Tag Archive for: EB-3

Cyrus Mehta

Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?

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*By Cyrus D. Mehta and Kaitlyn Box*

We follow up on our blog series on requesting a transfer of underlying basis. Previous blogs on this topic can be found here and here.  Due to the exceptionally high number of EB-1 and EB-2 visas available this fiscal year, USCIS is urging applicants to consider switching to these preference categories, which will no doubt encourage more applicants to file a transfer of underlying basis request. As a background, many India born beneficiaries are the subject of two I-140 petitions in both the EB-2 and EB-2 preferences. These beneficiaries had employers file I-140s under EB-3 along with concurrent I-485 applications when the Dates for Filing in the October 2020 Bulletin advanced further than the EB-2 to January 1, 2015, and this trend continued under the November 2020 and December 2020 Visa Bulletins.   There has been a switcheroo since then, and sadly many who could have gotten their green cards when the EB-3 Final Action Date was January 1, 2014 lost out when USCIS could not adjust these applicants by September 30, 2021. The India EB-2 has advanced much further than the India EB-3, which is why many wish to request that the I-485 application filed with the EB-3 I-140 in October 2020 be transferred to the previously approved I-140 under EB-2. Under the State Department March 2022 Visa Bulletin, the India EB-2 Final Action Date is May 1, 2013 while the India EB-3 Final Action Date has retrogressed to January 15, 2012.  The EB-3 Dates for Filing has retrogressed to January 22, 2012.

AILA’s Case Assistance Committee recently posted a practice pointer on February 9, 2022, which we further analyze for the benefit of our readers. See AILA Doc. No. 22012600. The practice pointer discusses USCIS’ guidance on requesting a transfer of underlying basis, which requires a written request along with an I-485 Supplement J to the following address:

Attn: I-485 Supp J
U. S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350

The USCIS guidance further states that “if a request to transfer the underlying basis has previously been submitted to a USCIS office prior to the issuance of this new guidance, USCIS indicates on its website that a new request should not be submitted again to the above address”. However, anecdotal evidence indicates that many are resubmitting their request for a transfer of underlying basis following this new procedure, even though they may have previously sent a letter previously requesting a transfer of underlying basis. The submission of an I-485J at least results in the generation of a receipt and an approval. This evidence may allow the applicant to further follow up on the request to transfer underlying basis.

Most significantly, AILA’s practice pointer also states that USCIS has indicated that filing a transfer of underlying basis request with an I-485, Supplement J restarts the 180-day clock for adjustment applicants who wish to port to new employment. USCIS states that “for purposes of portability, you would restart the portability clock on the day we receive the transfer request”. We are perplexed by USCIS’ response, and analyze it further herein.

INA § 204(j) states that “for an individual whose application for adjustment of status…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”. Thus, if an applicant’s I-485 has been pending for more than 180 days, it makes little sense that the portability clock should restart upon submission of an I-485J when the applicant is also requesting a transfer of underlying basis from EB-3 to EB-2. It should also be noted that many applicants are filing an I-485J for the first time when requesting a transfer of basis as the I-485J was not required at the time the I-140 under EB-3 was filed concurrently with the I-485 under the October 2020, November 2020 and December 2020 Bulletins.

The purpose of the I-485J is two- fold: Part 1.a. requires the applicant to confirm that the employer is offering a bona fide job that the noncitizen intends to accept upon receiving permanent residence, while part 1.b. can instead be checked to indicate that the noncitizen is porting to a new position that they intend to accept when the I-485 is approved. Hence, I-485J is required to confirm the existence of the job offer that is the subject of the labor certification and the I-140, or, alternatively, it is required to request portability under INA § 204(j). If the applicant checks the first box, confirming the validity of the existing I-140 job offer, the 180 -day portability clock should not start.

Many adjustment applicants may find that their job duties have changed slightly since their I-140s were filed, such that they now involve, for example, the use of updated technologies. One can take the position that the job remains the same and the applicant is not porting, so the 180-day clock should not restart if Part 1.a. in the I-485J is checked. What happens, though, if an applicant checks Part 1.b. when the job duties have changed slightly, even though the essence of the job remains similar and s/he is with the same employer. It makes little sense for the portability clock to restart in this situation. Surely USCIS would not expect an applicant to go back to the old job with the current employer if it were to approve the I-485 application in less than 180 days from the time thee request to transfer the underlying basis was made.

Other applicants who are requesting a transfer of underlying basis may want to move to a new job at an entirely different employer. When one is changing jobs and files the I-485J, and the underlying basis is not being changed, there should not be an issue. The portability clock should not start again. The I-485 has been pending for 180 days already and INA § 204(j) should trigger.

The situation becomes somewhat more nuanced, however, when the applicant also wants to port to a new job and transfer the underlying basis from EB-3 to EB-2. USCIS seems to suggest that the portability clock would restart in this situation, but the results would be perverse. Imagine the absurd scenario where USCIS approves the I-485 within 180 days, and an applicant would have to go back to the old job as the 180-day clock did not complete when requesting the transfer of underlying basis. The safest course of action for applicants in this scenario is to refrain from requesting a transfer of underlying basis. Thus, if the I-485 is associated with the EB-3 I-140, then it is best to port and stay in EB-3 rather than requesting a transfer of underlying basis to be on the safe side.

