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I stayed in US for full 5 years on L1-B visa and left US on 6-Jan-07
This year I applied for H1-B and my application got selected in lottery
Need your help in clearing my below doubts..

1) I need to maintain 1 year gap between the day I left US ( 6-Jan-07 ) and the day I'm going to enter US so that I can stay in US for another 6 years on H1-B. Is my understanding correct?

You will get 6 years as you were never on H1b before. See below I copied this from Immigration-law.com.
Devices to Delay the Reach of H-1B Six-year Limit: Assuming one has to rely on 106(a) route because the pending labor certification has yet to be certified, one can consider one of the following devices:
Overseas Trip and Recapture of H-1B Time: Currently, any period of time spent outside of the U.S. can be recaptured. This will allow stretch-out or delay of reaching the six-year limit and making him/her qualified for 7th-year H-1B extension.
Change of status back and forth between H-1B and H-4 if both spouses are H-1B professionals: The Aytes memorandum decoupled H-4 from H-1B and any period in H-4 status will not count for H-1B six-year limit. Again this will delay reach of the H-1B six-year limit. Since they have already taken out H-1B cap number, they will not be subject to the H-1B annual cap and will be able to change back to H-1B anytime, even during the period of running out of annual H-1B cap numbers.
Change of status back and forth between H-1B and other nonimmigrant status: Aytes memorandum made it clear that one does not have to maintain H-1B status to apply for 106(a) or 104(c) H-1B extension beyond six years. Again this will delay the reach of H-1B six-year limit and making them eligible for 106(a) or 104(c) extension.

I would say talk to an attorney. You can talk to Murthy on Murthy.com chat.
Find more details about Aytes memorandum
2) Is it OK to go for VISA staming before 6-Jan-08?
You can get it stamped.

3) Do I need to consider any other facts than 1 year gap so that I can stay in US for another 6 years?
Looks like nothing needed. u can come in asap.

It is a given that Demand is not stagnant . If it were , backlog would have been reduced by 140K this year alone.


Each year the new quota is 140K , as long as the new demand each year ~100K - the remaining 40K goes towards backlog elimination . We will know in the next inventory report what is "net" reduction for 2010. One can do rough math of latest inventory report and the current priority dates to arrive at ~approximate figure of 35-40K.

I think EB3 should get cleared in next 5 years - I think flood of new EB2 applications are overblown.

I think "peak demand" was between 2003 and 2007 . Good news is USCIS is no more wasting numbers .

Given that change to laws is almost impossible. We should sit tight and wait for 3-5 years.

What are the hopes for EB3-I?
ZERO


Till we spend our time in predictions and tracking, till the time we stop jumping the gun in calling for lawsuits, till the time we stop interpreting the INA to find a smoking gun, till the time we stop calling names for USCIS and DOS, till the time we stop blaming 245(i), till the time we stop engaging in eb2 v/s eb3 fight, till the time we stop fighting with each other over irrelevant things, till the time we stop creating these stupid polls, till the time we stop engaging in "number crunching" whatever that means, until that time there is ZERO hope for Eb3-I. Once we stop wasting our time on all these irrelevant things, we will then start spending our time on more meaningful things like speaking with the members of Congress. Then, and only then, there will be a chance of anything good happening for EB3-I.


Port to EB-2 ......

I agree with you on this one. If you all think that GC is the only issue here, then go ahead and support Mc Cain. But if you all think that you are going to be here long term or planning on making this your home, then I think Obama is good for the country. Look where has the capitalism and free market has taken us today, nobody has a clue as to how to fix this mess, all this bail out solutions are just temporary and is pulling us further into debt trap. If there is a recession or a dollar collapse, your GC will not ensure your job.

Free market is good only for the top execs and big corporations. There should be some regulation so that they do not become irresponsible in their conduct of business. Without regulation, it is like letting a wild bull run in a china shop, it will knock everything in its way. Republicans policy is to take all the broken pieces of the china ware, put some adhesive on them and put them back on shelf, they do not want to reign in the wild bull unlike democrats.

Thank you. My point is that if the economy is good, companies will lobby for pro immigration bills. If the economy goes bad, the chances for green card goes down with many of us losing job. No party will touch immigration when the country goes to recession. And people don't mind pro immigration bill if the economy is doing good. Political parties are not pro or anti immigrants. It is the lobbying of the large companies that makes them pro immigrant. The companies lobby for immigration bills when they need more skilled labor...

