Hello! Why do you assume "no parity"?

[Appu]

You guys probably verified this already but -

if you read (the intended) Sec 218D (amendment to the INA) and Sec 602 of S.2454, they do not exclude legal aliens.

All that is required under 218D is that a person must have been in the US on or before Jan 7, 2004 and have proof of employment.

Why shouldn't a legal nonimmigrant visa holder apply for AOS under 218D?

What am I missing here?

[xbohdpukc]

Originally Posted by Appu

You guys probably verified this already but -

if you read (the intended) Sec 218D (amendment to the INA) and Sec 602 of S.2454, they do not exclude legal aliens.

All that is required under 218D is that a person must have been in the US on or before Jan 7, 2004 and have proof of employment.

Why shouldn't a legal nonimmigrant visa holder apply for AOS under 218D?

What am I missing here?

you are missing the whole point: you should've been undocumented on or before Jan 7th 2004

[logiclife]

Somehow prove that you were undocumented(illegal) before Jan 2004 to claim that benefit.

If you were legally present and have always been legal then the benefit does not apply and you have to wait for your turn in the line for greencard.

[morpheus]

So if (for example) an H1B worked in the US for a few weeks before their visa became available, are they technically eligible for this? Or perhaps they were out of status for a week or two between jobs? I'm sure many H1's might have been in this situation. It's unclear who this applies to.

I just read the Specter amendments to 2454 and I can't see where in 218D or 602 it says the alien must have been here illegally. Can someone quote that part? All I can see is this requirement in 601.

`(1) PRESENCE; EMPLOYMENT.--The alien establishes that the alien--

``(A) was physically present in the United States before January 7, 2004; and

``(B) was employed in the United States before January 7, 2004, and has been employed in the United States since that date.

I read one summary of the bill that claims 'The alien also must acknowledge, under oath, that the alien is unlawfully present and subject to removal or deportation.' but this is at the time of application - not in the past. So technically this could still apply to many people. I haven't been able to find this clause in the actual bill though.

From what I have read, if this bill passes it may just turn out that an H1B could quit their employer tomorrow, go and join another employer without filing an H1 transfer and file under 218D in the next year. Since they are technically eligible for 218D at this point, they could move straight to a green card without the current massive backlogs. Also, the 218D status has job mobility, and no LCA is required.

Can anyone refute this?

[Appu]

Originally Posted by morpheus

So if (for example) an H1B worked in the US for a few weeks before their visa became available, are they technically eligible for this? Or perhaps they were out of status for a week or two between jobs? I'm sure many H1's might have been in this situation. It's unclear who this applies to.

Yep, my thinking, exactly. Also, people going between F1 and H1 or between H1 and H4 could all claim a few weeks or months of "undocumented" status.

I just read the Specter amendments to 2454 and I can't see where in 218D or 602 it says the alien must have been here illegally. Can someone quote that part? All I can see is this requirement in 601.

`(1) PRESENCE; EMPLOYMENT.--The alien establishes that the alien--

``(A) was physically present in the United States before January 7, 2004; and

``(B) was employed in the United States before January 7, 2004, and has been employed in the United States since that date.

That's right, it doesn't. I have enquired my lawyer about this. She'll get back to me on Tuesday. I will post more information then.

[morpheus]

I just did some further reading and research, and it appears that an H1 could do the following if this bill passed tomorrow.

1. Quit their job
2. Form an LLC and self-employ
3. File for 218D status. Once this is approved, you are able to work anywhere. It's not clear if there will be a filing procedure or not.
4. Wait six years.
5. File for green card. Note that 218D requires you to work for the entire six years - but it can be full-time, part-time, self-employment or full time study.

I can't believe it could be that simple. The only downside is that there might be 10 million people in the queue for 218D, so it will probably be backlogged until 2026!

[wellwishergc]

I think, it makes more sense for us to strive for 'I-485 filing without PD being current' and 'removal of hard country quota' issues rather than striving for the 'self GC application'..

Let us focus on issues which is an extension of the current framework for legal immigration. I do not think it will be in our interest to compare our provisions with the ones of undocumented workers.

