PDA

View Full Version : 2611 and exemption from numerical limitation


knowDOL
05-30-2006, 12:43 AM
Beware:

If you earned a STEM degree in a Non-CS field in a foreign country and worked in USA as a Software Engineer for more than three years in Non immigrant visa status before your labor application, you do not qualify for the exemption from numerical limitation. See the Mathew oh's response for one of the questions.
*******************************
In the final bill which the Senate passed last week, the following people have been added to the list of numerical limitation exemption:

(1) Master or higher degree earned from an accredited university in the U.S. In this category, the key is not major field of study but graduation from an accredited U.S. university. Accordingly, anyone who earned a master's or higher degree from an accredited university in the U.S. will be exempt from the numerical limitation regardless of their specialty fields. This will include STEM and non-STEM inasmuch as one graduated from such an accredited U.S. university. On the other hand, those who graduated from a foreign university or unaccredited U.S. university earning a master's or higher degree in STEM will not be exempt from the numerical limit, not to mention non-STEM foreign degree holders. The foreign STEM major master's degree or higher degree holders from a foreign university must meet additional requirement to be qualified for exempt from the numerical limitation. This is indeed a big change in the final bill.

(2) Those who have been awarded a medical speciality certificate based on the post-dotoral training and experience in the U.S. preceding the application for an immigrant visa. Basically the IMGs who completed specialty training or residency in the U.S. will fall under this category. Accordingly, these IMGs will not be subject to the numerical limitation.

(3) Employment is in the shortage occupation as designated by the agency as the occupation of blanket certification. This has been called "Schedule A." The shortage occupations can be added or removed by the agency depending on the labor markets in the U.S. These people will not be subject to the numerical limitation. In additiona, the following categories were proposed in the original S. 2611 and all of these categories survived in the final bill, such as:

(4) EB-11 Extraordinary Worker.

(5) EB-12 Outstanding Researcher or Teacher.

(6) EB-2 (National Interest Waiver approved cases only).

(7) Those who earned a master or higher degree in STEM (no matter where it was earned, thus both U.S. or foreign universities) and have been working in a "related" field in the U.S. in a nonimmigrant status during the three-year period preceding the application for the immigrant visa. This categories require more than STEM major. Work must be gained in the job "related " to his/her major STEM field. Additionally, the only work that will be counted include working in a nonimmigrant status. Accordingly, if he or she has been working in the related filed but not in nonimmigrant status, such STEM alien will not be exempt from the numerical limit.

(8) Finally, the spouses and "children" (below 21 years of age) of the alien who is admitted as an employment-based immigrant. However, these family members will be counted for the purpose of 650,000 annual EB employment cap count.

gg_ny
05-30-2006, 07:20 AM
Hi,

Maybe this reply is not directly pertaining to the gist of the previous mail. But what I was told by lawyer as a passing comment last week should resonate well with this. Apparently either AILA (via senators, of course) or some individual senators are trying to pass amendments to existing laws or even small bills that would eliminate backlogging for EB visas. The main goal is to denormalize spouse and family visa numbers so that for each primary application, 1.5 visa numbers would be released (as an average). This effort is being carried out INDEPENDENT of CIR.

It was a short conversation over the phone and I didn't press on it much. I don't want to read tea leaves or infer fantasies from this, but if anybody is aware of anything similar to these efforts, please share with the group. Maybe it is all gas or misstatement...

thanks.

CCC
05-30-2006, 08:19 AM
FYI,I believe that only when you file for your I-140, you have filed your immigration petetion. Applying for your Labor certification does not mean you have applied for an Immigrant Visa.

This is what my company lawyer told me.

njboy
05-30-2006, 08:49 AM
CCC, you are right...i had this same question a few days ago..what is the date of application of immigrant visa, because, it said..we should be employed 3 years prior to filing for immigrant visa..so yes, it is the date of filing of I-140.
For people looking for list of accredited universities in the engineering field -
http://www.abet.org/accrediteac.asp

anyway, there is no point of jumping the gun..if these provisions do become the law, it will take many months before they are interpreted and guidelines are laid out by BCIS, forms are prepared etc

gomirage
05-30-2006, 09:33 AM
njboy,

abet does not accredit masters degrees. Their accreditation is good only for bachelor degrees. I wonder how are they going to define accredited masters degrees.

dsreedhar
05-30-2006, 11:01 AM
Could someone tell what STEM stands for?