So you were in Amsterdam for 1 day. ;) Did you visit any of the legal hesh bars? (Just kiddin).
all the stranded formed a group & wnet around the city.. so didn't get he chnace to venture out.. we did go thru' the 'main' area though.. & yes that evening Hooland lost their Worldcup soccer game too..

Thanks a lot, please keep us posted about the outcome, even if we have one percent of hope, there is no harm trying that.

Guys,

This argument is not new. I had started a thread a while back http://immigrationvoice.org/forum/showthread.php?t=556&highlight=bkarnik
which met with essentially the same reply from the IV moderators. My underlying issue is that the term "EAD" or anything remotely similar does not even appear in the INA unless I missed it and if so, I would really appreciate it if someone show me where it is.

Anyways, I sent the following email to my lawyer, the entire chain with names deleted is reproduced here for your reading pleasure. This exchange highlights the apathy with which the legal community (at least my lawyer) view the issue and their knowledge of the law.... enjoy.. :(

From: Attorney
Sent: Monday, April 17, 2006 4:57 PM
To: Bkarnik
Subject: RE: Question..

I see your point. You should contact the American Immigration Lawyers Association with your question. If the issue has not already been addressed by this organization, I'm sure they will readily champion your cause.


-----Original Message-----
From: Bkarnik
Sent: Tuesday, April 18, 2006 6:49 AM
To: attorney
Subject: Question..

Dear Attorney:

Thank you for your time and the quick turnaround. However, the question still remains. If you notice in the link sent by you below, the USCIS refers to the US 8 CFR 274a.12(a) and (c) According to the USCIS, the CFR is the interpretation made by the agencies of the INA as passed and amended by Congress. The INA itself does not seem to have any clause relating to EAD for employment based categories because I believe the Congress never foresaw a situation where it will take up to 5-6 years for the process to complete.
I know that the USCIS has on many occasions by using the Federal Register or by Memorandums modified the CFR or changed the regulations governing the validity of the EAD, and I am wondering if something similar can be achieved in this case, wherein an appeal is made to the USCIS to change the rules governing eligibility for issuing an EAD.

Thanks once again.
Bkarnik.

-----Original Message-----
From: AttorneySent: Monday, April 17, 2006 4:57 PM
To: Bkarnik
Subject: RE: Question..

Hello BKarnik,

Your argument is sound, however, U.S. Immigration does indeed adjudicate
I-765 EAD applications based upon eligibility for filing. Please click this
link: http://uscis.gov/graphics/formsfee/forms/i-765.htm. It will take you to the USCIS web site where you can download form I-765. Included with the form is an instruction sheet. In the section entitled "Eligibility Categories", U.S. Immigration spells out the categories for which form I-765 may be filed. For example, under the "Foreign Students" title, you can see that an F-1 OPT student is eligible to obtain EAD work authorization pursuant to subsection (c)(3)(i). Your eligibility for EAD work authorization will fall under the "EAD Applicants Who Have Filed for Adjustment of Status" title under subsection (c)(9). Unfortunately, there is no eligibility category for I-140 IVP applicants or for IVP approval notice holders.

I hope this answers your questions.

Attorney

________________________________

From: Bkarnik
Sent: Monday, April 17, 2006 2:16 PM
To: Attorney
Subject: Question..


Dear Attorney:

I had a question for you (actually, it is a series of sub questions).
However, this has nothing to with my employer or my GC, so if you feel that replying to this question will take up an inordinate amount of time or of you think that this is something that is worthwhile in pursuing, please let me know what your charges will be and I will let you know if I can afford them :)) With that out of the way, here goes:

The question is about getting an EAD before filing the I-485. I was perusing the INA as posted on the USCIS website. I did not find any applicable law that directs the USCIS when it can issue EADs. It is quite likely that I missed the section as I am not a student of laws as you are.
If so, can you let me know where to find it? As you know, the EAD issue is mentioned in the US 8 CFR sec. 274a. Now, the USCIS website explains that the CFR thus: The general provisions of laws enacted by Congress are interpreted and implemented by regulations issued by various agencies.
These
regulations apply the law to daily situations. Thus, the CFR is the interpretation of the law by the USCIS for application in daily life.
If
that is the case, what prevents the USCIS from issuing EADs upon the approval of Form I-140? Especially, since as you very well know, the Form I-140 is an application made by the employer to the USCIS to petition for an alien worker to become a permanent resident in the United States.
Therefore,
the form requires the employer to fill in all the pertinent information about the alien and his dependents. An approval of the Form I-140 indicates (at least to me) that the USCIS has agreed with the employee that the labor certification is good and the alien is approvable as a permanent employee.
I guess that is one of the reasons, the USCIS allows concurrent filing of the I-140/I-485.

