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EB23版 - 非常有趣的对PERM的注解
相关主题
rrdw 这个算有 排队日期了么?现在开始启动绿卡,一般什么时候的PD?
【2010年案例】:移民法水太深,外行真不懂第二次PP又悲剧了,怎么办?
谈谈 EB2【免 PERM】降级 EB3 的几个法律难点PERM 需要的文件
485 pending期间换公司重办perm关于赔偿公司绿卡费用的问题,请版主置顶
绿卡面试时怎么解释EB2到EB3的downgrade问题我读了读今天的J表和140EAD的Rule
PERM 有premium吗PERM被Audit了吗?
如果USCIS总是找不到Perm原件怎么办?律师很实在的反对EB2降级的几个原因,求教~
哎 悲催 Perm快批了被雷了还有2007年9月的PERM没有批下来的吗?
相关话题的讨论汇总
话题: eb话题: labor话题: uscis话题: eb2
进入EB23版参与讨论
1 (共1页)
n***m
发帖数: 1627
1
〉〉深入解读,重发EB3 I140可能造成原来的EB2 I140被吊销。
http://imminfo.com/Library/green_cards/EB/eb2-or-eb3.html
EB2 or EB3 PERM?
Many people mistakenly believe that a PERM application is the final word as
to whether someone will receive EB2 or EB3 preference classification. This
is incorrect. Strictly speaking, there no such thing as an "EB2 PERM" or an
"EB3 PERM." That decision is made entirely by the USCIS. Their position is
that they have the right to disregard entirely the PERM requirements
approved by the Department of Labor if in their opinion those requirement
are excessive.
Let's take an extreme example. Suppose an employer manages to convince the
Department of Labor that a parking lot attendant needs an advanced degree in
mechanical engineering and the DOL approves a PERM with that requirement.
There is simply no way that the USCIS will approve the I-140 for EB2
classification.
It doesn't matter that the employer required and advanced degree, or that
the DOL approved the PERM with that requirement, unless the job is one that
customarily requires an advanced degree, or the employer can show that they
have always hired people with advanced degrees due to the complexity of the
job, the USCIS is not going to approve it for EB2 classification.
It is more accurate to describe PERMs as those that will support an EB2
petition or an EB3 petition. At a minimum, a PERM that will support an EB2
petition is one that has as its primary educational requirement an advanced
degree. Recently, the USCIS has been denying PERMs that have a bachelor's
degree and five years of experience as the primary requirement, with a
master's degree and three years of experience as the alternative. The USCIS
adjudicators have taken the position that if the primary requirement is not
an advanced degree, then the job offer cannot qualify for EB2 consideration.
n***m
发帖数: 1627
2
http://www.s1dd.com/2009/04/downgrade-to-eb3-from-eb2-aka-how-i
EB2降级EB3的实例,不同的工作位置,大家自己解读。
n***m
发帖数: 1627
3
>>一个老贴,“Traditionally, the USCIS has been allowing the employer to
file EB-2 and EB-3 petitions using the same EB-2 labor certification
approval. ”看来我需要重新认识是不是fraud的问题,至少在2006年的时候不是fraud。
Scenario 1:
If your attorney made the error on the 140 he sumitted, then you will have
to submit another 140 with the same labor.
There was an article on Oh law firm that USCIS has stopped doing that since
last month. So that will mean that when you send in your new 140, they will
ask the employer whether you want EB2 or EB 3. Then the employer will say EB
2. Then they will revoke the currently approved one and adjudicate on the
new one. I went through this.
http://www.immigration-law.com/Canada.html
"05/09/2006: Traditional Practice of Filing Two I-140 Petitions Based on
Same Labor Certification Under Review by USCIS HQ
Traditionally, the USCIS has been allowing the employer to file EB-2 and EB-
3 petitions using the same EB-2 labor certification approval. However, the
NSC indicates that this policy is currently reviewed by the USCIS HQ and may
be revisited with the potential consequences of termination of its
traditional practice and policy. It is another bad news.
Pending the policy changes, NSC will request the employer to chose one I-140
petition out of the two I-140 petitions and the second I-140 petition will
be held in abeyance until the HQ policy is fixed. Bad news after bad news.
Filing two I-140 petitions by the same employer using the two different
labor certification applications: No problem. NSC will adjudicate both.
"
n***m
发帖数: 1627
4
〉〉USCIS关于吊销LC的条例
(11) Invalidation or Revocation of a Labor Certification . [Revised 09-14-
2009]
(A) Labor Certification Invalidation .
DOL regulations at 20 CFR 656.30(d) state:
After issuance labor certifications are subject to invalidation by USCIS or
by a Consul of the Department of State upon a determination, made in
accordance with those agencies’ procedures or by a Court, of fraud or
willful misrepresentation of a material fact involving the labor
certification application. If evidence of such fraud or willful
misrepresentation becomes known to the CO or to the Chief, Office of Foreign
Labor Certification (OFLC), the CO or the Chief of the Office of Foreign
Labor Certificati on, as appropriate, shall notify in writing the DHS or
State Department, as appropriate. A copy of th e notification shall be sent
to the regional or national office, as appropriate, of the Department of
Labor’s Office of Inspector General.
DOL does not invalidate labor certifications. However, USCIS or DOS may
invalidate a labor certification if fraud or willful misrepresentation is
discovered. The term “fraud or willful misrepresentation” has the same
meaning here as it does in section 212(a)(6)(C) of the Act. If an
adjudicator invalidates the labor certification under this provision, the
adjudicator should then deny the corresponding I-140 petition due to the
lack of a valid labor certification.
(B) Revocation of a Labor Certification.
The DOL regulation at 20 CFR 656.32 provides for the revocation of approved
labor certifications by DOL if a subsequent finding is made that the
certification was not justified. In such instances, DOL provides notice to
the employer in the form of a Notice of Intent to Revoke an approved labor
certification that contains a detailed statement of the grounds for the
revocation and the time period allowed for the employer’s rebuttal.
The employer may submit evidence in rebuttal within 30 days of receipt of
the notice. If rebuttal evidence is not filed by the employer, the Notice of