Relevant case law also illustrates the absurdity of USCIS’ position. In Matter of VSG, Adopted Decision 2017-06 (AAO Nov. 11, 2017), the AAO recognized that a beneficiary who has ported under INA §204(j) is an affected party for purposes of revocation of an I-140 petition, and such a beneficiary must be afforded an opportunity to participate in such revocation proceeding.  If the 180 day porting clock were to start again upon an interfiling request, that could de-recognize the ability of a beneficiary to participate in revocation proceedings in contradiction of a growing number of court decisions, see e.g. Khedkar v USCIS, Mantena v. Johnson and Kurupati v USCIS,  that have recognized that the beneficiary of the I-140 petition is within the zone of interests that the statute or regulation seeks to protect. Such a result would be nonsensical.

All of these scenarios make little sense. There should be no restarting of the 180-day portability clock, as INA § 204(j) requires only that the I-485 be pending for 180 days. Even if requesting a transfer of underlying basis latches the I-485 to the EB-2 I-140, that should not restart the portability clock. The transfer of basis should not be intertwined with I-485 portability.

(This  blog is for informational purposes only and should not be viewed as a substitute for legal advice)

∗ Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Frequently Asked Questions on Transferring the Underlying Basis of an I-485 application from an I-140 petition under India EB-3 to an I-140 under India EB-2

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Update – January 21, 2022

On January 21, 2022, USCIS released new guidance on requests to transfer the underlying basis of an I-485 to a different employment-based immigrant category based on another Form I-140. The guidance states that USCIS may, in its discretion grant a transfer of underlying basis if the following criteria are met:

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Cyrus Mehta

Requesting Premium Processing on a Downgraded I-140 Petition  

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By Cyrus D. Mehta and Kaitlyn Box*

In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card backlogs for years to file I-485 adjustment of status applications. Since the EB-3 Filing Date for India significantly overtook the EB-2 Filing Date, some beneficiaries approved EB-2 petition opted to “downgrade” by filing a new I-140 under EB-3. Generally, beneficiaries may still rely on the original Labor Certification when filing a downgraded I-140 and retain the priority date of the EB-2 petition, unless the job has drastically changed.

In previous blogs, we have discussed the nuances of filing a downgrade petition, and addressed some common questions that arise in this situation. One frequent source of questions is whether Premium Processing is available for downgrade petitions given that these I-140 petitions filed since October 2020 are still pending and have yet to be approved. Generally, USCIS will  not accept a case for Premium Processing unless it is filed with an original Labor Certification. Thus, beneficiaries whose Labor Certifications were filed with the original EB-2 petition likely cannot file a downgrade I-140 together with a Premium Processing request. Although USCIS might, in rare instances, accept a Premium Processing request made with an I-140 downgrade petition, it is more likely that the Premium request, or even the entire petition, will be rejected.

A strategy more likely to meet with success is filing the downgrade I-140 via regular processing, waiting USCIS to issue a receipt notice, and then request Premium Processing of the pending I-140. USCIS may still reject the Premium Processing request if it cannot match the pending I-140 to the previous file or retrieve the original Labor Certification. Even in the case of a rejection, however, the pending I-140 will be safe and subsequent Premium Processing requests can be filed, if desired. There are an increased number of Premium Processing requests from beneficiaries of downgraded I-140 petitions given that the EB-3 India Final Action Date has rapidly advanced. Under the July 2021 State Department Visa Bulletin, the EB-3 India Final Action Date is January 1, 2013. If the I-140 petition is approved when the Final Action Date is current for the I-140 petition, the beneficiary and family members can hope to have their I-485 applications approved although the USCIS has been approving them at a snail’s pace and may alarmingly not be able to use up all EB visas for this fiscal year. It should also be noted that the swifter approval of the I-140 petition does not speed up the processing of the applications for employment authorization or advance parole when the I-485 application remains pending.

Recently, however, we have seen some requests to upgrade I-140s to Premium Processing being repeatedly rejected on the ground that an original Labor Certification was no provided, despite other, similar Premium Processing requests being accepted. In an email inquiry placed to the USCIS Premium Processing address in response to one such case, our firm received a helpful response. An Immigration Services Officer  advised that Petitioners resubmit rejected Premium Processing requests and indicate on a brightly colored sheet of paper that USCIS has the original labor certification.  A more guaranteed method, according to the USCIS response, is to submit a copy of the original Labor Certification. Submissions lacking at least one of these documents are vulnerable to immediate rejection since the reviewing officer will not see a Labor Certification included. Although this was not part of the guidance we received, it would also be advisable to indicate the receipt number of the prior approved EB-2 petition which contains the original Labor Certification, and direct the USCIS to look for it in that petition.