With the current retrogression concurrent filing of I-140/I-485 is not possible, if the USCIS were to be agreeable to issue EADs to persons with approved I-140 it would make life a lot easier for all while at the same time not impacting the green card process itself. All we are asking is that the EAD be issued after I-140 approval, because it does not make sense to tell an employer that the alien is approved for permanent employment, but at the same time asking the employer to keep the employee in a H1B (i.e.
temporary status) at no fault of the employer/employee. Can you let me know if my argument is flawed? If not, do you think we have a way by which we can ask the USCIS for its interpretation or opinion on the issue? If we can, and you are willing to take the matter, can you let me know your fees?
I know that you are very busy, and may not be able to take on the matter even if you find merit in it. In that case, would know of a competent person willing to take it up?

Thank you for your time and patience,

Sincerely,
Bkarnik

check with your company attorneys, this is serious stuff.

From what I understand:

> 1) I need to maintain 1 year gap between the day I left US ( 6-Jan-07 ) and
> the day I'm going to enter US so that I can stay in US for another 6 years on
> H1-B. Is my understanding correct?

correct. Technically your company can file a PERM LC right now, and you can start in October (so the year after, you can get an H1 extension based on this LC), however its much much better for you to maintain this gap and start a new H1 (its easier to change jobs when you are not dependent on extensions: you get 6 full years)

> 2) Is it OK to go for VISA staming before 6-Jan-08?

yes, stamping does not matter. You can get that done anytime though its recommended to get it done close (30-60 days) to your date of travel. If you get it done now, and travel on Jan 7th, make sure you carry an updated offer letter from your company in the US, reconfirming that the position is still open for you.

this bill would allow to adjust status to GC, if you lived for the last 5 years continuously except for casual absence. It does not eliminate H1B, but makes it tougher at advertisement stage for EB.

I concur with the fact that manner in which the law is written/interpreted currently, its going to be an uphill task to convince the USCIS of letting us file I485 without a visa number available. Did the core group make any effort in this direction or is it their foregone conclusion that its non starter at all?

I believe we should try to make an effort in this direction however small the chance of success may be. My reasons are following:

1. Even if the USCIS director might not have an authority to change the procedure without congressional intervention first, the effort required to convince a congress man/ congressional committe on this issue will be smaller compared to pushing them to take up SKIL immediately.

2. I dont know if Dept of Homeland Security might have any say in this but again we can try getting an audience with Negroponte to appraise him of the situation.

3. Thirdly since CIR/SKIL are currently in dormant stage, coregroup/volunteers might be more open to pursuing low potential/high yield effort like this one is.

I along with many more are graduating every year and filing for there OPT. Few students are lucky, as they are able to find corporate employers (not desi's) who would sponsor H1. But for others, time is the constraint so they have to find alternatives. Hence for most OPT students the option is to look for desi employers.
I feel the problem that employers (small to midsize) are not educated about H1 B process. If this happens most of the problems will be solved. But for now with so many students graduating every semester, the only option is to go through desi employers, which in a way is not a bad idea (when you think long term).

There are many sites that provide valuable information.

www.desiopt.com is one of the many sites that helps students in this matter.
www.Sulekha.com also provides information on some good companies.

hi everyone,
I want to get feedback about the possibility of pursuing PERM for EB2 and still capture my PD for EB3. Here is my situation.

I am a South Korean with PD in Dec. 04 on EB3. I filed I-485 along with EAD & AP on 7/25/07.
I recently got a master's degree in another field, and my current job can hire me in a different position.

Q1. If I ask my employer to file PERM on EB2 for the new position requiring the master's degree, I should be able to capture the PD (12/04) for my EB3, right?

Q2. Based on the september visa bulletin, should I wait on the EB-3 AOD application to be processed or would it be faster to switch to EB-2 and refile I-485? Please explain why.

Thanks.

If your employer files PERM now for the new position under EB2, LC is needed before your employer can file new I-140. I don't know if this will impact your original PD

It is an item on the organization's agenda.

