Mohit_Malkani
10-08 11:13 AM
Sorry to hear about your situation.
Take a look at www.immigtation-law.com. Go to the nreaking news swction. They have a great piece on I140/I485 portability.
I have also pasted it here in case you dont get to the website
All the best.
10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication
When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer�s ability to pay the prevailing wage."
(1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
(2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physically location restrictions.
(3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
Remember that when there is a portability issue, two things can ensure. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.
Take a look at www.immigtation-law.com. Go to the nreaking news swction. They have a great piece on I140/I485 portability.
I have also pasted it here in case you dont get to the website
All the best.
10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication
When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer�s ability to pay the prevailing wage."
(1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
(2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physically location restrictions.
(3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
Remember that when there is a portability issue, two things can ensure. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.
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xela
06-08 12:45 PM
Anyone heard anything yet?
Supposedly they take a max of 11 weeks but it worries me that I do not even see any LUDs.
I guess it is a waiting game just like everything else with them.
Supposedly they take a max of 11 weeks but it worries me that I do not even see any LUDs.
I guess it is a waiting game just like everything else with them.
mdforgc
02-21 06:35 PM
EB3 nepa, please do print out these links too and send to Sen Specters office
http://www.flight-capital.com/- David Heenans article
http://www.creativeclass.org/ Dr Richard Florid's site Book"Flight of the creative class"
[1] Pia M. Orrenius and Madeline Zavodny, “Does Immigration Affect Wages? A Look at Occupation-Level Evidence” Federal Reserve Bank of Atlanta Working Paper No. 2003-2a, August 2003, at http://www.frbatlanta.org/filelegacydocs/wp0302a.pdf.
[2] “America Needs More, Not Fewer, Workers from Overseas,” editorial, The Wall Street Journal, August 26, 2005, at http://www.opinionjournal.com/forms/
printThis.html?id=110007166.
http://www.heritage.org/Research/GovernmentReform/wm886.cfm#_ftn1- link supporting recapture of visas
http://www.twincities.com/mld/twincities/news/state/minnesota/13614107.htm- MN Gov Pawlnety's comment on legal immigration
http://www.upi.com/NewsTrack/view.php?StoryID=20060208-105741-3392r Intel Chairman calling for more H1Bs and Green cards
http://www.migrationpolicy.org/pubs/PolicyBrief13_Jan06_13.pdf report of the migration policy institute, suggesting moving other visa cateogires to skilled EB immigration and removing country quotas.
http://www.flight-capital.com/- David Heenans article
http://www.creativeclass.org/ Dr Richard Florid's site Book"Flight of the creative class"
[1] Pia M. Orrenius and Madeline Zavodny, “Does Immigration Affect Wages? A Look at Occupation-Level Evidence” Federal Reserve Bank of Atlanta Working Paper No. 2003-2a, August 2003, at http://www.frbatlanta.org/filelegacydocs/wp0302a.pdf.
[2] “America Needs More, Not Fewer, Workers from Overseas,” editorial, The Wall Street Journal, August 26, 2005, at http://www.opinionjournal.com/forms/
printThis.html?id=110007166.
http://www.heritage.org/Research/GovernmentReform/wm886.cfm#_ftn1- link supporting recapture of visas
http://www.twincities.com/mld/twincities/news/state/minnesota/13614107.htm- MN Gov Pawlnety's comment on legal immigration
http://www.upi.com/NewsTrack/view.php?StoryID=20060208-105741-3392r Intel Chairman calling for more H1Bs and Green cards
http://www.migrationpolicy.org/pubs/PolicyBrief13_Jan06_13.pdf report of the migration policy institute, suggesting moving other visa cateogires to skilled EB immigration and removing country quotas.
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amsgc
06-15 11:40 PM
I just read the instructions on initial evidence on the I-485. Nowhere does it ask you for passport details - only for page with nonimmigrant visa, if obtained in the last one year.
Why are people asking questions about passport validity? What am I missing here - please enlighten.
Thank you.
