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Employment-Based Adjustment Interviews

As of October 2, 2017, all I-140-based adjustment of status applicants are being required to appear for an in-person interview at a USCIS Field Office.

BALCA overturns Denial main

Applying the reasoning from Matter of A Cut Above Ceramic Tile, BALCA reversed the Certifying Officer’s denial of the labor certification, finding that an employer is not required to retain or provide proof of publication of its State Workforce Agency (SWA) job order which can be sufficiently documented by listing the start and end dates of the job order on the ETA Form 9089.

New Immigration Employment regs

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.

Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.

Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.

Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
They are the principal beneficiaries of an approved Form I-140 petition,
An immigrant visa is not authorized for issuance for their priority date, and

Got a denied I-140? Maybe it can be reversed.

The Second Circuit vacated the judgment of the district court and remanded, holding that USCIS is required by the INA’s portability provisions to give pre-revocation notice to the beneficiary or to the successor employer that it is revoking an I-140 petition filed by a previous employer.

Portability Provisions cannot be used if original I-140 not valid

  1. The Eighth Circuit affirmed the district court’s dismissal, holding that the court lacked jurisdiction to consider whether USCIS failed to comply with disclosure requirements under 8 CFR §103.2(b)(16) when it revoked the plaintiff-beneficiary’s I-140 petition. The court also held that the plaintiff could not port his I-140 to subsequent employers, because the I-140 was not valid to begin with, as USCIS found numerous deficiencies in the petition submitted by the original employer. The court thus found that the plaintiff was not statutorily eligible to adjust status.

Can you deny an applicant in PERM because of lack of experience?

BALCA reversed the CO’s denial for failure to provide a sufficient explanation for rejecting eight U.S. applicants, noting that 20 CFR §656.17(g)(1) “does not indicate a level of specificity beyond what the Employer provided.”

Denials of I-140s for 3rd Preference Professionals

  The Nebraska Service Center Liaison Committee prepared a practice pointer based on several reports of denials on I-140 petitions for third preference professionals.

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