Approved 140 revoked by USCIS after 2.5 yrs(Ablty to pay)

[dimpi]

friends,
My approved I-140 is getting revoked becaude USCIS is saying they didn't verify ability to pay 2.5 yrs back and asked for more docs.

Neednot to say, I switched employers 2 yrs back and switched to EAD thinking everything should be safe.

This is the second time this year that my I-140 is being revoked. In feb,07 my i-140 and 485 was revoked because USCIS ignored AC21 and never asked me anything about AC21. I filed MTR and got it reopened in May.
In nov this another mess.

My case is at Vermont and it appears either the officer is retaliating or is ignorant.

I know this is unprecedented but i am broked down and fed up of fighting them. It has been a never ending journey for my family.

I have submitted all my the documents and don't know whats going to happen.

Any advice from the community will be helpful as I don't know what to do.

Another thing, i used VP office for clearing namecheck which was done on Nov2 and this I-140 revoked on Nov 8.

I am on my 3rd EAD.

thanks

[Munna Bhai]

friends,
My approved I-140 is getting revoked becaude USCIS is saying they didn't verify ability to pay 2.5 yrs back and asked for more docs.

Neednot to say, I switched employers 2 yrs back and switched to EAD thinking everything should be safe.

This is the second time this year that my I-140 is being revoked. In feb,07 my i-140 and 485 was revoked because USCIS ignored AC21 and never asked me anything about AC21. I filed MTR and got it reopened in May.
In nov this another mess.

My case is at Vermont and it appears either the officer is retaliating or is ignorant.

I know this is unprecedented but i am broked down and fed up of fighting them. It has been a never ending journey for my family.

I have submitted all my the documents and don't know whats going to happen.

Any advice from the community will be helpful as I don't know what to do.

Another thing, i used VP office for clearing namecheck which was done on Nov2 and this I-140 revoked on Nov 8.

I am on my 3rd EAD.

thanks

This is your first post in this forum, which doesn't sound normal.Could you please give more info about your case, pd, country etc.

[dimpi]

i can understand that my case is not normal because it isn't.

PD: May,2002
Country: India
I140: approved in Apr,05
I-485 : pending since May,05
I -140/485 revoked in Feb,07
MTR filed in Mar/Apr and case reopend in June
Name check letter sent to VP in Oct,07
Letter forwarded to Dept Homeland Sec On Oct 15,07
Name check clearerd on Nov 2,07
I-140 NOID dated Nov 8
EB3

I have used 3 EADs

I have similar posts on immigration.com by the same name

[deba]

Do you have a lawyer? what is his/her take on this? Did you use a company lawyer? If you are denied due to ability to pay issues, presumably everyone else during the same time period/similar jobs are to be denied too. Have you talked to anyone in your old co. who might have applied in the same time frame?

[dimpi]

i have been using same lawyer and my prev company has been very cooperative.

there have been people who were appoved. and the IO has mentioned that excess profits may have been allocated towards them.

We have already submitted all docs after amending my tax returns for last 4 years.

but we are talking revoking approved I-140 after 2.5 yrs.

Why will IO reopen my I-140 file again if there is no fraud.
I switched employers in Dec 2005 using AC21, he is asking show company's ability to pay until 2006 simply BS

my lawyer has done whatever anyone can do
but i just don't want to sit idle and wait for the decision as i have no fall back option as i gave up H1 after 140 approval and 180 days of 485 pending.

[dimpi]

additionally, people whose 140 got approved after me actually have gotten GC by now

[alterego]

Why did you have to ammend you tax returns?

What exactly was the ability to pay issue?

How many Green Cards did that company sponsor?

What is the size of your former company?

More details please.

[alterego]

additionally, people whose 140 got approved after me actually have gotten GC by now

I understand your frustration, but this is irrelevant right now. Many of us with 140s from years ago are still in the queue too.
You need to provide more details here, if you want better input/suggestions.

[dimpi]

Why did you have to ammend you tax returns?

to avoid going into issue of showing that excess profits weren't allocated to others..
i was short of 5k in each 4 years,company had already issued me 1099s in prev years that my lawyer never sent before. also, i never properly accounted for 1099s in my tax returns so i had to amend them to include as wages and not as bbusiness income because this time i sent my tax return to USCIS

What exactly was the ability to pay issue?
i was short 5k each year. although co. had profits but IO is saying co. may have allocated that excess profit to other 140 approvals. he included 140 approvals that were done after my 140 approval.

