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Fraud Allegations in Immigration Law

Recorded on 12th July 2012.

I wanted to talk to you folks today about an issue that has become problematic in the last four or five years - fraud or misrepresentation.  Very often, I see that the government very casually throws in an implication that you have committed a misrepresentation. Actually, they will come out and say that we find misrepresentation.  You will think that this is a normal, ordinary thing, and you might ignore it.  I have seen people get into so much trouble with that fraud or misrepresentation finding.  Let me talk to you about what can happen with that.

First of all, a fraud or misrepresentation finding can lead to criminal prosecution.  You can be prosecuted criminally, if the government so chooses.  I have seen companies being prosecuted for amazingly trivial things. I have seen government start with a 43 count indictment of a company and then walk away with “Failure to report change of address” or something so trivial that it makes you wonder why did the government spends three, four, or five million dollars on  the  prosecution of these kind of cases.  We have provided advice and help to various defense teams all over the country in criminal defense of these kind of cases.  My bottom line approach in these cases is, you’ve got to be extremely careful the moment you see any implication or finding of fraud or misrepresentation.  Speak with counsel or speak with somebody who knows all sides of this picture.  Unfortunately what happens is, if you are only concerned with benefits like an H-1 or an F-1 or an L-1, you probably won’t pay too much attention to ancillary findings other than the fact it has been denied.

Let us talk about what can happen if there is a fraud or misrepresentation finding a little bit more in detail.  The worst thing that can happen is a criminal prosecution. You can go to prison over this, make no mistake, if there is in fact a finding that was not rebutted and then there was a subsequent investigation and more evidence was collected.  I will give you this--criminal prosecution and conviction are not as easy as just throwing out a finding and it is surprising how easily USCIS and other agencies toss around that finding, “Oh, this is misrepresentation.”  The moment I see that word, I know it is a buzzword for us to go all out for this issue and make sure that the government has it on the record what our side of story is.

So, criminal prosecution is not easy but it can happen.  Be careful.  Deportation, removal, exclusion.  What does that mean?  If  you are in USA  on a visa, F-1 , B-1 , H-1 , L-1  any visa, and they find that there is some fraud or misrepresentation in your past or present, the government can initiate deportation, more accurately, removal from USA, and  you can then  be barred from coming back to USA for up to permanently .  And I am saying that again so that you folks understand. Any attempt to procure a visa or immigration benefit, note that “attempt.”  You do not have to have been successful.  Even in an attempt could lead to a permanent bar from entering USA.

 As I recall, there is only one waiver available based upon a family member--immediate family member-- who is a US citizen or permanent resident, but then you have to convince the USCIS that you should be given that waiver and there is extreme and exceptional hardship on your relative.  I recall that is the waiver that is available for these things .Third thing that can happen is denial of sought benefit now or in the future.  So think about this very carefully.  You applied for an H-1. For some reason, they said, “Oh, your degrees are fraudulent,” and I have seen these kind of cases .They thought that the degrees were fraudulent merely because there was no confirmation of certain kinds of things.  For example, you just gave your transcripts.  You did not give your final diploma, and USCIS, after doing some cursory checks, decided that you had not been able to prove your case.  Instead of merely saying that you have not been able to prove your case, they will throw in something very casually saying, “Oh, this is misrepresentation.”

Next thing is, you get stuck when you apply for an H-1 again.  They will pull up the record, and they will say you have a misrepresentation and we cannot give you the benefit.  So, in the future, this can come back and haunt you.  Next thing that can happen is, if there is any misrepresentation finding, let’s say you applied for an H1 transfer and they found fraud they can revoke whatever they have given you.  Now remember that when I say that they find fraud, they do not even, this is very sad, but they will just throw in the finding without considering, and I have seen too many cases like this.  It is awful for the government, and I do not think government. Let me rephrase that. I do not think any government officer individually is IQ challenged, but I think, as an organization, the moment we get into a bureaucracy, we are dealing with very unintelligent bureaucracy.  Without considering the consequences of what they are doing, they will throw in a finding of misrepresentation. So your benefits can be revoked, and as I said earlier, you can get a permanent bar from entering USA.

So the next question is “When does this come up?” Normally, when a fraud or a misrepresentation finding is made, typically, where do they make this finding, they can do it at the consulate during visa application.  I talked with some individuals yesterday, such an easy case and because of a misunderstanding, it’s become a complete problem.  What was the case? Boy and girl meet, they get married. According to South Indian ceremonies, I do not want to say the exact state, but South Indian ceremonies, and the marriage occurs in a temple.  According to the law of the state where the marriage was entered into, until the marriage is registered, it is not valid.  However, when the lady goes for a K-1 interview (K-1 is for fiancées; if you are married you cannot get a K-1), the consul officer grilled her quite thoroughly and decided that she was lying and that she was already married.  Next thing, they put a permanent bar on her.  Now she is under permanent bar. The husband is scrounging around, trying to get some way of getting her back in.  Of course, she will make it back in this particular circumstance, because there is a bunch of factors that go in her favor, but this is a tough case.  And normally, US citizen spouses, actually, unless there is a unique case, I usually tell people do not even hire a lawyer.  Is this is ethically okay?  I think it is. In my judgment, certain cases don’t need a lawyer.  Typically, spouse of a US citizen is such a plain and easy case.  But look at this example and how badly this got messed up.  So now, during a visa application, you’ve got a bar.

