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  #751 (permalink)  
Old 05-29-2015, 06:09 AM
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Originally Posted by hil3182 View Post
Here is the big picture:

AAO stands for Administrative Appeals Office. They are like the court system of Administrative Rules. Just like a court can invalidate a law for being unconstitutional, the AAO can invalidate administrative rules for going against statue.

Now, when the Administration wants to give us EAD + AP (Don't forget the AP) for I-140, they need a way to make sure that the employer cannot withdraw I-140. To do that they need to make sure that the beneficiary has ownership of the I-140.

The problem is existing regulation explicitly says that beneficiary is not a party to I-140. The quickest way to solve that problem is to get the AAO to throw out the regulation for going against statute - which is exactly what this is all about.


This has absolutely nothing to do with PD's.
Okay. I get it. Two are separate.

Thankfully, being a self-petitioned I-140, I am not affected by neither of these.
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  #752 (permalink)  
Old 05-29-2015, 06:46 AM
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Originally Posted by sengs View Post
Thankfully, being a self-petitioned I-140, I am not affected by neither of these.
*not affected by either
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  #753 (permalink)  
Old 05-29-2015, 09:52 AM
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Originally Posted by DMX17 View Post
I think they were trying to address a case where someone files 140/485 concurrently and changes job after 180 days before 140 is approved. If the 140 has a problem in this case then the notice of intent to deny would be sent to employer. But the employer has no incentive to reply as the employee no longer works there. On top of that since i140 is employers petition the employee does not know that there was a problem with 140. So the issue probably aap lies to non retrogressed countries I guess.

But the lawyers know how to write! I read it as I am ever curious How our fixes will bypass (in fact change) these hurdles. I fully trust the knowledgeable folks at IV and one day hope to join them in events.
Ya you are right. But AILA is ignoring the elephant in the Room - the backlog of people who cannot file AoS. It is for the benefit of these people that this whole exercise is being done. There is no doubt in my mind that the omission is intentional. If people who get to file AoS get EAD+AP, the H1B renewal gravy train goes dry. If on the other hand people with pending AoS who get into trouble get a chance to appeal their I-140 denial - it means more business for AILA members.

The argument we hope will prevail is one of congressional intent. There is no statue that says the Employer owns I-140 and the President cannot give I-140 folks EAD+AP.

The current "ownership" paradigm is in the Rules not the law, so they can change it in a variety of ways - including the AAO.

However by passing AC-21 Congress clearly intended for employees to not be stuck with employers for extended periods. So, by giving the employee an ownership stake in I-140 along with EAD+AP, the President would be following un-ambiguous congressional intent and acting within his authority under the law.

If they were serious about helping out backlogged folk, this is an easy argument to make - which is what we did in our Amicus submission.
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  #754 (permalink)  
Old 05-29-2015, 10:06 AM
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Originally Posted by DMX17 View Post
Also what is so magical about 180 days? It is kinda double standard to say employee should be considered a party in the case only after 180 days but not before. I understand that they are basing the argument under the AC21 pretext.
There is no basis in statue for 180 days for I-140 EAD + AP.

We want them to use AC-21 to give us ownership of I-140. POTUS can give us EAD effective immediately using existing authority. If we end up 180 days wait - we have to thank our twitter friends.

If we end up with I-140 EAD and no AP, we have to thank our twitter friends. If we end up with I-140 EAD and no AoS, we also have our twitter friends to thank for that.
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  #755 (permalink)  
Old 05-29-2015, 10:10 AM
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Originally Posted by hil3182 View Post
If we end up with I-140 EAD and no AP, we have to thank our twitter friends. If we end up with I-140 EAD and no AoS, we also have our twitter friends to thank for that.
This is so mind-numbingly frustrating !
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  #756 (permalink)  
Old 05-29-2015, 10:13 AM
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Originally Posted by sengs View Post
Okay. I get it. Two are separate.

