E3 Immigrant Visa with 212(g) need proof of previous employment

[yasinpuertas 1]

Hi all,

So here's the deal. My petitioner applied for a Labor Certification in order to have me, a PR and Marketing expert, working for their company in Texas. The Labor was granted just by sending a signed letter from a previous employer stating that I had worked for them doing the very same thing between the years 2000 and 2005, prior to the submission of the petition for the Labor Cert.

After EIGHT long years (yes, I said 8!) I was finally in front of the CO at the Embassy in Madrid. He was kind, polite and nice but at the end we (my whole family of three kids and wife) were given the 212(g) slip for "further processing". No more info at that point.

After one week we received a letter at home saying that I should send an updated resume since 1999 till today, a "Vida Laboral" (is an official document were you have all the registry of work if paid the Social Security for it) and proof of employment (pay stubs if available) for that particular company that signed the very document I sent years ago to the USCIS to get the Labor.

Well, I sent all the documents required, but no pay stubs or official registration for that particular job exists since I WAS UNDERPAID in cash. The company is a Non Profit political organization (politics party in Spain) and do not pay a "salary" but a "stipend" for those working as "volunteers" 40 hours a week doing certain jobs as taking care of the media and PR. We sent another letter signed by the maximum responsible person in the party, stating that I actually worked as Chief of Press for the party between the years 2000 and 2005, a list of duties performed, hours worked and money paid, specifically received in cash.

My question is, isn't this a little bit weird that the CO wants to investigate about a requirement already met with the people that is supposed to grant the Labor Certification? Isn't it sufficient to demonstrate that I actually already have the Labor Cert without entering in the details on how was it granted? Because I'm not sure if he is concerned about something that is not "his concern" (there is another entire agency that takes care of the Labor Certification and they already did their job years ago).

Soooo, thoughts?

Thanks

[Boiler 43,434]

i am trying to work our where Australia comes into this, do you mean E3?

[Penguin_ie 5,986]

Labor cert is only the beginning; the CO, who knows the culture and rules of your country far better, will always ask their own question/ do their own investigation.

[jan22 2,898]

i am trying to work our where Australia comes into this, do you mean E3?

Nothing to do with Australia. He's going for an immigrant E3 (skilled workers, professionals, others), not the non-immigrant E3 (a H-1B non-immigrant visa look-alike for Australians).

[yasinpuertas 1]

Today the CO called the president of the party on his personal phone (the super boss, he was actually the major of Melilla and now he is a member of the parliament) to ask him about the relationship I had with the party 16 years ago!. Thank God I am still with the party, working as a Secretary of Communication and he remembered that I started as Chief of the Press in the year 2000. He didn't remember the hours I worked a week or the salary I was given but he could answer most of the questions. He actually told the CO that he shouldn't call the president of the party to ask questions about a worker. He called me after the conversation to tell me all about it, it was a little bit embarrassing that he actually had to expend time with the CO in the phone being such a busy person, but luckily he did and I thanked him for it.

Thoughts?

PS. I'm still in the "Ready" status as for today, but status updated.

Edited May 25, 2016 by yasinpuertas

[yasinpuertas 1]

New update today. Still in Ready. I'm reading that the only thing the CO can do if he is not convinced that the employment letter AND the phone call with the super boss are sufficient proof for previous employment is send the case back to the USCIS to reconsider. It looks like this is very unlikely (how much proof would he need? and Is it really THAT important to have extremely hard evidence of my previous experience on the same job?), but if it should happen, anyone knows about how much time does it take for USCIS to make a decision and let me overcome the problem with, I don't know, a list of witnesses (coworkers) that can declare I was actually working full time at the company 16 years ago?

Little frustrated, sorry.

Yasin

[jan22 2,898]

The labor certification has little to do with you and your qualifications. It is a decision by USCIS that says, based on the information provided, the company needs to be able to hire someone from outside the US. The only review of your qualifications is a simply a review that -- should the information be correct -- the individual would meet the requirements of the position. They do not investigate your background in your home country -- that is why it is a two-part process. The consular officer is required to determine that your education and/or experience meets the requirement of the job. If that requires him/her to speak with "...the president of the party to ask quetions about a worker", so be it. It should not be embarrassing to have anyone called to ask about your qualifications -- especially since based on what you said, it could not be done though official governmental channels.

