bkarnik
07-25 06:46 PM
Thanks a lot, please keep us posted about the outcome, even if we have one percent of hope, there is no harm trying that.
Guys,
This argument is not new. I had started a thread a while back http://immigrationvoice.org/forum/showthread.php?t=556&highlight=bkarnik
which met with essentially the same reply from the IV moderators. My underlying issue is that the term "EAD" or anything remotely similar does not even appear in the INA unless I missed it and if so, I would really appreciate it if someone show me where it is.
Anyways, I sent the following email to my lawyer, the entire chain with names deleted is reproduced here for your reading pleasure. This exchange highlights the apathy with which the legal community (at least my lawyer) view the issue and their knowledge of the law.... enjoy.. :(
From: Attorney
Sent: Monday, April 17, 2006 4:57 PM
To: Bkarnik
Subject: RE: Question..
I see your point. You should contact the American Immigration Lawyers Association with your question. If the issue has not already been addressed by this organization, I'm sure they will readily champion your cause.
-----Original Message-----
From: Bkarnik
Sent: Tuesday, April 18, 2006 6:49 AM
To: attorney
Subject: Question..
Dear Attorney:
Thank you for your time and the quick turnaround. However, the question still remains. If you notice in the link sent by you below, the USCIS refers to the US 8 CFR 274a.12(a) and (c) According to the USCIS, the CFR is the interpretation made by the agencies of the INA as passed and amended by Congress. The INA itself does not seem to have any clause relating to EAD for employment based categories because I believe the Congress never foresaw a situation where it will take up to 5-6 years for the process to complete.
I know that the USCIS has on many occasions by using the Federal Register or by Memorandums modified the CFR or changed the regulations governing the validity of the EAD, and I am wondering if something similar can be achieved in this case, wherein an appeal is made to the USCIS to change the rules governing eligibility for issuing an EAD.
Thanks once again.
Bkarnik.
-----Original Message-----
From: AttorneySent: Monday, April 17, 2006 4:57 PM
To: Bkarnik
Subject: RE: Question..
Hello BKarnik,
Your argument is sound, however, U.S. Immigration does indeed adjudicate
I-765 EAD applications based upon eligibility for filing. Please click this
link: http://uscis.gov/graphics/formsfee/forms/i-765.htm. It will take you to the USCIS web site where you can download form I-765. Included with the form is an instruction sheet. In the section entitled "Eligibility Categories", U.S. Immigration spells out the categories for which form I-765 may be filed. For example, under the "Foreign Students" title, you can see that an F-1 OPT student is eligible to obtain EAD work authorization pursuant to subsection (c)(3)(i). Your eligibility for EAD work authorization will fall under the "EAD Applicants Who Have Filed for Adjustment of Status" title under subsection (c)(9). Unfortunately, there is no eligibility category for I-140 IVP applicants or for IVP approval notice holders.
I hope this answers your questions.
Attorney
________________________________
From: Bkarnik
Sent: Monday, April 17, 2006 2:16 PM
To: Attorney
Subject: Question..
Dear Attorney:
I had a question for you (actually, it is a series of sub questions).
However, this has nothing to with my employer or my GC, so if you feel that replying to this question will take up an inordinate amount of time or of you think that this is something that is worthwhile in pursuing, please let me know what your charges will be and I will let you know if I can afford them :)) With that out of the way, here goes:
The question is about getting an EAD before filing the I-485. I was perusing the INA as posted on the USCIS website. I did not find any applicable law that directs the USCIS when it can issue EADs. It is quite likely that I missed the section as I am not a student of laws as you are.
If so, can you let me know where to find it? As you know, the EAD issue is mentioned in the US 8 CFR sec. 274a. Now, the USCIS website explains that the CFR thus: The general provisions of laws enacted by Congress are interpreted and implemented by regulations issued by various agencies.
These
regulations apply the law to daily situations. Thus, the CFR is the interpretation of the law by the USCIS for application in daily life.
If
that is the case, what prevents the USCIS from issuing EADs upon the approval of Form I-140? Especially, since as you very well know, the Form I-140 is an application made by the employer to the USCIS to petition for an alien worker to become a permanent resident in the United States.