Even if the Premium Processing request is accepted, there is always a risk that the USCIS might issue a Request for Evidence (RFE) even if the prior I-140 under EB-2 was approved. Note, though, that such an RFE could also be issued even if there is no request for Premium Processing, although there might be an incentive to issue the RFE if the officer cannot complete the processing within the mandated 15 days. Although RFEs have been seldom, the most common reason for an RFE is to request submission of evidence that the employer still has the ability to pay the proffered wage from the establishment of the priority date until the present, and up to the point of time that the beneficiary receives permanent residency.  If the employer’s current tax returns show losses and the beneficiary is not being paid the proffered wage,  Premium Processing should not be considered, and the I-140 can continue to remain pending,  until the employer is able to potentially overcome such an RFE.  Another reason for an RFE is that the prior SOC code that was designated at the time of the granting of the Labor Certification does not match with the SOC code that was indicated in the downgrade I-140 petition. This is not a valid basis for the USCIS to issue an RFE as the SOC code available for the occupation at that time has become obsolete. For instance, SOC Code 15-1031 for Computer Software Engineers, Applications is no longer in existence. It has now changed to SOC Code 15-1132 for Software Developers, which has again most recently changed to SOC Code 15-1252. This sort of RFE can be more easily overcome.

All of these issues should be carefully considered when requesting Premium Processing of a downgrade I-140 petition. Despite the issues that can arise when making a Premium Processing request of this kind, petitioners can help prevent rejections by following USCIS’ guidance and including a highly visible reference to the original Labor Certification, or a copy of the Labor Certification itself with the request. Submitting timely and thorough responses to any RFEs too helps to ensure that the petition will ultimately be successful.

(This blog is for informational purposes and should not be considered as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Frequently Asked Questions on Filing a “Downgrade” EB-3 petition under the October 2020 Visa Bulletin

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The October 2020 Visa Bulletin significantly advanced the  Filing Date of the employment-based third preference (EB-3) for India to January 1, 2015. This would make many beneficiaries with approved I-140 petitions caught in the EB-3 backlog eligible to file I-485 adjustment of status applications. Even those with approved I-140 petitions under the employment-based second preference (EB-2) could potentially file a downgrade I-140 petition under EB-3 and concurrently file I-485 applications.   Following the posting of our blog last week, Downgrading from EB-2 to EB-3 Under the October 2020 Visa Bulletin, we have received many questions, which I address below:

 

1. I have an approved I-140 petition under EB-2 with a priority date of May 15, 2013. Am I able to file a downgrade I-140 under EB-3 along with a concurrent I-485 application for myself, spouse and minor child?

Since the Filing Date for EB-2 India is May 15, 2011 in the October 2020 Visa Bulletin, and the priority date on your I-140 petition is May 15, 2013, you cannot file an I-485 with your I-140 petition under EB-2. However, your employ will be able to file a new downgrade I-140 petition under EB-3 (as a petition approved under EB-2 should meet the lower threshold requirement of EB-3 and the EB-3 date is January 1, 2015), based upon which you will be able to file a concurrent I-485, and your spouse and child will also be able to file I-485  applications as derivatives with your I-485  application.

 

2. How will filing an I-485 application benefit me?

Filing an I-485 application under a Filing Date will not result in permanent residency or the green card. The Final Action Date in the Visa Bulletin needs to become current for you to be eligible to receive the green card. The Filing Date is a prediction of where the Final Action Date will be at the end of the fiscal year. As this is just an estimate, there is a possibility that if the advance in dates results in many I-485 filings, the Filing Date can also retrogress rather than move forward. While your I-485 is pending, you and your derivative family members will be eligible to apply for an employment authorization document and advance parole or travel permission. If the I-485 application is pending for 180 days, you will also be able to exercise job portability under INA 204(j) in a same or similar occupation either with the same or another employer.

 

3. Must I be in a nonimmigrant status in order to be eligible to file the I-485?    What if I am in violation of my H-1B status since my last entry because my employer terminated me during the Covid-19 economic downturn 120 days ago, but now wishes to hire me back?

Yes. You need to be in a lawful nonimmigrant status as a condition to filing an I-485 application, but with an exception. If your employer terminated you 120 days back, you have been out of status for 60 days (as you were entitled to a 60 day grace period upon termination). Fortunately, under INA 245(k), you may still be eligible to file an I-485 as 245(k) renders one ineligible to apply for adjustment of status who has failed to maintain status for more than 180 days from your last admission. Since you failed to maintain status for 60 days from your last admission, you will still be able to file an I-485 application if your employer files the downgrade I-140. 245(k) will also apply to your spouse and child if they too fell out of status for less than 180 days.

Upon filing the I-485, you can also apply for an Employment Authorization Document. Upon receiving the EAD, your employer will be able to employ you.

 

4. Assuming that I was in H-1B status at the time of filing the I-485 application, do I still need to remain in H-1B status after I file the I-485 application?

While it is always prudent to remain in H-1B status (as one who is maintaining status cannot be placed in removal proceedings), it is not required as being an I-485 applicant authorizes you to remain in the US. However, an I-485 applicant without the underlying H-1B status can theoretically be placed in removal proceedings, although as a practical matter this rarely happens.  For instance, if you wish to port to a new employer, and the new employer is not willing to file an H-1B extension, you can rely on the employment authorization document that was issued to you as a pending I-485 applicant. Likewise, you may also rely on the advance parole for purposes of travel, and this would even obviate the need for you to seek a new H-1B visa from the US Consulate during the Covid-19 period, which may only issue emergency visa appointments.