njboy
05-30-2006, 11:09 AM
GOOMIRAGE, good question..the answer is..the universities can choose to have either their graduate program accredited, or their undergraduate program accredited by ABET..BUT NOT BOTH..almost every university gets its undergraduate program accredited..
what this probably means is, if your university is ABET accredited for the undergraduate program ..and also if your university on a whole is a accredited by a regional accreditation body such as the middle states association of colleges and schools, commision of higher education or north central association of colleges and schools, higher learning commission, you are good to go.
Here is a link to help-
http://www.ope.ed.gov/accreditation/Search.asp

dks
05-30-2006, 11:11 AM
njboy,

abet does not accredit masters degrees. Their accreditation is good only for bachelor degrees. I wonder how are they going to define accredited masters degrees.

That is exactly right.

knowDOL
05-30-2006, 11:11 AM
Probably, all these techies don't have time to read enough about 2611. I am tired of seeing this question from people asking what is stem. Why can't you guys spend sometime on the bill itself or read more threads. Probably we should put faq on this on front page.
STEM stands for Science, Technology, Engineering and Maths fields.

knowDOL
05-30-2006, 11:15 AM
gomirage, njboy, CCC

What I meant with this post is that even if you have Engg Masters degee and have three years experience before filing I140 you are not cap exempt unless you worked in your Masters Major field. So, it means that if you earned a Masters degree in a Electrical or Electronics specilization from an Institution in your country and came here on H1B visa working for a software company, you are not cap exempt because your degree is not in Computer Science.

dsreedhar
05-30-2006, 11:25 AM
thanks KnowDOL.
Sorry for wasting some bandwidth here and causing frustration to some guys. I did try to look up some, but failed to find.
A FAQ would definitely help.

cheng_mike
05-30-2006, 11:28 AM
I think the following section pointed a interesting point and need to speak out:

"7) Those who earned a master or higher degree in STEM (no matter where it was earned, thus both U.S. or foreign universities) and have been working in a "related" field in the U.S. in a nonimmigrant status during the three-year period preceding the application for the immigrant visa. This categories require more than STEM major. Work must be gained in the job "related " to his/her major STEM field."

For the illegal immigrant, it seems does not matter who had the farmer experiance and change to do resterant work, why restrict a engineer have a master of engineering in mechanical from doing software engineer work? I believe the difference between machnical enginerring and computer engineering is much smaller than farmer and waiter, at least, the basic course ( maths, physics, chemistry, foreign languages, which takes more than 2 / 3 time ) are the same.

arihant
05-30-2006, 11:40 AM
Sorry to post this here! I know this has been mentioned before several time, but it is important to note in this Bill that, US advanced degrees (STEM or otherwise) do not have the 3 year experience clause associated with them. So, if you have an MS in Mechanical Engineering from an acredited US school, and are employed as a systems analyst, you still qualify for the exemption. Remember that DOL still has to certify you, so you cannot be working in a totally unrelated field anyway.

Yes, the clause DOES apply to Non-US advanced degrees in STEM. However, note that exemption is NOT given to Non-US advanced degree in Non-STEM discipline. So, for example, if you hold an MBA from a top school outside US, and have been working in a related field for over 3 years in US, you still do not qualify for the exemption.

njboy
05-30-2006, 11:41 AM
KNOW_DOL, the lawmakers always paint with broad sweeps, its upto the INS to interpret it, let us wait and see if these provisions are carried over after the senate-house meeting. But the way it is presently, your interpretation is right..
either they should have US graduate degree or foreign graduate degree + 3 years work experience in US in relevant field. But, these laws are always open for interpretation. I know programmers on H1B with bachelors degree in English Literature. It would be easy to show that degree in electrical engineering is relevant to programming work ...but MA in Hindi, definetly not.

knowDOL
05-30-2006, 01:12 PM
It means that an IIT Masters graduate with Major in Electronics who chose to join a Start up in Bangalore and came to US and working in a Software Company will not be cap exempt but a Arts or commerce student who came to US and pursued Masters in Arts or Psycology or Commerce and working in Software company will be cap exempt. I think it is not fair.

But anyway, I think everyone will be able to file I485 atleast get EAD.

logiclife
05-30-2006, 01:21 PM
Guys,

Please cool down over the master's exemptions. If you are cap exempt because of your US masters in Arts, or literature or something like that, you would still need to find a real job and a real employer willing to sponsor your greencard. If you are able to do hi-tech work in speciality occupation to earn H1 and you are being sponsored for GC, does it matter if your masters degree is in relevant discipline or in literature/Arts/commerce?

