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  • apnair2002
    04-29 09:26 AM
    04/29/2007: Elimination of Substitution of Aliens for the Certified Labor Certification Applications
    As we stated earlier, the OMB had 90 days to make a decision on this DOL Final Rule. It was submitted on 01/26/2007 and the OMB cleared on 04/27/2007, just immediately prior to expiration of 90 days.
    This final rule will not go into effect until it is published by the DOL in the federal register. Record reflects that this final rule will not be published in the federal register, Monday, 04/30/2007. We have yet to see what changes to the proposed version of the rule the DOL made in the final rule. However, it is certain that this rule will not go into effect on Monday, 04/30/2007, and there may still be some actions the employers can make before it is published in the federal register.
    Pending Labor Certification Cases: PERM rule does not allow any amendments and no substitution of alien beneficiary available until the PERM application is certified. By the time PERM is approved, it may be too late to initiate the substitution. However, the cases which are pending at the BECs are different. The beneficiaries can be substituted inasmuch as the job order and the BEC supervised recruitment has yet to be initiated. At this time, the amendment of the BEC application does not require a paper request and e-mail or even phone call request followed by fax will work to substitute the alien. Under the final rule which will go into effect soon, the labor certification applications at the stage of DOL can survive only if the substitution has been approved at the time of release of the final rule. Accordingly, the employers can contact the BECs tomorrow, Monday, to amend the pending ETA 705 and alien beneficiary over the phone, via e-mail, followed by the phone calls and fax or straightforwardedly via fax. CAVEAT: If substitution is denied and original beneficiary ETA 750 is denied for the reason that there is no beneficiary, the employer can lose everything!!
    Certified Labor Certification Cases: These cases will not be able to survive unless the I-140 petition is quickly filed on Monday substituting the alien beneficiary. The earliest filing date will be "Tuesday" since overnight delivery has to reach the Service Centers. Still worth trying. Once it is "filed," it will be safe. There remain a host of issues which will have to be resolved by the USCIS as to the consequences of the denial of these substitution I-140 petitions on issues other than alien beneficiaries qualifications such as the employer's financial ability to pay the proffered wage, etc. Obviously, the denial becomes a "final" action, the cases on appeal to the AAO will continue to remain outside the parameter of the elimination rule. Another question is the effect of motion to reopen of denial of substitution I-140 petitions. There is some chance that the USCIS may decide that once the motion is granted and I-140 petition is approved, the DOL's final rule of elimination of substitution will not affect the case. What if the employer refiles the substitution I-140 petitions? The chances of these cases will remail slim or nil. Since it will be considred a "new" filing of substitution I-140 petition, the USCIS may rule that such filing will be subject to the DOL's substitution elimination final rule. There will be other issues which fall under the jurisdiction of the USCIS rather than DOL as related to the interpretation of the substitution I-140 petitions. The USCIS is scheduled to initiate this rule making process sooner or later. Please stay tuned.
    Impact on the Retention of Priority Date: The rule of retention of priority date is governed not by the DOL but by the USCIS. Under the USCIS rule, the priority date of the labor certification application is not retained until I-140 petition is "approved." Accordingly, if the decision of the denial of the substitution I-140 becomes final on appeal, the substituting alien will not be able to retain the priority. Neither the original beneficiary can retain the priority date unless the alien beneficiary substition I-140 petition was filed after the I-140 had been approved for the original beneficiary.
    Impact on the 7th-Year H-1B Extension: Until the substitution I-140 is denied and becomes final on appeal, the substitutiing alien will be able to continuously extend the H-1B status in one-year increment, but the substituted alien will not be able to extend the 7th-year H-1B status based on the substituted labor certification application. Once the decision of denial becomes final, the substituting alien will not be able to extend the H-1B status after that time, but the validity of the approved 7th-year H-1B status will remain valid until the expiration date.
    Impact on the 245(i) Benefits: Grandfathering of the 245(i) benefits cannot be transferred to other aliens and substituting aliens cannot take over the 245(i) benefits unless the substitution was filed before April 30, 2001. Once the grandfathering is attached, it remains valid unless "not approveable at the time of labor certification application filing" is found. Accordingly, the denial of substitution I-140 petition on behalf of the substituting alien will have no affect on the original beneficiary's retention of the 245(i) benefits.
    Well, let's wait and see the text of the soon-to-be published final rule.