 

5. What if the Final Action Date on my prior EB-2 I-140 becomes current before the Final Action Date on my EB-3 becomes current?

The USCIS does have the ability to use the most appropriate I-140 – whether under EB-2 or EB-3 – when the visa becomes available for the appropriate preference category. If the USCIS does not do this on its own volition, you can write to the USCIS to request that the I-485 application be transferred from one basis to another, see https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8 .  Alternatively, you can also try calling the USCIS Contact Center at i-800-375-5283 and request a transfer of the I-485 from one basis to another. There is no need to file a new I-485 based on the EB-2 I-140 if the EB-2 Final Action Date becomes current.

 

6. My son is 18, will his age be protected under the Child Status Protection Act if he turns 21 and our I-485 applications are still pending?

Under current USCIS policy, the Filing Date does not freeze the age of the child based on the Filing Date (see Recipe for Confusion: USCIS Says Only the Final Action Date in the Visa Bulletin Protects a Child’s Age under the Child Status Protection Act). So, if the Final Action Date does not become current before your child turns 21, your child will not be able to adjust to permanent residence with you.  Note, however, that under the CSPA, you can subtract the number of days the I-140 petition remained pending from the age of your child if he is over 21 at the time the Final Action Date becomes current.

The lack of CSPA protection based on a Filing Date is erroneous policy. My colleague Brent Renison has filed a lawsuit to force USCIS to accept the Filing Date for CSPA protection, and you can visit his website, http://www.entrylaw.com/backlogcspalawsuit, to join the lawsuit in case your child will be impacted by this policy.

 

7. Should I request premium processing on the downgrade I-140 petition?

The USCIS has specifically indicated that premium processing for an I-140 will be precluded if the original labor certification was filed with the previous I-140 under EB-2, although some have requested premium and USCIS accepted request. If a child is involved who may need CSPA protection, then requesting premium on the I-140 is not advisable as you will be able to subtract more time (as the I-140 petition will take longer to get approved) from the child’s age in case the child turns 21.

 

8. I have an approved EB-3 I-140 filed by a prior employer with a priority date of January 1, 2014. My new employer has just filed my labor certification and is hoping to capture the priority date of the prior I-140 after the labor certification gets approved. Can I use the prior I-140 to file an I-485 application?

The prior employer would have to offer the job to you on an I-485 Supplement J. It has to be a bona fide offer of employment based on the terms of the underlying labor certification of that I-140. If is not a bona fide offer of employment, it would certainly not be advisable to go ahead and file the I-485 application based on the previously approved I-140. Rather, it would be prudent to wait for the labor certification to get approved and recapture the old priority date when the current employer is able to file the I-140 petition. However, there is no way of knowing whether the Filing Date will continue to be current by the time the new labor certification is approved. Still, this would be the only approach if the prior employer’s offer of employment is not bonafide.

 

9. Can the EB-3 I-140 downgrade be denied?

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. However, one cannot foreclose the possibility of a USCIS examiner inventing erroneous reasons to deny an EB-3 I-140 based on the same labor certification that supported an I-140 under EB-2.

Still, an I-140 downgrade can be denied on legitimate legal grounds such as if the employer cannot demonstrate ability to pay the proffered wage to the beneficiary if the tax returns show losses, or if the USCIS revisits an issue that it did not pay attention to while adjudicating the prior I-140 petition such as whether the foreign degree was a single source degree.

 

10. If the EB-3 I-140 gets denied, will my previously I-140 EB-2 be safe?

If the grounds for denying the EB-3 were based on issues that were relevant to the approval of the EB-2, such as whether the beneficiary possesses a single source degree or whether the employer had the ability to pay the proffered wage at the time the labor certification was filed, then there is a risk that the I-140 under EB-2 can also get revoked.

 

Cyrus Mehta

Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2020, the Department of State released the October 2020 Visa Bulletin. Importantly, the Filing Date for an EB-3 from India has advanced to January 1, 2015 from February 1, 2010 in the September 2020 Visa Bulletin, while the Filing Date for an EB-1 from India advanced to September 1, 2020 from July 1, 2018.  By contrast the Filing Date for EB-2 India advanced to only May 15, 2011 from August 15, 2009.

Significantly, however, the USCIS issued guidance on the same day  that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status applications. Historically, USCIS has been very reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The last time USCIS used the Filing Date for most visa categories was in March 2020. In 2019, USCIS used the Filing Date only four times – in January, October, November, and December. Otherwise, applicants must use the Final Action Date to determine when to submit their I-485. According to earlier guidance from USCIS, applicants may use the Filing Date to determine when to submit an I-485 when the USCIS determines that there are more immigrants visas available for the fiscal year than there are applicants. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.  USCIS’s decision to apply the Filing Date comes as a surprise under the October 2020 Visa Bulletin, albeit a pleasant one, given the agency’s previous unwillingness to allow applicants to use the Filing Date.