Just my opinion!!!; IV core team can best decide on the approach. Is there any updates on our attempts to ammend for the 'I-485 filing clause' and the 'removal of hard country quota' clause?

Originally Posted by admin

Yes if you are able to prove your illegal stay here and willing to wait for 6 years before applying for your GC, then you can do go this route. Also remember, it is possible that as of now there is no specific category under which these undocumented people can file their GCs. It is possible that you might have to wait another god know how many years before you actually get it.

[morpheus]

Does anyone know if the latest Frist amendment to the bill would still allow H1's etc to file for 218 as outlined above? I did some more reading and I am still confident the analysis above is an option for many H1's like myself.

Frankly I'd be happy to wait six years for a GC if it meant I could be out of this continual H1/LC/140/485 rat-race. Being able to be self employed would be a huge positive for me. I'm already on my second LC and I am involved in founding my second new company. For executives the H1/GC process is useless because you frequently get promoted or change titles, and by the time your LC is near processing it's likely that the original application is no longer supportable. Plus, if you own equity in the company that opens a whole can of worms that the USCIS will object to.

I don't care if 218D is supposed to be for 'illegal' immigrants. Hell, I'll learn Spanish! Via con dios! Obras son amores y no buenas razones!

[admin]

Originally Posted by morpheus

Does anyone know if the latest Frist amendment to the bill would still allow H1's etc to file for 218 as outlined above? I did some more reading and I am still confident the analysis above is an option for many H1's like myself.

Frankly I'd be happy to wait six years for a GC if it meant I could be out of this continual H1/LC/140/485 rat-race. Being able to be self employed would be a huge positive for me. I'm already on my second LC and I am involved in founding my second new company. For executives the H1/GC process is useless because you frequently get promoted or change titles, and by the time your LC is near processing it's likely that the original application is no longer supportable. Plus, if you own equity in the company that opens a whole can of worms that the USCIS will object to.

I don't care if 218D is supposed to be for 'illegal' immigrants. Hell, I'll learn Spanish! Via con dios! Obras son amores y no buenas razones!

Yes all of us can apply under 218 also but then I am not sure if I will want to wait another 6 years before applying for a green card. Also there is no set category under which these people will be able to apply for their green cards. So at that time, another bill will be needed to carve out a category for them and then they will have to be processed. So it could easily take another 4-5 years before you might get your GC. Also god only knows what kind of restrictions might be placed on the immigrants under this section and once you transfer under that category your existing GC processing will have to be canceled.

[morpheus]

Originally Posted by admin

Yes all of us can apply under 218 also but then I am not sure if I will want to wait another 6 years before applying for a green card. Also there is no set category under which these people will be able to apply for their green cards. So at that time, another bill will be needed to carve out a category for them and then they will have to be processed. So it could easily take another 4-5 years before you might get your GC. Also god only knows what kind of restrictions might be placed on the immigrants under this section and once you transfer under that category your existing GC processing will have to be canceled.

If you are in a stable job with limited promotions or raises, I agree the traditional GC route is better if you can make it through. For my career, I would rather have the added flexibility for six years. I do agree it could be very slow though and it is a small extra risk. In my case, I have the option of returning to another visa category if the GC processing didn't work out in the end.

[Berkeleybee]

Before you get carried away please note that even in the Specter Bill people filing for status under Title VI have to

(a) Wait for the PDs that are pending when the Act passes to become current.

(b) If the current PDs do not become current in 6 years -- their applications will be "held in abeyance" till the PDs PDs that are pending when the Act passes to become current.

I take the "held in abeyance" to mean that they might get I-485 filing privileges at that point but those applications will not be adjudicated.

So you will not really get your green card after 6 years -- you'll be pending till all current PDs become current. Given that family PDs are still back in 1983 per the April 2006 bulletin, they won't be getting their green cards any time soon.

The parity issue is really that Title VI recognizes that

(1) worldwide and per-country quotas make no sense -- and yet, the immigrants who go through the arduous labor cert process that protects the American worker are subject to per-country quotas.

(2) Workers should be mobile and be able to self-petition -- yet skilled workers going through the labor cert process are tied to employer AND job description for years.

best,
Berkeleybee