Having said that, I wouldn't leap to the assumption that the officer is still not convinced about something. He called someone on the 25th -- less than two full work days ago. That's not a lot of time to get back to your case and take action.

[yasinpuertas 1]

Dear jan22,

Sorry if I extend my answer now, since I believe it will be beneficial for others in the same or similar situation. With your answer I'm guessing we can start a very interesting debate here. Thank you in advance for all your input.

Maybe, since I am not an immigration attorney I don't fully understand what the DOL's responsibilities are and how do they perform their background checks to issue a Labor Certification under the PERM. As far as I could learn from what I've been reading, the DOL takes very seriously their job, and obtaining a Labor Certification is no "piece of cake". But maybe you are right, the most difficult and complex part of the labor certification is not the beneficiary's end but the petitioner's. Said that, there is a clear statement in immigration law that determines the requirements for an EB-3a visa (Skilled workers) that we should demonstrate "at least 2 years of job experience or training". As the instructions to fill out the form I-140 states:

1. Evidence that the alien meets the educational, training, or experience and any other requirements of the labor

   certification (the minimum requirement is two years of training or experience).

The requirement, though, can be easily met with an "employment letter" signed by the "direct supervisor", as it can be inferred from the DOL website's instructions to apply for a Labor Certificate:

• Copies of the foreign worker’s educational degrees and transcripts, and letters from previous employers confirming the worker’s experience.

This was provided in my case, in 2008, when the labor certificate petition was filled by my employer. It was a letter in which the "super boss" states that I worked for the organization as "Chief of Press" between the years 2000 and 2005, full time under a "mercantil" contract (self-employed and hired for my services). The CO, with the letter in hand, could ask me about this specific experience, and how could I demonstrate that the letter was real with some questions, but the only "concern" he raised at that time was that I was going to be paid "right above the poverty line", which I found odd, since there are no poverty guidelines for a labor case (as far as I know), I wasn't going to be paid "under" the poverty line and the wages offered where right on the wage range DOL's requirements. I'm also, and worked as, a teacher in Texas and in Spain, and I'm fully certified in both countries, should I need to go back to teaching, I could do it without becoming a Public Charge. If that was the "problem", he could even ask for an Affidavit of Support, which he never did.

After the interview, I was given the 212(g) slip for "further processing". I wasn't instructed to send any extra documents at that point. I was just sent home, passports retained for the whole family and a "good feeling" that everything was going to be OK, just some extra Administrative Processing needed to put everything in order. Since the Ds-260 was filled more than one year before the interview, it was "reopened" for us to update any information that changed and "close" it for the CO to finish processing (I assumed that was the reason why we couldn't be approved on the spot). But two weeks later we received a 212(g) refusal letter, with specific documents to be provided. The CO requested an official transcript of my Social Security records (most of the jobs are listed there, but not the ones performed under training, underpaid "stipend" jobs for non-profit organizations and such), evidence of experience with the political party which was used to get the Labor Certificate (with payment stubs if available) and an updated resume starting in 1999.

Well, since everything that was said in the letter was true, and I'm still living in the same city, and the organization still exists, I did not have much trouble getting another letter, from the Human Resources person in charge (the Secretary of Organization) stating the salary I was paid, the duties performed, the hours worked, the relationship with the organization and the dates between I worked for them. They signed and sealed it for me. They even stated that, since it is a non-profit organization, no "salary" could be paid, but a "stipend" to cover expenses and that it was paid in cash, so no "payment stubs" could be produced. The CO received the documents and called the person that signed the ORIGINAL document (not the person in charge of HR, who already knew all the details because he had to write and sign a letter for me, RECENTLY). It was a little bit awkward, since the person that signed the letter, many years ago, now is a very busy and important political figure, and he wasn't expecting the call, at all. Luckily, as I said, everything stated was the truth, he knows me, and he could remember (on his personal mobile phone out of the blue) some of the details that the CO was asking for. He was surprised, as he was asked about my salary and such, which I don't know in the USA, but here in Spain is actually CONFIDENTIAL. He didn't have my permission to disclose, but luckily, he understood that it was something important for me and he made the decision to answer without turning down the interview with the CO. I did not know they were going to call him, I never gave them his phone number (much less his PERSONAL mobile phone) to contact him (I don't even call him to his cell unless something REALLY important happens), so that's why I was so embarrassed when he called ME to tell me all about the call with the CO. I guess the CO tried to "catch a lie" by calling someone different than the one signing the papers, just to make sure he "knows me" and, more or less, can answer properly to some of the questions. For sure he can not be expecting a "full and detailed" answer from someone that is not my direct supervisor, about a period of time that goes back 16 years.