How many Green Cards did that company sponsor?
4/5

What is the size of your former company?
100

More details please.

Bottomline, there has to be a reasonable time before USCIS can requestion a case. And i think 2.5 yrs is unreasonable

[dimpi]

This is probably something IV has to take to USCIS attention. Once using AC21, the benefeciary should not be burdened regarding I140.
At the time of approving this I140, the employer was able to show the ability to pay. It may be difficult now as many other cases from the company is processed after that and the net profit may not be enough to prove now.

in apr,2005 when my 140 was approved we did make our case by showing finacial statements and bank stmts

I joined company in Mar,02 which is what is receipt date of my h1
my PD is may 2,02

my H1LCA shows 45k annual salary and GC labor 80k
this means 7.5k in mar and apr and prorated 80k thru may,02
I was paid 55k on w2 and 5k on 1099

I think we never sent 1099 in apr,05 when they originally approved because at that time it was approved based on the fact compan's assets/income.

but now IO has identified couple of other 140s that were approved during that time and he has shifted burden of proof on us by saying it is possible that excess profit may have allocated to them.
We didn't want to go that route and just made sure that my salary was equal to proffered wage.. Although we did menetion that some of the 140s identified in letter were approved after my 140 approval in 05 so how can funds go to other people.

Not only this IO pulled my file for MTR filed this year for errorneous denial in feb, in which i have sent w2s for 05 and he is asking where are compan's tax statements for 05. 140 got approved in 05 and at that time there was no need for 05. It all appears that either he is retaliating or he is very ignorant.

Because he is asking us to prove company's ability to prove even after I left employer using AC21. Is that true that company has to prove ability to pat after AC21 also when employee has joined another employer.



I was paid

[alterego]

This does seem unreasonable. I am still not clear why the IO is rejecting your approved case. I mean, if your former company is supporting you, and you were paid the prevailing wage, and the company is in sound financial shape with audited records etc., where is the ability to pay issue? Worse yet, it seems like they are going back on their own evaluation of the company's ability to pay, which they should have verified prior to approving the 140.

Can you think of any other reasons why they might be taking a 2nd look at your case? I doubt the name check thing is a reason here.

I also can't believe they are that upset with folks for using AC21, knowing how bad retrogression is right now and since AC21 was brought in specifically for this reason.

[dimpi]

This does seem unreasonable. I am still not clear why the IO is rejecting your approved case. I mean, if your former company is supporting you, and you were paid the prevailing wage, and the company is in sound financial shape with audited records etc., where is the ability to pay issue? Worse yet, it seems like they are going back on their own evaluation of the company's ability to pay, which they should have verified prior to approving the 140.

Can you think of any other reasons why they might be taking a 2nd look at your case? I doubt the name check thing is a reason here.

I also can't believe they are that upset with folks for using AC21, knowing how bad retrogression is right now and since AC21 was brought in specifically for this reason.

we never sent 1099 before and in his/her calculation there were diff of 1099 and IO was trying to look for income/assets to account for that diff. this time we sent IO 1099 and they add up to proferd wage.

But the first poiint that comes is why would IO reopen an approved case 2.5 yrs down the road.

I may not have evidence for to judge, but the sequence of dates tell me that there is somthg fishy.

Oct 16 namecheck letter forwarded from VP office to USCS
Nov 2 namecheck cleared
Nov 8 I-140 intent to deny letter

Who knows whats in IO mind for revisitng the 140 case but the point is if its the same IO who denied my 140/485 in feb,07 for not asking about my new emplyer, I am scared that if he does the same mistake this time i willl have to again go into appeal process.

And this time i don't have any H1 status as fall back. So I am very worried because that IO now control our lives

So strange that thhey can screw someones lives not because we did wrong but because of their ignorance.
I went thru this early this year when i had to be out of jo until my 485 was re-opened.

[singhsa3]

This is simply outrageous!

[sunny1000]

we never sent 1099 before and in his/her calculation there were diff of 1099 and IO was trying to look for income/assets to account for that diff. this time we sent IO 1099 and they add up to proferd wage.