Therefore,
the form requires the employer to fill in all the pertinent information about the alien and his dependents. An approval of the Form I-140 indicates (at least to me) that the USCIS has agreed with the employee that the labor certification is good and the alien is approvable as a permanent employee.
I guess that is one of the reasons, the USCIS allows concurrent filing of the I-140/I-485.
With the current retrogression concurrent filing of I-140/I-485 is not possible, if the USCIS were to be agreeable to issue EADs to persons with approved I-140 it would make life a lot easier for all while at the same time not impacting the green card process itself. All we are asking is that the EAD be issued after I-140 approval, because it does not make sense to tell an employer that the alien is approved for permanent employment, but at the same time asking the employer to keep the employee in a H1B (i.e.
temporary status) at no fault of the employer/employee. Can you let me know if my argument is flawed? If not, do you think we have a way by which we can ask the USCIS for its interpretation or opinion on the issue? If we can, and you are willing to take the matter, can you let me know your fees?
I know that you are very busy, and may not be able to take on the matter even if you find merit in it. In that case, would know of a competent person willing to take it up?
Thank you for your time and patience,
Sincerely,
Bkarnik
Guys,
This argument is not new. I had started a thread a while back http://immigrationvoice.org/forum/showthread.php?t=556&highlight=bkarnik
which met with essentially the same reply from the IV moderators. My underlying issue is that the term "EAD" or anything remotely similar does not even appear in the INA unless I missed it and if so, I would really appreciate it if someone show me where it is.
Anyways, I sent the following email to my lawyer, the entire chain with names deleted is reproduced here for your reading pleasure. This exchange highlights the apathy with which the legal community (at least my lawyer) view the issue and their knowledge of the law.... enjoy.. :(
From: Attorney
Sent: Monday, April 17, 2006 4:57 PM
To: Bkarnik
Subject: RE: Question..
I see your point. You should contact the American Immigration Lawyers Association with your question. If the issue has not already been addressed by this organization, I'm sure they will readily champion your cause.
-----Original Message-----
From: Bkarnik
Sent: Tuesday, April 18, 2006 6:49 AM
To: attorney
Subject: Question..
Dear Attorney:
Thank you for your time and the quick turnaround. However, the question still remains. If you notice in the link sent by you below, the USCIS refers to the US 8 CFR 274a.12(a) and (c) According to the USCIS, the CFR is the interpretation made by the agencies of the INA as passed and amended by Congress. The INA itself does not seem to have any clause relating to EAD for employment based categories because I believe the Congress never foresaw a situation where it will take up to 5-6 years for the process to complete.
I know that the USCIS has on many occasions by using the Federal Register or by Memorandums modified the CFR or changed the regulations governing the validity of the EAD, and I am wondering if something similar can be achieved in this case, wherein an appeal is made to the USCIS to change the rules governing eligibility for issuing an EAD.
Thanks once again.
Bkarnik.
-----Original Message-----
From: AttorneySent: Monday, April 17, 2006 4:57 PM
To: Bkarnik
Subject: RE: Question..
Hello BKarnik,
Your argument is sound, however, U.S. Immigration does indeed adjudicate
I-765 EAD applications based upon eligibility for filing. Please click this
link: http://uscis.gov/graphics/formsfee/forms/i-765.htm. It will take you to the USCIS web site where you can download form I-765. Included with the form is an instruction sheet. In the section entitled "Eligibility Categories", U.S. Immigration spells out the categories for which form I-765 may be filed. For example, under the "Foreign Students" title, you can see that an F-1 OPT student is eligible to obtain EAD work authorization pursuant to subsection (c)(3)(i). Your eligibility for EAD work authorization will fall under the "EAD Applicants Who Have Filed for Adjustment of Status" title under subsection (c)(9). Unfortunately, there is no eligibility category for I-140 IVP applicants or for IVP approval notice holders.
I hope this answers your questions.
Attorney
________________________________
From: Bkarnik
Sent: Monday, April 17, 2006 2:16 PM
To: Attorney
Subject: Question..
Dear Attorney:
I had a question for you (actually, it is a series of sub questions).