Since USCIS will accept I-485 filing, a new I-140 will need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3.  If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate “professional”, or “skilled worker” will need to be checked on the form. The individual may still rely on an old labor certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice. Some may be of the view,  and they have some support in the Neufeld Memo of June 1, 2007 that the new “downgraded” I-140 under EB-3 should be checked as an amendment rather than as a separate petition. The Neufeld Memo suggests that a new I-140 petition filed after a previously approved I-140 was filed within 180 days of the grant of the labor certification should be filed as an amendment where a  new visa classification is being sought.  But doing that would nullify the earlier EB-2 petition, and this may not be so desirable in case the EB-2 dates overtake the EB-3 at some point in the future. If that were to happen, then a new amendment of the EB-3 would need to be filed for upgrading to EB-2  On the other hand, 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. This regulation does not preclude the filing of an I-140 petition subsequent to the use of the labor certification through a previously approved labor certification  Therefore, the prevalent view is in favor of filing a standalone I-140 to downgrade to EB-3 is preferable to filing it as an amendment. See Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB-3 Anomaly, AILA Liason (Dec. 16, 2013), available at: https://www.aila.org/infonet/uscis-multiple-i-140s-priority-date-retention. However, this is not to assume  that USCIS will not insist that the I-140 should have been checked off as an amendment and may deny the EB-3 petition.

Although an I-485 filed pursuant to a current Filing Date does not confer permanent residence, the  I-485 filing confers a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Note, however, that USCIS’ use of the Filing Date will not help those who are waiting for a visa interview abroad, although the National Visa Center (NVC) will initiate the case and obtain documents before the Final Action Date becomes current.

Other complications arise under the Child Status Protection Act (CSPA), which “freezes” the age of applicants under the age 21 who would otherwise age out before being approved for LPR status due to lengthy USCIS backlogs. USCIS has made clear that only Final Action Dates, and not Filing Dates may be used to freeze a child’s age. Thus, an applicant who files an I-485 based on a Filing Date should be aware that their child will no longer be protected if the child ages out before the Final Action Date becomes available. The child’s I-485 application will be denied, and she can even be put into removal proceedings if she has no nonimmigrant status. We discussed this predicament at greater length, and argued that there is a significant legal basis to use the Filing Date to protect the age of a child under the CSPA in an earlier blog.

Additionally, a small group of EB-2 beneficiaries from India who already have pending I-485 applications (as they filed I-485s in 2012 and then the EB-2 India dates retrogressed) may decide to “downgrade” to an EB-3 from an EB-2, given the more advanced Filing and Final Action Dates for an EB-3. Individuals who find themselves in this situation will need to file a new I-140, which may not protect a child from aging out under the CSPA. CSPA applies only the “applicable” petition, which most likely means the old EB-2 I-140 petition. Individuals who want to downgrade from EB-2 to EB-3 because of the more favorable dates should be aware that their children who were protected under the CSPA under a prior I-140 may not longer receive that protection when a new I-140 is filed if the child is now over 21 years old. Please refer to our earlier blog post for a more in-depth discussion of the CSPA.

EB-1 beneficiaries from India are also in luck, and so long as the EB-1 I-140 was filed on or before September 1, 2020, a concurrent I-485 may be filed. In this case too, legal advice should be taken since the I-485 with all its attendant benefits may not survive if the pending I-140 is denied.

While the movement in the Filing Dates will give relief to many, they are quixotic and ephemeral. The EB-3 India dates have overtaken the EB-2 dates. At one point, it was always assumed that EB-2 would be ahead of EB-3. But there might be a flipflop as more people are lured into filing under EB-3, and then both EB-2 and EB-3 will be hopelessly backlogged.  But those who managed to file I-485 applications will be permitted to apply for employment authorization and can port to new jobs in same or similar occupations. While the green card may still be far away, at least I-485 applicants will be better off than being on a 12th year H-1B extension as they will have more mobility and their spouses and children will also be able to work. Ideally, the immigration system ought to be reformed by eliminating per country limits, and better still, infusing the EB preferences with more visa numbers.  For that to happen, Congress has to aligned and in today’s polarized environment, this too seems unlikely to happen until at least after the elections.

(Kaitlyn Box graduated with a JD degree from Penn State Law School and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC)

Cyrus Mehta

Reviving The National Interest Waiver For International Entrepreneurs

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A proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

– Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;

– Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or

– Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation. What is truly lacking is the lack of a pathway to permanent residence for the entrepreneur.

Several organizations and individuals submitted comments to the rule by the deadline on October 17, 2016. The Alliance of Business Immigration Lawyers, www.abil.com, of which I am a shareholder and member, also submitted comments in order to improve the rule and point out its limitations. The thrust of the comments was to make parole more accessible to entrepreneurs by lowering the investment amounts and expanding the types of persons who could qualify as investors. I was pleased to be part of the ABIL comment team of distinguished immigration attorneys, and my focus was to comment that the rule also provides a pathway to permanent residence. If the rule does not provide a pathway to permanent residency, it will not be viable at all. It is thus imperative that the rule also provide a pathway for permanent residence through the National Interest Waiver. In fact, this is not the first time that the DHS has thought about providing a pathway for permanent residence to entrepreneurs.