Employer petition is a check against unlimited flow of people who can score points/exemptions but not get jobs in the real world.

rb_248
05-30-2006, 01:39 PM
Does all the numerical exemption hold good for Consular Processing of green card? or just Adjustment of status only?? :confused:

logiclife
05-30-2006, 01:43 PM
The rules are the same for you whether you opt for 485 or consular processing. However, there are a couple of differences:

1. Per S 2611, if PD is not current, you can file for I-485, get EAD and AP. That advantage would not be there if you are going the route of consular processing.

2. If your PD is current, you can get greencard in consular processing a little quicker than 485 processing, since 485 processing is very very slow. That is the advantage of consular processsing.

GCwaitforever
05-31-2006, 04:41 PM
Yes, the clause DOES apply to Non-US advanced degrees in STEM. However, note that exemption is NOT given to Non-US advanced degree in Non-STEM discipline. So, for example, if you hold an MBA from a top school outside US, and have been working in a related field for over 3 years in US, you still do not qualify for the exemption.

An MBA degree (non-STEM) from an accredited US University gives that exemption. This is a significant improvement from earlier version of the bill.

coolio
06-01-2006, 12:07 PM
Guys, sorry for this stupid question but I'll appreciate if someone can respond. When we talk about STEM exemption, does it mean that one will be able to get the "actual green card" and not just EAD/AP (of course after applying for 140, 485) even if the PD is not current? I think that's what's meant by not counting against EB quota. Please correct me if I am wrong. Thanks in advance.

dixie
06-01-2006, 12:36 PM
Guys, sorry for this stupid question but I'll appreciate if someone can respond. When we talk about STEM exemption, does it mean that one will be able to get the "actual green card" and not just EAD/AP (of course after applying for 140, 485) even if the PD is not current? I think that's what's meant by not counting against EB quota. Please correct me if I am wrong. Thanks in advance.

You can apply for 485 and be eligible for GC, without having to wait for your PD to be current.In other words, your PD is treated as "always current" if you qualify for the STEM exemption.

gcsucks
06-01-2006, 01:14 PM
But Im someone is able to file a 485 regardless of the availability then what is the difference ?
They both have to wait for their PD to get the final greencard ?!!

Can someone please explain..

You can apply for 485 and be eligible for GC, without having to wait for your PD to be current.In other words, your PD is treated as "always current" if you qualify for the STEM exemption.

logiclife
06-01-2006, 01:28 PM
I am not sure how familiar you are with the process, so forgive me if this post sounds preachy in any way, not my intention, I am writing this assuming you are not familiar with pd/exemption/485 mechanism. Sorry if you already are familiar.

If you file 485 while your PD is current, then the 485 will be approved - after due processing - resulting in an issue of a visa-number(a permenant visa required to issue a greencard) to you and your dependents on the file. If your PD is current, only then a visa number would be available and only then you can get your greencard.

If you file 485 while your PD is not current, then the 485 will be processed and you will get a receipt notice, but a visa number will not be issued to applicants on your file(you and your dependents) and you will not get your greencard. However, just because your 485 is filed with USCIS, you become eligible to apply for EAD card and AP which helps you a lot in portability between employers, invoking AC21 provisions for changing jobs(same description, different employer). Also the AP helps travel make easier compared to H1s that have to be stamped if they are close to being expired or expired.

Today, you cannot file 485 if your PD is not current. But the senate version has a provision to file 485 even when PD is not current, thereby providing people relief that I decribed in the above paragraph - although it does not result in greencard being issued any sooner.

However, if you are exempt from quota, you are always current and you can file your 485 as soon as your labor is approved along with 140, and you will be issued a visa number(even if one is not available) by the virtue of you being exempt. THAT IS THE DIFFERENCE BETWEEN exempt and non-exempt.

njboy
06-01-2006, 01:59 PM
so..the obvious benefit is..that people who's labor is stuck in BPC (and who qualify for STEM) can re-file using PERM, and not worry about losing priority date. When their I 140 gets cleared, they can immediately file for 485 instead of waiting the backlog processing center to finish their case

qualified_trash
06-01-2006, 02:24 PM
It means that an IIT Masters graduate with Major in Electronics who chose to join a Start up in Bangalore and came to US and working in a Software Company will not be cap exempt but a Arts or commerce student who came to US and pursued Masters in Arts or Psycology or Commerce and working in Software company will be cap exempt. I think it is not fair.