What other circumstances?  Remember the Tri Valley University?   A lot of you might remember that.  There were some misrepresentation implications for certain groups of people, not everybody.  They had a lot of problems getting visa stamping again from the consulate.  Second place where it can happen is at the airport.  When you land at the airport, the CBP (Custom and Border Protection) can haul you up there.  I have seen cases where somebody said, “Oh, I am coming in for a visit” and the CBP officer went through the luggage of the individual, and they found letters showing that they were meeting up with some potential employers or they were applying to schools.  Immediately, there is a fraud implication and the next thing is two things can happen.  If they want to be kind, they will let you withdraw your application  for admission and tell you to take the next flight back home without  coming into USA .If they want to throw the book at you, they can ... actually there is a third possibility.  Second is if they levy an exclusion on you, which basically means, we are formally denying you entry into the United States.  Now you are barred for five years from coming back.  But to throw the book at you, they would deny your entry based upon misrepresentation.  Now you have a permanent bar.  So these are not simple matters, ladies and gentlemen.  They can be quite complex.  Please make sure you have competent help if you see any implications or fraud or any chance of fraud in your application.

 Then the next thing is you can have a fraud or misrepresentation come up during benefits application.  In H-1, hiring without a project, the government now considers that to be a fraud.   I do not know how at what point of time hiring somebody without a project became a matter of a fraud.  I still think the jurisprudence-- the law in this area--is very poorly developed and poorly managed.  But who wants to take a chance for the   criminal court? Who wants to go in and spend 800,000 dollars, a million dollars, defending yourself if the government wants to take the stand that this is fraud? So do not hire somebody without a project, employers.  That is now considered to be a fraud.  I have seen indictments that said that specifically.

Inaccurate Job duties.  An H-1 employee is supposed to be a System Administrator, but they are working as a Software Engineer, developing but not doing any administration.  That can be a problem.  Why?  It can be a problem in depressing wages.  System Administrators are typically, though it could be other way around, paid differently that a Software Engineer.  Actually, if you hire somebody at a lower wage and make do to a higher paid job, that is a problem obviously.  I have seen failure to post LCAs at client sites.  If you have employees working at end client sites, I have seen the government try to make a fraud case out of that, because, partly, I think it is justified.  There is something that we have to look at very carefully, because they can say, “Look when you signed the LCA.  You made a representation to the government, ‘ I have posted this application at the end client site.’” That gets quite complicated. So this was H-1.  There are many examples  I could sit here and talk about for hours.  But I just want to give you kind of a flavor of when these things happen and crop up.

Green cards.  I remember a very weird case where, when filing the green card application (the perm application), the employer, who is a fairly good-sized company, signed the application without reading it through.  The 9089 was prepared by lawyers and it was not mentioned that the employee is related to the company president. It was his brother. The next thing is, USCIS denied the I-140, and, on top of that, they said this is misrepresentation, and we are also revoking the labor certification.  When I gave a consultation on the case, I immediately moved in and took certain steps, and I will get to that when I come to the next topic, which is what should you do.  But the point is, government’s contention was that in looking at the ETA 9089 perm application, it says, “I have read this application.”  It specifically says that.  So if you are signing that as an employer or even an employee, you better read and make sure all the material information in there is correct.  I have seen this issue come up a lot during Adjustment of Status.  Where do they come up the most?  Well, mostly lately, it has come up when government says, “Look, you are on H1 and you are authorized to work for an area in California, but you worked in Chicago.”  Here is the employee who is stuck with the fact that they cannot do anything about where the LCA was filed by the employer, but now they have got a fraud implication on their record.  Well, we deal with it, we make matters clear.  We explain the law to the government. But it is still quite hasslesome and bothersome to be in that situation.  Anyhow, go ahead and be careful and watch those whenever you see fraud or misrepresentation come up, just make sure it has been taken care of and properly addressed.

When else during Adjustment of Status?  G-325-A.  When you file the G-325-A, which is the biographical statement, government can take--I have a case actually, in which the employee neglected to mention two or three jobs that they had done illegally.  It was definitely an oversight, no question about that, because he disclosed other things.  And if he were going to try to deceive the government, he would have done a lot more than merely omit those two jobs.  So that became a big problem.  They are trying to bar him permanently.  We have a MTR (Motion to Rehear) pending against that.  During naturalization, there is an interesting case--interesting for me, but sad for the people who are involved.  A gentleman ran a company—again, a relatively good-sized company--and somewhere about six or seven years ago, they had submitted a letter from an end client in support of an H1, which the government considered to be fraudulent.  They said they could not verify the letter, and they made, I do not remember if they made an express finding a fraud.  But they did say that they were not able to verify, so there is doubt as to the veracity of the document.  Doubt as to the veracity.  Okay, that does not alert you.   You do not think, “Well, they are not saying they find fraud, but that is what they are saying.  Okay, six or seven years later, they have a lot of approvals for their H-1  after that green card with no problem.  Employees have been doing fine, and the issue never came up.  This gentleman applies for naturalization.  Guess what?  Barred from naturalization.  The government may go after his green card.  Why?  There is a fraud. So this issue comes up in naturalization.

It can come up in courts.  Sometimes you are there for unrelated proceedings, for example divorce.  Next thing is, there is a misrepresentation element or an element of fraud that you have not considered, and you are stuck.  The worst case that I have seen come up , which was very unfair and sad is, when an employee on H1 fell out of status for a month or so.  Under the law, if you are out of status for even one day, by operation of law, your visa is considered to be cancelled.  So the Visa stamp that you have on your passport is cancelled.  Very few people know this law.  Of course, as they say, ignorance of law is no excuse but when the law is so complex and so difficult to keep track of, who can know when something has been voided or made invalid by operation of law? Nobody can keep track of that.  It is something that happens quietly, perniciously in the background.  So, when this gentleman applied for Adjustment of Status, his 485, government said, “Your last entry into USA was fraudulent  because you used the VISA that was void by operation of law.”  I do not think he is going to have much trouble ultimately, but he is definitely being dragged around for misrepresentation.  See, I do not mean to imply that the government is always unreasonable, but they can be.  Individual officers can be sometimes be very unreasonable and overzealous in what they feel is the right application of the law. 