When USCIS announced its policy to encourage foreign entrepreneurs to take advantage of the existing immigration system on August 2, 2011, it provided Question and Answers on the Employment-based Second Preference (EB-2 Q&A) suggesting that an entrepreneur can be sponsored through a “national interest waiver”. The EB-2 (Q&A) acknowledges  Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT), which set forth a three-prong test, and how it could apply to entrepreneurs seeking the NIW.

With respect to the first two criteria under NYSDOT, the petitioner must show that he or she will be employed “in an area of substantial intrinsic merit” and that the “proposed benefit will be national in scope.” It was always difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. This concern was addressed in the EB-2 Q&A:

For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.

The third criterion in NYSDOT is extremely opaque and difficult to overcome. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.” The AAO went on to further illuminate this criterion as follows: “Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”

Still, the EB-2 Q&A provides helpful guidance to the entrepreneur to overcome the third prong:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for the NIW. For example, the entrepreneur may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Nevertheless, if the parole rule provides guidance on how to seek a NIW, it should do away with the NYSDOT test, especially the subjective third criterion. Indeed, when President Obama’s executive actions on immigration were announced on November 20, 2014, a memo specifically aimed to improve the system for skilled immigrants also sought to:

Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy

ABIL therefore suggests that the final rule should contain a rebuttable presumption stating that an international entrepreneur who has maintained parole status for five years is presumed to qualify for the national-interest waiver. The five years should be extended for entrepreneurs who have already started the permanent residency process, however long it takes, given the processing delays and backlogs. Alternatively, because of prolonged visa quota backlogs, those which adversely affect persons in the EB-2 and EB-3 preferences such as beneficiaries born in India and China, ABIL suggests that entrepreneurial parolees be able to use the NYSDOT national-interest waiver standards to qualify as a person of extraordinary ability under INA § 203(b)(1)(A). Even if an entrepreneur cannot readily meet the three out of ten criteria under 8 C.F.R. § 204.5(h)(3), the petitioner can also qualify as a person of extraordinary ability by submitting comparable evidence under 8 C.F.R. § 204.5(h)(4). Hence, the final rule should expressly provide that comparable evidence includes (but is not limited to) proof that an entrepreneur meets the NYSDOT national-interest waiver criteria, and thus may qualify as a person of extraordinary ability.

Given the lack of certainty in a national-interest waiver adjudication due to NYSDOT, ABIL further suggests that the seven factors set forth in the non-precedent decision of Matter of Mississippi Phosphate, EAC 92 091 50126 (AAU July 21, 1992) be reconsidered. The seven factors include 1) improving the U.S. economy; 2) improving wages and working conditions of U.S. workers; 3) improving education and training programs for U.S. children and underqualified workers; 4) improving health care; 5) providing more affordable housing for young and/or older, poorer U.S. residents; 6) improving the environment of the U.S. and making more productive use of natural resources; or 7) involving a request from an interested U.S. government agency. This decision provided good guidance for the national interest waiver petitioner as well as the adjudicating officer and seemed to signal an understanding of congressional intent.

The EB-2 Q&A appears to suggest that the entrepreneur can also be sponsored for a green card under the EB-2 through a labor certification. In fact, an entrepreneur who cannot qualify under EB-2, can also theoretically obtain labor certification for purposes of obtaining permanent residency under EB-3. The DOL, on the other hand, has always frowned upon an owner of an entity being sponsored for a labor certification. In order to obtain labor certification, the employer must establish that it has conducted a good faith test of the labor market and that there were no qualified US workers who were available for the position. The DOL has denied labor certification to both 100% and minority owners of companies who filed a labor certification on their behalf. See ATI Consultores, 07-INA-64 (BALCA Feb. 11, 2008); M. Safra & Co. Inc., 08-INA-74 (BALCA Oct. 27, 2008). The test for determining whether an employee closely tied to the sponsoring entity could qualify for labor certification was set forth in Modular Container Systems, Inc. 89-INA-228 (BALCA July 16, 1991) (en banc), where BALCA applied a “totality of circumstances” test to determine whether there was a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

An entrepreneur who may successfully obtain parole will most likely fail under the Modular Container Systems “totality of circumstances” test. ABIL suggests that USCIS consult with the DOL before issuing this guidance so that DOL be receptive to the USCIS’s new policy of encouraging entrepreneurs and liberally interpret Modular Container Systems, which are incorporated in 20 CFR §656.17(l). For example, if an entrepreneur who qualifies for parole and owns a minority state in the enterprise should still be able to obtain labor certification if he or she did not influence the recruitment, even if the entrepreneur may have been a founder or is on its board of directors.

