All Labor substitution questions and discussions here

[neocor]

I just got to this site via from immigration portal.
I have been reading a lot in the other forum and here about the ways to cure retrogression. Lobbying for more Visa's and other things that were part of the S.1932 bill are fine, however these things are not going to solve the retrogression problem even if such a bill gets passed.

No one seems to be talking about the real problem that is Labor Substitution. Abolishing Labor Substitution will itself take care of every retrogression problem.

The INS does not have the right tools to police the misue of this rule. This is resutling in a lot of problems for even those employees whose Labor's get substituted even if they are still working in the same company.

Any effort to reform immigration should start with first reforming the Labor Substitution rule (if not completely abolish).
I know that all the companies/employers and the lawyers community are against removing the Labor substitution, therefore it will never be removed, but atleast it should be reformed so that it can be better policed so that no one is able to misuse it and play with peoples lives. And in turn add to retregression.

Following reforms are needed in Labor Substitution.

- First thing in the Labor Substitution reform is related to the Priority date. The Priority Date for a substituted Labor should the date when the Labor is substituted (or the I-140 filing date). It should not be be the date when the Labor was originally filed. This in itself will solve 90% of the problems related to retrogression.

- When a Labor is substituted it should be verified immediately to find if there is any I-140 or I-485 that is pending based on this Labor. If so then the Labor should be rejected immediately. Currently this is not done at the time the Labor is substituted, therefore the resulting 485 filing just amounts to add up into the backlog of Visa Number requirement, until the priority date becomes current for this 485.

- If an employee invokes the AC21 then that Labor should not be allowed to be substituted.

- There should be a limit to the time until which a Labor can be substituted. This could be debatable and could have other consequences, as the INS could invalidate any GC application that is been pending for more than the this duration.

In short the Labour substitution rule is in a mess and is getting miused a lot. People are getting fooled by the employers, and ultimately its making the retrogression more worse.

neocor

[mchundi]

Originally Posted by neocor

I just got to this site via from immigration portal.
I have been reading a lot in the other forum and here about the ways to cure retrogression. Lobbying for more Visa's and other things that were part of the S.1932 bill are fine, however these things are not going to solve the retrogression problem even if such a bill gets passed.

No one seems to be talking about the real problem that is Labor Substitution. Abolishing Labor Substitution will itself take care of every retrogression problem.

The INS does not have the right tools to police the misue of this rule. This is resutling in a lot of problems for even those employees whose Labor's get substituted even if they are still working in the same company.

Any effort to reform immigration should start with first reforming the Labor Substitution rule (if not completely abolish).
I know that all the companies/employers and the lawyers community are against removing the Labor substitution, therefore it will never be removed, but atleast it should be reformed so that it can be better policed so that no one is able to misuse it and play with peoples lives. And in turn add to retregression.

Following reforms are needed in Labor Substitution.

- First thing in the Labor Substitution reform is related to the Priority date. The Priority Date for a substituted Labor should the date when the Labor is substituted (or the I-140 filing date). It should not be be the date when the Labor was originally filed. This in itself will solve 90% of the problems related to retrogression.

- When a Labor is substituted it should be verified immediately to find if there is any I-140 or I-485 that is pending based on this Labor. If so then the Labor should be rejected immediately. Currently this is not done at the time the Labor is substituted, therefore the resulting 485 filing just amounts to add up into the backlog of Visa Number requirement, until the priority date becomes current for this 485.

- If an employee invokes the AC21 then that Labor should not be allowed to be substituted.

- There should be a limit to the time until which a Labor can be substituted. This could be debatable and could have other consequences, as the INS could invalidate any GC application that is been pending for more than the this duration.

In short the Labour substitution rule is in a mess and is getting miused a lot. People are getting fooled by the employers, and ultimately its making the retrogression more worse.

neocor

Probably true,
I think the DOL/USCIS(I dont know who) is moving in this direction.
The real problem is the 7% limit per country and the time it takes for one to go thru the 3 steps.
There r several people who have started G.C process several times for different reasons. This slows them (DOL/USCIS) down and remember this is like a chain reaction until u stop applying for a G.C or AC21 kicks in.
Bill Clinton signed some immigration relief for the illegal immigrants just before he left without allocating any resources to process them. Close to 300,000 illegal immigrants filed their labor before Apr 2001. This brought the DOL to a halt and it couldnot recover for 2 years. Finally the BEC's were created to resolve the mess created by the new law. They did not sove the problem but addressed it to some extent. For some it became worse.
In the meantime several VISA numbers went unused because the DOL probably scrutinized the cases more thoroughly and probably there were more rejections by USCIS
The reason why so many people look for loop holes is because of the inordinate delay in the process.
I guess the situation will only become worse unless those who got their labor get to apply for 485 and get portability thru AC21 or dropout altogether.
The problem with labor is partly addressed thru PERM. Over the next couple of years the BEC's eliminate the backlog and soon everybody will be in the hunt for the VISA numbers.
The best that can be done now is the fight for more VISA numbers and be able to file for I485 whether a VISA number is available or not or anything that addresses this like
1: increase the overall VISA numbers (McGain && Kennedy)
2: capture unused VISA numbers
3: Cap not being applicable for those with Masters degree in ---- && 3+ years exp before starting the G.C process (Sen. Chuk hagel)
4: Being able to file I-485 even with no VISA number(failed S-1932)
--MC

[sats123]

Fu&^*& desi companies are still advertising for pre approved labor, here is what I got from a desi company. Looks like this labor is cleared from Backlog, they take advantage of this and make money. Its fu$%%$ jackpot for these kind of companies.