But lets, for the sake of the argument consider two situations that would make this "double check" absurd:

1.- This is done by the CO, as a "two-part process" because I came back to Spain waiting for my Visa to be approved instead of staying in the US where I was living under a non-immigrant visa. I could still be under my H1-B visa working in the USA and avoid the "Consular Processing". Guess what, with an Adjustment of Status, no Consular Officer in Spain would have to perform his part in this so-called "two-part" process. So with the Labor Certificate, I would be approved on the spot, no further investigation in my home country needed.

2.- Not everybody has a good relationship with their bosses from the past (they could be not willing to help you now, after 16 years). Not everybody have access to them after 16 years. Not everybody can get a detailed letter with wages, hours and duties after 16 years. People die, or move far away... Is it really expected from you to prove, 16 years later, that the letter you already turned in years ago is not a phony employment letter?. Because, and bear with me on this, is not the same, asking for further proof around the time you submit the letter for your Labor Certificate, than after several years, when you finally are scheduled for the interview at the Embassy. It is not even close the same thing. As I said, I'm lucky, and thank God for it, but I'm thinking now about a lot of other people that would never be able to overcome this problem should it be arose by the CO.

Right now I'm not leaping to any assumptions, and I know it will take at least one week for the CO to take action and I actually not only understand but fully support that the CO take the time he needs to process all the visas. This keeps us all safe and avoid undesirable people from entering the USA and give immigrants a bad name. I was just wondering how much proof would he need, as in saying, would you guys think he would be satisfied with the documents provided? I mean, Did I produced enough evidence for him to be satisfied?

Thanks for taking the time to read.

Yasin

[jan22 2,898]

Nothing to debate. The process is what it is. You chose to do consular processing, so your application will follow all of the required steps of the process, whether you think they should or not.

Plus, you cannot compare USCIS action in approving the petition and what they do with an Adjustment of Status application. As I said, during the petition process, they look at documents submitted that claim certain work experience and generally accept them at face value. So, letters verifying employemnt are accepted as that -- verifications of employment. During an AOS process they should do more checking of the documents submitted, to verify their authenticity, just as a consular officer would.

We all know that, all over the world, fraudulent documents are prepared and submitted....even for records 16 years old. It does not make sense to assume that USCIS or a consular officer will only contact the person who prepared the document to verify that it is, in fact, a true and correct document. Of course a liar is going to say he is telling the truth. (Not saying that's the case for your documents -- just talking about the process.) Of course they will contact someone who signed an original document if they feel the need. Plus, a non-traditional position that cannot be documented under the regular labor process, may call into question whether it is "employment" or not -- perhaps it is more of an internship, for example, so needs to be checked out.

Again, not saying there is any mal-intent in your applciation....just suggesting that you need to let the process take its course and stop being frustrated that it isn't being rubber-stamped because DOL approved the labor certification. All agencies have their role in the process and you need to accept they all take "...very seriously their jobs," not just the DOL. If having the DOL approve the labor certificate based on what you submitted was all it took, there would be no need for the rest of the agencies (USCIS and Department of State, at a minimum) being involved in the case. Bear with it -- it should be over soon.