However, this has nothing to with my employer or my GC, so if you feel that replying to this question will take up an inordinate amount of time or of you think that this is something that is worthwhile in pursuing, please let me know what your charges will be and I will let you know if I can afford them :)) With that out of the way, here goes:
The question is about getting an EAD before filing the I-485. I was perusing the INA as posted on the USCIS website. I did not find any applicable law that directs the USCIS when it can issue EADs. It is quite likely that I missed the section as I am not a student of laws as you are.
If so, can you let me know where to find it? As you know, the EAD issue is mentioned in the US 8 CFR sec. 274a. Now, the USCIS website explains that the CFR thus: The general provisions of laws enacted by Congress are interpreted and implemented by regulations issued by various agencies.
These
regulations apply the law to daily situations. Thus, the CFR is the interpretation of the law by the USCIS for application in daily life.
If
that is the case, what prevents the USCIS from issuing EADs upon the approval of Form I-140? Especially, since as you very well know, the Form I-140 is an application made by the employer to the USCIS to petition for an alien worker to become a permanent resident in the United States.
Therefore,
the form requires the employer to fill in all the pertinent information about the alien and his dependents. An approval of the Form I-140 indicates (at least to me) that the USCIS has agreed with the employee that the labor certification is good and the alien is approvable as a permanent employee.
I guess that is one of the reasons, the USCIS allows concurrent filing of the I-140/I-485.
With the current retrogression concurrent filing of I-140/I-485 is not possible, if the USCIS were to be agreeable to issue EADs to persons with approved I-140 it would make life a lot easier for all while at the same time not impacting the green card process itself. All we are asking is that the EAD be issued after I-140 approval, because it does not make sense to tell an employer that the alien is approved for permanent employment, but at the same time asking the employer to keep the employee in a H1B (i.e.
temporary status) at no fault of the employer/employee. Can you let me know if my argument is flawed? If not, do you think we have a way by which we can ask the USCIS for its interpretation or opinion on the issue? If we can, and you are willing to take the matter, can you let me know your fees?
I know that you are very busy, and may not be able to take on the matter even if you find merit in it. In that case, would know of a competent person willing to take it up?
Thank you for your time and patience,
Sincerely,
Bkarnik
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smuggymba
09-10 08:36 AM
I understand what you said, but just to consider the off numbers published by dos
http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf
EB2 total pending 34325
EB3 total pending 136325
2010-2011 quota EB1+EB2 ( 85343 )
less eb2 " " 34325
--------------------------------------------
" " 51018 trickeling down for EB3 Worldwide?
2010-2011 quota EB3 ( 42671 )
less eb3 - 136325
--------------------------------------------
42636 ( eb3 pending left over from above )
2011-2012 quota eb1+eb2+eb3 128013
So, with above math Eb2 will be current by next year, and eb3 will be by end of 2012?
above math is based on
inaccurate numbers given by DOS?
assuming no new applicants applying.
Hope I am correct! :)
Hi Sanju-dba,
In the predictions thread, I saw the members saying there are 100-120K people waiting in EB2 from now until 2010. You're saying it's 34K...can u post this in the predictions thread so that other members can analyze the numbers. Thanks.
http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf
EB2 total pending 34325
EB3 total pending 136325
2010-2011 quota EB1+EB2 ( 85343 )
less eb2 " " 34325
--------------------------------------------
" " 51018 trickeling down for EB3 Worldwide?
2010-2011 quota EB3 ( 42671 )
less eb3 - 136325
--------------------------------------------
42636 ( eb3 pending left over from above )
2011-2012 quota eb1+eb2+eb3 128013
So, with above math Eb2 will be current by next year, and eb3 will be by end of 2012?
above math is based on
inaccurate numbers given by DOS?
assuming no new applicants applying.
Hope I am correct! :)
Hi Sanju-dba,
In the predictions thread, I saw the members saying there are 100-120K people waiting in EB2 from now until 2010. You're saying it's 34K...can u post this in the predictions thread so that other members can analyze the numbers. Thanks.
sc3
10-16 01:49 PM
yesterday some one left a red saying "go and sleep in your bedroom or something like that" :D,
(which I find hilarious..because I don't exactly sleep on my couch :D:D)
then some left a green saying "nullifying red".
folks, I didn't leave a red for anyone (who cares abt them anyways)...don't assume immediately that I reacted.
giving either reds or greens will not impact anyone's gc process..or change their PDs!