Intent to Revoke becomes the final decision of the DOL Secretary.
If the employer files rebuttal evidence and DOL determines the certification
should nonetheless be revoked, the employer may file an appeal under 20 CFR
656.26 within 30 days of the date of the adverse determination. If the
labor certification is revoked, DOL will also send a copy of the
notification to USCIS and the Department of State.
Adjudicators must bear in mind that the labor certifications remain valid
until they are actually revoked, or are invalidated, as discussed above.
Adjudicators should provide notice to the petitioner in the form of an
Intent to Deny or Intent to Revoke if there is documentation in the Form I-
140 petition that the underlying labor certification has been revoked in
order to provide the petitioner with an opportunity to supplement the
petition with a valid labor certification. If the rebuttal evidence provided
in response to the Intent notice does not include a valid labor
certification, then the I-140 petition must be denied or revoked.
n***m
发帖数: 1627
5
Q23(08-20-06): I am an Indian database administrator. My employer filed on
March 1, 2001 labor certification application requiring a Master's degree in
Computer Science with three years of experience or alternatively a Bachelor
's degree in Computer Science with five years of work experience. This is a
typical EB-2 labor certification application. I am qualified through the BE+
5 years of progressive experience. I have just received the certification
from Dallas Backlog Elimination Center. My employer quickly filed EB-2
petition which is pending. In September EB-2 visa number will not be
available for Indians. However, EB-3 number will be available. In order to
take advantage of the favorable EB-3 number for me, I would like to file
concurrent EB-3 I-140 and I-485 application, using the same certified labor
certification application. I wonder whether I can file PPS I-140 petition? A
does not remove from you an opportunity to seek an EB-3 petition as the job
required, as an alternative, a bachelor's degree plus five years of work
experience. However, you have two problems in filing PPS. The first problem
is that you do not have the original certified labor certification
application since you have already submitted it along with the EB-2 I-140
petition. The second problem is the USCIS PPS processing policy that if one
I-140 petition is pending, the alien will not be allowed to file another I-
140 petition with PPS request. In other words, they will not entertain the
second I-140 petition for premium processing. In fact, you have one
additional problem. It is the change of the Service Center's policy. The
USCIS used to permit filing of EB-2 and EB-3 petitions for the same employee
based on a single certified EB-2 labor certification application. However,
lately NSC and TSC apepar to have changed such policy and deny the second
petition which was filed with a "copy" of the certified labor certification
application on the ground that the original was not available and the
original is being used for another petition. This change of policy is indeed
troublesome, but people cannot ignore the reality. It thus appears that
your EB-3 petition filing may not work for a number of reasons which are
describerd above. It is likely that the USCIS may not allow PPS unless you
withdraw the pending EB-2 petition. I don't know whether that will be a good
idea or a good move as the EB-2 visa retrogression can change.
n***m
发帖数: 1627
6
I am a Chinese software engineer who filed EB-2 labor certification
application. This application has just been approved. Currently, the cutoff
dates for EB-2 and EB-3 are same, May 1, 2000. I am a little bit worried
that since so many Chinese are going after EB-2, EB-2 cut-off date can be
worse than EB-3 for China. Is there any way I can protect myself?
Analysis: Indeed, one time EB-2 was worse than EB-3 for China not too long
ago in the U.S. immigration history. At the time, there was no I-140/I-485
concurrent filing available and the Chinese filed two petitions based on
single EB-2 certified labor certification application. If the certified
labor certification requires EB-2 qualification background, you can file
both EB-2 I-140 petition and EB-3 I-140 petition. Under the USCIS policy, if
you have two approved I-140 petitions and your concurrently filed I-485 is
pending, you can switch around by asking the USCIS to replace the underlying
I-140 petition which was filed with I-485 by another approved I-140
petition which is more favorable in the visa number availability. Since you
have a certified EB-2 labor certification application, it will only cost you
$190 more to file EB-3 petition as a backup against the development of
heavier visa number retrogression for EB-2. If you have not filed any
petition yet, you can submit both EB-2 and EB-3 petitions simultaneously. If
you have already filed or obtained approval of EB-2 I-140 petition, you can
still file EB-3 petition using the same labor certification application. If
both EB-2 I-140 and I-485 are pending, you can still file EB-3 using the
same labor certification application. In this case, the approved EB-3 I-140
petition will remain a stand-alone petition which is not related to the
pending I-485 application. Sometimes, people attempt to file multiple I-485
applications, one each application for one I-140 petition. Legally, the
multiple I-485 applications can be sustainable. But it may constitute a
waste of money and energy when the underlying I-140 petition can be
substituted for pending I-485 application. It may be a better idea just to
file one more I-140 petition, this time for EB-3. You may want to discuss
with your lawyer whether it would be a good idea to make a standard practice
, during the heavy visa number retrogression, to file both EB-2 and EB-3
petitions simultaneously once you receive the EB-2 labor certification
approval in the future.
c********a
发帖数: 2829
7
Thank you for this post. very helpful. It's better if you would provide the
source.

