator's Field Manual, at Chapter 22.2(b)(5)(A)(5), makes it clear that only a revocation based on a finding of fraud or misrepresentation results in a loss of the priority date:

    (A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successorship of interest). [Emphasis added].​
     
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  13. Nandakumar

    Nandakumar Senior Member

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    Hi Ron.. not sure whether you noticed or not, USCIS is inviting for stakeholder engagement on April 9th regarding the updated policy memo involving L1B visa.

    What is confusing to me atleast is, they have a draft and effective date for this L1B changes but why we didn't get the same on March 19th session. That is, why there is no draft or memo published for business immigration. Is that something I totally missed or this is usual?
     
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The upcoming L1B session is to explain the new memo. The March 19th session was, in my opinion, a placeholder to keep people from asking questions.
     
  15. s_gan

    s_gan Super Moderator

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    Ok. So what is the relevance of §106(c) ?
     
  16. Nandakumar

    Nandakumar Senior Member

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    Thanks Ron. So we are expecting a similar memo from USCIS shortly or sooner? And this will come with an effective date too?
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    AC21 Section 106(c) provides:

    (c) INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS- (1) Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:

    "(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.".

    (2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended by adding at the end the following new clause:

    "(iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.".​

    This provision permits job portability for people with pending adjustment of status applications, who have waited more than 180 days for a decision. This has nothing to do with priority date retention. It simply allows someone with pending AOS to retain eligibility if they change jobs in accord with these provisions.
     
  18. s_gan

    s_gan Super Moderator

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  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    No problem. It's easy to get confused when much of the implementing language is the same or similar.
     
  20. Nandakumar

    Nandakumar Senior Member

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    Ron..is that answer for my question too regarding effective date?
     

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