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  • sundevil
    05-29 02:48 PM
    I agree with your ultimate conclusion that we need legislative changes, but I am with complaining about fraudulent EB1 apps. Every fraud starts off small. Even this applying H1B without a job and then sit on the bench for a few months and find a job was started as a few thousand at one time. Now it is a fraud monster, we have learnt to live with.
    I for one believe changing EB3 to EB2 is not even in the same ballpark as EB1 fraud, most people in EB3 are deserving or will become deserving EB2 while waiting. But EB1 fraud is straight up that, FRAUD, even labor sub takes a distant second to that.

    :) he did say hope is on the way...but forgot to say which way or he was try to say what would hope's tombstone read...

    Here lies HOPE...it was IN the WAY :rolleyes:

    to the others who are bitching and moaning about EB1's, a few months back we were worried about the EB3 converting to EB2..before that we were worried that EB3's were getting more visas than EB2's and so on.....we will keep fighting about the handfull of misallocated visas or work towards recapture. The most important thing from Murthy's letter is that USCIS has started preadjudicating 485 which simply means that there are ton of people stuck in this mess who are waiting to be approved... a handful of visas is nothing...lets all unite and work towards recapture.





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  • _TrueFacts
    09-05 03:30 AM
    OK breddy I searched in youtube. I see chandu is from vijayawada. Now I know why he is talking crap on YS Rajashekar Reddy.

    Dude Chandu, you are in 21st century. Forget about all these castism and all. Live peacefully and get your GC. This castism and all doesn't do any good. Chandrababu and Balakrishan will nto give any GC to you. Save your ass, CASTISM will not help any one. I used to think your senior member and good person. I seriously think your an IDIOT unless you stop this castism. STOP this caste based discussions. I know you are not directly talking but I can join the links.

    (BTW, I don't believe in castism, I don't have any caste)

    Shame on you...donga ki donga thodu.( cooperation between thiefs)





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  • imm_pro
    01-13 04:24 PM
    Just wondering what IV Core's stand is regarding this memo



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  • desibechara
    10-09 04:01 PM
    what if both husband & wife get jobs and come here on TN vsia, then how does TD visa apply because both are working? is that possible for both to work in US without one getting into this TD tangle?

    db





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  • visves
    06-28 10:47 AM
    I think there is a certain percantage or number allotted for each quarter to avoid unavailability of visas. Otherwise, there is always the possibility that if enough people are in the pipeline waiting, all visas could be allocated when the Fiscal year begins in Oct which would mean visas could become Unavailable very soon.

    So, are you saying that USCIS uses quarterly quota versus monthly quota. According to an earlier post:
    Hi Macaca;

    This is taken from the July 2000 VB:

    HOW THE SYSTEM OPERATES
    At the beginning of each month, the Visa Office receives a report from each immigrant visa processing post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation.
    Cases are grouped by foreign state chargeability/preference/priority date. No names are reported. During the first week of each month, this documentarily qualified demand is tabulated.
    VO subdivides the annual preference and foreign state limitations which are specified by the Immigration and Nationality Act (INA) into twelve monthly allotments. The totals of documentarily qualified applicants reported to VO, and the expected INS demand for numbers, are compared each month with the numbers available for the next regular allotment. This allows for the determination of the monthly cut-off dates, and the allotment of numbers for reported applicants who have priority dates within the newly established cut-off dates.If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "current."

    From this it is very clear that the number of Visas available for the rest of the FY 07 is enough to accept as many applications as can be approved in those 3 months(July, Aug and Sep).



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  • acecupid
    08-15 10:22 AM
    Collin Powell incident is America's problem. Even after the civil rights movement and equality to Blacks, they are still having discrimination. Just ask Black people in America and how they feel in their daily life.

    So according to you by coming to America we should forget India because you will call us traitor? Have you heard how Jews in America are so strong and care for Israel even after becoming US citizens?

