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  #1  
Old 07-24-2009, 11:18 AM
Meenal Meenal is offline
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Default Attorney- Elaine Martin's Newsletter

Attorney Elaine Martin is among the 15 Immigration Voice Panel of Lawyers giving answers for free to Immigrationvoice members



Update on Comprehensive Immigration Reform (CIR)

The feeling from the American Immigration Lawyers Association annual conference recently is that "there is a very real possibility that comprehensive immigration reform will be moving this year, due to the strong advocacy of many pro-immigration groups and the commitment of the White House to starting the conversation. At the same time, significant challenges remain to getting CIR passed in the next 12 months, not the least of which is that many of us who support comprehensive immigration reform need to come together and define what that term means with respect to a path to legal status for the undocumented, smart and effective enforcement, and a future flow of immigrants to the United States."

Further, within a week of each other, the leaders of both chambers (Speaker Pelosi and Majority Leader Reid) characterized Congress's legislative priorities as health care, energy, and immigration.

On June 25, 2009, President Obama said that a bipartisan bill on the sensitive and volatile political issue will be difficult but must get underway this year. He spoke after he and members of his administration met with Congresspeople from both parties. The meeting was intended to begin mapping a plan to build support for an immigration measure that the president has said he would like to pass later this year or early next year, according to a senior White House official.

In an interesting development earlier this month, a bipartisan report from the Council on Foreign Relations (Broken Immigration System Risks Serious Damage to U.S. National Interests, Warns CFR Task Force - Council on Foreign Relations) correctly notes that the primary immigration threat to America is welcoming too few talented immigrants.

The report, co-authored by former Florida Gov. Jeb Bush and former Bill Clinton Chief of Staff Mack McLarty, points out that immigration has always been an American strength. By focusing the current debate on illegal immigration, a small portion of the overall issue, this country is "badly mishandling its immigration policy, with serious consequences for its standing in the world."
The report goes on to note that "continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America's economy, to jeopardize its diplomacy and to imperil its national security."

For breaking news on CIR, check these websites: National Immigration Forum
NILC Home
AILA Leadership Blog: Comprehensive Immigration Reform - A Unique Opportunity to do the Right Thing for Same Sex Couples
AC21 - Changing Employers/Positions while Permanent Residence is Pending

One of the biggest areas of concern for foreign nationals now if what happens if they are laid off or find another job before their permanent residence is approved. Under immigration laws, specifically the American Competitiveness in the 21st Century Act (AC21), the US government introduced some job flexibility to foreign nationals with long-pending permanent residence applications. AC21 provides that a person's labor certification or I-140 approval remains valid when an alien changes jobs if:
(a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."

What does "same or similar occupational classification" mean?

The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.

Can I use AC21 to "port" to self employment?

Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.

What if I leave the original employer before the 485 is pending for 180 days?

The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.

What if my original employer withdraws my I-140?

If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.

What if my I-140 is denied?

AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.

How does portability affect my priority date?

Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.

What happens if I am laid off and can't find a new job?

This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.

For more AC21 information, see my blog postings here.
Legislative Update on E-verify

On July 8, 2009, U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Obama administration's support for the E-Verify federal contractor provision, while pledging to rescind the controversial Social Security No-Match regulation. However, the U.S. Senate quickly responded, passing a measure on July 9 designed to block DHS's rescission of the No-Match rule. In other E-Verify news, the U.S. Senate voted 55-43 to provide permanent funding for the program in the DHS FY 2010 Appropriations Bill,1 and four more states: Georgia, Mississippi, South Carolina and Utah-mandated E-Verify usage for certain state employers on July 1, 2009.

According to the National Immigration Law Center, "these programs simply have unacceptable database error rates, and mandating their use would unnecessarily place countless thousands of American workers at risk for job termination. "

Elaine Martin
Law Office of Elaine Martin
6333 E. Mockingbird Lane, Suite 147-910
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(214) 329-4148 phone
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Blog: Law Office of Elaine Martin - immigration news

Source of the article : http://campaign.constantcontact.com/...xcogULj4krs%3D



DISCLAIMER: This article and any information contained herein are intended for informational and advertising purposes only and should not be construed as legal advice. Please seek competent counsel for advice on any legal matter.

Last edited by Meenal; 07-24-2009 at 11:58 AM.
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  #2  
Old 07-24-2009, 04:15 PM
Rb_newsletter Rb_newsletter is offline
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Smile Can I use AC21 to "port" to self employment?

Quote:
Originally Posted by Meenal View Post
Can I use AC21 to "port" to self employment?

Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.
I like this.
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  #3  
Old 07-24-2009, 04:27 PM
newuser newuser is offline
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newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute newuser has a reputation beyond repute
Thumbs up

Thanks to Attorney Elaine Martin & IV for sharing the info.
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  #4  
Old 07-24-2009, 04:46 PM
chi_shark chi_shark is offline
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Default me too... but......

now, i am being the devil's advocate... i love this idea too... but i wish there was a better clarity in terms of regulation... or some other way to trust the uscis more than i do right now...

Quote:
Originally Posted by Rb_newsletter View Post
I like this.
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have used AC21
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  #5  
Old 07-24-2009, 05:59 PM
maddipati1 maddipati1 is offline
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Default for people who think they are safe on EADs

<quote>
What happens if I am laid off and can't find a new job?

This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.
</quote>

clearly, it's not a tricky situation. it's a freaking situation..









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