Ams
Passport should be valid for more than 6 months for applying I 485.
If somebody can answer that would begreat
Why are people asking questions about passport validity? What am I missing here - please enlighten.
Thank you.
Ams
Passport should be valid for more than 6 months for applying I 485.
If somebody can answer that would begreat
more...
WaldenPond
06-29 09:04 AM
Hello jkays94,
Excellent post. The fear of some kind of retribution due to association or participation in standing up to put forward our grievances is something that has, in some way effected every effort for making the change. And often times, this fear is based on lack of knowledge of the system and law.
A friend of mine had sent the information about a book ‘Democracy in America’. And if I may quote from that book -
“In no country in the world has the principle of association been more successfully used, or more unsparingly applied to a multitude of different objects, than in America.”
“The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow-creatures, and of acting in common with them. I am therefore led to conclude that the right of association is almost as inalienable as the right of personal liberty.”
At the same time, the fear of retribution for some of the members is well understood as we all have families and responsibilities. And everybody’s perception on the level of risk involved and the capacity to take the risk for a cause/purpose is different. We ought to overcome our fears as this is a just cause and we are petitioning to bring back the fairness to the system. The system was never designed or intended to work in a way where it takes 6-12 years for people to get their employment based green cards. And as you rightly pointed out, CIR presents us all with the opportunity to fix the problem. I have lot of respect for Randallemery, who is a born citizen of US and continues to help us in this just cause.
Thank you Randallemery.
WaldenPond
Excellent post. The fear of some kind of retribution due to association or participation in standing up to put forward our grievances is something that has, in some way effected every effort for making the change. And often times, this fear is based on lack of knowledge of the system and law.
A friend of mine had sent the information about a book ‘Democracy in America’. And if I may quote from that book -
“In no country in the world has the principle of association been more successfully used, or more unsparingly applied to a multitude of different objects, than in America.”
“The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow-creatures, and of acting in common with them. I am therefore led to conclude that the right of association is almost as inalienable as the right of personal liberty.”
At the same time, the fear of retribution for some of the members is well understood as we all have families and responsibilities. And everybody’s perception on the level of risk involved and the capacity to take the risk for a cause/purpose is different. We ought to overcome our fears as this is a just cause and we are petitioning to bring back the fairness to the system. The system was never designed or intended to work in a way where it takes 6-12 years for people to get their employment based green cards. And as you rightly pointed out, CIR presents us all with the opportunity to fix the problem. I have lot of respect for Randallemery, who is a born citizen of US and continues to help us in this just cause.
Thank you Randallemery.
WaldenPond
chanduv23
11-06 06:36 AM
Though this may be off topic, it is related to travel and NIV.
I booked tickets for my inlaws travelling on a tourist visa in Jet Airways - Chennai to JFK with layover in Brussels.
Now, when I ask people everyone say they travel by Lufthansa, Air India, Emirates etc... but I have not found anyone who has travelled by Jet Airways.
Just wanted to know if anyone has travelled via Jet Airways and their experience at the Brussels Airport, if it was smooth. My Inlaws do not speak English and this is the first time they are travelling.
Thanks
I booked tickets for my inlaws travelling on a tourist visa in Jet Airways - Chennai to JFK with layover in Brussels.
Now, when I ask people everyone say they travel by Lufthansa, Air India, Emirates etc... but I have not found anyone who has travelled by Jet Airways.
Just wanted to know if anyone has travelled via Jet Airways and their experience at the Brussels Airport, if it was smooth. My Inlaws do not speak English and this is the first time they are travelling.
Thanks
more...
punjabi
07-18 06:59 PM
You should get RFE based on the missing employment letter. Rejections are related to more inappropriate cases. I know one case, the guy did not send his passport copies and he got an RFE.
Hope this helps ease the tension!
Hi Gurus,
I filed my 485 application on July 2nd. But my employer/lawyer did not attach the employment verification letter in the package. Is USCIS going to reject my application because of that or they will send an RFE. Please advise..
Hope this helps ease the tension!