Thankfully, being a self-petitioned I-140, I am not affected by neither of these.
If you want I-140 EAD + AP, you are affected. Unless this ownership gets settled across the board, now I-140 EAD + AP for you my friend!
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  #757 (permalink)  
Old 05-29-2015, 10:16 AM
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Originally Posted by hil3182 View Post
If you want I-140 EAD + AP, you are affected. Unless this ownership gets settled across the board, now I-140 EAD + AP for you my friend!
My I-140 approval form says my name as both "Petitioner" and "Beneficiary". Then who is the other stakeholder in my I-140 other than myself and USCIS? No one can revoke my I-140 other than USCIS, or if I self-destruct.
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  #758 (permalink)  
Old 05-29-2015, 10:19 AM
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Originally Posted by sengs View Post
My I-140 approval form says my name as both "Petitioner" and "Beneficiary". Then who is the other stakeholder in my I-140 other than myself and USCIS? No one can revoke my I-140 other than USCIS, or if I self-destruct.
Yes. My point is unless everybody else gets to own their I-140, you personally will not get an EAD+AP for your I-140.

In that way you are personally affected.
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  #759 (permalink)  
Old 05-29-2015, 10:23 AM
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Originally Posted by hil3182 View Post
Yes. My point is unless everybody else gets to own their I-140, you personally will not get an EAD+AP for your I-140.

In that way you are personally affected.
So you are saying that unless everybody gets to own their I-140, USCIS will not implement EAD/AP for I-140? If that is true, it makes sense of waiting 6 months to prepare the rule proposal.
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  #760 (permalink)  
Old 05-29-2015, 10:56 AM
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Originally Posted by ANDANK View Post
I am still not clear on what does it (AILA - AILA/AIC Amicus Brief... ) means to me. Could you please explain it in more detail?

I understand it not talking about PD, but what does it say about job portability?


(please excuse lack of knowledge on the subject).
Here is the high level picture.

AILA is the lobbying group for the Immigration Lawyers. Most uninformed people think that immigration lawyers are our greatest allies since immigration lawyers are THE group of people most familiar with our miserable situation.

Unfortunately the opposite is true. Immigration lawyers are the second largest beneficiaries of our miserable situation (after our beloved employers) and their lobbying organization behaves accordingly.

Now, as part of the Executive order, the Obama Administration wants to give us ownership in our own I-140 (which most of us do not have). To do this they have gone to the Administrative Appeals Office (AAO) which has the authority to strike out or modify regulations that run counter to the law.

As part of the AAO procedure, they ask for Amicus Curiae briefs from the public. Amicus Curiae quite literally means "Friend of Court". It is an opportunity for affected parties to present arguments so sway the decision in a manner that suites the affected parties interest.

As you can see in AILA's Amicus Curiae brief, they do not want people who haven't been able file their AoS to benefit from this - when by far the biggest problem is people stuck with their employers for decades while waiting for their PD's to become current.

Instead, AILA chooses to devote pages of elegantly written bullshit to the edge case of concurrent filing where the beneficiary has switched jobs after 6 months of filing. Notice there wasn't a peep about the elephant in the room - the backlog issue.








To me, this is reminiscent of the Recapture and Dependent exemption hysteria in the media late last year. That hysteria was manufactured for precisely one reason - to distract us from asking for achievable, reasonable fixes like I-140 EAD + AP, early AoS, broadening for same or similar etc.

To understand AILA's and industry's last attempt to screw us with aforesaid media hysteria, consider the following possible outcomes to their exclusive Recapture + Dependent exemption demands:
1. Probability of AILA members loosing business with the admin giving Recapture + Dependent exemption = 10% (just a guess)
2. Probability of AILA members continuing to mint money with the admin NOT giving Recapture + Dependent exemption = 90%

So AILA and the industry tried to frame the debate in a manner such that there was a 90% chance of things continuing as usual.

