未名空间十大: 撰写一封给USCIS的信，询问EB2申请EB3的合法性

发信人: nccam (nccam), 信区: EB23
标题: 撰写一封给USCIS的信，询问EB2申请EB3的合法性
发信站: BBS 未名空间站 (Thu Jan 9 14:47:39 2014, 美东)

（抱歉，实在是中文输入太费时间，反正大家也看得懂英文）

I composed a letter to USCIS in layman’s language. Hope it can help. The
link to the AILA article is attached at the end.

>>>>>>>>>>>>>>>>
Dear Officer,

I am writing to you in the hope of clarifying a controversial and
potentially misleading recommendation from the American Immigration Lawyers
Association (AILA). Specifically, AILA published an article as the guideline
to allow EB2 petitioners to take advantage of the recent advancement of EB3
cut-off date. After carefully reading the article, I believe that the
guideline provided by AILA would put EB2 petitioners in the risk of serious
legal trouble and adversely impair their ability to obtain permanent
residency. Therefore, I would like to hear from you the official
interpretation if the AILA guideline is legal or not. Attached please find
the article published by AILA.

First please allow me to explain the circumstance. Since I am not a lawyer,
please bear with me of using layman’s language. Last year, there saw a
dramatic advancement in the cut-off date for EB3 petitioners, making its
waiting time for those who were born in China even shorter than the waiting
time for Chinese-born EB2 petitioners in obtaining permanent residency. So a
question was raised if EB2 petitioners could benefit from such movement in
EB3 cut-off date. AILA apparent took notice of this potential business
opportunity and released a guideline to its members. Particularly, the
guideline suggests that petitioners with an approved EB2 I-140 application
can file a second EB3 I-140 application without going through the PERM
process. Moreover, the guideline suggests that this EB3 application is a new
application, i.e. neither duplication nor an amendment of the previously
approved EB2 application.

Second please allow me to explain my understanding why the AILA guideline
may be misleading. While there are variations between professions, for
example one profession may need a PhD degree for EB2 but another profession
may only require a BS degree, it holds true that within a profession, the
requirement for EB2 position is always higher than EB3 position. As so, a
PERM process testing the EB2 job market apparently fails to test job market
for those who may not qualify for EB2 requirement but otherwise qualify for
EB3 requirement. However, the AILA guideline indicates that a PERM process
used for testing EB2 market can also be used to file EB3 petition, which is
obviously against the sole purpose of PERM process.

Third please allow me to point out the potential risks associated with AILA
guideline for petitioners. One risk is incorrect filing. According to USCIS
regulation, when a Labor Certificate is over 180 days valid period, the only
options available to file a second I-140 petition are employer changes,
duplication of previous application that has not been approved or lost, or
amendment of classification. This is contradicting to the suggestion of
filing a new (irrelevant, more precisely) petition made by AILA. The second
risk is especially detrimental to the petitioners. The petition in EB3
classification can only lead to the suspicion that the previous EB2 petition
was based on a false advertisement and recruitment process that
deliberately excludes legal job seekers who may qualify for the EB3
requirement. This would render the Labor Certificate and the previously
approved EB2 petition being revoked by USCIS. It is my understanding that a
new PERM process is needed to test the EB3 job market in order to establish
the legitimacy of the new EB3 petition.

Again, I would like to emphasize that I am not an immigration lawyer and the
analysis of the circumstance is based on my untrained understanding of
immigration regulations and common sense. However, if something looks
against common sense, isn’t it suspicious. I understand that USCIS is the
only authority to determine legitimacy of immigration petitions, thus I
would like to hear from you the official opinion if one can file EB3
petition without even testing the EB3 job market, which totally defeats the
sole purpose of PERM process.

Thanks very much for your time and considerations. Looking forward to
hearing from you.

Sincerely yours,

(signature)

Attachment: AILA article
http://www.visatopia.com/wp-content/uploads/2013/12/Multiple-I-

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※ 修改:·nccam 於 Jan 9 19:55:49 2014 修改本文·[FROM: 198.]
※ 来源:·WWW 未名空间站海外: mitbbs.com 中国: mitbbs.cn·[FROM: 198.]