Bhagwati & Associates, PLLC.

Bhagwati & Associates, PLLC.: Can I move from EB3 to EB2; a perplexing question ...

2012-01-13T19:18:00.000-08:00

Bhagwati & Associates, PLLC.: Can I move from EB3 to EB2; a perplexing question ...: Reasonably paced EB2 for past few months has lead many sitting under the umbrella of EB3 for almost a decade to think if there is any pos...

Can I move from EB3 to EB2; a perplexing question fighting many

2012-01-13T19:16:00.000-08:00

Reasonably paced EB2 for past few months has lead many sitting under the umbrella of EB3 for almost a decade to think if there is any possibility to file another PERM under EB2 category retaining the EB3 priority date and jumping on to a fast moving EB2 bandwagon. By no means can this be deemed as unreasonable thought as there are options for those who can qualify for EB2 category.

Our office has been contacted overwhelmingly by significant EB3 category holders wanting to know if there are any prospects that can help them see light at the end of the tunnel by filing PERM under EB2 and retaining EB3 priority dates. We do understand the pain inflicted by exponentially slow moving EB3 process on those who have I-140 approved and know will have to sit tight for multiple years before they can step forward to adjust the status, or on those who have filed for adjustment and are just waiting for the doors to open. The salt on the wound is added when they are living with a fear that they can’t travel out of USA to see their long awaiting families because without either Advance Parole or visa they may not come back as US Consulates have been denying visas at ease for reasons such as lack of Employer- Employee relationship and/or Employer’s Direct Right to Control. The innocent couldn’t have asked for any more agony. I would want to make it simple for all grappling to find the right answer.

If you have PERM and I-140 approved under EB3, It is possible that you may qualify for EB2 if you acquired additional education and/or experience during years when the EB3 has been pending. Due to better performance on the job, you may have been upgraded to a next level that may help you meet EB2 requirements. This is pertinent to note that EB3 can have either his current employer or new employer sponsor new application under EB2 category. It thus leaves a little larger ground to play with as the restrictions don’t apply only to existing employer. However, it must not be forgotten that the new position and individual with EB2 sponsoring employer (existing or new employer) must meet EB2 requirements. Individual must have requisite education and experience required for this new EB2 position. It is very important to analyze the EB2 requirements for the new position because a slight variation from EB3 position can severely impact the success of entire process. It is strongly recommended to seek consultation of experienced Immigration Attorney having experience in this area. It is important to note that new filing under EB2 is prerequisite for one to become eligible to request USCIS to retain EB3 priority date after EB2 gets approved meaning EB3 case holders cannot move to EB2 without having filed new case under EB2 category.

EB2 can be successful with the existing employer if the EB3 holder was eligible for EB2 prior to the date he/she joined the EB3 sponsoring employer. Experience with the EB3 sponsoring employer may not be used as that will conflict with the EB2 requirements when EB2 is filed by the existing employer. In the event, EB2 case gets approved, USCIS can then be requested to transfer the EB3 priority date to the newly approved EB2 case whether it was sponsored by existing or new employer. This would require I-140 approval from EB3 case in order for USCIS to transfer the EB3 priority date to EB2 case. In the event, I-140 was revoked, USCIS would deny the request. This process of seeking a transfer is detailed and necessitates very careful insight of law, its application and mandatory procedural issues. At this stage when EB2 is approved, the process must be handled very carefully to ensure the path to success continues. New EB2 process does not adversely affect the approved EB3 case and similarly is not affected by EB3. These are two independent cases that can be maintained in parallel.

Each case must be carefully examined based on its facts before a case is subjected to new EB2 filing as every case resides on its own facts and must not be weighed on the irrelevant facts. It is thus important to note that process of transferring EB3 priority date is very delicate and complicated and must be undertaken in consultation with experienced attorney to get benefits as desired.

Asylum and pitfalls

2011-12-27T15:13:00.000-08:00

Asylum is relief for a foreign national that allows a refugee to remain in the United States of America and ultimately apply for permanent residence. The term “refugee” is defined in 8 U.S.C § 1101 (a)(42)(A) to mean, among other things, an alien who is unable or unwilling to return to her home country “ because of persecution or a well-founded fear of persecution on account of “five enumerated grounds: race, religion, nationality, membership in a particular social group or political opinion.” These five grounds are exclusive and therefore the individual must show fear of persecution or actual persecution on account of one of these grounds and face removal. If it is a “fear of persecution”, it must be such that individual must actually fear persecution and must be so reasonable that a reasonable person on the street would have the same fear. If it is “actual persecution”, the individual must establish that the persecution would be carried out by her home country’s government or by forces that here government cannot or will not control.