But the first poiint that comes is why would IO reopen an approved case 2.5 yrs down the road.

I may not have evidence for to judge, but the sequence of dates tell me that there is somthg fishy.

Oct 16 namecheck letter forwarded from VP office to USCS
Nov 2 namecheck cleared

Nov 8 I-140 intent to deny letter

Who knows whats in IO mind for revisitng the 140 case but the point is if its the same IO who denied my 140/485 in feb,07 for not asking about my new emplyer, I am scared that if he does the same mistake this time i willl have to again go into appeal process.

And this time i don't have any H1 status as fall back. So I am very worried because that IO now control our lives

So strange that thhey can screw someones lives not because we did wrong but because of their ignorance.
I went thru this early this year when i had to be out of jo until my 485 was re-opened.

As you mentioned, try to find out if there is a statute of limitation on revoking an approved immigration petition minus new evidence that could trigger a revocation.

You may also want to keep in mind about other options such as filing a lawsuit at a Federal Court. But, you should be very sure of your evidence, it may take a couple of years in the court and cost a lot.

[dimpi]

friends,
what are my fall back options for visa status if my 140 is denied

i have been working on ead for last 3 yrs

even if i file lawsuit i need to be in some visa status to stay in this country

[dvb123]

Pls do not worry. You can get H1 premium processing done with your present company. If you have any time left from your 6 year H1 B period (vacations to India etc) you will getting H1 for that period. If you appeal your 1-140 or i-485 revocation you will get 1 year extension based on the fact that your labor is more than 365 days old. Sometime they approve the H1 petition but do not approve the change of status (COS) from EAD to H1. Then you can go to Canada with all ur W2's stacked in your arm and no visa officer would deny your H1 stamping. Best of Luck :)

[santb1975]

may be you should get a second opinion.

friends,
what are my fall back options for visa status if my 140 is denied

i have been working on ead for last 3 yrs

even if i file lawsuit i need to be in some visa status to stay in this country

[Munna Bhai]

i have been using same lawyer and my prev company has been very cooperative.

there have been people who were appoved. and the IO has mentioned that excess profits may have been allocated towards them.

We have already submitted all docs after amending my tax returns for last 4 years.

but we are talking revoking approved I-140 after 2.5 yrs.

Why will IO reopen my I-140 file again if there is no fraud.
I switched employers in Dec 2005 using AC21, he is asking show company's ability to pay until 2006 simply BS

my lawyer has done whatever anyone can do
but i just don't want to sit idle and wait for the decision as i have no fall back option as i gave up H1 after 140 approval and 180 days of 485 pending.

The main issue which I see is that you were earning 45K but GC is for 80K. Trust me I have seen all the RFE etc for the wages about 65k and 80K is too huge and that might have raised the flag.

Try to contact previous company and get all the info and submit it. They can't reject once you submit all the details.

With PERM process, I-140 can be revisited anytime. Things are getting complex now a days.

[dimpi]

Pls do not worry. You can get H1 premium processing done with your present company. If you have any time left from your 6 year H1 B period (vacations to India etc) you will getting H1 for that period. If you appeal your 1-140 or i-485 revocation you will get 1 year extension based on the fact that your labor is more than 365 days old. Sometime they approve the H1 petition but do not approve the change of status (COS) from EAD to H1. Then you can go to Canada with all ur W2's stacked in your arm and no visa officer would deny your H1 stamping. Best of Luck :)

I was on 8 year h1 extension when i switched to ead. so no time left on h1

as far as new h1, i think i have to be out of country for 1 year before i can apply for new h1

[dimpi]

The main issue which I see is that you were earning 45K but GC is for 80K. Trust me I have seen all the RFE etc for the wages about 65k and 80K is too huge and that might have raised the flag.

Try to contact previous company and get all the info and submit it. They can't reject once you submit all the details.

With PERM process, I-140 can be revisited anytime. Things are getting complex now a days.

I never worked for the company full year as my start date was mar.
additionally my PD is may, which is when 80k should kick in.

I know what you mean and thats what IO fell into..

[kaisersose]

Rajiv Khanna has said several times that he has seen cases where the 140 was initially approved, but was revoked during 485 processing. The most common reason he has seen is insufficient education to match job description.