Like itsnotfunny says, if you agree/disagree say it so. gave itsnotfunny a green to nullify the red.
let me reiterate though, that I am completely opposed to flower campaign because once bitten, twice shy.
USCIS has lot of autonomy and there is every likely of a repeat i.e july 07 part 2 as a reaction to gandhigiri part 2
instead focus on other avenues, there is an excellent thread on FOIA in addition to the other avenues
First: Disabuse yourself of the notion that Gandhigiri had anything to do with the backtrack of the July 07 fiasco. There were other more pressing (and effective) organizations that helped reverse the situation.
Second: What happened (the flood of applications) were definitely caused by an ill thought Visa bulletin, but USCIS had no control over the massive amount of applications that they had to deal with. Even commercial operations (amazon etc) break down when overloaded. So to put extensive blame on USCIS for the "reaction" (I assume you are talking about the backlogs) is not right.
(which I find hilarious..because I don't exactly sleep on my couch :D:D)
then some left a green saying "nullifying red".
folks, I didn't leave a red for anyone (who cares abt them anyways)...don't assume immediately that I reacted.
giving either reds or greens will not impact anyone's gc process..or change their PDs!
Like itsnotfunny says, if you agree/disagree say it so. gave itsnotfunny a green to nullify the red.
let me reiterate though, that I am completely opposed to flower campaign because once bitten, twice shy.
USCIS has lot of autonomy and there is every likely of a repeat i.e july 07 part 2 as a reaction to gandhigiri part 2
instead focus on other avenues, there is an excellent thread on FOIA in addition to the other avenues
First: Disabuse yourself of the notion that Gandhigiri had anything to do with the backtrack of the July 07 fiasco. There were other more pressing (and effective) organizations that helped reverse the situation.
Second: What happened (the flood of applications) were definitely caused by an ill thought Visa bulletin, but USCIS had no control over the massive amount of applications that they had to deal with. Even commercial operations (amazon etc) break down when overloaded. So to put extensive blame on USCIS for the "reaction" (I assume you are talking about the backlogs) is not right.
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go_gc_way
01-01 10:44 PM
bump /\/\/\/\/\
more...
chanduv23
09-10 11:42 AM
THIS IS THE TIME - SET YOURSELVES FREE - MARCH TO WASHINGTON
keshtwo
07-09 04:40 PM
I hope this lawsuit fails. Looking ahead this lawsuit, if it succeeds might do us more damage than good. Law of unintended consequences states that something can happen we haven't thought of.
Supposing, if lawsuit goes ahead and wins, one outcome might be - USCIS might start adhering to strict interpretation of 7% per country, or curtail spillovers drastically. Then we are in deep shit.
Supposing, if lawsuit goes ahead and wins, one outcome might be - USCIS might start adhering to strict interpretation of 7% per country, or curtail spillovers drastically. Then we are in deep shit.
more...
veni001
03-11 10:38 PM
No change for EB2..... India
EB3 moved about three months
Category India Most Other Countries
F1 8 July 2004 8 July 2004
FX 1 Jan 2005 1 Jan 2005
F2A 1 June 2006 1 June 2006
F2B 1 March 2002 1 March 2002
F3 22 May 2001 22 May 2001
F4 1 March 2000 1 March 2000
E1 Current Current
E2 1 February 2005 Current
E3 8 September 2001 1 February 2003
EW 1 June 2001 1 June 2001
E4 Current Current
E4-Religious Current Current
Source
Cut Off Dates- Consulate General of the United States Mumbai, India (http://mumbai.usconsulate.gov/cut_off_dates.html)
EB3 moved about three months
Category India Most Other Countries
F1 8 July 2004 8 July 2004
FX 1 Jan 2005 1 Jan 2005
F2A 1 June 2006 1 June 2006
F2B 1 March 2002 1 March 2002
F3 22 May 2001 22 May 2001
F4 1 March 2000 1 March 2000
E1 Current Current
E2 1 February 2005 Current
E3 8 September 2001 1 February 2003
EW 1 June 2001 1 June 2001
E4 Current Current
E4-Religious Current Current
Source
Cut Off Dates- Consulate General of the United States Mumbai, India (http://mumbai.usconsulate.gov/cut_off_dates.html)
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adurthy
10-16 01:56 PM
I support flower campaign , when do u propose , let do atleast a week before thanks giving.
more...