What should you do?  Look at the left hand side of the screen.  Clarify the record even if you lose the case. You want to make sure your story, your side of the story, is on the record.  I do not care if you lose the case.  So what did we do in that? Remember I talked about the president who signed the 9089 not realizing that he had signed saying that they were not related to each other, the beneficiary and he were brothers.  So what we did was, we immediately filed an appeal, and the appeal got dismissed, but we told our entire story.  We explained what happened.  We went through the entire document trail.  We submitted documents and I think even though the company may not realize it, by doing that, they have now put their own story on the record.  So tomorrow, if this issue ever comes up, whoever at USCIS is reviewing his case, they can see both sides of the picture before they deny any future benefits like naturalization.  Now we have both sides of the stories there. Appeal it, file a motion to reopen, even file a lawsuit.  All of these things you can do.

And what else can you do? If nothing else, send out a letter.  Make it clear what the record was.  I believe that should at least provide you a modicum of good defense .Good luck, folks, and it is good talking with you.  I think I want to do a video next time about these I-140 revocations. I am seeing I-140 revocations coming up after 8-10 years of having been approved.  Highly unfair.  Let me get into that next time.  Good talking with you.

Impact of I-140 Revocation

13 July 2012

9.05 Mins

I have been meaning to share with you a few things about what we are noticing in the last few months, a whole flurry of I-140 denials, intents to revoke.  It appears that USCIS has gone back and revisited even approved I-140’s.  What happens is, in these cases, an employee who has nothing to do with an employer’s wrongdoing, if there is any wrongdoing in fact, gets stuck.

We represented a company—we’ve done this for three or four companies, but one company in particular comes to mind--they bought out another company—I think 100 or so employees--and I was actually involved in the merger and acquisition, and I suggested that they should escrow some money just to make sure that, if something goes wrong with the immigration compliance, we would have attorneys' fees to fight the problem.  And it did work out because, in fact, there was a problem.  What happened was the guy who sold the company had some issues—apparently, he had several companies—and he had some issues that were not brought to light until this company that hired us started filing their cases.  When they started filing I-140’s, USCIS came up with fraud allegations against the guy who sold the company.  What happens in these cases is that the employees could lose the right to AC21 if the revocation is for fraud.  They could lose their priority date if the revocation is for fraud.  And they could lose their right to extend their H-1’s if the revocation is for fraud. So the employee is the one who gets hurt the most.  When we got retained--there were about 20-25 cases--we went in and argued it out with the government and, happily, all cases were approved.  Each set of circumstances is unique.  Sometimes we can get approvals and sometimes we cannot get approvals.  This narrative doesn’t mean we’re always going to get approvals.  I just want to talk to you guys and explain to you that this is happening.  Don’t think that just because you have an I-140 approval, you’re good.

This morning, as I was going over the content on immigration.com, I noticed a comment on our forums.  This person said this:

180 days on EAD will get over next week and I plan to go on AC21.  Sponsoring employer is being inquired into for some fraud.  No one knows exactly what’s going on.  He’s going over to a new company. 

These are his four questions.  I think it’s relevant to the whole community.  That’s why I’m recording this.

Will this fraud affect my I-485 application?  Will I get an RFE?

First of all, no one can predict whether or not you will get an RFE.  Whether the fraud will affect your I-485 depends on whether or not the I-140 is considered to be fraudulent.  The biggest problem in these cases is because the I-140 is the employer’s application.  The employee does not get a notice, so before you know it, you get a Notice of Revocation of I-485 because, without your knowledge as an employee, the I-140 has been revoked.  This is very unfortunate.  It’s a good idea for those of you who are moving or who want better information or handle on your I-140 to stay in touch with your lawyers.  Make sure they know where you are and make sure they send a copy of the I-140 RFE. In Virginia, I am required by law to allow equal access to both the employer and the employee.  So, if there is an RFE, by ethical obligation, I am required to give a copy to the employee as well.  I am not sure if the Bar would frown upon redacting certain portions that might be very specific to the employer’s tax history, etc.  But normally, we need to give you enough information so that you can protect yourself, so that should be the ethical obligation for all lawyers.  Therefore, you should be able to get some information if there is an I-140 revocation notice or intent to revoke issued by USCIS.  The problem is, if the I-140 gets revoked for fraud, everything goes away--your right to carry forward your priority date, your right to get an  H-1 extension,  your right to do an AC21 successfully--all of that goes away.  However, if the employer is willing to appeal, then while the appeal is pending, you can go ahead and keep getting your H-1 extensions.

Does it matter where you are shifting using AC21?

If this is a question related to geographical location, it does not.

Does a full time contracting offer matter?

You should not have a 1099.  You should be on a W2.

Of course, there is a language in the Yates Memorandum of May 2005, which is the only definitive memo on AC21, which talks about doing an AC21 transfer over to a company you yourself own, but there’s a whole slew of issues connected with that.  Actually, I think I have a lot of information on my blogs on this.

Does a big or a small company matter?

In my view, it does not matter.  Not for AC21 purposes.

I want to add that there was a case recently from a federal court—I have the name of the case in my records-- where the court was quite offended by USCIS coming back after several years and revoking an I-140 that had already been approved.  I think there are some really tricky legal problems with USCIS revoking cases that have long been settled.  Be that as it may, all I can do is sensitize you to the issues and concerns. 

Feel free to bring up whatever you have in our next free community conference call.  Information about our free community conference calls is on the immigration.com website.

Good talking with all of you.  Good luck.