cutoff

【在 n***m 的大作中提到】
: I am a Chinese software engineer who filed EB-2 labor certification
: application. This application has just been approved. Currently, the cutoff
: dates for EB-2 and EB-3 are same, May 1, 2000. I am a little bit worried
: that since so many Chinese are going after EB-2, EB-2 cut-off date can be
: worse than EB-3 for China. Is there any way I can protect myself?
: Analysis: Indeed, one time EB-2 was worse than EB-3 for China not too long
: ago in the U.S. immigration history. At the time, there was no I-140/I-485
: concurrent filing available and the Chinese filed two petitions based on
: single EB-2 certified labor certification application. If the certified
: labor certification requires EB-2 qualification background, you can file

t******8
发帖数: 1529
8
找个野鸡帖子继续吓唬人
n***m
发帖数: 1627
9
have you read all of them, otherwise stfu.

【在 t******8 的大作中提到】
: 找个野鸡帖子继续吓唬人
t*******e
发帖数: 1511
10
吊销绿卡咱也不怕。 嘻嘻嘻

【在 n***m 的大作中提到】
: have you read all of them, otherwise stfu.
相关主题
PERM 有premium吗现在开始启动绿卡,一般什么时候的PD?
如果USCIS总是找不到Perm原件怎么办?第二次PP又悲剧了,怎么办?
哎 悲催 Perm快批了被雷了PERM 需要的文件
进入EB23版参与讨论
n***m
发帖数: 1627
11
Oh Law 的老帖子,可以看到是2000年和2001年的时事情,但至少证明了同一个EB2资质
的PERM可以同时发EB2和EB3的I140。2006年时NSCIS有过讨论是否拒绝这类的并发,没
人发表讨论结果。所以用同一个符合EB2的PERM同时发EB2和EB3的I140可能仍然是合法
的。
我认为这中间的逻辑有悖于PERM的根本意义,但是如果USCIS认同,那就合法。

the

【在 c********a 的大作中提到】
: Thank you for this post. very helpful. It's better if you would provide the
: source.
:
: cutoff

t******8
发帖数: 1529
12
编外阿三的咖喱汤
n**1
发帖数: 318
13
我个人也认为从intention的角度来说,EB2的PERM不应该在EB3内用,不过我更相信
AILA的建议。何况美国又不是一个100%的法制国家,不然怎么解释一千多万的非法移民?
O*******f
发帖数: 926
14
在哪里的生活都不容易。
放假了,有时间了,反而比工作的时候更烦恼。
O*******f
发帖数: 926
15
忘了说了。楼主不辞劳苦给大家发资料,谢谢了。
对于这些资料/文件,版友们有不同看法,就是另外一回事了。
x*******i
发帖数: 79
16
谢谢楼主!资料里的观点我也基本同意。
这种事情条款上肯定不允许,但是你可以钻法律上的空子,移民官手一抬也就过了。
如果事态扩大严重了,移民官再把条款搬出来,就风险自付了。
1 (共1页)
进入EB23版参与讨论
相关主题
还有2007年9月的PERM没有批下来的吗?绿卡面试时怎么解释EB2到EB3的downgrade问题
PERM被审查的id们所关心的处理速度PERM 有premium吗
485找外面的律师办,但是没有EVL,可行吗?如果USCIS总是找不到Perm原件怎么办?
急,求助,perm中途换律师,现在perm批了,ETA Form 9089寄到原律师那里了。哎 悲催 Perm快批了被雷了
rrdw 这个算有 排队日期了么?现在开始启动绿卡,一般什么时候的PD?
【2010年案例】:移民法水太深,外行真不懂第二次PP又悲剧了,怎么办?
谈谈 EB2【免 PERM】降级 EB3 的几个法律难点PERM 需要的文件
485 pending期间换公司重办perm关于赔偿公司绿卡费用的问题,请版主置顶
相关话题的讨论汇总
话题: eb话题: labor话题: uscis话题: eb2