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[Rishi]

Friends,

Don't waste your time on this. The American employers will never agree to this as LC belongs to them and they don't want to waste time, money and effort again and again. The only problem I see is our desi consulting companies misusing this privilege.

I would say lets not waste our time as DOL/USCIS is trying to formulate ways to check 'LC Substitution Fraud'. At the same time they don't want to penalize the legitimate substitutions where an employee is already working for the same company for years.

fighting retrogression and 485 filing during retrogression are important than this.

Its my opinion only, pls take it on a lighter note...

- Rishi

[admin]

Here is a report from immigration-law.com

02/05/2006: DOL Resummitted and Obtained OMB Clearance of Proposed Labor Substitution Elimination Regulation on 02/02/2006

* This DOL and DHS proposed rule was cleared by the OMB last fall, but for unknown reasons, it has been pushed off. However, on February 2, 2006, Thursday, ETA/DOL resummitted the proposed rule and on the same day, the OMB cleared again this regulation. It is unknown at this time exactly when the DOL will publish this critical regulation but considering the fact that it reinstated the rule-making process as late as three days back, something must be cooking this time. Please stay tuned.

Great news, especially given that most of the body shoppers were using it for fraud. Also this would make it easier for USCIS to predict the actual usage of Visa numbers and thus move the PDs accurately.

[ragz4u]

This is a step in the right direction. A lot of people wanted to get ahead of the queue by using pre-approved labors. The arrest of Nick Mandalapa, who was infamous for selling these labors openly on Sulekha, and now this are signs of good things to come

Do not be surprised if you read Murthy.com's response as being against a ban on labor substitution! After all, labor subsitution is good business for immigration lawyers.

As per www.immigration-law.com

DOL Resummitted and Obtained OMB Clearance of Proposed Labor Substitution Elimination Regulation on 02/02/2006

This DOL and DHS proposed rule was cleared by the OMB last fall, but for unknown reasons, it has been pushed off. However, on February 2, 2006, Thursday, ETA/DOL resummitted the proposed rule and on the same day, the OMB cleared again this regulation. It is unknown at this time exactly when the DOL will publish this critical regulation but considering the fact that it reinstated the rule-making process as late as three days back, something must be cooking this time. Please stay tuned

[sai]

I dont think there will be a change to already in pipeline cases. Lets wait and see .

[file485]

for the cases in pipeline nothing can be done..they r just saved...but now atleast people will step back to buy LCs approved...and consulting companies wont file file LCs in the hundreds...

USCIS dint know about the desi consulting companies r the kind 'if we give them place at the feet...they r ready to cut the throat...!'

they shud have done it long ago...Anyway better late than never....!!

[H1B-GC]

I even read somewhere that once labor gets approved,Employer got to file I-140 within 60 days or so.

[logiclife]

I dont think that you HAVE TO file I-140 within 60 days after labor is approved.

--logiclife.

[ragz4u]

Originally Posted by logiclife

I dont think that you HAVE TO file I-140 within 60 days after labor is approved.

--logiclife.

I had read when this was proposed last time that if this is implemented, the employer will have 45 days from the date of labor approval to file for the I-140. What this prevents is sale of labors (illegaly obviously). A lot of labors from 2001/2002 were on sale till sometime ago (2005) on Sulekha. If/When this law is implemented, buying a labor will get you ahead of the queue by a max of 45 days instead of the 3/4 years today.

[ragz4u]

http://www.murthy.com/news/n_endsub.html

[H1B-GC]

i consider Mathew Oh,the most considerate and highy respected.His Q&A's are very individual centric but still answers those questions and posts those on his site.He provides links to other sites like immigrationportal.com though both of them are in immigration business(Simply Amazing).And he was the only one who was helpling us or showing real concern during s.1932 fiasco.Simply an Oustanding guy.Next comes Rajiv khanna since he never moderates the forum or censors other immigration sites in the forum.And for his lawsuit on behalf of all EB immigrants in 2002/2003.

And Regarding s.1932,it was posted on the Murthy site as breaking News after a week i believe that the Bill wasn't passed in the senate/house.It was a Joke of 2005!!

[gonecrazyonh4]

Many of us are not aware of the extend of labor subtituion and the impact that it has on the visa numbers .

I personally know a case where 1-140 was filed in 2005, for a Labor which was approved as early as 2000.

The person was able to get his green card in 6 months time (he has been in US only for 1 year, came to work with the Indian company and joined this new firm just to get his substitute LC) and ate away 2 visa numbers which a genuine GC applicant should have got.

When there are applicants who are waiting for more than 5-7 years to get their green card and in some cases just to get through the labor certification process , isnt this grossly unfair?

Advocates support LC substituion as it is just one more avenue for them to make more money. Unscrupulous employers support the LC substituion since it helps them to make money ( as I understand many of these companies sell LC) . Also same LC is used multiple times.

The losers are genuine GC applicants who are ethical and companies which are ethical.

As a H4 visa holder my life in this country has been so very limited that even opening a bank account or getting a driving licence is tedious as most people have no clue about H4 Visa-its limitations including absence of SSN and donot acknowledge ITIN number for many of the above purposes.

We who are hindered by retrogression and the slow processing (actually no processing at all ) happening in the backlog centers should welcome this new legislation for Banning LC substituion.

[gonecrazyonh4]

All the people in the piple line are saved, but atleast it will prevent further misuse of this loophole.

There should be some enquiry or auditing done on the old LC substituion cases and green cards revoked for those whose received theirs illegally and those visa numbers added back (wishful thinking).

Any auditing done on these cases would reveal lots of scams and possibily avert others from being unscrupulous.

Its so unfair that people jumb ahead of the que for upto 5 years using LC substitution.