AC21 Green Card Portability after 180 days of I-485 Pendency - Part 1

Recorded 27 July 2012

Hello, everyone.  I want to talk today about AC21.  There is a lot of mystery, a lot of mystique.  People have been asking questions for a few years now, and I’m still not done answering all of the questions.  So I thought I’d just record this for you and hopefully I’ll cover most of the issues that I remember.  In case I am missing something, let me know.  Of course, this is just the first part.  I intend to do several parts on this AC21 issue.  If you have any follow up questions, you are welcome to send us an email through the Contact Us form on www.immigration.com

What exactly is AC21?

AC21 is an abbreviation for a law called American Competitiveness in the Twenty-First Century Act.  I think the law was enacted by Congress back in October 2000.  So the law has been in effect for fully 12 years, and USCIS has still not given us regulations.  It’s very important to have regulations.  If you do not have regulations, we have only the bare bones of the law.  In IT industry, you think of it as having just a high-level design.  We do not have any user interface, we do not have any functionality program, we do not have the code, and we do not really know what the law will really look like in implementation.  The last comprehensive interpretation of AC21 was back in May 2005 through something called the Yates Memorandum, given by William R. Yates, which basically answered a lot of questions, but there are still a lot left unanswered.

What is AC21’s effect on H-1?

Basically, this allows you to get H-1 extensions beyond six years; it allows you to change jobs while the H-1 transfer is pending.  I’m not discussing this now.  I want to focus on Green Card.  I will address H-1 later.

AC21 effect on Green Card

Every EB-2, EB-3, and some EB-1 holders can change to a same or similar job as described in their Green Card with any employer anywhere in USA.  You are not geographically restricted.  If your green card was filed in Colorado, you can move to California or Washington, DC.  What is required is the jobs be same or similar.  

Your I-140 has been approved, and your I-485 has been pending for 180 days.  How are the 180 days counted?

180 days are counted based upon the pendency of I-485, not necessarily after the I-140 has been approved.  Let me explain.  Let’s say I file your I-140 and I-485 today.  After 150 days (five months), your I-140 gets approved, and now your I-485 has been pending 150 days.  We only need 30 more days to reach to that 180 day count.  In other words, we don’t have to start counting from the date the I-140 has actually been approved.  We count based upon how many days the I-485 itself was pending.  Once the I-485 is approved, then, by operation of law, we only count what has been remaining of 180 days.  Once again, I file today, both the I-140 and I-485.  After 150 days, I-140 gets approved.  Now I have to wait only 30 more days.

What if I leave before I-140 is approved?

Mr. Yates made it quite clear that, as long as I-140 was approvable when filed, even if you left, it’s not going to affect the merits of your AC21 claim.  Once again, if the I-140 was approvable when filed, even if you left, it’s not going to hurt the merits of your AC21 claim, but there is something to worry about.

Does the employer still have the intent to hire me back and I to rejoin?

In other words, what triggers AC21?  It is not the approval of the I-140.  What if my I-140 and I-485 were not filed together, as happens to a lot of people.  Of course, if they were filed together, then remember the 150 days example I gave.  Even if you left, the I-140 gets approved.  We only have to wait those extra 30 days, and we are comfortable in knowing that we are covered by AC21.  But what if my I-140 has been filed, but not my I-485?  Then I have to do this analysis.  Does the employer have the intention to hire back and I to rejoin them?  If so, when my priority date becomes current, I can file for I-485 based upon the letter given by the employer for whom I used to work.  If you leave before your I-140 is approved and before the I-485 is filed, you’ve got to have a way to file an I-485 through the employer who has sponsored you, who initially filed for you, who petitioned for you.  That means there must be an intention to hire and rejoin.

What if I leave before 180 days are over, but the I-140 is approved?

Now the hypothetical is a little different.  Remember the 150 day example.  What if I leave on the 150th day, my I-140 is approved, but I am still 30 days short of the 180 days that’s needed for the I-485 to be pending?  This hypothetical assumes that both the I-140 and I-485 are concurrently filed.  If they were not concurrently filed, then of course the previous analysis--the intent analysis--if the employer has the intent to hire me back, then I can file an I-485.  Remember, you can always carry the priority date forward.  That’s what we’re talking about.  Once the 1-140 is approved, the priority date can be carried forward.  We’re talking about AC21.  That’s a different law altogether.

If I leave on the 151st day, am I okay? 

You are okay as long as USCIS does not start questioning you on the 151st day.  Mr. Yates said this.  If you have left before 180 days and if you do not have a RFE response due back asking you about your job before the 180 days, you are okay.  If I got an RFE before I left and the RFE response is due before 180 days, then the chances are I cannot use the AC21.  I can only carry forward my priority date.  If you don’t get this, join me in a free community conference call, and I’ll run over your scenario step-by-step.

What if I leave before 180 days are over, but the I-140 is approved, I-485 is pending, and I left during the 151st day?  As long as an RFE response is not due before the 180 days, you are okay.  It’s fairly safe to assume that you are going to be fine in any of these scenarios where you’ve left before the 180 days are over, because, typically, the RFE itself gives you a few weeks to respond and, by that time, if you’ve thought it over, you can respond with a new job offer. 

What if I’ve left, but I don’t have a job for some time?  Let’s say you left on the 150th day.  Your I-485 pending and I-140 approved, or both are pending, what if you do not have a job for some time?  Same analysis applies as long as an RFE response is not due before the 180 days are over.  If it’s due before the 180 days are over, you could have some problem.  But, if it is not due, you should be all right.  If you do not have a job for some time, that’s okay, too.

May I port from a future job?

This is a very interesting analysis.  The Yates Memorandum clearly says yes.  So I am working for employer A  on a  H-1, and employer B  has filed for my green card as a future job or, maybe even if I used to work with employer B, then I left them, and they continued by green card.  It becomes a future job, then I am not working on that job.  You can actually file an I-140 and I-485 for a future job and still do an AC21 to any job.  You actually never even have to join the future job as long as your intentions were clean when you filed the I-485.  So yes, you can port from a future job, and you can even port without ever joining that employer.

