EB3 to EB2 Porting with same (current) employer: Not a good idea

These days it is been topic of the town for Indian nationals to port their priority date from EB3 to EB2 category. So far this totally makes sense. This could tremendously reduce the wait time for an individual to receive a green card. If you are porting your case after attaining new job offer from a new employer that would qualify you into EB2 category, well then this should be very straight forward. But an individual and his employer should be very careful while taking this step if they are planning to port the case with a same (current) employer. There are rumors that many employers are upgrading their employees’ petition from EB3 to EB2 category just to retain their employees.

Why EB3 to EB2 Porting with same (current) employer is not a good idea?

To port case from EB3 to EB2 category with same (current) employer it is a common notion among immigration community that your new job description should be different and you should be able to prove that you have attained all your experience before joining current employer. New Job Description should be at least 50% different from previous EB3 job description in order to port case with the same (current) employer. It is also believed that any progressive experience attained with the same (current) employer could be counted towards new EB2 petition. Though this sounds perfect, but an individual opting for this route should consider following points that USCIS would consider before approving your case:

a) Whether new future job opening is legitimate and well documented internally in the company. Employer could be asked to provide evidence or proof supporting this. (example: an email trail from manager requesting addition of head count)

b) If an employee from a company is considered for this new EB2 level job, what would happen to future EB3 level job? Has employer posted an old EB3 level job again in the market? If earlier EB3 level job is not open, did employer falsify his need previously? Is it required for an employer to fill that position?

c) Was your promotion internal and you were considered for this new future job due to experience gained at EB3 qualified job? For example “Software Engineer” to “Project Manager”

d) Whether new job description is biased to gratify individual’s experience and qualifications. This would cause more audits at new PERM or I-140 level.

e) If an American citizen who would qualify for your job at EB3 level today, could he be qualified for your EB2 level job after attaining similar progressive experience. Does this call for testing market for your EB3 job level again in current time when unemployment is so high.

f) How many employees from same employer have recently been upgraded from EB3 to EB2? Does this call for auditing employer for all the recent approved cases.

So in all EB3 to EB2 Porting with same (current) employer could open whole new can of worms, and I would refrain myself from opting this route. If an employer is considering this as an option for number of his employees, he should be cautious as this could call for many audits in future and he could eventually be under scrutiny by USCIS and DOL. It is just a matter of time.

President Obama's Plan to fix Broken Immigration System

President Obama’s Plan to Win the Future by Fixing Our Broken Immigration System

In his State of the Union Address, President Obama repeated his deep commitment to fixing our broken immigration system. The United States has been enriched by a steady stream of hardworking and talented people from all over the world. These generations of immigrants have helped make America the engine of the global economy and a beacon of hope around the world. As we work to rebuild the economy, our ability to win the future depends, in part, on restoring responsibility and accountability to the immigration system. The American people expect Democrats and Republicans to come together to tackle the major issues confronting our nation, and fixing our broken immigration system is critical to the economy, our global competiveness, and our national security.

Secure our borders: This Administration has dedicated record levels of resources to border security, including enforcement personnel and technology. President Obama supports investing strategic resources to further secure our borders.

Hold accountable businesses that break the law by exploiting undocumented laborers and undermining American workers: This Administration will build on its current efforts to crack down on employers that deliberately hire and exploit undocumented workers. At the same time, the President believes we must make it easier for the vast majority of employers who want to play by the rules to verify their workers are here legally.

Demand responsibility from those living in the United States illegally: Immigrants who are here illegally must take responsibility for their actions. To get on the right side of the law, they must own up to their illegal actions by paying taxes and an additional penalty, and learn English.

Create a legal immigration system that meets our diverse needs: We must create a legal immigration system that meets our diverse economic needs and honors our rich tradition as both a nation of entrepreneurial immigrants and a nation of laws.

The President’s Vision for Restoring Accountability & Responsibility to Our Immigration Laws

The President has outlined a vision for fixing the broken immigration system through common sense, comprehensive immigration reform grounded in the principles of responsibility and accountability:

• Continue to make border security the responsibility and priority of the Federal Government: Today, we are doing more to secure our borders than at any time in the past several decades. However, the Administration continues to refine and strengthen its strategy. Enforcement resources should be targeted, increased where appropriate, and focused on stopping potential terrorists and others who would do our nation harm.

• Hold accountable businesses that break the law by exploiting undocumented workers: Employers who break the law by deliberately hiring and exploiting undocumented workers undermine the American workforce and must be held accountable. At the same time, we must give employers who want to play by the rules a reliable way to verify that their employees are here legally and eligible to work.

• Make those living in the United States illegally take responsibility for their actions: Those people living here illegally must also be held accountable for getting on the right side of the law. To do this, they will have to admit they broke the law, pay taxes and a penalty, and learn English before they can get in line to obtain legal status and eventual citizenship. Being a citizen of this country comes not only with rights, but also with fundamental responsibilities. We can create a pathway for legal status that is fair, and reflects reflective of our values.

• Strengthen economic competiveness by creating a legal immigration system that meets our diverse needs: Our immigration laws should encourage and attract high-skilled individuals from all over the world. We must stop expelling talented and responsible young people, whether they were brought here by their parents as children, or come from other countries to pursue advanced degrees. We must also provide farmers a legal way to hire the workers they rely on, and respect families following the rules.