Hi Gurus,
I filed my 485 application on July 2nd. But my employer/lawyer did not attach the employment verification letter in the package. Is USCIS going to reject my application because of that or they will send an RFE. Please advise..
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ItIsNotFunny
10-23 03:57 PM
Hi,
My mother-in-law is coming to US on 2nd Dec on a one-way ticket, she will be going back around March 09 i.e. in almost 4 months.
As we dont know abt the dates as such of return so we have booked a one-way ticket from India to US.
Will there be any problem due to that at port of entry?
Do she also need to carry travel insurance along with her?
Thanks in advance.
First of all how did she buy one way ticket. Most IATA makes sure that temporary visa don't get one way ticket.
There are good amount of chances (intend to immigrate) at port.
My mother-in-law is coming to US on 2nd Dec on a one-way ticket, she will be going back around March 09 i.e. in almost 4 months.
As we dont know abt the dates as such of return so we have booked a one-way ticket from India to US.
Will there be any problem due to that at port of entry?
Do she also need to carry travel insurance along with her?
Thanks in advance.
First of all how did she buy one way ticket. Most IATA makes sure that temporary visa don't get one way ticket.
There are good amount of chances (intend to immigrate) at port.
more...
somegchuh
11-09 05:08 PM
In the corporate world dilbert cartoon strip, shows an evil character called dogbert who is an HR exec. This evil character does everything to annoy office staff. However, for GC aspirants lawyers and USCIS are also nothing short of dogberts.
Speaking of annoying lawyers, my company lawyer who is supposed to file for our EAD/AP renewal is adamant that the renewal can be filed only four months in advance. I have provided him a USCIS link that clearly states that USCIS accepts applications 6 months in advance. But it doesn't seem to help. God, I hate these lawyers.... So much fuss for filing paperwork....
Speaking of annoying lawyers, my company lawyer who is supposed to file for our EAD/AP renewal is adamant that the renewal can be filed only four months in advance. I have provided him a USCIS link that clearly states that USCIS accepts applications 6 months in advance. But it doesn't seem to help. God, I hate these lawyers.... So much fuss for filing paperwork....
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s.m.srinivas
03-31 10:42 PM
Company A in my case has not revoked my H1B, it's still in valid status. I had been to India too & I came back with same VISA on MARCH 12 2009. I have mentioned in the post also.
"snathan", can you tell me what are the options for me now in this situation?
"snathan", can you tell me what are the options for me now in this situation?
more...
eldrick
08-16 02:56 PM
I'm scared now. The problem is as per the company's policy we're not allowed to contact the lawyer directly.
I've read somewhere before that if you did not sign G-28 it means the receipt will go directly to you. But, I'm not sure.
I've read somewhere before that if you did not sign G-28 it means the receipt will go directly to you. But, I'm not sure.
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ingegarcia
04-17 09:08 AM
Hi All,
I am an aspiring US immigrant, and currently work with a desi-like employer who has not been paying me for last 3 months. I have resigned and started working at a new employer, using portability options. I will also contact DOL and report this to get my money back, however, DOL may not be able to recover it if the employer files for bankruptcy. I donot care much about money now, as its not too much and my new job increment covers it.
Here are my questions
1) Is there a way i can report this misdoing to USCIS directly. Is there any phone number/contact info to report frauds on I-140s and I-485s as he is holding some employees hostage (not allowing them to move out because of this situation where your money is stuck and so is your immigration).
2) What else should i do to make this injustice visible? I will work with DOl and get my money back.
3) I am thinking of reporting this directly to the I-140 processing centers. Is this is a good idea?
PK
My guess would be to report it with Labor Department instead...
I am an aspiring US immigrant, and currently work with a desi-like employer who has not been paying me for last 3 months. I have resigned and started working at a new employer, using portability options. I will also contact DOL and report this to get my money back, however, DOL may not be able to recover it if the employer files for bankruptcy. I donot care much about money now, as its not too much and my new job increment covers it.