May I port to my own company or business?

This is a question I’m asked quite a lot.  The answer is yes.  It is not forbidden.  Why the double negative?  I’ll tell you what I’m worried about.  When somebody ports to his or her own company or business, one of the most important things is, remember I talked about jobs must be same or similar?  This is where the problem occurs.  Let’s say your title was Biochemist or IT Engineer or Software Engineer or Systems Administrator.  When you start your company, you kind of become the CEO or Manager.  That’s not acceptable.  That could cause the problem.  But what if you have a company your wife is managing, and you’re just an employee?  That’s okay.  That can be done.  So when you port to your company or business, make sure you discuss this in detail with your lawyers.  Make sure you understand what you’re allowed to do and what you’re not allowed to do.

The same or similar analysis is very confusing.  We don’t have clear understanding.  The closest you are to the jobs being the same, the better off you are.

What do I mean by the same job?  

What if I was a Java Developer in one job and a .Net Developer in another job?  I think that’s okay.  This is my interpretation, because you’re still a developer.  Nowhere does the law say you must have the same technologies covering both jobs.  In my view, you are okay even with different technologies.  I’ve never had this view supported by the government, so consider this my guess, something I would be comfortable arguing in court if I have to.

What is required to do an AC21, and what does it involve?

There is no law on what you are required to do.  If you do not inform the government, you are not breaking any law.  But in most cases, it is a smart idea to inform the government.  Why?  Because if you are subject to AC21, you ported over, and then the old employer revokes the I-140, for somebody who has successfully ported, that does not have any effect on them.  The old employer can revoke the I-140.  You are still entitled to your AC21 benefits.  However, I have seen cases when an old employer revoked the I-140.  Instead of sending the usual RFE, USCIS sends a Notice of Intent to Revoke the I-485, and if you do not get it in timely manner, sometimes you could have an issue.  Then you have to file a Motion to Reopen.  It becomes messier.  You might not have work authorization, because your I-485 has been revoked.  That’s why, further down, I am going to advise you to keep your H-1 active in most of these cases.  Even though the chances of something going wrong are extremely small, they do exist, and I like to cover every possible bad scenario that I possibly can.  What you have to do is have your lawyers write a letter to the government saying that you are using AC21 and porting over to same or similar job.

May I transfer more than once using AC21?

Yes, you can do 20,000 change of employers.  AC21 does not say you can do it only once.

Should I keep my H-1 active?

I just spoke about that.  I think you should as far as humanly possible.  If, for whatever reason, you cannot, it’s okay.  You’re still reasonably safe as long as you keep track of your ****, but, where possible, keep your H-1 active.  It’s so much better for you.

What are the dangers in using AC21?

One thing that has always bothered me is, if for some reason your I-485 is denied, for example, you are out of status and not even knowing you are out of status and your I-485 gets denied, you lose your AC21.  This is something I’ve seen come up.  An employee was placed in California where the LCA was approved for Colorado.  That’s a violation of the H-1 laws.  Most employers don’t know that.  Unfortunately, some of my colleagues I’ve seen poorly advise that you can just file a new LC.  That’s not true.  H-1 amendments are needed when the move is beyond normal commuting distance.  Inadvertently, you have fallen out of status for more than 180 days.  Now your I-485 is deniable.  You did not know that.  The next thing is you’re getting a denial of I-485, and you are losing your right to AC21.  That’s one major danger that I see all the time.  Other than that, everything is covered if you can keep you H-1 active and, if you cannot, I feel that your risks are minimal.  We have filed hundreds, if not thousands, of AC21 cases.  I have not had a single case run into any kind of problem. 

Sometimes, you can be interviewed.  Does your risk of being interviewed increase because you’ve filed an AC21?

I personally don’t think so.  I don’t see any indication of that.  But, certainly, I’ve heard people say that that’s what happens.  I don’t feel that’s a major danger.  I don’t think that happens that frequently, but keep that in mind as well. 

Folks, I hope I was able to give you some useful information.  I know it’s kind of confusing, but we’ll keep talking about it until things become clearer.

Thank you for listening.  Good luck.

AC21 Green Card Portability after 180 days of I-485 Pendency - Part 2

15th August, 2012.

Good morning, folks.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

This is in continuation of the Community Conference Call in which we specifically wanted to discuss AC21 issues, because there’s a bunch of them that bear recording in a separate treatment because a lot of people face the same kind of issues and there’s a lot of doubt about how to handle them.

I have two members of the community on the phone with us.  It is understood that this call is being recorded and will be made publicly available, and everyone is fine with that.

This is just an informational call.  You are not hiring us.  We are not agreeing to represent you.  Neither party owes the other anything.

FIRST SET OF QUESTIONS

Company A applied for my labor, a I-140 and I-485, and I got my EAD through that company in EB-3 category.  I switched to Company B, invoking AC21, and have been working there the last two years.  Company C applied for future employment. 

First thing I want to make clear for everybody is that, under the Yates Memorandum of May 2005, it is absolutely okay for you to do an AC21 based upon a future company’s job application. 

So let’s modify your example a little bit.  Let’s say you are working for Employer B, and Employer C has started your Green Card as a future employer.  Let’s say Employer C gets your I-140 approved.  

Can you now file I-485 through Employer C even though you are working for Employer B?

The answer is, “Yes,” of course, based upon a genuine desire to join them, Employer C, when the Green Card comes through or sometime before. 

Can you after 180 days without ever joining Employer C, join an Employer D or continue working with Employer B?

