- EB-1, EB-2, EB-3: No forward movement
- EB-5 (China Unreserved): Advances slightly
- USCIS Filing Chart: Final Action Dates will control filings
- India & China: April 1, 2023 (no change)
- All other countries: Current
- China: September 1, 2021
- India: July 15, 2014
- All other countries: Current
- China: June 15, 2021
- India: November 15, 2013
- Philippines: August 1, 2023
- All other countries: June 1, 2024
- China (Unreserved): Advances to September 22, 2016
- India: Remains at May 1, 2022
- All other countries: Current
- Set-aside categories (Rural, High Unemployment, Infrastructure): Current for all countries
- Applicants may file Form I-485 only if their priority date is earlier than the Final Action Date
- The more favorable Dates for Filing chart will NOT be used
- Backlogs remain severe, particularly for India and China in EB-2 and EB-3
- No relief this month for most applicants waiting in line
- EB-5 investors from China see modest forward movement
- Applicants should carefully track priority dates to determine filing eligibility
Using Same-Employer Experience on the PERM Application: Navigating the Pitfalls One of the most technical — and most frequently litigated — aspects of PERM labor certification is whether a foreign worker may count experience gained with the sponsoring employer toward the minimum requirements for the offered position. The short answer is: sometimes, but only if the employer follows a narrow path set out in 20 C.F.R. § 656.17(i). Missteps here are among the top reasons PERM applications are denied, audited, or placed in supervised recruitment. The General Rule: Under 20 C.F.R. § 656.17(i)(3), an employer generally cannot require experience that the alien gained with the same employer in a substantially comparable position. The policy rationale is straightforward: PERM is designed to test the U.S. labor market for the job being offered, not to confirm that the foreign worker — who already holds the job — is uniquely qualified. If the employer taught the alien the skills on the job, U.S. workers should have the same opportunity to learn. The Two Key Exceptions: An employer may count same-employer experience only if one of the following applies:
- The prior position was not substantially comparable. “Substantially comparable” is defined as a job requiring performance of the same job duties more than 50% of the time. So if the alien’s prior role with the employer involved materially different duties — for example, a Software Developer who is now being sponsored as a Data Architect — that earlier experience may count. The employer must be able to document the duty breakdown with specificity.
- It is no longer feasible to train a worker to qualify for the position. This is a high bar and rarely used. The employer must show, with evidence, that business operations cannot absorb the training burden — not merely that training would be inconvenient or expensive.
- Pitfall 1: Counting H-1B experience in the same role. This is the classic trap. If the alien has been working for the sponsoring employer in the identical position for several years on an H-1B, that experience almost always fails the “substantially comparable” test and cannot be used to meet the minimum requirements.
- Pitfall 2: Superficial duty changes. Simply adding “and other duties” or inflating a job title (Analyst → Senior Analyst) will not transform a substantially comparable role into a non-comparable one. DOL and BALCA look at actual duties, not labels. Audit responses that rely on cosmetic differences routinely fail.
- Pitfall 3: Promotion-from-within without proper documentation. If the alien was promoted into the sponsored role, the employer should be prepared to show — through organizational charts, job descriptions, performance reviews, and pay differentials — that the prior role was genuinely different in kind, not just in seniority.
- Pitfall 4: Counting experience with a related entity. Experience gained with a parent, subsidiary, or affiliate can still be treated as same-employer experience if the entities share common ownership and control, or if the worker was effectively supervised by the sponsoring employer. Don’t assume a separate EIN solves the problem.
- Pitfall 5: Ignoring the Kellogg issue. If the employer’s requirements include an alternate combination of experience (e.g., Master’s + 2 years or Bachelor’s + 5 years), the notice and recruitment must include the Kellogg language stating that any suitable combination of education, training, or experience is acceptable. When combined with same-employer experience issues, this is a compounding error.
- Pitfall 6: Misalignment between the ETA-9089 and the underlying record. The Form ETA-9089 asks directly whether the alien gained the qualifying experience with the employer and whether the prior position was substantially comparable. Inconsistencies between the form, the alien’s resume, prior H-1B LCAs, and I-129 petitions will surface in audits and can lead to denial or even fraud referrals.
Immigration Fraud Crackdown: Ten Indian Nationals Indicted in U-Visa Scheme Boston, Massachusetts – Federal authorities have indicted ten Indian nationals in connection with a sophisticated visa fraud conspiracy involving staged armed robberies designed to exploit the U.S. immigration system. According to the U.S. Attorney’s Office, the defendants allegedly participated in orchestrated robberies at convenience stores and fast-food locations, posing as victims to fraudulently qualify for U nonimmigrant visas—a humanitarian benefit intended for genuine victims of serious crimes who assist law enforcement. The Scheme: Investigators revealed that beginning in March 2023, the conspiracy—led by Rambhai Patel (previously convicted in May 2025)—involved staging at least six robberies across Massachusetts and other states. During these incidents:
- A “robber” would simulate a violent holdup using an apparent firearm
- Store clerks would delay reporting the incident to police
- The events were recorded on surveillance cameras to create evidence
- Participants allegedly paid to be listed as “victims” for immigration filings
- Up to 5 years in federal prison
- Up to $250,000 in fines
- Deportation following any sentence imposed
- Federal prosecutors and the Federal Bureau of Investigation
- U.S. Citizenship and Immigration Services
- U.S. Immigration and Customs Enforcement
- Multiple state and local law enforcement agencies nationwide
Sincerely, Keshab Raj Seadie, Esq. Law Offices of Keshab Raj Seadie, P.C. Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
