CSC Update : February 2006
Posted Mar 03, 2006
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Representatives from the California Service Center (CSC) met with the CSC Liaison Committee of the American Immigration Lawyers Association (AILA) on February 22, 2006. A number of immigration matters were discussed. Items of particular interest are highlighted in this report. We appreciate the CSC's providing these helpful insights into current procedures and policies and trust that this information proves useful to MurthyDotCom and MurthyBulletin readers in planning and strategizing their immigration for the future.
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Employer's Financial Ability to Pay
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To obtain approval of an I-140 immigrant petition for a foreign national worker, an employer must show ability to pay the offered wage. Regulations state that the petitioner must be able to pay from the priority date forward. The CSC appears to take the position that an employer must show the ability to pay the prevailing wage from the year in which the labor certification was filed, rather than as of the individual's priority date. Often the two are one and the same, but not in every circumstance. This is a questionable interpretation of the ability to pay requirements that are generally understood to be from the date that the labor certification is filed. This interpretation makes things easier in some instances, while in others it may make things more difficult.
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Transfer of Priority Date
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The CSC confirmed that an individual with an earlier priority date, established through an approved I-140 petition in one employment-based (EB) category, may transfer that earlier priority date for a later case filed in a different employment-based category. This can be an enormous benefit when the retention of the earlier priority date is permitted for a later filed EB case. We note that this procedure does not work if the initial I-140 petition has been revoked due to fraud or for use in a labor substitution case.
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I-131 and 1-765 Filings
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The CSC explained that, when I-485 applications are transferred to any other USCIS location, the Employment Authorization Document (I-765) and Advance Parole (I-131) requests should be filed at the office that originally had jurisdiction over the case. For example, if a case originated at the CSC, but is later sent to a local office, the I-765 and I-131 filings should be filed with the CSC. If a case originated at another service center, such as the Vermont Service Center (VSC), and is transferred to the CSC, the I-765/s and I-131/s should be filed with the VSC. It is possible that these will be transferred, also. This does not mean, however, that they were incorrectly filed.
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H1Bs after One-Year Departure and Inquiries on Transferred Cases
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Upon reaching the conclusion of six years in H1B status, one may depart the U.S. for a full year and become eligible for another six years of H1B status. Individuals again become subject to the quota or cap, however. Thus, those who avail themselves of the full six years on H1B likely end up spending more than a year abroad as a result of the H1B cap. The CSC confirmed its position that an employer cannot file the new H1B petition until the beneficiary can show that s/he was out of the U.S. for at least one year. This does complicate the timing for people spending the one year abroad and requires some advance planning. The CSC position holds even if the start date requested on the H1B petition falls after the one-year period. This stance appears to be designed to avoid relying on projection. For example, it would prevent one from filing for an H1B petition, under the mere assumption that s/he will be out of the U.S. for at least a year by a certain date. The individual's plans may change and, instead, s/he ends up traveling in and out of the U.S. in B-1, B-2, or another nonimmigrant status during that time. One would not actually qualify for the full six years on H1B in this situation.
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It was requested that status inquiries for cases transferred to the CSC from other offices or Service Centers be held for at least 180 days after a transfer notice is received without initiating a status inquiry.
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