Yes.  You can do an AC21 without ever joining the future employer.  There has been some confusion about this issue, but Yates Memorandum does say that very clearly.  This is a memorandum from May 2005.  It very clearly says that it is okay for you to port from a future job without ever joining that employer.  So, as a principle, that’s clearly understood.  Now looking at your situation specifically, Green Card EB-3 started with Employer A, moved over to Employer B, and you’re on AC21 and Green Card is done through Employer C under EB-2 category from an earlier date.  So your EB-3 date is 2006, but your EB-2 through Company C is 2004.  Now to make things kind of interesting, Company C got closed, so that company is no longer in operation.  Now, again, as a matter of general law, what happens is a couple of things are clear.  USCIS has the right to revoke an I-140--any I-140--where the company who’s sponsored that I-140 ceases to do business.

How does that correlate with AC21?  

It correlates as follows:  If an employee has already used AC21 and ported using that AC21 and then USCIS revokes that I-140 for the company having ceased to do business, I don’t think AC21 is going to be affected.  Normally, if you stayed with the same company, Company C, or you did not do a porting of Company C’s I-140 approval and I-485 pendency, you would be out of luck because they can revoke the I-140 as soon as the company stops doing business.  But, in your case, they have not revoked, so the I-140 is still very much alive.  However, what you can’t do is, you can’t file an I-485 based upon Company C’s job offer, because the company no longer exists.  You could say, “Wait!  I already have an I-485 pending.”  You do. 

This is a gray area of the law that nobody can really answer for you.  

In your situation, can you use the future AC21 portability so that you can get EB-2 date of 2004 with any employer?

I am not sure about that, but one thing I am sure about is that you can get the 2004 priority date and take it to any employer.  So what are you doing?  You are doing a mix thing.  This is very sure.  This you can do.  So far as what USCIS has said, this is what it said. 

Even if the I-140 is going to be revoked (It’s not revoked, but even if it were revoked), that 2004 date is yours to keep.  So, you are getting the date from Employer C, but you are getting the AC21 from Employer A. 

So we know very clearly that you are entitled to EB-3 2004.  So, you are entitled to EB-3 2004, no question. 

Are you also entitled to EB-2 2004?

That’s very doubtful.  Why?  Because, even though the 485 that was pending does not have to be refiled when you file an EB-2 based case through Employer C for 485.  However, if the company had still been in existence, and you come to me and say, “Rajiv, I want to get my 485 converted to EB-2 application.  Basically attach it to the I-140 through Company C.”  I would have said, “Let’s get an offer of employment from Employer C and we can send that.”  I would have taken that, and I would have told the government to convert your pending 485 to a petition of EB-2 under Company C.  But the problem is that company is no longer in existence.

Is that a required step?  

Not really.  Sending a letter in from Company C.  Is that a required step for converting your case to EB-2, 2004 AC21?

Not really, but I think it can be said that it is.  So, we are clear you are entitled to EB-3 2004 date because of Company C’s I-140 approval from 2004, but it is unclear whether you are entitled to EB-2 2004.

Can my EB-2 be ported?

What you are saying is, “Can I port my EB-2 job to my current company?”   There is no other way to port.  You can either take the priority date or you can take whole Green Card.  

Can I port the whole Green Card?

You cannot move that or we’re not clear if you can move that, because we don’t have that one step of the job offer being submitted to the USCIS. 

Had the company been in existence, and I could have gotten a genuine job offer from them, and I could have submitted that, then you could have ported that job anywhere or that Green Card anywhere, including to your current employer.

Can you do it anyway? 

I don’t know the answer to that question, because that is a gray area of law.  Nobody can, at least I don’t think anyone can positively say, this is the way it’s going to go.  

Is it worth trying?  

I don’t know the answer.

How far are you from your priority date in 2004 EB-3?  Is that too far away?  

August, 2002.

It might be worth trying an EB-2 AC21, but here’s what you need to be careful of.  When you port a job from one place to another, from one employer to another, what you are telling the government is, this job is same or similar to the job that was the subject of the Green Card proceedings.  When you went from Employer A to Employer B, you told the government that, “Mr. USCIS, the job that Employer B is giving me is same or similar to the job that Employer A gave me under the Green Card.” Same or Similar.

Now, when you do an AC21 portability under the EB-2, you will be making same argument for the EB-2 job.  You will be saying, “Mr. USCIS, Company B is offering me a job that is same or similar to the job described by Company C in their Green Card petition.”  As we have discussed, the two jobs are basically similar.  I want a lawyer to look at it and make sure that they are similar.  That’s the only thing I am concerned about.  I don’t want you to push for EB-2 and then have questions raised about EB-3 also.  I think you are reasonably safe if the jobs are same or similar.  Because for the same job description, one company can have one requirement, another company can have another requirement.  We care only that the jobs are the same or similar.

This itself is a big problem.  I want to make a general comment about this.  Nobody quite knows what same or similar is.

USCIS did a whole shebang of trying to clarify this.  Actually, they have not clarified anything.  They have only made things more confusing.  It appears that, if the salaries are too far different, they can start questioning it.  It appears that if the jobs are totally dissimilar, of course, they are not going to allow AC21.  

But what is similar?  

Nobody knows.  So let your lawyer take a look at it if you don’t want to take a chance on this.  AC21 is a one-shot deal.  If the 485 gets denied, we will have a lot of problems.  The only option at that point would be to get another job and try to reopen the I-485, which becomes very complicated.  So somebody should look at the job, make sure that the AC21 is applicable to the EB-2 job without hurting your EB-3. 

In general, what is the difference between filing I-485 through a future employer and just doing portability for a future employer?

Let me explain what the difference is.  Normally, in order for you to do portability, you have to file a 485, the 485 must have been pending for 180 days, and the I-140 must have been approved.

What are we clear about?  

We are clear about the timing of the 485 in general.  We know, if an I-140 is filed in January, and an I-485 is also filed in January at the same time, concurrently, the I-140 gets approved in July, which is more than 180 days later.

Can you port now? 

The answer is yes, because the moment the I-140 is approved, we look back and see, has the 485 has been pending for 180 days?