    The fact is Indians are responsible for their own problems and greencard woes. They want to live in this sorry state and blame everyone else around them except themselves. They do not have any pride in their roots and thus flee their own country. They do not come to this country for betterment of their skills, education and experience but because they want to flee the country. There maybe exceptions but this is what I have seen in Indians who are on H1B or who have become US Citizens.

    Why is your profile info empty ? Have you forgotten your motherland or where you came from ?





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  • nixstor
    02-14 03:24 PM
    Totally agree. A and B are not mutually exclusive. We need to push for admin fix and in the meantime explore lawsuit possibility WITHOUT using IV name (does not mean IV members cannot participate as individuals in the lawsuit).

    Here is my 2 cents on this

    Lets say the interested muster around plaintiffs and sue USCIS. Also, The court agrees that USCIS did not do its duty. Will the court go to the extent of ruling over INA which clearly says that unused visa numbers cannot be recaptured? Will the courts/judicial system set such a precedent where they will go against law just because the agency failed to implement it correctly? I don't think they will set such a precedent by overruling against the law set up by congress and the President who signed it. By long shot, Can the court recommend congress to fix the situation by changing the law and by allowing recapture? Possibly. Does that help and fix our issue?



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  • eastindia
    01-19 10:08 AM
    Question to everyone criticizing consulting companies

    If you have a choice to have a EB3 2001 PD/EB2 2003 PD substitute labor from a consulting company, what will you do?

    Will you not want to contact them and file your greencard through them?

    So stop this bullshit about criticizing consulting companies. There are real human beings working in this those companies. Just because you do not work in consulting companies does not give you any right to post negative about them.





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  • canant
    01-14 09:49 PM
    Does this effect on POE for existing valid H1b visa for going and coming back to US ?



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  • weasley
    01-17 09:49 AM
    Agree wth you.


    Nearly all laws/regulations originate from such garbage.

    Hira/Matloff's US born donkeys scavange these blogs 24/7. The garbage is then processed by Hira/Matloff.

    It is very unfortunate that USICS/lawmakers (other than Dustbin, Grassley, Sanders) pander to these scumbags. Such laws/regulations will not provide any relief to these donkeys.





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  • eb3_nepa
    05-10 04:53 PM
    Why is this is a New Tune being sung suddenly? I mean i can see your point, but why this sudden introduction. So far IV was showing the lawmakers how good the Canadian/Australian system was. Now one of the super moderators is mentioning that despite all the exploitation the US system is better?

    Pls dont get me wrong i am not making snide remarks. Just wondering if this was a personal thought or that is now going to be IV's policy.



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  • thepaew
    05-29 10:03 AM
    I guess people who work in IT have a very IT-centric world view. I don't and I know several EB1 candidates. They are extremely qualified and have extraordinary ability that can be documented with PhD, papers, patents and awards.

    Even if we prevent possible abuse of this category, it will not help retrogression for EB2/3-I. The only fix is going to be legislative and we should focus our energies on that.

    I am not sure if EB1 India cap of 3000 visas has been met already. If it was met, then they would have set a priority date for EB1 India too. Assuming that it is not being met, these project managers along with their spouses should be taking only a very small number and that shouldn't contribute much to EB2-3 retrogression numbers. So our real problem is lack of numbers for EB2 and EB3.





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  • poorslumdog
    05-03 02:00 AM
    singala racist won't say jai hind... try to come out of that well

    Jaihind

    Good try....try something else now..=:)



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  • delax
    07-26 06:36 PM
    However, these students are not completely exempted from the H1B quota for each year. Whatever, if PERM filing in year 2008 has witnessed 46% drop since 2007 ... it tells us a lot.

    Thats true - students were not exempt until a couple of years ago - but the point I am trying to make is that they add to the EB - India count thereby retrogressing it further.
    Looking at only BIG IT sponsored H1b's may result in a much reduced EB number





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  • gc_lover
    06-27 07:55 AM
    Visa bulletin is based on the demand for visas. An immigrant vise is ISSUED when a GC is approved, and not filed. When a person receives an I485 approval letter that means his immigrant visa was assigned to him and that an immigrant visa number was used. Same applies to consular processing. The bottom line is that unless USCIS approves a huge amount of GCs in the coming months, the DOS can't and won't make adjustments in the middle of the month. STOP THIS RUMOR!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    There is no point in explaining the same point over and over again. People are just creating new rumors in new threads without trying to read old threads.
    There was a thread by logiclife about this rumor and his discussion with his lawyer.