IV on the other hand asked for things like I-140 EAD+AP, early AoS, broadening of same or similar along with Recapture + Dependent exemption. We knew that if anyone in the Admin seriously considered our proposals for I-140 EAD+AP, early AoS and broadening of same or similar, there was a 90% chance we would get it. If we also got Recapture + Dependent exemption, that would be excellent - but we didn't want to make something so unlikely to happen our exclusive demand.

If you don't believe me, I challenge you to go through the RFI submissions for any other org and find reasonable demands for our community - you won't. IV is the only one who made these submissions.
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  #761 (permalink)  
Old 05-29-2015, 10:58 AM
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Originally Posted by sengs View Post
So you are saying that unless everybody gets to own their I-140, USCIS will not implement EAD/AP for I-140? If that is true, it makes sense of waiting 6 months to prepare the rule proposal.
Yes. That is what I am saying. They aren't going to change the whole system just for NIW folks from India.
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  #762 (permalink)  
Old 05-29-2015, 11:00 AM
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Originally Posted by sengs View Post
So you are saying that unless everybody gets to own their I-140, USCIS will not implement EAD/AP for I-140? If that is true, it makes sense of waiting 6 months to prepare the rule proposal.
And there is no need to wait 6 months for ownership to change.

AAO can throw the whole thing out because it conflicts with AC-21. That is why they went to AAO - to save themselves 6 months.

You will have to wait 6 months for EAD+AP though because that requires rule making.
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  #763 (permalink)  
Old 05-29-2015, 11:04 AM
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Default Thanks Hil

Hil, Thanks for your great efforts and articulation!

I have been watching AILA for some time and quite convinced they are trying to screw the EB backlogged guys to keep the Immigration Lawyers in business.

Very happy the Obama Administration has taken inputs from Immigration Voice and not the Voice of Lawyers.
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  #764 (permalink)  
Old 05-29-2015, 11:38 AM
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Quote:
Originally Posted by hil3182 View Post
Here is the high level picture.

AILA is the lobbying group for the Immigration Lawyers. Most uninformed people think that immigration lawyers are our greatest allies since immigration lawyers are THE group of people most familiar with our miserable situation.

Unfortunately the opposite is true. Immigration lawyers are the second largest beneficiaries of our miserable situation (after our beloved employers) and their lobbying organization behaves accordingly.

Now, as part of the Executive order, the Obama Administration wants to give us ownership in our own I-140 (which most of us do not have). To do this they have gone to the Administrative Appeals Office (AAO) which has the authority to strike out or modify regulations that run counter to the law.

As part of the AAO procedure, they ask for Amicus Curiae briefs from the public. Amicus Curiae quite literally means "Friend of Court". It is an opportunity for affected parties to present arguments so sway the decision in a manner that suites the affected parties interest.

As you can see in AILA's Amicus Curiae brief, they do not want people who haven't been able file their AoS to benefit from this - when by far the biggest problem is people stuck with their employers for decades while waiting for their PD's to become current.

Instead, AILA chooses to devote pages of elegantly written bullshit to the edge case of concurrent filing where the beneficiary has switched jobs after 6 months of filing. Notice there wasn't a peep about the elephant in the room - the backlog issue…………..
What is scaring the $hit out of me here is that there is a probability that WH/DHS/USCIS may not keep their word (that they made to IV) of not changing the promised actions in the upcoming report, if there is enough pressure/lobbying from AILA.

Which rather enforces my belief in the fact that the only and permanent solution to this mess is HR213.
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  #765 (permalink)  
Old 05-29-2015, 12:32 PM
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The case AILA talks about mainly (140 Denial) sounds like a 1 in 100 case. Note that one should not quit 140 filing employer before it is approved. So this whole thing sounds like It has other motives as hil said.

Sengs- good that you already own your 140. Me, havent seen mine as I shared before. It has kept in a safe location. They havent even confirmed if it was approved with EB2. Geez.
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