But anyway, I think everyone will be able to file I485 atleast get EAD.

DISCLAIMER: Post is specific to educational system in India

Who said any of this was fair? I am sure that there are many folks with 3 year degrees (myself included) who think that this entire 4 year bachelor fixation is unfair too. What would you have to say about that?

For example, Wharton and NYU accept a 3 year BSc (Bachelor of Science) or a BCom (Bachelor of Commerce) as equivalent to Bachelor degree. What problem does DOL or USCIS have?

As I said, nothing is ever fair. You have to learn to live with and work the system to your favor, give it your best shot and hope to come out on top.

Cheers!!

coolio
06-02-2006, 04:52 PM
Thanks guys for your response. Appreciate it a lot.

knowDOL
06-02-2006, 05:09 PM
Everyone who thinks that they are not bieng treated fairly, I think have a right to ask about it. And one should not equate and say when I can shut up why can't you shut up. If you think system is wrong.. you have to raise your voice.

DISCLAIMER: Post is specific to educational system in India

Who said any of this was fair? I am sure that there are many folks with 3 year degrees (myself included) who think that this entire 4 year bachelor fixation is unfair too. What would you have to say about that?

For example, Wharton and NYU accept a 3 year BSc (Bachelor of Science) or a BCom (Bachelor of Commerce) as equivalent to Bachelor degree. What problem does DOL or USCIS have?

As I said, nothing is ever fair. You have to learn to live with and work the system to your favor, give it your best shot and hope to come out on top.

Cheers!!

GCwaitforever
06-02-2006, 05:13 PM
nothing is ever fair. You have to learn to live with and work the system to your favor, give it your best shot and hope to come out on top.

Cheers!!

Well said. The wait in BECs, retrogression and name check process are a bit toughening for all of us.

Can somebody comment on what is going on regarding this article? http://www.numbersusa.com/hottopic/uscis.html

Also I want to add to whay Logiclife has said about consular processing at I-485 stage. The drawback is you can not appeal the rejection by the consulate official. Whereas if you let it go through the NSC, you can appeal over any rejections.

GCwaitforever
06-02-2006, 05:16 PM
The rules are the same for you whether you opt for 485 or consular processing. However, there are a couple of differences:

1. Per S 2611, if PD is not current, you can file for I-485, get EAD and AP. That advantage would not be there if you are going the route of consular processing.

2. If your PD is current, you can get greencard in consular processing a little quicker than 485 processing, since 485 processing is very very slow. That is the advantage of consular processsing.

One more major difference is consular processing does not allow for appeals over rejections. I would not trust the consulate officials in India who tend to be very whimsical and impolite to people who apply for VISAs.

waitnwatch
06-02-2006, 05:20 PM
Everyone who thinks that they are not bieng treated fairly, I think have a right to ask about it. And one should not equate and say when I can shut up why can't you shut up. If you think system is wrong.. you have to raise your voice.

Take it easy please.... you sure have a right to raise your voice. The only thing qualified_trash is wanting to say here is that there are a lot of things that are unfair. You do fight to correct the system but you also try to find gray areas and loopholes that work in your favor.

Once again.... we did talk about this splitting of US/Non-US degrees in some detail previously. The US University system, as I think logiclife pointed out, is worth #69 billion. So I'm sure they have way more clout than IV. I'm sure though that IV keeps trying to introduce stuff that is helpful to its members. Note that there are core members with IIT/IIM degrees and they also will not be exempt. Do you guys by any chance think that given a chance IV would not try to make foreign degrees exempt too?

GCwaitforever
06-02-2006, 06:19 PM
The US University system, as I think logiclife pointed out, is worth $69 billion. So I'm sure they have way more clout than IV.

One proverb says - 'If you can not beat them, join them'. To some of the folks who have not applied for I-140 yet, this is a good time to do your masters degree, if you ever wanted to do Masters, but postponed it. You can time completion of your masters degree with BEC adjudication of your application. :cool:

admin
06-03-2006, 08:31 AM
You can time completion of your masters degree with BEC adjudication of your application. :cool:

GCwaitforever,

Do you know of any masters degree that will take 4-5 years to complete?:D For I am sure that is how much time they will take to adjudicate my labor in PBEC.