Edited May 28, 2016 by jan22

[yasinpuertas 1]

I sincerely hope so (be over soon). Anyways, do you have an answer to the question? (Whether or not you think the documents provided and the call would be sufficient proof) I mean, maybe the conversation would be beneficial for others if we can shed light to the "process" itself. I really wasn't aware of the importance of this document, after the labor certification is granted. I'm not saying is not, I'm just saying that it didn't seem to me for the reasons stated in my last post. I thought the CO was going to do other kind of background check not done before, and since the consular processing takes a great deal of time, you can imagine how difficult it would be for him to double check employment letters obtained many years ago. And, again, I did not have trouble but my situation is far from the majority of cases, where could find an uncooperative ex-boss, a missing or even dead one, a disappeared company... Many situations can make it impossible for the CO to establish the authenticity of an employment letter obtained a long time ago.

Thank you for taking the time to answer to my post. I guess you are right and I have to let the process finish. It took 8 long years for me to be where I am now, so a few more days shouldn't be difficult for me. Of course I'm a little nervous, since I have three kids, and make it there in time for their schooling (August) is an important issue for us.

[jan22 2,898]

no problem -- I understand you eagerness to get the visa and get things settled. Shouldn't be much longer...best of luck!

[Boiler 43,434]

OK so EB3 and nothing to do with Australia, I remember Eb3 years ago was retrogressed 6 years, now it is a few months, seems a very long time for such a petition to be outstanding.

The most important thing is that there is an Employer and Lawyer involved, what do they say?

EB3 means an Employer has petitioned you to work for them. comments about minimum wage and could always teach seem odd in the context of an Employer willing to petition and wait so long.

[yasinpuertas 1]

OK so EB3 and nothing to do with Australia, I remember Eb3 years ago was retrogressed 6 years, now it is a few months, seems a very long time for such a petition to be outstanding.

The most important thing is that there is an Employer and Lawyer involved, what do they say?

EB3 means an Employer has petitioned you to work for them. comments about minimum wage and could always teach seem odd in the context of an Employer willing to petition and wait so long.

The Employer is desperate because he has a PR and Marketing department that needs a bilingual skilled supervisor, and even though I have meetings with them over the Internet and make some work from here, he needs me there to start a new project creating a tv show for his company. He waited because he says he is not going to invest that amount of money without having the right person on board.

Of course 8 years is a lot of time, but that is how much it took for the process to finish, nothing to do with me but a rescheduling of the visa interview due to my wife's last pregnancy, last year.

The lawyer says it would be ok now that the documents are produced and the phone call was made. He believes there is nothing else needed to prove the experience was real.

[yasinpuertas 1]

Update!

Now they've sent us our passports back without the visa. The letter accompanying the visa says that they need to perform further processing and that they will contact us when they are ready to make a decision on my case. My case was placed in AP again and my family is stuck at ready.

The very same day I was given my passports back, the CO called me to ask more questions about my experience and requested proof that I could work two full time jobs at the same time, which was the case for two and a half years out of the five years I was working for the organization (I was hired as a full time teacher of media also, so for two years I did both at the same time). I explained that, as a teacher, we only have to teach 18 hours a week, so you can actually do other stuff and most people (that are not principally teachers but teach as a side job to get a decent salary) do, moreover when you want to continue pursuing experience on the field of your choosing (like me) but you cannot find a decent job just yet. I offered him an official document with the schedule I had as a teacher so he could use it as proof that I didn't have to dedicate much time to teaching even though I was hired as a full time teacher. He said this "would help". Then he requested an I-94 form filled by my employer in 2008, when I was still in the USA under an H1B visa, stating that I was hired before by him, doing the same thing I'm intending to do now as a permanent resident. He said "I cannot find it anywhere, Are you sure he actually filed the petition?". I said yes, and he requested proof of that also (a copy of the I-94).

I provided all the documents requested and was waiting on a positive outcome as per our conversation on the phone, but instead, our passports came back and AP was given again.

One odd fact: since June the second (the day of the phone call) the case wasn't updated on the system. I provided documents by email on the 3rd and sent a courier package with them on the 6th, but not updates. I requested an update on my case through email, and was answered by the consulate stating that the officer is still working on my case and that they will contact me if they need something or an update occur. But still, after al this, the case was not updated. We have no clue on what's going on, but have a very bad feeling about al of this now.

[Boiler 43,434]

When you were in the US you were working 2 jobs, for different Employers?