180 day rule, what is it?

Old May 14th 2001, 3:58 pm
  #1  
Dave Harding
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What exactly is the correct term for the 180 day rule being talked about on this
group. I would like to look up the exact text on the INS web site but I am not sure
under what heading it will be. Does it have some kind of official name/number?

Thanks.

Dave
 
Old May 15th 2001, 5:08 am
  #2  
ramida
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Dave,

Do a search at www.google.com keyword: "s 2045" or "s.2045"

S.2045, the "American Competitiveness in the Twenty-First Century Act," signed into
law by Bill Clinton on October 17, 2000

"The new law provides for "I-140 portability." Essentially this means that if someone
has filed for adjustment of status, and their application has not been adjudicated
within 180 days, they may change jobs or employers and their original I-140 will
remain valid. To take advantage of this, the person must take a new job that is in
the "same or a similar occupational classification" as the old job. This is a very
broad description and would appear clearly to include promotions within the same
general field."

"This new provision does not apply to consular processing applicants. The thinking
in Congress seemed to be that since consular processing takes less than six months,
they wanted to give parity to the people who are applying for adjustment of status
(who can pretty much leave their sponsoring employers when they return with
immigrant visas)."

ramida

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Old May 15th 2001, 7:50 am
  #3  
Sylvia Ottemoeller
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Dave Harding wrote:

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See http://shusterman.com/s2045txt.html, Section 106(c).
 
Old May 15th 2001, 3:06 pm
  #4  
Dave Harding
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Thanks ramida and Sylvia. I looked this up on Shusterman's site, and the immediate
thing I noticed was the reference to H1-B visas. Does this mean that this won't apply
in my case as I'm on an L1-B visa?

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[usenetquote2]> > What exactly is the correct term for the 180 day rule being talked about[/usenetquote2]
on
[usenetquote2]> > this group. I would like to look up the exact text on the INS web site[/usenetquote2]
but
[usenetquote2]> > I am not sure under what heading it will be. Does it have some kind of official[/usenetquote2]
[usenetquote2]> > name/number?[/usenetquote2]
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Old May 16th 2001, 5:01 am
  #5  
Sylvia Ottemoeller
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Section 106(c) makes no reference whatsoever to H status.

The law is to be read literally. Look up the references to section 204; this section
covers employment-based permanent resident categories.

INS will write regulations to implement this law, but inserting some reference to H
will not be an option because Congress in its wisdom made no reference to the
temporary status which the I-485 applicant happens to have held.

Dave Harding wrote:

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[usenetquote2]> > Dave Harding wrote:[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > > What exactly is the correct term for the 180 day rule being talked about on[/usenetquote2]
[usenetquote2]> > > this group. I would like to look up the exact text on the INS web site but I am[/usenetquote2]
[usenetquote2]> > > not sure under what heading it will be. Does it have some kind of official[/usenetquote2]
[usenetquote2]> > > name/number?[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > See http://shusterman.com/s2045txt.html, Section 106(c).[/usenetquote2]
 
Old May 16th 2001, 10:46 am
  #6  
Dave Harding
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Thanks again Sylvia, but here's my confusion. Looking up the act itself (S
2045) on the INS site, it's entitled "An Act to amend the Immigration and
Nationality Act with Reference to H1-B nonimmigrant aliens". How can I apply
it to an L1 visa?

I know that no one seems sure as how to apply this 180 day rule yet, and I can see
that section 106(c) makes no reference to H status so I think I'll have to do a lot
more reading.

Dave

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[usenetquote2]> > Thanks ramida and Sylvia. I looked this up on Shusterman's site, and[/usenetquote2]
the
[usenetquote2]> > immediate thing I noticed was the reference to H1-B visas. Does this[/usenetquote2]
mean
[usenetquote2]> > that this won't apply in my case as I'm on an L1-B visa?[/usenetquote2]
[usenetquote2]> >[/usenetquote2]

[usenetquote2]> > > Dave Harding wrote:[/usenetquote2]
[usenetquote2]> > >[/usenetquote2]
[usenetquote2]> > > > What exactly is the correct term for the 180 day rule being talked[/usenetquote2]
about on
[usenetquote2]> > > > this group. I would like to look up the exact text on the INS web[/usenetquote2]
site but
[usenetquote2]> > > > I am not sure under what heading it will be. Does it have some kind[/usenetquote2]
of
[usenetquote2]> > > > official name/number?[/usenetquote2]
[usenetquote2]> > >[/usenetquote2]
[usenetquote2]> > > See http://shusterman.com/s2045txt.html, Section 106(c).[/usenetquote2]
 
Old May 16th 2001, 11:25 am
  #7  
Sylvia Ottemoeller
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Posts: n/a
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Dave Harding wrote:

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You don't apply it to "an L1 visa." You apply it to what it is talking about. Here is
section 106(c):

"A petition under subsection (a)(1)(D). . .
__________

INA section 204(a)(1)(D) has been redesignated as
(a)(1)(F). It says, "Any employer desiring and intending to employ within the United
States an alien entitled to classification under section 203(b)(1)(B),
203(b)(1)(C) ,
203(b)(2) , or 203(b)(3) may file a petition with the Attorney General for such
classification." This refers to persons whose employers have filed on their
behalf an I-140 under the "outstanding professor or researcher," "Certain
multinational executives and managers," "Aliens who are members of the
professions holding advanced degrees or aliens of exceptional ability," or
"Skilled workers, professionals, and other workers" categories.

This is straightforward. Either it applies to you or it doesn't.

__________

. . . for an individual whose application for adjustment of status pursuant to
section 245 has been filed . . .
__________

This is straightforward.
__________

and remained unadjudicated for 180 days
__________

Here the questions start. Must you be on the company payroll for the entire 180
days?? It really does not even specify that the applicant must be presently employed
by the company.
__________

. . . or more shall remain valid with respect to a new job if the individual changes
jobs or employers if the new job is in the same or a similar occupational
classification as the job for which the petition was filed.
__________

Here is the big question. What is "the same or a similar occupational
classification"?

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Old May 16th 2001, 11:28 am
  #8  
Sylvia Ottemoeller
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Posts: n/a
Default

Dave Harding wrote:

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Also, please note that section 104 makes no reference whatsoever to H or any
nonimmigrant visa, and it makes changes in immigration law of great significance.

[usenetquote2]> > Section 106(c) makes no reference whatsoever to H status.[/usenetquote2]
 
Old May 16th 2001, 12:00 pm
  #9  
Dave Harding
Guest
 
Posts: n/a
Default

Thanks for this reply, it certainly goes a long way to making things clearer for me.
My situation would be that I would still be with the same employer after 180 days, as
I can't afford to change before then, and my new position would almost certainly be
similar, (at least in my eyes), as to the job I do now, as it's what I do best and
want to continue doing.

I also understand though that the INS might not view it in the same light, so as
always I will continue to be cautious.

Dave

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[usenetquote2]> > Thanks again Sylvia, but here's my confusion. Looking up the act itself[/usenetquote2]
(S
[usenetquote2]> > 2045) on the INS site, it's entitled "An Act to amend the Immigration[/usenetquote2]
and
[usenetquote2]> > Nationality Act with Reference to H1-B nonimmigrant aliens". How can I apply it[/usenetquote2]
[usenetquote2]> > to an L1 visa?[/usenetquote2]
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[usenetquote2]> > I know that no one seems sure as how to apply this 180 day rule yet, and[/usenetquote2]
I
[usenetquote2]> > can see that section 106(c) makes no reference to H status so I think[/usenetquote2]
I'll
[usenetquote2]> > have to do a lot more reading.[/usenetquote2]
 

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