[Munna Bhai]

Rajiv Khanna has said several times that he has seen cases where the 140 was initially approved, but was revoked during 485 processing. The most common reason he has seen is insufficient education to match job description.

I-140 can be revoked not only due to insufficient education but mainly due to ability to pay..if you state that 80k will be the wages after getting GC or before that..you know what you are heading for...unless you are dead sure company can show that much..

[Munna Bhai]

Is this not something we should bring to USCIS attention???
Once the AC21 is used, the beneficiary should not be burdened for keeping the I140 approved.

USCIS is not rejecting I-140, they are asking for the same documents what they normally ask..they want to get something confirmed..if they think few issues are not clear...then don't you think..the case should be reopened.?? Just my thoughts..

[eastwest]

As you mentioned when you filed for GC your pay was 55 K and Labor that you filed said you will get 80 K.

Your original labor condition mentioned as 45 K hence while you are on H1, your 55 K pay should be just fine.

80 K requirement kicks in only when you get your GC, company is not suppose to pay you the 80 K as mentioned in Labor Cert.

Besides, I think your lawyer should send a letter explaining everything with appropriate evidence. If after that they revoke your 140, I think there is an appeals process that you can use.

Wish you luck. Also, while you have filed for appeal (I think they call it Motion to Reopen), you will get temp legal status. Check with a good lawyer.

Thanks

[dimpi]

USCIS is not rejecting I-140, they are asking for the same documents what they normally ask..they want to get something confirmed..if they think few issues are not clear...then don't you think..the case should be reopened.?? Just my thoughts..

after 2.5 years ....

[Munna Bhai]

As you mentioned when you filed for GC your pay was 55 K and Labor that you filed said you will get 80 K.

Your original labor condition mentioned as 45 K hence while you are on H1, your 55 K pay should be just fine.

80 K requirement kicks in only when you get your GC, company is not suppose to pay you the 80 K as mentioned in Labor Cert.

Besides, I think your lawyer should send a letter explaining everything with appropriate evidence. If after that they revoke your 140, I think there is an appeals process that you can use.

Wish you luck. Also, while you have filed for appeal (I think they call it Motion to Reopen), you will get temp legal status. Check with a good lawyer.

Thanks

80k does not kicks in when he gets GC...the condition is:

1.Company "should have" the capacity to pay 80k when he gets GC, this is through tax-returns etc.
2.OR he should be paid 80k when he Labor is filed.

In his case, item 2 is the one which works but USCIS is coming after Item 1 and that becomes difficult task because how can you pay 80K when you don't have enough profit etc..

[dimpi]

80k does not kicks in when he gets GC...the condition is:

1.Company "should have" the capacity to pay 80k when he gets GC, this is through tax-returns etc.
2.OR he should be paid 80k when he Labor is filed.

In his case, item 2 is the one which works but USCIS is coming after Item 1 and that becomes difficult task because how can you pay 80K when you don't have enough profit etc..

how can even you question company when the applicant has already ported under AC21 and switched employers. From that time, the new employer is responsible for paying proffered wages and thats what document they ask for when issuing AC21 RFE.
si i disagree that cmpany is responsible for showing capability until candidate gets GC. It is until candidate gets GC or switched employers under AC21, whichever comes first.

[Munna Bhai]

how can even you question company when the applicant has already ported under AC21 and switched employers. From that time, the new employer is responsible for paying proffered wages and thats what document they ask for when issuing AC21 RFE.
si i disagree that cmpany is responsible for showing capability until candidate gets GC. It is until candidate gets GC or switched employers under AC21, whichever comes first.

What you said is true but do remember USCIS can visit any case any time and I-140 can be revoked due to fraud,mis-representation etc and they can take these issues for fighting with you. Read unitednations inputs in this forum.

You have strong case if you are ready to fight but until you get all the documents from your original GC company you may have difficult time to prove it.

[dimpi]

What you said is true but do remember USCIS can visit any case any time and I-140 can be revoked due to fraud,mis-representation etc and they can take these issues for fighting with you. Read unitednations inputs in this forum.

