Circuit in alignment with nearly all other federal appeals courts, which have also concluded that the INA precludes judicial review of a decision by USCIS to revoke an immigrant petition. If an employer seeks to sponsor someone for U. Although each Presidential Administration places different emphasis on immigration law compliance, year-after-year USCIS remains very strict about the burden of proof placed on employers seeking immigration benefits for prospective employees.
And as noted in the case referenced here, employers have limited ability to find relief in federal court should USCIS make what it considers an incorrect decision. See more ». This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Then, only if the I can be approved, the adjudicator will adjudicate the adjustment of status application and also determine if the new position is the same or similar for I portability purposes.
Can a successor employer use a predecessor employer's approved labor certification to file an I petition on behalf of the alien beneficiary named on the labor certification? But he successor employer must establish a successor-in-interest SII relationship with the predecessor employer. How can a successor employer establish a successor-in-interest SII relationship with a predecessor employer in order to use that employer's approved labor certification when filing an I petition on behalf of the alien beneficiary named on the labor certification?
In the case of changing employers, may an alien beneficiary retain the priority date established in a previously approved Form I petition? Generally, the alien beneficiary may retain the priority date of the predecessor's approved Form I petition, if any. Generally, an alien beneficiary may also retain the priority date established by an approved E12 Outstanding Professor or Researcher petitions or E13 Multinational Executive or Manager petition for subsequent petitions filed in his or her behalf by a new employer in the E12 or E13 categories.
Is the SII analysis adversely impacted if the job title for the position with the successor company differs from the job title noted in the predecessor company's labor certification?
When determining whether the job opportunity is the same as the job opportunity originally offered on the labor certification, adjudicators will examine the job duties of the position to determine if the job is still the same. Changes in job title, and other ancillary changes such as a change in computer software used in the job are not in and of themselves disallowed.
Further, changes in the wage offered due to wage increases that have occurred over the passage of time do not impact the determination as to whether the job is the same. Sometimes the USCIS is not convinced that the alien petitioning category has met the burden to prove that an applicant qualifies for the category. An applicant should take great care to present a strong case, so that it may be approved without a request for additional evidence.
In addition, the I may be filed while the I is pending if a visa number later becomes available. If I file I concurrently with I, will both petitions be adjudicated simultaneously? What if my visa is not current?
The USCIS has stated that adjudication of a concurrently-filed Form I is not dependent on the adjudicative readiness of the Form I The guidelines allow the USCIS to adjudicate and approve the visa petitions separately in cases in which a visa becomes unavailable after the concurrent filing. In these cases, the I visa petition will be approved and the I will be held in abeyance until such time as a visa number becomes available.
In the case of I and Concurrent Filing, applicants will be eligible to apply for interim benefits such as employment authorization and advance parole while the I application is held in abeyance. What are the primary advantages of concurrent filing? File I earlier : You, your spouse, and your unmarried children under 21 can file your I applications i. Normally, the employer files the I, but you can self-file your I under certain categories, such as Aliens of Extraordinary Ability and National Interest Waiver.
Also, the concurrent filing rule allows you, your spouse, and children to file your Is while a previously filed I is still pending. The availability of an EAD is a major benefit for spouses who could not otherwise work legally i. Advance Parole can be a major benefit for those who could not otherwise travel e. Might be able to leave job earlier : Having an EAD for the principal beneficiary does not necessarily mean you can leave your current job, but in conjunction with the portability provision, the beneficiary of a pending I can leave his or her current employer and take a new job in a same or similar occupational classification after the I has been pending for at least days.
Please note, however, that many issues related to portability remain unresolved, so you should be very careful before you leave your current position. If you leave too early, your and your family members' I and everything else may end up being denied. On the other hand, in some special cases e. Job-changing issues are complicated, however, so it is critical to get good legal advice before leaving your job any time before you get your green card.
What happens to my I filing if my I is rejected? If the I petition is rejected in the concurrent filing case, accompanying I will also be rejected. No Legal Advice Intended. This website includes general information about legal issues and developments in the law. Get in touch. Facebook Linkedin Twitter Instagram Youtube. Request a Consultation.
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Sign Up to Our Newsletter. Such a job change likely would require the employer to file a new PERM and I petition for the employee. One major exception to this general rule is that the I petition approval may remain valid with a new employer if that company is a successor in interest to the original employer or petitioner, as discussed in the MurthyDotCom NewsBrief, Foreign National Employees: Navigating Mergers and Acquisitions Ordinarily, the I petitioning employer may send a withdrawal notice to the U.
As long as an approved I remains valid, the employee may use it with any including a new employer, as a basis to request an extension of H1B status beyond the standard 6-year maximum.
For this, the I must remain valid until the H1B petition approval.
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