In conclusion, quite independent of the parole rule, the proposed broadening of the National Interest Waiver should also similarly be applicable to entrepreneurs who have used existing nonimmigrant visa categories. This is explained in the Entrepreneur Pathways portal. Indeed, the parole rule and the Entrepreneur Pathways should exist alongside each other. Neither is perfect, especially in the absence of a Congressionally mandated startup visa, but if an entrepreneur cannot qualify under the parole policy, every encouragement must be given for the entrepreneur to qualify for a visa through his or her startup under the existing visa system, such as through an H-1B visa. In order to provide viability to both the parole rule and existing policy supporting entrepreneurs, the National Interest Waiver ought to be broadened. Most importantly, entrepreneurs born in India and China should also be allowed to take advantage of the person of extraordinary ability category under EB-1. The EB-1 is current for these countries. It would be unviable for the beneficiary of an EB-2 National Interest Waiver born in India or China to wait for several years to obtain the green card. It is hoped that this administration and the next does everything in their power to attract foreign entrepreneurs.

Given the centrality of immigrant entrepreneurs to the American economy, it may come as a shock to many when they realize that, on an increasing number, immigrant entrepreneurs are going home. With the economic renaissance in India, China, Korea, Chile, Mexico and other traditional sources of immigration, while entrepreneurs continue to come to America, we are, it seems, no longer the only game in town. Faced with uncertain green card prospects and what appears as an unfriendly and intractable immigration system that questions their value rather than welcoming their talent or appreciating their contributions, immigrant entrepreneurs are having second thoughts. It is impossible to understand or appreciate the current entrepreneurial initiative without this foundation. It is therefore hoped that this administration and the next does everything in their power to attract foreign entrepreneurs to the United States.

 

Cyrus Mehta

Update on Indian Three–Year Degrees and Postgraduate Diplomas

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The greatest bane for green card aspirants with Indian degrees is the uncertainty that they will be recognized as single source degrees. If an Indian degree is recognized as the single source equivalent of a US four-year bachelor’s degree, it can provide the basis for an I-140 immigrant visa petition under the employment-based second preference (EB-2) for permanent residency. If an Indian degree cannot be recognized as a single source four-year degree, the potential green card candidate slides into the employment-based third preference (EB-3). While both the India EB-2 and EB-3 are moving at a snail’s pace, there is still a dramatic difference between the EB-2 and EB-3 for India. One sponsored by an employer in the India EB-2 can hope to get a green card  within 10 years, but one caught in the India EB-3 would need to wait for several decades!

A three-year Indian degree on its own will never make it into EB-2 as it is not considered the equivalent of a four-year US degree. See Matter of Shah, 17 I&N Dec. at 244 (Reg. Comm. 1977). Till recently, even a three-year degree combined with a post-graduate diploma (PGD), even if technically equivalent to a US bachelor’s degree,  was not considered a single source degree. To be classified under the EB-2  pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign four-year single source bachelor’s degree equivalent to a US degree plus five years of post baccalaureate experience. Ron Wada, who is the undisputed guru of degree equivalency issues, reports that in some instances the USCIS has been recognizing that an Indian three year degree followed by a post graduate diploma may qualify as an exception to the “single-source degree rule.” See Wada, The Nth Degree: Issues and Case Studies In Degree Equivalency – 2015 Update, 20 Bender’s Immigration Bulletin 475, May 15, 2015.

Not all combinations of three-year bachelor’s degrees and post graduate diplomas will qualify under this exception and thus be found to be comparable to a US bachelor’s degree. The Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) has to confirm that the PGD should either be issued by an accredited university recognized by the University Grants Commission or should be an institution approved by the All-India Council for Technical Education (AICTE).

In most of the unpublished decision of the Administrative Appeals Office (AAO) involving non-university PGDs found through a computerized  search, such as for example Matter of X (identifying information redacted), 2013 Immigr. Rptr. LEXIS 2177, 2013 WL 5296297 (INS), the following extract is worth noting:

According to EDGE, a three-year Bachelor of Science degree from India is comparable to “two to three years of university study in the United States.” EDGE further discusses postgraduate diplomas, for which the entrance requirement is completion of a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma following a two-year bachelor’s degree represents attainment of a level of education comparable to one year of university study in the United States. EDGE also states that a postgraduate diploma following a three-year bachelor’s degree represents attainment of a level of education comparable to a bachelor’s degree in the United States. However, the “Advice to Author Notes” section states:

Postgraduate Diplomas should be issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE). Some students complete PGDs over two years on a part-time basis. When examining the Postgraduate Diploma, note the entrance requirement and be careful not to confuse the PGD awarded after the Higher Secondary Certificate with the PGD awarded after the three-year bachelor’s degree.

The evidence in the record on appeal did not establish that the beneficiary’s postgraduate diploma was issued by an accredited university or institution approved by AICTE, or that a two- or three-year bachelor’s degree was required for admission into the program of study

This AAO decision demonstrates that not only must the PGD be approved by AICTE, but the entrance requirement for a PGD must also be after the completion of a two or three year bachelor’s degree, and not after the completion of high school.

Not all PGDs will qualify and one must carefully check whether it has been recognized by AICTE. For instance, courses at the ever familiar NIITor Aptech institutes in India are not approved by AICTE. Nor are most of  the programs offered at the Center for Development of Advance Computing (CDAC), unless the CDAC courses are offered in conjunction with universities  and result in degrees.  It is very important to get the PGD assessed by an experienced credential evaluation service, which should check that the PGD has not only been recognized by AICTE but admits students after they have generally completed a three-year degree.