You have strong case if you are ready to fight but until you get all the documents from your original GC company you may have difficult time to prove it.

can you point to unitednatons article you mentioned.

thanks

[Munna Bhai]

can you point to unitednatons article you mentioned.

thanks

read below,it looks like your's in non-perm case?? am i correct??

http://immigrationvoice.org/forum/showthread.php?t=16015

[mheggade]

We can see the pattern here. USCIS has a very high number of RFE for EB2 cases. In my case , I work for a Mid sized American company whose registered income for last 3 years is averaging around $ 98 million, In spite of that lot of guys who filed for EB2 through our company got RFE for ability to pay.

[EndlessWait]

sad to hear. If after doing all the most excruciating documentation, if these ppl are not going to give gc, then so long suckers!....

its a pain, why cant these folks at USCIS do there job when given the first time, it is sad that employment based folks see more tough rules where as the illegals and fraud marrige based, asylum, amnesty continue to flourish..

[TomTancredo]

I am not sure what could have prompted USCIS to revisit the old case. Is the company sponsering GC have a clean history with USCIS?

[abhijitp]

Very very scary... wish you all the best, and this just underlines how EAD/AC21 is not quite the same thing as the GC.
I would suggest that you immediately consult a good attorney like Rajiv Khanna/ Greg Siskind!

[vactorboy29]

Chech this out

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

It clears all your confusion.

[karmika]

that they are revoking an approved app after 2.5 years.

[Canadian_Dream]

I am purely speculating, but there could be two potential issues that I see here:

1. You original employer from whom you got your I-140 approved might have filed a few I-140's recently or sometime in last 6-7 months. The priority dates for these I-140 might be around yours or before yours. When someone at USCIS upon adjudicating one of these I-140 looked at previously approved I-140 from the same employer and calculated the ability to pay collectively, from all these pending and/or approved I-140, they would have determined that employer even though could have an ability to pay for individual I-140 but not all of them collectively. That lead to some I-140 revocation/denial/RFE unfortunately your might be among them. One of the things your ex-employer could do it to withdraw some of those I-140 and send updated information proving it can pay all the pending/approved I-140 with your priority date during that fiscal year. This has to come from a CPA.

2. Your name check expedite request might have triggered an audit to your application prior to approval and they decided to look at even approved petitions again.

I think there is a definitely a way out of this and your best help could be UN, try to get in touch with him (I think he is a CPA).

[vactorboy29]

Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

[unitednations]

uscis for many years has revoked previously approved I-140's for ability to pay; companies going out of business; education mismatch. This is nothing new.

It happened with regularity in 2004 and 2005 when uscis changed their stance of how they are going to look at ability to pay.

Since; it may take many years to get the greencard approved; uscis stance may get more stringent. I have seen many RFE's recently where uscis is adding up cases together for 3 to 4 years and asking for lists and ability to pay queries for everyone together.


They are very difficult to get approved. Everyone looking to use ac21 and leave their employer; (especially staffing firms) puts themselves at risk because everntually a company will have more I-140's filed then their current number of employees.

regarding ability to pay for new company in ac21. USCIS does test the legitimacy of the new company (they could and have asked for tax records from new company).

EAD is not the greencard. People who have grandoise plans of their freedom should be very careful in the 180 day mark.

[unitednations]

dimpi; i did get your e-mail. sorry i didn't respond. these days; i don't work much on ability to pay cases or even want to talk to people about the issue.

[123456mg]

You know there is a very high chance that the IO office wants to deny your 485 case on the grounds of I-140 revocation. There is one well knowledged user "unitednations". I would suggest you seek his help. He has helped a lot many people with his knowledge earlier with same or similar issues.

[TomTancredo]

Mr. UN

what you think is the best course of action for people. I agree that EAD is not GC.

Would you say some is better off or worse off switching from a smaller company to a bigger company.

[unitednations]

Mr. UN

what you think is the best course of action for people. I agree that EAD is not GC.

Would you say some is better off or worse off switching from a smaller company to a bigger company.

The problem is that different service centers treat issues differently. Your 140 could have been decided by texas which is easier on education. however, 140's and 485's are being transferred to service centers which have jurisdiction over your employment and/or place of residence. Therefore, if your 485 is in nebraska; but 140 was approved in texas; the 140 will get re-looked at again by nebraska. if it doesn't meet nebraska standards or somehow the interpretation gets changed before you get greencard then your 140 could be in trouble.

in my local office interview; officer did mention how he had revoked an I-140 that was approved by texas service center.

