Employers and HR

I-140 Withdrawal vs NOIR in AC21 Context

A couple of questions I have in extension to the I-140 withdrawal by employer are below. If I have I-1485 pending for more than a year via company A and I join company B using my EAD/AC21: a. what will be the impact if Company-A decides to withdraw/cancel/dissolve the I-140? b. Is there a possibility for a NOIR to occur on the I140 which had been approved in 2011? If yes what is the impact in either cases? What are the measures I need to take in either case?

a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

b. Oh yes.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Office of Special Counsel for Immigration Related Unfair Employment Practices

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.

This federal law prohibits:

Profession/Occupation: 
Agency: 

Guestbook Entry for KL, United States

Name: 
KL
State: 
VA
Nonimmigrant Visas: 
Profession/Occupation: 
Country: 
United States
Comment: 
I have worked with Mr. Khanna and his staff on H-1B and green card applications for a few of my employees over the last 4 years.  Never having done this before previously and with very limited knowledge of the immigration arena, I have found all of the staff members to be extremely helpful!  There is never a time where I can’t ask questions or seek guidance.  Communication is very important and they never dissapear on me.  Rather than it feeling like a client-lawyer relationship, I feel like it is more of a partnership.  They are here to make the process smooth and as painless as possible.  I would recommend their services to anyone who is in need, whether it be an individual or an employer.   

Government Shutdown – Impact on Immigration Matters

1. Our employees are deployed at government sites. Are we still obliged to pay the H-1 wage? 2. Can we ask such employees to use their paid leave?

A1. Yes. In my view, that obligation continues unabated.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Guestbook Entry for Raja R. Iyengar, United States

Name: 
Raja R. Iyengar
Citizenship and Naturalization: 
Nonimmigrant Visas: 
Profession/Occupation: 
Green Card: 
State: 
Virginia
Country: 
United States
Homepage: 
www.ebizlabs.com
Comment: 
Rajiv and his team bring an unprecedented level of expertise in the matters relating to immigration, and I, personally, and my organization have used their services on a number of occasions with a 100% success rate. The principal reason is their mastery of the overall process in general, but more importantly their keen understanding of the subtleties and nuances of unique circumstances that need special treatment/attention. We are gung-ho on them and have no hesitation in recommending them to anyone.

Ability to Pay

1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence? 2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability? 3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status? 4. Why are prorated net assets not sufficient evidence to support ability to pay? 5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Sufficient Evidence of an Employer-Employee Relationship

We are filing an H-1B petition for a three-year period for a potential employee. However, they will be assigned to work at a client site and the contract we have with this client is not for the full three-year period. Will the petition be denied on this basis? We would still want this individual to work for us for the full three years.

If you do not initially provide sufficient evidence of an employer-employee relationship and the availability of sufficient specialty-level work for the duration of the requested validity period, you may be given an opportunity to correct the deficiency through response to a Request for Evidence (RFE).  Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period, as long as all other requirements are met.  However, USCIS will limit a petition’s validity to the time p

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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