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Old 03-02-2016, 11:02 AM
ashwink ashwink is offline
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Originally Posted by d.kiran View Post
Can I ask a question ? Copied from my FB question and cleaned up for clarity.

The comment is very well thought out and very detailed. I have a very basic question, that I am sure you all would have thought about or is probably not even relevant.

At the risk of extreme oversimplification, the majority of the argument rests on the fact that a valid PERM and a valid I-140 (based on the PERM) are used to provide unlimited H1b extensions. However, the congressional intent is to provide "Job flexibility" and "ONE TIME EXTENSION" . Therefore, if the intent was to provide one time extension and allow job flexibility, then the only way is to provide an EAD and AP.

This is certainly a novel approach (and highlights why IV did not publish the comments earlier) , but the potential downside could be that DHS could say we will need a new PERM and new I-140 for every H1b extension. Is this not a valid risk or do you believe employers would not let this happen ?
Admin should feel free to correct me, but I think there are many issues IV raised that tie together:
  1. Completely ignoring employee's interests in interpreting the law.
  2. The fact that on a literal interpretation of the law governing labor certification, the labor certification is completely invalid for any kind of backlog. This means if DHS is interpreting the law literally, then EB-3 ROW (which is backlogged by 2 months) has an invalid labor certification - but they are still giving them green cards!
  3. If DHS is keeping the labor certification valid - how are are they doing it? IV is saying (and I agree) that the only way to do it is by interpreting the statue through AC-21, which if they are doing then why are they not providing job flexibility? This selective interpretation of the law goes back to #1 which is DHS is completely ignoring employee interests.
  4. Regarding 6th year extensions, IV is saying the only reason Congress allows 6th year extensions is to enable the backlogged applicants to get a GC. But if you switch employers, you loose the GC application and have to start all over again - which goes against the whole reason for a 6th year H1-B extension and is a paradox.

As to your specific question, it is very unlikely that they will do that. They will get sued because that is not what Congress intended with the 6th year H1-B extension. If they did that, they cannot give any GC to EB-3 ROW. I think IV has done a brilliant job in cornering DHS with contradictions in they own regulation.

There are many other things in the document. It is a very technical document - that has been made easy to read - I suggest reading it 3 or 4 times to let the whole thing sink in.
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