Now;if you leave your employer and start using EAd and six years is finished and something happens to 140 or 485 then you are really out of luck. However; if you stay on h-1b and 140 is revoked; the remaining time on h-1b i-94 card will still be good. It will give you a chance to get another greencard process going before your h-1b would come up for renewal.

Many, many times; consultants do not know the overall picture of the company. You guys don't know the details of the labor; how many 140's have been filed, revoked, department of labor investigations; visa refusals; irs audits; company guys selling the company, etc; all of these variables can impact your greencard (ac21 is not the be all, end all that all people think). If you have left the employer after 180 days but a few years later; uscis adds up all cases together and gives company choice of which cases they want left alone; they will not pick yours because you have left. If that is the case; then that means there was never ability to pay for your particular case and it was approved in error.

I know some people who it took 10 years to get greencard. They got burned before and then they played it very conservative until it got approved. However, the very same day it got approved; they start asking of when they can leave the employer. My advice is always; it took you so long and why become a risk taker at probably the most sensitive time. Even when you get the greencard approved; company keeps filing h1b's, labors, 140's, etc.; everytime uscis touches company petition; it gives them a chance to go through the whole history of the company. These things are all going on behind the scense that you don't even know about.

Regarding ; moving to a bigger company. Even if you move to a smaller company but you are getting paid the labor wage then uscis will leave the new companies legitimacy alone. However; if you just show a letter from ac21 employer and you haven't gotten paid from them yet; then that is a whole different ball game.

[americandesi]

This is a nasty situation. What if "Dimpi" had already ported the PD from the old I-140 and got his/her new labor and I-140 approved from another employer? Will they be valid still? I don’t think even USCIS has an answer to this question.

[sonu_Aug_2002]

Hi UN,

What happens if your greencard is approved and you leave them after 1 year? Now lets say the employer gets a query from USCIS about the ability to pay and Ur employer decide to leave your name as you are now not working them anymore?

Thanks

[dimpi]

- my company has a clean history of fraud
- there has been 140 approvals as recent as 2 months back, who got the atp rfe and were approved. but i think they were are diff svc centr. mine is vsc.

-IO identified only 4 cases in the NOID t which excess may have been allocated. 2 of them had PD,receipt date and apporval date after mine. they all were in same category. need not to say all of them have adjusted status since then.


technically speaking agency has full right to re-question in a reasonable time frame and 2.5 yrs is unreasonable from any perspective

My RFE was received today. Also sent letter to VP.

Can i afford to file lawsuit. yes. Do i want? not at all.

i will keep you all posted

[sunny1000]

- my company has a clean history of fraud
- there has been 140 approvals as recent as 2 months back, who got the atp rfe and were approved. but i think they were are diff svc centr. mine is vsc.

-IO identified only 4 cases in the NOID t which excess may have been allocated. 2 of them had PD,receipt date and apporval date after mine. they all were in same category. need not to say all of them have adjusted status since then.


technically speaking agency has full right to re-question in a reasonable time frame and 2.5 yrs is unreasonable from any perspective

My RFE was received today. Also sent letter to VP.

Can i afford to file lawsuit. yes. Do i want? not at all.

i will keep you all posted

It is an unreasonable time. Good luck to you and I hope & pray that your GC gets approved.

[unitednations]

Hi UN,

What happens if your greencard is approved and you leave them after 1 year? Now lets say the employer gets a query from USCIS about the ability to pay and Ur employer decide to leave your name as you are now not working them anymore?

Thanks

One thing to keep in mind is that the concept of employment base greencard is that there is a permanent full time job.


the nature of a consulting company also known as staffing companies is that they do not have a permanent full time job. They are outsourcing you. The only reason uscis will even approve these petitions is that there is a precedent lawsuit from 1963 or 1964 which said a temporary staffing company can file 140's if they indeed have a permannet full time job. About three years ago; uscis did deny and revoke 140's mainly in california service center because they researrched the companies web-site and job postings on dice (this was in the denial notice); and noted that all the job postings they had listed were contract positions for 3 to 6 months. USCIS denied 35 petitions and then revokd a few more after this and this was one of the reasons.