India_USA
04-13 01:09 PM
I am new to this country........reading the posts from members, I wonder if we did the right thing in coming to the usa? Life in India is improving a lot.
Planning to study here.......is it better to go back after a couple of years?
Planning to study here.......is it better to go back after a couple of years?
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sabudanawada
03-20 09:34 AM
Tens of thousands? :eek:you kidding me? where did you get that number from? Please explain your logic/source or refrain from making unwarranted assumptions.
If they have made the priority date to 2003 now, what that should tell us is that they suspect only a few thousand applications pending before that deadline.
NO, no way.
There are tens of thousands of EB2 India applicants from 2000 to 2002. Add labor substituters, EB2 converters, and you'll be lucky to see EB-2 India at even Dec 2002. Most likely within a few weeks of Apr, all EB-2 India visas will get used up. Keep in mind the new EB-2 numbers are from EB-1 India flowover. So it's going to last even less time than Oct-Nov last year.
If they have made the priority date to 2003 now, what that should tell us is that they suspect only a few thousand applications pending before that deadline.
NO, no way.
There are tens of thousands of EB2 India applicants from 2000 to 2002. Add labor substituters, EB2 converters, and you'll be lucky to see EB-2 India at even Dec 2002. Most likely within a few weeks of Apr, all EB-2 India visas will get used up. Keep in mind the new EB-2 numbers are from EB-1 India flowover. So it's going to last even less time than Oct-Nov last year.
more...
Ramba
07-14 06:11 PM
Guys. Stop threating the original poster. One can verywell change the employer before 180 days of 485 pending and enjoy the AC21 poring benefit. The only rule is "485 has be remain pending for 180 days" for AC21 benefit. One can change job anytime, even before 180 days. The only time it is invalid is, if a guy leavs the employer iwithin 6 months of 485 pending and 485is approved within 180 days of filing, then the GC is invalid one.
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gimme_GC2006
04-06 05:53 PM
right..ok..today at work I heard from my colleague that his friend was sent back from airport
My colleague's friend's story.
Went to india for 3 weeks vacation..at POE, officer called his employer and asked "do you need him(a H1B) to work for this position? Cant you find any US Citizen?".
Apparently, the response from employer ( I think Desi consulting)is, "Yes..we dont need him..can find a USC"..
The poor guy is sent back.
Now, I asked my friend to inform his colleague to come forward and post his story at IV..but I doubt if he cares Rat's as** now that he is kicked out.
hmmm...I have a travel coming up in Nov/Dec...with all adventurous luck going on with me, I have other plans now :confused::confused:
My colleague's friend's story.
Went to india for 3 weeks vacation..at POE, officer called his employer and asked "do you need him(a H1B) to work for this position? Cant you find any US Citizen?".
Apparently, the response from employer ( I think Desi consulting)is, "Yes..we dont need him..can find a USC"..
The poor guy is sent back.
Now, I asked my friend to inform his colleague to come forward and post his story at IV..but I doubt if he cares Rat's as** now that he is kicked out.
hmmm...I have a travel coming up in Nov/Dec...with all adventurous luck going on with me, I have other plans now :confused::confused:
more...
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indyanguy
02-20 06:49 PM
If possible, please change it without any delay? EB3 is only able to cross past May 2001 for 3 times in last 3 years where EB2 are enjoying GC most of time. No point in playing wait game with EB3 India. Otherwise, you will wait for-ever. :)
To interfile, do we need to start the PERM/140 process again for a different EB2 position? Do we port the date from EB3 to EB2 while we apply for EB2 140?
Is this a straight forward process? What happens if interfiling is denied?
To interfile, do we need to start the PERM/140 process again for a different EB2 position? Do we port the date from EB3 to EB2 while we apply for EB2 140?
Is this a straight forward process? What happens if interfiling is denied?