Building on Progress

The President takes his responsibility to enforce our immigration laws and secure the border seriously Over the last two years, the Obama Administration has dedicated unprecedented resources to secure the border, taken important steps to make interior and worksite enforcement of our immigration laws smarter and more effective, and made improvements to the legal immigration system:

• Dedicating unprecedented resources to secure the border: Today, there are more “boots on the ground” along the Southwest Border than ever before. The Department of Homeland Security (DHS) has also deployed thousands of technology assets, including aircraft and Unmanned Aircraft Systems, and completed nearly all fencing. Last year, Congress answered the President’s call to bolster the Federal Government’s efforts through the Southwest Border Security Supplemental Bill. DHS is using these resources to build on their successful efforts to decrease the numbers of illegal aliens who cross the border and increase seizures of illegal currency, drugs, and guns that have led to thousands of criminal arrests and prosecutions.

• Making our interior and worksite enforcement efforts smarter and more strategic: The Administration has laid out new enforcement strategies targeted at removing immigrants convicted of serious crimes and unscrupulous employers who seek to exploit both immigrant and American workers. These new strategies have had real results including a 70 percent increase in deportations of criminal immigrants and, in FY 2010 more audits conducted and fines levied against employers who violated immigration laws than in any year by any previous Administration. DHS has also invested in implementing important reforms to the detention system, enhancing its security and efficiency while prioritizing the health and safety of detainees.

• Improving our Legal Immigration System: The Administration is improving processing times and clearing backlogs of pending immigration applications, including fully eliminating the FBI National Name Check Program’s backlog. DHS is also working to ensure that naturalization is accessible to all qualified legal immigrants. Since January 2009, DHS has worked with the Armed Forces to naturalize nearly 20,000 military personnel. DHS is also devoting critical funding to promote innovative citizenship preparation and integration programs in communities throughout the country.

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H1B FY 2011 Cap Reached - 26th January 2011

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

a) extend the amount of time a current H-1B worker may remain in the U.S.;
b) change the terms of employment for current H-1B workers;
c) allow current H-1B workers to change employers; and
d) allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers.

For more information on USCIS and its programs, visit www.uscis.gov.

Fact Sheet on RFEs and NOID

USCIS Announces Flexible Response Times for Notices of Intent to Deny and Requests for Evidence

On April 12, 2007, the Department of Homeland Security (DHS) transmitted the final rule Removal of the Standardized Request for Evidence Processing Timeframe to the Federal Register (FR). The rule will take effect on June 16, 2007. This rule amends DHS regulations to give U.S. Citizenship and Immigration Services (USCIS) flexibility in setting the time allowed for immigration benefit applicants and petitioners to respond to a Request for Evidence (RFE) or to a Notice of Intent to Deny (NOID). This change does not apply to asylum cases, to which a separate set of regulations apply.

The amended rule makes the following key changes and clarifications:

Flexible Response Times to RFEs Permitted

Regardless of the type of evidence requested, the old regulation required USCIS to set an inflexible 12 week period for applicants or petitioners to respond to an RFE. The new regulation permits USCIS to set flexible deadlines. Deadlines will depend on the complexity of cases and types of applications or petitions filed. For example, when requesting readily available or missing initial evidence, USCIS can set a response time much shorter than 12 weeks. On the other hand, USCIS can provide the full 12 week response period for more difficult to obtain evidence.

No Extensions to Submit Responses to RFEs or NOIDs

Regardless of the evidence requested, USCIS has never allowed extensions beyond the maximum 12 week deadline for RFEs and the 30 day deadline for NOIDs. That bar does not change, even though the new rule allows USCIS to set deadlines shorter than those maximums. For example, under the new regulation, USCIS may issue an RFE that gives an applicant 30 days to submit a photo. USCIS will not grant an extension of that 30 day period. Failure to timely respond to the RFE may lead to denial of the application or petition.

When Evidence Submitted With The Application or Petition Does Not Show Eligibility

When initially submitted evidence does not show eligibility, the new regulation allows USCIS to deny the application or petition. As always, USCIS may request that the applicant or petitioner submit additional evidence within a specified time period or may notify the applicant or petitioner that USCIS intends to deny the application or petition. To avoid denial, USCIS urges applicants and petitioners to file complete applications with all of the required initial evidence. The initial evidence for each application and petition type is clearly listed on the form instructions and in the regulations.

Reasons for Issuing a NOID

USCIS may issue a NOID when there is evidence of ineligibility for immigration benefits and is required to issue a NOID when there is negative evidence that the applicant or petitioner does not know about. An applicant or petitioner may respond to the NOID by submitting evidence to disprove the negative information.

If There Is No Response to an RFE or a NOID

The new regulation provides USCIS three options if it does not receive a response to an RFE or a NOID. USCIS may:

• find that the application or petition has been abandoned and, if so, deny it;

• deny the application or petition based on the evidence already received; or

• deny the application or petition for both reasons.

When an Applicant or Petitioner Does Not Appear for a Required Appointment

If an applicant or petitioner fails to appear for biometrics capture, interview or any other required in-person process, USCIS may deny the application or petition as abandoned. However, USCIS may not do so if, prior to the scheduled appointment time, it receives a timely-filed change of address or request to reschedule and decides that the failure to appear is excusable. In such cases, USCIS will reschedule the appointment. USCIS reminds applicants and petitioners that they are required to file an AR-11 change of address form within ten days of their move.

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