If the individual can establish that she was persecuted in the past, future persecution will be presumed. However, the U.S. government can rebut that presumption in one of two ways: (i) there has been a fundamental change in the circumstances such that the individual no longer has a well-founded fear of persecution because the regime in power in individual’s home country that ruled when she entered U.S.A is no more in power and has been replaced by another regime that is not likely to persecute her); or (ii) the individual can avoid future harm by relocating to another part of country.

It may seem easier to present the above grounds but in practice the elements needed to gain asylum are often difficult to establish.

There are two ways of obtaining asylum in the United States; (i) through the affirmative process and, (ii) defensive process.

Affirmative Asylum Process (with USCIS)

To obtain asylum through the affirmative asylum process individual must be physically present in the United States and must apply for asylum status regardless of how she arrived in the United States or her current immigration status. She must apply for asylum by submitting Form I-589 within one year of the date of her last arrival in the United States, unless she can establish (i) changed circumstances that materially affect her eligibility for asylum or extraordinary circumstances relating to the delay in filing or (ii) she filed within a reasonable amount of time given those circumstances.

If her case is not approved and she does not have a legal immigration status, USCIS will issue a Form I-862, Notice to Appear, and forward her case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). Individual may live in the United States while her application is pending before USCIS. If she is found ineligible, she can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.

Defensive Asylum Process (with EOIR)

A defensive application for asylum occurs when individual requests asylum as a defense against removal from the U.S because she is in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individual is generally placed into defensive asylum processing in one of two ways;

• She is referred to an Immigration Judge by USCIS after she has been determined to be ineligible for asylum at the end of the affirmative asylum process, or

• She is placed in removal proceedings because she:

was apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, OR
was caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, was placed in the expedited removal process, and was found to have a credible fear of persecution or torture by an Asylum Officer.

Immigration Judges hear defensive asylum cases in adversarial proceedings. If found eligible; the Immigration Judge will order asylum to be granted. If found ineligible for asylum; the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief; the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

Happy Holidays and a Happy New Year from Bhagwati & Associates, PLLC.

2011-12-21T06:54:00.000-08:00

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Mission

2010-04-23T06:33:00.000-07:00

The Law Offices of Vijay Bhagwati, PLLC. is a premier law firm that has undertaken a Mission to achieve the following results:

To provide a high quality legal services with integrity, professionalism and respect for our Clients and the community;
To provide creative and innovative legal solutions along with excellent ethical legal representation and a dedication to quality customer service;
To exceed expectations through our continued Commitment to our Clients;
To add maximum value to each of our Client’s interest;
To handle complex and sophisticated matters locally, nationally and internationally;
Being accessible, efficient and timely responsive;
Being technologically sophisticated.

We shall always serve to succeedWe shall always serve to succeed!

2010-04-23T06:29:00.001-07:00

About The Firm

The Law Offices of Vijay Bhagwati, PLLC. focuses primarily on practice of laws in the areas of Immigration, U.S. Immigration Law, Contracts, real estate law, matrimonial law, personal injury and business litigation. The Law Firm helps individuals and businesses worldwide with all of their US immigration needs including all aspects of corporate immigration including nonimmigrant visas, employment visas, visas for doctors, nurses, applicable healthcare professionals, fiancee visas, F-1 visa, M-1 visas, permanent residence petitions, labor certifications process under PERM, marriage-based adjustments and green cards, national interest waivers, naturalization, I-9, LCA compliance and, DOL Audits in the area of U.S. Immigration Law.

The law firm’s Founder and President Attorney Bhagwati’s extended area of experience as Senior Legal Executive in large corporate houses along with practice of law as an experienced attorney differentiates him from any other attorney giving him a better understanding of day to problems faced by corporate houses in all areas of law ranging from Immigration, recovery of debt, Contractual disputes and commercial litigation matters. Attorney Bhagwati has processed more than 5000 immigration petitions for large corporate clients giving him an extensive experience in immigration law.

The law firm advises its clients both in USA and India on Immigration and civil matters. The law firm has a leading edge due to its ability to keep pace with the changing laws and its ability to handle the complexities of law at any given point in time in the best interest of its clients. Any matter is of prime importance to us and we do our every best to ensure we provide the best of solution to our clients. It is thus that our advise is invaluable.