Highlights from MurthyChat Session: 17.Sep.2012

In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.

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Question: What happens if the priority date (PD) retrogresses while I-485 is still pending? Will the case still be reviewed?

Senior Attorney:
If the priority date retrogresses after your I-485 has been filed, the USCIS will continue working to pre-adjudicate your case. However, they cannot approve the application prior to the priority date becoming current again. The USCIS reviews the cases, essentially, based upon the dates of the I-485 filing, rather than the priority date. They can issue RFEs even if the date is not current. They can also deny cases at any time, if there are certain serious problems.  For cases that are "good," the USCIS pre-adjudicates and keeps the cases pending awaiting visa numbers.

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Question: What are minimum qualifications / requirements to be maintained by employer company to file green card for any employee?

Senior Attorney:
In order to pursue a labor certification based green card case, the sponsoring entity must be a U.S. employer offering permanent, full-time employment in the U.S. and must be able to demonstrate through the labor certification process that the employment of this foreign national will not adversely affect the wages and working conditions of U.S. workers and that the employer is unable to find an able, willing, and qualified U.S. worker for that position. In addition, the employer must demonstrate that the foreign national is qualified for that position and that it has the ability to pay that worker the offered wage.

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Question: What is the difference between MTR and appeal, in case of PERM audit?

Senior Attorney:
MTR and appeal are terms that generally refer to USCIS cases. If a PERM case is denied (whether or not there is an audit) the employer can file a type of appeal that is called either request for reconsideration or request for review. These requests are first reviewed by the DOL certifying officer to see if the DOL wishes to reverse the denial. Then, if the DOL upholds its initial decision denying the case, the request is forwarded to the Board of Alien Labor Certification Appeals (BALCA) for consideration.

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