SSA Nice study ! Dubious conclusions !

By |2011-10-10T21:50:38+00:00October 10th, 2011|Categories: Visas - H-1b, L-1, E, O, TN|Tags: , , , , |

As reported a few weeks ago in Federal Computer Week, the Social Security Administration (SSA) released a study that drew the conclusion that a significant percentage of H-1b holders did not fulfill the purpose of the H-1b. The SSA specifically pointed to persons who received wages from an employer, other than the H-1b sponsor and another group of H-1b workers who received no wages at all. The findings are interesting however, the conclusions are at best dubious without more information. Of those H-1b holders who did not earn wages, how many remained in the U.S. ? During the period of time studied, the U.S. economy was in the middle of a fairly large recession and many H-1b workers returned overseas to work for the overseas offices of their international employers. Many others were simply laid off and returned home with the hope that when the economy improved, they could return to the US on their valid H-1b visas and resume employment. In addition, it is a common practice among larger employers to file for H-1b workers that may be needed on a US based project on a sporadic basis but, due to factors such as the H-1b quota, a draconian interpretation of the L-1 visa, and the complete bastardization of the B visa, the H-1b is the only vehicle available to insure that a key employee can be brought to the U.S. when needed. Were any of these factors considered by the SSA ? As for H-1b workers who received wages from an employer not approved by the USCIS, I can think of  numerous scenarios under which an H-1b holder may work for an employer not approved by the USCIS. How about persons who are using the portability rules and transfer to a new employer while the I-129 petition is pending ? Or a person who changes employers while using an EAD after their [...]

Pending I-140s and AC21 Portability

By |2011-05-04T17:48:16+00:00May 4th, 2011|Categories: Green Cards|Tags: , |

The U.S. District Court for the District of Columbia recently issued an opinion which states USCIS is within its rights (not a violation of the Administrative Procedures Act) to deny applications for adjustment of status based on a pending I-140 Petition, even after the I-485 petitions have been pending for at least 180 days and portability has been requested.  Most of us are familiar with AC21 portability which gives aliens the ability to move or "port" their entire green card case to another employer, provided they have an I-485 that has been pending for at least 180 days and they are moving to a position that is the "same or similar" to the position listed on their approved labor certification.  In Ravulapalli v. Napolitano, the Plaintiffs ported their permanent residence cases to a new employer while the I-140 and the I-485s were pending.  The I-140 employer withdrew the I-140 Petition and based on the withdrawal, USCIS denied the I-485 applications even after portability.   The Court determined that when portability is requested prior to I-140 approval, USCIS is within their right to review the I-140 for whether it was approvable at the time of filing.  If it was not approvable at the time of filing, the I-140 and I-485s can both be denied, even after portability to a "same or similar" position. It is our continued recommendation that clients do not attempt portability based on a pending I-140 Petition.   We recommend using AC21 portability only when an I-140 has been approved and I-485 applications have been pending for at least 180 days.   Please contact the Hammond Law Group if you have any questions about porting your pending case to a new employer.

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