John Valdez’s Legal Blog

The government threw nothing but lemons at green card applicants this week.  Two releases were particularly sour.

The first lemon released was the Department of Labor announcement that it was going to audit all labor certification applications filed by the Fragomen, Del Rey, Bernsen & Loewry LLP law firm (”Fragomen”).   The labor certification process is the first step in the green card process for most employment-based applicants.  During the labor certification process, the employer sponsor is required to show through recruitment measures that the hiring of the foriegn national beneficiary will not come at the expense of a U.S. worker who is willing, able, and qualified to take the labor certification position.  Fragomen has been accussed of interferring with the hiring of U.S. workers to benefit foreign nationals attempting to win approval of labor certification applications.  Regardless of whether this law firm will ultimately be found at fault in the matter, the consequences for its clients is far-reaching. 

Fragomen, by far the largest immigration law firm in the United States, probably has several hundred, if not thousands of labor certifications that may come under audits.  The employer sponsors of these petitions and their foreign national beneficiaries will now see the green card process drawn out for many, many additional months.  Worse, they must worry that their cases will be denied. 

The second lemon thrown at green card applicants was the memorandum released by Donald Neufeld, Acting Associate Director, Domestic Operations for the USCIS that interpretes provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (known as “AC-21″).  The Neufeld memorandum comes down particular hard on green card seekers in the following ways:

 Labor Certification Denials Affects on H-1B Status

The Neufeld memorandum makes clear that post six year extensions of H-1B status will not be allowed if a labor certification is denied, even if a new one is quickly filed.  Under AC-21, if a labor certification application is filed before the beginning of an H-1B holder’s sixth year of H-1B status, the H-1B nonimmigrant is allowed to file H-1B extensions in one year increments.  Without the protection of AC-21, the nonimmigrant would normally have to leave the U.S. after six years of H-1B status.  The Neufeld memorandum will add stress to many foreign nationals involved in the Fragomen audits, since a denial of their labor certification may mean that they will be required to leave the U.S. immediately, if they have been in H-1B status for six years.

AOS Portability

The Neufeld memorandum also makes clear that the USCIS will find that applicants for adjustment of status (”AOS applicants”) are not eligible to change employers under AC-21 portability rules unless their I-140 immigrant visa petitions are approved.  AC-21 generally allows AOS employment-based applicants the right to change employers after six months if they find new employment in the same occupational classification and a Form I-485 AOS application has been pending for 180 or more.  This law was enacted to allow foreign nationals some freedom to find new employment after waiting a long period for a green card.  However, since it could take the government much more than six months to adjudicate the Form I-140 petition, which is often submitted at the same time as the AOS application, many green card applicants will find the portability provision useless, and they will not be free to change employers.       

They say it is wise to make lemonade out of lemons, but the government is making that process difficult.  Nevertheless, our job as immigration attorneys is to find a way to do just that.  So if you have a problem with your green card application, contact us.