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  • srikondoji
    06-26 12:32 PM
    nope. The august bulletin which gets released mid july didn't get into our arguements at all. We were specifially talking about july filers and july month.

    Yes, i agree that if August bulletin retrogresses than that affects only august filers and not the people eligible to file in july.

    Yes, the august bulletin will be showing retrogressed dates. But when August bulletin is issued in mid-July, it does not impact the petitions received in July, because the August bulletin applies to August and even if August is retrogressed until 1975, they still have to accept 485s until 31st July.

    That's what your lawyer said. Right?





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  • saimrathi
    07-11 11:33 AM
    Very well written...

    The criticisms of this website are LAUGHABLE. The Economist's quality of life index has rated Canada and Australia the top countries on earth to live in, overwhelming, year after year after year after year!

    Vancouver, Calgary, Toronto, Melbourne, Sydney and Perth consistently dominate the top 10 cities in the world to live. 6 of th top 10?

    The index takes into account, cost of living, earnings capacity, safety, etc.

    Canada probably has one of the most rosey futures on earth. It has an abundance of resources, a tiny population and ironically, global warming is adding to its opportunities.

    Cost of living is actually far below that in places like NY and California.

    Health care, while not top notch, provides better care to more people than is likely to be found in places like the US. PARTICULARLY for people that are older and more likely to need it.

    Education is infinitely better. US Public schools are atrocious.

    Yes, taxes are higher. How do you think these things are paid for?

    As for the weather, well duh! :)

    Anyway, both countries have advantages. I love the U.S. and that's why I'm here. But don't let an inarticulate and unfounded set of ridiculous statements turn you off. do you own research!





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  • Aah_GC
    08-15 10:03 PM
    The system is working very well the way it was designed. As some one already pointed out blame it on osama bin laden. Not on the DHS

    Alrite bud, you win I lose. Most Americans still think Legal immigration is a rose-garden that needs to be revamped to their benefit. You do have a point about what-needs-to-be-done-should-be-done but that turns the very foundational principles of this country upside down.
    POE experience is rotting with time, most Indians with H1B don't walk that alley anymore fearing deportation and there is more to come with this attitude.





    unseenguy
    08-16 09:15 PM
    In 2000 December, I was travelling to Sydney from Mumbai Airport. I was held and later interviewed separately by a Tamil Speaking officer. Just because my name resembled like Srilankan Tamil. They wanted to ensure that I am not LTTE/or refugee travelling to Australia. Well, I was not offended. I just thought if these idiots have been careful before then would have avoided assasination of Rajiv Gandhi.

    Sure. If its done in a respectable manner its fine with some humor and jokes added and officer can do his part to diffuse the frustration. But CBP officers in US are rude and its well known fact.

    Indian customs officers are also no angels, Usually there is no profiling in India. I never ever faced a single question or treatment that was different than others. Nor did I see anyone being singled out.

    When you frisk abdul kalam when you know he is ex president. When you frisk george fernandes when he has diplomatic passport , when you detain SRK when others are vouching for it, when you handcuff Gates. Its profiling. Once in a while incident that is done in respectable humorous way can be forgotten, not the rude ones. I am sure officer was damn rude to piss off srk.





    gomirage
    06-12 10:30 PM
    Exactly what I had tried to express, you have succinctly put them in numbers. Thank you

    Both of you are missing the point. No matter how you spin it, 140,000 people getting GC per is better than reduced quota of say 80,000.

    Have you asked yourselves how you would fare if H1B program did not exist. I am not saying that you will not get GC without h1b and EB programs, sure you could go the uggly way, getting married to the fat lady in your apartment building for example.

    To sum it up I would take long wait compared to no program or a nobel-prizes only program, any day of the week.

    peace.