Now; how most people use portability is very similar. You basically want to change your billing to another company or your own company and want to go from a staffing company to a permanent job. This is not employment base greencard is really meant for. As things develop with the rule making; department of labor; etc. we will see how this will flush out with EB greencards.

Now to answer your question; greencard can be rescinded upto 5 years after approval if it was approved in error and there is no time limit to rescinding/revoking if the greencard was fraudulent. If ice/uscis/dol detects fraud in a company then I don't believe they will just let the greencard holders go (remember; under PERM; the labor can be revoked at any time).

[at0474]

friends,
My approved I-140 is getting revoked becaude USCIS is saying they didn't verify ability to pay 2.5 yrs back and asked for more docs.

Neednot to say, I switched employers 2 yrs back and switched to EAD thinking everything should be safe.

This is the second time this year that my I-140 is being revoked. In feb,07 my i-140 and 485 was revoked because USCIS ignored AC21 and never asked me anything about AC21. I filed MTR and got it reopened in May.
In nov this another mess.

My case is at Vermont and it appears either the officer is retaliating or is ignorant.

I know this is unprecedented but i am broked down and fed up of fighting them. It has been a never ending journey for my family.

I have submitted all my the documents and don't know whats going to happen.

Any advice from the community will be helpful as I don't know what to do.

Another thing, i used VP office for clearing namecheck which was done on Nov2 and this I-140 revoked on Nov 8.

I am on my 3rd EAD.

thanks

--You are going through one heck of a ride my friend. Don't loose hope. You did it once. You can do it again. Talk to a competent lawyer. Don't take back on shelling out some money.

We use the term "lawsuit" too loosely around here. In case things get out of hand, I do not know if you have any backup to stay in legal status. Focus on that.

Try talking to a competent attorney personally. Little bit of brainstorming with a lawyer could potentially lead to a viable solution. His/her motive aside,I do not think IO is dumb or ignorant. He/she is acting oversmart. Play the game bearing that in your mind.

Good luck.

[at0474]

UN,

Good to see you after a long time. I personally thank you for taking my calls and helping me out with my I-140 situation a year ago. You have helped many more in the past too.

Nice to see your valuable suggestions again.

[Sunx_2004]

Sorry Guys for asking question which is not relevant here but I see Unitednations reading the thread so can't stop myself..SO here it goes

I filed 485 in July with approved I 140 (approved in June), In October my company got acquired by another bigger company. I became employee of new company in November.

Do I need to do anything?
How USCIS will interpret this case? Will it be considered as change of company before 90 days.

UN Please advise

The problem is that different service centers treat issues differently. Your 140 could have been decided by texas which is easier on education. however, 140's and 485's are being transferred to service centers which have jurisdiction over your employment and/or place of residence. Therefore, if your 485 is in nebraska; but 140 was approved in texas; the 140 will get re-looked at again by nebraska. if it doesn't meet nebraska standards or somehow the interpretation gets changed before you get greencard then your 140 could be in trouble.

in my local office interview; officer did mention how he had revoked an I-140 that was approved by texas service center.

Now;if you leave your employer and start using EAd and six years is finished and something happens to 140 or 485 then you are really out of luck. However; if you stay on h-1b and 140 is revoked; the remaining time on h-1b i-94 card will still be good. It will give you a chance to get another greencard process going before your h-1b would come up for renewal.

Many, many times; consultants do not know the overall picture of the company. You guys don't know the details of the labor; how many 140's have been filed, revoked, department of labor investigations; visa refusals; irs audits; company guys selling the company, etc; all of these variables can impact your greencard (ac21 is not the be all, end all that all people think). If you have left the employer after 180 days but a few years later; uscis adds up all cases together and gives company choice of which cases they want left alone; they will not pick yours because you have left. If that is the case; then that means there was never ability to pay for your particular case and it was approved in error.

I know some people who it took 10 years to get greencard. They got burned before and then they played it very conservative until it got approved. However, the very same day it got approved; they start asking of when they can leave the employer. My advice is always; it took you so long and why become a risk taker at probably the most sensitive time. Even when you get the greencard approved; company keeps filing h1b's, labors, 140's, etc.; everytime uscis touches company petition; it gives them a chance to go through the whole history of the company. These things are all going on behind the scense that you don't even know about.