If the I-140 gets denied, then you can’t port.  We know that once an I-140 has been pending 180 days, whether or not it was after the I-140 approval, we don’t care.

Now let’s take your case specifically.  What is the difference between I-485 filing and AC21 filing?

In normal cases, in order to take advantage of AC21, you have to file the 485, have the 485 pending 180 days, and have the I-140 approval.

Does it have to be an I-485 with the same employer from whom the I-140 got approved?

That’s where the problem is.  I don’t think it does.  You have a 485 pending, and you have an I-140 approved through Employer C.  Do they have to be in the same package? I don’t think they do.  But the grayness in the situation comes because we don’t have an offer letter that connects anything to anyone.  But, even though the I-140 was approved, the company went out of business.  

Now, can we do really do an AC21? 

I don’t know.  It’s a gray area.  I would push for it.  I would try it, and maybe I could make USCIS see how technically this is okay, but I don’t know for sure if it’s coming.

_______________________________________________________________________________________________

Second Set of Questions

My I-140 was approved through my current employer, I am completing my six years in September on H-1B, and they filed for my three-year extension.  If I am laid off on H-1B, is there any grace period to find my next job?

There is no grace period.  I have a lengthy article on my blog on this issue:

http://forums.immigration.com/entry.php?57-Laid-off-Now-what-Updated-26-...

If I find a new job, my new employer does the H-1B, and I can get the three-year extension based on the I-140 approval.  Does the new job have to be similar in role that I have right now?

That’s a very interesting question, but answer is, luckily for you, “No.”

There are several benefits flowing from I-140 approval:

1)    You get to carry your priority date forward.  When you carry your priority date forward, does it have to be same in a same or similar profession or job as described in the Green Card?  No, it does not.  To carry the priority date forward, it can be a totally different job and it can be carried across categories, EB-1, EB-2, EB-3.  It doesn’t matter.

2)    The second benefit is AC21, If 485 has been pending.  Then you have to have same or similar job.

3)    The third benefit is H-1 extension.  For H-1 extension, an approved I-140 must exist and continue to exist when you get the H-1 approval.  Approval of the H-1 does not have to be in the same or similar job for which the I-140 was approved.  It can be totally different.  It can be different job location, different region, different employer, different job.  The benefit of the H-1 extension beyond six years does not require that your job must be same or similar.  Only AC21 job requires same or similar.

If I have to go on H-4 for some time, then I find a job, the same I-140, and my company doesn’t revoke the I-140, can I use that I-140 approval to get a three year extension on the new employer, if I find them later on?

Theoretically, the answer is yes, but practically, this is what I would worry about. 

I don’t mean to scare you.  It’s a good idea to think of everything that can go wrong and kind of be ready.

There are cases on the books—I’ve seen them, I’ve read them--that say for an I-140 to continue to be valid, the job must not have been extinguished.  So, what if you file the H-1 and USCIS says, “Aha.  You are on H-4.  That must really mean that the job is extinguished, the I-140 job.  So, we are going to revoke the I-140”? 

It is very unlikely that they will do that, extremely unlikely, but it can be said that it’s possible.  It may not be probable, but it’s possible.  My argument would be, “As long as the I-140 was surviving on the date I filed the H-1, you have to give me my H-1.”  So, in short, I think you can, but be aware that it could be an issue.

If I find a new employer and I get a three-year extension based on current I-140 approval, does my new employer have to start my Green Card process immediately or, since I have three years with him, he can wait to file after one year?

They should start as early as possible.  But, normally, once USCIS has given the H-1, they will not take it back, even if the I-140 is revoked normally.  So, I feel that it would be reasonably safe to wait a year.

The priority date can be carried over without any problems?

Absolutely.  That USCIS has made clear.  Even if they revoke I-140, they let you carry the priority date forward.

Good luck, guys.  Thanks for being here.

EB3 to EB2 conversion

EB3 to EB2 porting

EB3 to EB2

 Good afternoon, everyone.  This is US Immigration Attorney, Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

 This is a community information call.  It is not intended to create an attorney/client relationship.  Whatever we say here remains merely an informational conversation.

 This is a follow-up to the August 30 Community Conference Call.

 We are talking about issues related to converting from EB3 to EB2.

 What is this idea of EB-3 to EB-2 conversion?

 Most of you know that EB-3 for countries like India and China are very backed up and EB-2’s are better.  Actually, for the rest of the world also, EB-2 is much better.  So sometimes even though you have obtained a Labor Certification (PERM certification) and then you obtained an I-140 approval or you are on the path to that, you feel, “Oh, maybe I should have filed an EB-2, or maybe circumstances have changed and now I can file under EB-2.”  So, in those cases, when we get the priority date from an EB-3 case and put it on top of an EB-2 case, thereby essentially converting an EB-3 case to an EB-2 case, we refer to that loosely as a conversion.  Really, it is not a conversion.  It is a new case filed under EB-2, and essentially the priority date is being transferred.

One relevant question here.  Can priority dates be transferred if an employer revokes my old I-140? 

 The answer is “Yes.”  USCIS has said that they will allow transfers (carryovers) of priority dates even if the old I-140 is revoked, as long as the revocation is not for fraud.

So, when you do this analysis of EB-3 to EB-2 conversion, the first question you want to ask yourself is “Am I currently qualified for EB-2?”  

Why is this question important?  Remember a Green Card is for a job in the future, which means today I am working as a programmer; tomorrow’s job could be a project manager, and even though I continue to work as a programmer for the next three years or until I get my Green Card, it is not a problem.  The future job of project manager can be given to me once the Green Card is approved.  Or before.  That is up to the employer, but it is not required.  So the idea is a Green Card is for a future job.  However, you must be qualified for it on the date you filed the PERM application. 