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rajuram
11-11 10:33 PM
With democrats in control, at the very minimum we should try to push recapture of lost visa numbers. Tie that with the ability of immigrants to buy houses, we could have a game winner...
more...
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HV000
03-18 09:54 PM
Common Guys. Let's focus on the topic of this thread...
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logiclife
04-23 04:22 PM
-------------
Northern California members we need volunteers for an event on Wednesday (04/25) in Campbell @ 1:00 p.m. for an hour. This is much more interactive event. No undocumented immigration issues just EB related issues. Please join the yahoo group and get involved. http://groups.yahoo.com/group/NC_Immigration_Voice/
Lets keep the momentum going.
You may want to start a new thread with an appropriate title, to get more attention from members in Northern CA.
Northern California members we need volunteers for an event on Wednesday (04/25) in Campbell @ 1:00 p.m. for an hour. This is much more interactive event. No undocumented immigration issues just EB related issues. Please join the yahoo group and get involved. http://groups.yahoo.com/group/NC_Immigration_Voice/
Lets keep the momentum going.
You may want to start a new thread with an appropriate title, to get more attention from members in Northern CA.
more...
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tapukakababa
07-18 12:12 PM
hi tapukakababa, can you please provide me with a number for USCIS nebraska SC. I would like to talk to them as well.
I called at the same number you provided all of us in your earlier posts
1-800-375-5283, with ext 1,2,3,6
I called at the same number you provided all of us in your earlier posts
1-800-375-5283, with ext 1,2,3,6
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BlueSunD
03-04 01:39 PM
Ladies & gentlemen, we are now 6 days away from the due date!
Hope to see the completed versions of the wips we�ve seen so far, and maybe, of some we haven�t! ;)
Goodluck to everybody!
Hope to see the completed versions of the wips we�ve seen so far, and maybe, of some we haven�t! ;)
Goodluck to everybody!
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vandanaverdia
09-10 04:16 PM
Done... sent to some students I know... and asked them to spread the word too...
Good job yabadaba...
Good job yabadaba...
h1-b forever
01-24 09:16 AM
I feel frustrated at some peoples' unwillingness to admit that EB3 needs IV's help now more than ever. They are saying that nothing much can be done for EB3, as INS merely corrected its wrong interpretation in visa allocation
But, if we are all willing to put our hearts and minds to it we can surely come up with new ideas that will help our cause. Surely, laws are written so that justice can happen. So if justice is not happening, the law would have some answer, somewhere.
Let me put forward my idea.
The INA language says that until EB2 is not current, there will be no spillover to EB3. Agreed. But I would contend that this statement is on a year to year basis. That is, if in the year 2002 (for example) all EB2 has been satisfied, then the spillovers should go to year 2002 EB3.
Is this something IV can point out and fight for? Can EB3 members put their money and efforts in this direction? Let me know if this sounds worthwhile
GK,
I think you do have a point. Let me do some research and contact some attorneys as well on this. Will also check with the IV leadership on their thoughts on this point.
Cheers,
Rayoflight
Did anything come of this plan? Is this doable?
But, if we are all willing to put our hearts and minds to it we can surely come up with new ideas that will help our cause. Surely, laws are written so that justice can happen. So if justice is not happening, the law would have some answer, somewhere.
Let me put forward my idea.
The INA language says that until EB2 is not current, there will be no spillover to EB3. Agreed. But I would contend that this statement is on a year to year basis. That is, if in the year 2002 (for example) all EB2 has been satisfied, then the spillovers should go to year 2002 EB3.
Is this something IV can point out and fight for? Can EB3 members put their money and efforts in this direction? Let me know if this sounds worthwhile
GK,
I think you do have a point. Let me do some research and contact some attorneys as well on this. Will also check with the IV leadership on their thoughts on this point.
Cheers,
Rayoflight
Did anything come of this plan? Is this doable?
crazyghoda
01-30 12:13 PM
No I didnt inform USCIS about job change. The lawyer who handled the H1 transfer from my GC sponsoring employer to the (laying off) employer suggested that there was no need to and we could respond to an RFE if it ever happened. He said that USCIS doesnt do anything with the letter and never truly match it up and so I let it go.
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