Here are my questions
1) Is there a way i can report this misdoing to USCIS directly. Is there any phone number/contact info to report frauds on I-140s and I-485s as he is holding some employees hostage (not allowing them to move out because of this situation where your money is stuck and so is your immigration).
2) What else should i do to make this injustice visible? I will work with DOl and get my money back.
3) I am thinking of reporting this directly to the I-140 processing centers. Is this is a good idea?
PK
My guess would be to report it with Labor Department instead...
more...
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GCNaseeb
11-15 08:52 AM
When we went for our Biometrics, all our FP Notices were misspelled. We informed the bio technician and she corrected on their system there itself.
After the FP, I see there is an LUD also. I am hoping today's infopass meeting would be fruitful. Let's hope they just certifiy my EAD and AP there itself. :)
My name was misspelt on my FP notice as well.when i went for FP couple of weeks back, they could not make the change there.I told them about the name misspelt, they informed that I have to call the 1-800 number and get it changed.
After the FP, I see there is an LUD also. I am hoping today's infopass meeting would be fruitful. Let's hope they just certifiy my EAD and AP there itself. :)
My name was misspelt on my FP notice as well.when i went for FP couple of weeks back, they could not make the change there.I told them about the name misspelt, they informed that I have to call the 1-800 number and get it changed.
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amitjoey
05-31 12:19 PM
Recently joined.
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Thanks Jitamitra
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Green06
08-15 02:00 PM
eeeee thats painful. Happend so many times. It is like Lotto but at the end we say Samay se pehle or Bhagya se adhik kuch nahi milta (before time and more than your destiny you don't get anything)
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09-13 11:10 AM
Somebody please give me suggestions?
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aprajimmi
06-13 09:56 AM
Guys,Please do something for priority dates to be current.We are despirately waiting from 4years to file I-485...EAD...I-140 is approved long back.Atleast in this summer we are hoping......
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ksairi
08-17 08:41 AM
Kindly inform your friend that uscis is just accepting application for skilled workers at the moment.
HOW your answer relates to my question?
HOW your answer relates to my question?
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Lasantha
09-06 02:41 PM
This is an interesting question. Hope someone would throw some light on this!
pal351
11-21 04:49 PM
Hi Friends,
You may answered this so many times but I missed.. Please some tell me, How much is the Fee for AP Renewal? and Required Docs for the Papaer Filing.
I filed my I 485 on July 24th 2007
Thanks,
-Pal.
You may answered this so many times but I missed.. Please some tell me, How much is the Fee for AP Renewal? and Required Docs for the Papaer Filing.
I filed my I 485 on July 24th 2007
Thanks,
-Pal.
anishNewbie
09-11 11:38 AM
@vsuri , @prasadn, @eb2_mumbai
Thanks guys for sharing your exp.. this is what i was talking about.. it gives me some confidence starting my GC...Any1 out there please share your experience on EB2 filed as MS + 0
Could you guys tell me that ur advertisement/job requirements -- had any alternate education in it..like BS +5 as per the norm..
If yes, then it would be gr8.. if u can have a look at ur LC/9089 form and let us all EB2 aspirants know that..what did you specify in your H section..at 4(as min requirements-- MS or BS +5) and what as alternate requirements(8-A,C)
Did any of you guys, or any1 here had to prove Business Necessity when they filed EB2..
Thank uuuuuu.....:D (P.S. looks like we are going to beat NZ todayy)
Thanks guys for sharing your exp.. this is what i was talking about.. it gives me some confidence starting my GC...Any1 out there please share your experience on EB2 filed as MS + 0
Could you guys tell me that ur advertisement/job requirements -- had any alternate education in it..like BS +5 as per the norm..
If yes, then it would be gr8.. if u can have a look at ur LC/9089 form and let us all EB2 aspirants know that..what did you specify in your H section..at 4(as min requirements-- MS or BS +5) and what as alternate requirements(8-A,C)
Did any of you guys, or any1 here had to prove Business Necessity when they filed EB2..
Thank uuuuuu.....:D (P.S. looks like we are going to beat NZ todayy)
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