So let’s say you have three years of experience after Bachelor’s Degree, and you know that the Green Card will take three or four more years, can you file under EB-2 today?  

No, because you are not qualified.  You may be qualified in two years or three years, but that does not mean you can file an EB-2 right now.

So are you currently qualified for EB-2?

One of the recommendations I have is for people who are not qualified and don’t have the five-year experience or have a three-year Bachelor’s Degree, you may consider doing a Master’s Degree online.  I have a video on this.  It’s on my blog.  It tells you how to choose an appropriate on-line Master’s Degree program that is accredited and that will help you get into EB-2.

Here is a link to the video and a transcript:

Accreditation of distance education for EB-2

The next question you want to ask yourself is Do I want to process my EB-2 case with the same employer who petitioned the EB-3 or some other employer?

It is a little bit easier to do it with another employer, but given the choice between going with a totally new employer and going with an employer who is totally, solidly behind me, who is going to pay the attorney’s fees.  This is a considerable expense.  If they’re on my side and they want to cooperate fully with the law, then of course I would stay with the same employer.

The next question you have to ask yourself is Do you need a promotion--present or future?

What does that mean?  What if you have three years of experience before you joined this employer, you want to process your Green Card through this employer, and you’ve got two years with this employer now?  Now you’ve got five years but two years are with the same employer through whom you are going to file your EB-2 who also did your EB-3 earlier.  In order to use that experience, you must be offered a job which is more than fifty percent different than what you were doing before.  Let’s say the old job was all coding and the new job is mostly providing project management, so that’s a promotion and then the experience that you have gained with this employer can be applied towards your EB-2.

I hope I’m making myself clear.  Most of you already know the concepts, but still I want to put it out there so that you are sensitized to the issues.  You can ask your lawyers the right kind of questions and make sure your case is being properly approached.  These concepts are difficult.  They can be complicated.  Even we can make mistakes.  Lawyers are not perfect, as all of you know.  Be educated and take your lawyers’ help in making these decisions.

It is very important to have a bona fide job.  

What does that mean?  If you have a three-employee company and the employer says, “I will you a promotion.”  That’s a little difficult to establish and believe.  It can be true but, if you are a 300-employee company or a 3,000-employee company, probably a better case for a promotion, but of course it all depends upon the facts of the case.  I’m just giving you an example.  This does not mean smaller companies cannot process promotion cases.

How do I eliminate the risk of problems of EB-3?

What does that mean?  I already have my EB-3 approval.  I don’t want to do anything that’s going to mess that up.

What you can do is, you can make sure, taking the example of the programmer under EB-3 who wants to go for project manager under EB-2.  If your EB-3 was for a programmer, make sure you continue working as a programmer until the I-140 for the new case is approved.  So don’t change jobs, because, if you take a promotion to project manager, then the Government could question, "This guy has already taken a promotion, then why would he come back to the lower job which is the Green Card job?” Do not take a promotion until the I-140 for the new case is approved.  That would be important.

What if I used AC-21?

This is a very tricky situation. You are one of the lucky ones who’s got your I- 485 pending and I-140 is approved under EB-3.  You changed from IBM to Sun Microsystems.  You changed employers.  Your job was programmer.  Now, for AC-21, the job that Sun gives you has to be the same or similar to the job IBM gave you.  So it’s got to be a programmer or thereabouts.  Now the problem here is this.  In order for Sun Microsystems to process your case under EB-2, they have to assess whether they have to promote you so that an EB-2-level job can be given to you or can they use the same job.  This can be tricky.

So for AC-21, the key question is can the same job which was the subject of AC-21 be used to file an EB-2 case?  

Tricky question.  Depends upon the facts of the case.

Now, to the posted set of Questions from the Community Conference call of August 30th.

First Set of Questions

Question:  I have an I-485 pending on EB-3.  I have been with my company for 12 years.  They are planning to apply for EB-2.  Same company.  I have a Bachelor’s four-year engineering degree from India.  Can I qualify for EB-2?

 Answer:  Yes if the job that is being offered to you is sufficiently dissimilar from the EB-3 job.

Question:  Is there any audit risk?

 Answer:  No.  Filing for a conversion (again, I am using the term “conversion” loosely) does not create any additional audit risks.

Question:  If we apply in EB-2, will my EB-3 application processing stop?

 Answer:  No, it does not stop.

Question:  What happens to the EB-3?

 Answer:  It goes on.  Don’t take up a promotion.  I just mentioned that.

Question:  My wife is working on EAD.  Will her EAD be affected?

Answer:  No, not at all.  No problem at all.

Question:  If I get EB-2 I- 140 approved, can I use EB-3 priority date?

Answer:  Yes.

Question:  At that time, will I get another EAD from EB-2 processing?

Answer:  No.  What you do is, you take the EB-2 I-140 approval and put it on top of the existing I-485.  So your old I-140 gets knocked out and the new one now sits on top of your I-485.  So I-485 does not need to be re-filed.

Second set of questions

Question:  He is preparing for his I-140 for EB-2.  Can this be done premium processing?

Answer:  Sure.

Question:  Do we have to specify the pending EB-3 case information?

Answer:  You will have to, because if there is an I-140 approved or pending under the old case, you have to mention that.  There is a question I think on the form.

Question:  Should we do it during the I-140 filing?

Answer:  Yes.  On the form itself, there is a question.  If there is only a Labor Certification pending, there is nothing to say.  If the I-140 is either pending or approved from the old case, you have to say it in the new I-140.

Question:  When I started filing for my EB-2 case, my attorney mentioned not to file AC-21. 

Answer:  I think that’s a personal choice.  I like to file AC-21’s and then I like to assess whether I would need a promotion case or I can go ahead with the same AC-21 job for EB-2.  I would like your lawyer to decide that as I do not know the case.