Both for USCIS and BECs to show some transparency. More posts mean more attention, but the posts are made by 800 members and majority of them are stuck in Dallas and Philly BECs or waiting for 485 to be filed so that they can get portability benefit beyond 6th year.

That is much more important than speed of 485 processing. It is on the agenda of the org but the reason you dont see those posts is because its not a problem yet for the majority on this forum. That's just how it works. First things first. You dont find people on student visas worried about Labor backlogs coz they need to find H1 first. You dont find people stuck in labor worried about retrogression coz they need to get their labor approved first without which retrogression or no-retrogression makes no difference to them.

I agree with your idea and understand that USCIS handling of 485 is a serious issue, just trying to explain why you dont see too many posts here for that issue.

When/(and IF) this bill is passed....DHS/USCIS will be flooded with 12 million (some say 20 million) + all of the EB & FB applicant already in process.

So, it will further push the retrogression from 2015 AD (current backlogs) to 100 A.K. (After Kaliyug) :-)

Hey who are you calling BS ???? :rolleyes:

I have been in the US 15 years and counting.

-a

This is insane, they are moving 15 days in 1 calendar month.

So going by this pace for EB3

mar 2002 - march 2011
mar 2003 - march 2013
mar 2004 - march 2015
mar 2005 - march 2017
mar 2006 - march 2019

i will get gc on mar 2019 ? after 16 years of stay in USA ??? that total bull shit !!!!!!!!!!!!

We received the 485 approval notices sent emails today

^^bump^^

Visa Bulletin for May 2010 (http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4805.html)

Hey Pappu,
What do you conclude of this? Their has to be some rational reason behind them not moving EB2I, it is hard to grasp that they are still working on 2004-2005 PD's. Is their something we can do bring them in more transparency.

I believe earlier they screwed up and now they are on apposite extreme end, scrutinizing every element.

I do not believe that one person (Pappu) should be held responsible for whatever going on You should not blame Pappu alone.
However, I agree that donor forum proved to be disastrous and driving people away from IV. Someone in core team should do analysis on how much it helped the IV cause and whether it should exist going forward. Lack of transparency is clearly hurting IV cause.


IV needs to OPEN ITS BOOKS

And show DONORS where their money is going? Where is the sponsors money going? and what is this ORGANIZATION planning to do. IF not, one these days they will find themselves in a audit and public scrutiny.

Any yes people who says open your eyes? Have you got your GC? EAD is only a means and not the destination


PAPU, you need to explain to all IV members and disclose the books and what you are doing as IV head, and dont give me the bull, of we are working, you want our support, we want clarity and real action.

After reading this rumor mongering for a few weeks now, I have drawn a common between these cases (if we believe for a second that these stories ARE true). All these friend of a friend of a friend who were "sent back", seem to be working fro "desi" software "consultants". If that is indeed the case, then great work CIS. These shysters have no place in the EB queue anyways.

(2) I doubt if CIS will risk having a lawsuit thrown at them by a Genuine American or mutlinational company if they "send bacK" their genuine H1B employee ( Do you think A place like Microsoft, Intel, GE or Boeing etc will take such treatment of their employee? No, they will sue CIS.

(3) I work with H1B holders from OTHER countries too (lots of Russians and Chinese). None of them have ever "heard" any "friend of a friend" sent back.

So, Cut the crap and do your work.

Couple of days back I got the receipt. I'll post the number soon.

Number of members participating in this is too few. We can rest assured there will be no "updates" from IV core if we don't act.

Only few members have posted about getting the receipt:
NRC2008063282
Nrc2008063641
Nrc2008063622
Nrc2008063600
NRC 2008 063585
Openarms
nc14
nirenjoshi
Nrc2008064184
Nrc2008064195
Nrc2008063524
NRC2008064127
shankar_thanu
Madhuri
Nrc2008064584

This border patrol authority applies 100 miles from International border. Guess what, most of US population is in that region, all of NJ, MA, most of CA, etc etc as all are within 100 miles from the border (including the sea border, which marks international maritime border). Though not normally done, Border Patrol can set up checkpoints anywhere in this region. I remember reading in depth of this ridiculous rule sometime back.

Found this when I googled. Borderpatrol seems to have the authority to do whatever they did within 100 miles off any international border. It falls under 8 CFR 287.1. Entire state of NH is within 100 miles of Canada.


http://www.usborderpatrol.com/Border_Patrol608_2.htm