The USCIS has always been niggardly in recognizing Indian degrees, especially three-year degrees, so as to qualify under the EB-2. The recent recognition of some non-university PGDs, obtained after a three year degree, provides some respite to many who would otherwise be caught in the endless India EB-3 backlogs. A  recent Times of India article reveals that India Inc. invested $15 billion in the United States and created 91,000 jobs. Despite this enormous boost to the US economy, Congress has done nothing to reduce the EB-2 and EB-3 backlogs for India, and the USCIS has been slow to recognize that Indian degrees, or combinations, equate to comparable US four-year degrees. The recognition of certain PGDs  following a three-year degree program is therefore welcome, but the USCIS must still go a long way in being more generous in welcoming skilled Indian nationals to the United States.

 (The author thanks Natalie Araujo of the The Trustforte Corporation for sharing some of her insights)

Cyrus Mehta

AFTER THE OCTOBER 2012 VISA BULLETIN, A DECADE LONG WAIT UNDER THE FAMILY FOURTH PREFERENCE IS A PIECE OF CAKE

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I write this blog with some sarcasm. The family fourth preference (F-4), which allows US citizens to sponsor their siblings for a green card, is horrendously backlogged. It takes over 10 years for a brother or sister of a US citizen to obtain a green card. If the sibling was born in the Philippines, the wait could well be over 25 years. So, why is it a piece of cake?
After the State Department released its Visa Bulletin for October 2012,   the F-4 at least for the worldwide category appears to be more advantageous in terms of waiting time than say the employment-based third preference (EB-3) for India, which is applicable to jobs that require bachelor’s degrees or at least two years of training or experience. The EB-3 for India is so backlogged that it could take a US employer 70 years before the Indian worker it sponsors gets a green card.
What was also disappointing with the October 2012 Visa Bulletin was that the employment-based second preference (EB-2), after being unavailable all summer, emerged in October with a cutoff date of September 1, 2004. This means that employers who filed labor certifications on behalf of foreign national workers with advanced degrees on or before September 1, 2004, can apply for their green cards today.  This does not bode too well because in April 2012 the cutoff date for the India EB-2 was May 1, 2010.  It should have emerged in October at the same cut off level, not back at September 1, 2004. Perhaps, the reason for this giant leap back in time is because many in the EB-3 with priority dates going back to 2004 and earlier are upgrading into the EB-2.  Noted immigration attorney Carl Shusterman has quite correctly called the October 2012 Visa Bulletin a disaster.
But jokes aside, the F-4 is actually a good hedge against the broken legal immigration system in the United States. If you have a brother or sister with kids who are 6 or 7 today, file the I-130 petition and then forget about it. Treat it like a long term stock in a new startup that will increase in value in the years to come.  By the time the green card comes through for your sibling, his or her kids would be 17 and 18, old enough to start college in the US as green card holders rather than  on an F-1 student visa. Note that spouses and children can derivatively get their green cards with the principal beneficiary.  If these kids were born in India, think of the benefit this would give them after they graduate from college and get a coveted job in the US – and let’s hope by then that the US economy would have turned around through some breakthrough technology that would result in an abundance of jobs!  Assuming that the EB-3 was as backlogged in 2023 as it is today, because Congress continued to remain in permanent gridlock, those kids would have to wait about 70 years to get their green card under the EB-3. Instead, the F-4 that you filed with a great deal of foresight today would benefit your nephews and nieces by the time they come of age and are ready to pursue their hopes and dreams in the USA.
What if the kids are no longer children by the time your sibling gets the green card under the F-4? What if they have already turned 21 or more as a child is one who is under 21 under the Immigration and Nationality Act? These are all good and relevant concerns. Fortunately, some of these kids may be able to freeze their age under the Child Status Protection Act. If the child is 23 years old at the time the date on the I-130 petition becomes current, then under INA § 203(h)(1) it is possible to subtract from that age the time that the I-130 petition took to get approved from the time it was filed. For example, if the USCIS took two and a half years to approve the I-130 petition from the date it was filed, then you can subtract 2.5 years from the child’s age, and if the age is reduced so that it falls below 21, then the child can still immigrate with the parent. Thus, it is actually to your advantage if the I-130 petition takes a long time to get approved as that much more time can then get subtracted from the age of a child who may have turned over 21 on the date of visa availability. Fortunately, the processing time at the Vermont Service Center for an F-4 today is just short of 2 years. Processing times will be longer if the USCIS issues a request for more evidence before approving the I-130 petition.  So don’t get too anxious if the I-130 under the F-4 does not get approved so quickly. This time will prove to be precious to reduce the age of a child who is over 21 a decade or more from today, when the visa becomes available under the F-4.
If we had a better immigration system, I would not waste time extolling the so called virtues of the F-4. But when so many preference categories have gone out of whack – 70 years for the India EB-3 and the EB-2 seems to also be going the same way– then we must grasp at straws and the F-4 is certainly one until Congress is able to bring sensible reforms to our immigration system.