Regarding ; moving to a bigger company. Even if you move to a smaller company but you are getting paid the labor wage then uscis will leave the new companies legitimacy alone. However; if you just show a letter from ac21 employer and you haven't gotten paid from them yet; then that is a whole different ball game.

[swamy]

Sorry Guys for asking question which is not relevant here but I see Unitednations reading the thread so can't stop myself..SO here it goes

I filed 485 in July with approved I 140 (approved in June), In October my company got acquired by another bigger company. I became employee of new company in November.

Do I need to do anything?
How USCIS will interpret this case? Will it be considered as change of company before 90 days.

UN Please advise

Please participate in the fundraising thread if you haven't already. Hope UN ansers your q. Thx

[bestia]

Just a thought. So if the company would itself withdraw 140 after 180 days and after a person invoked AC21, then USCIS wouldn't look into I-140 (what's the reason revoking withdrawn I-140?). Wouldn't that work? If this works isn't it better for us to ask our previous employers to withdraw the damn thing and reduce our risks?

Second. Can't lawyers play that card for dimpi's case? Even if 140 is revoked, 180 days passed, and the person used AC21 and it wasn't fraud, can't I-485 still be approved?

good luck, dimpi.

[satishku_2000]

Just a thought. So if the company would itself withdraw 140 after 180 days and after a person invoked AC21, then USCIS wouldn't look into I-140 (what's the reason revoking withdrawn I-140?). Wouldn't that work? If this works isn't it better for us to ask our previous employers to withdraw the damn thing and reduce our risks?

Second. Can't lawyers play that card for dimpi's case? Even if 140 is revoked, 180 days passed, and the person used AC21 and it wasn't fraud, can't I-485 still be approved?

good luck, dimpi.

Probably a good lawyer should consider this too. But again there is no final rule making for AC21. No company want a fight with USCIS and most of the lawyers would suggest against sticking it upto officers at USCIS, These IOs can retaliate against company anytime ...

[lazycis]

- my company has a clean history of fraud
- there has been 140 approvals as recent as 2 months back, who got the atp rfe and were approved. but i think they were are diff svc centr. mine is vsc.

-IO identified only 4 cases in the NOID t which excess may have been allocated. 2 of them had PD,receipt date and apporval date after mine. they all were in same category. need not to say all of them have adjusted status since then.


technically speaking agency has full right to re-question in a reasonable time frame and 2.5 yrs is unreasonable from any perspective

My RFE was received today. Also sent letter to VP.

Can i afford to file lawsuit. yes. Do i want? not at all.

i will keep you all posted

I can help you (for free, of course) with filing a lawsuit if the USCIS denies your appeal. You have a strong case and should win easily. It will cost you $350 in filing fees + postal expenses. Do not give up.

[singhsa3]

Dimpi,
Please keep us posted on how you plan to handle this cath 22 situation for you. It would help any other unfortunate member.

I can help you (for free, of course) with filing a lawsuit if the USCIS denies your appeal. You have a strong case and should win easily. It will cost you $350 in filing fees + postal expenses. Do not give up.

[niceguy]

My LC Sub I140 got rejected a month back on education (Dip+AMIETE+MS-bits) after an RFE in EB2. USCIS didn't recognize MS from BITS, Pilani, India is equal to US masters. Our attorney got it evaluated as both are equal. (LC has Masters+2, which I have)

I already have another approved EB2 I140 which was approved in premium processing in April from Texas and we requested to use that I140 for my pending 485 in April, 2007. But we got intent to deny letter for this approved I140 too in early November from NSC. This approved I140 was from TSC, and 485 and first I140 filed with this 485 (rejected I140) are pending at NSC. My attorney replied to this letter last week showing my AMIETE is equal to US bachelors since they are not recognizing my MS. LC has MS+3 years or equivalent (BS plus 5 years progressive experience), but BS lacks 'or equivalent' word and not sure what is going to happen. The attorney is from a big firm. I am waiting for the reply from USCIS on this I140. Luckily my company extended my 8th year H1B immediately which now valid until Jan 2009.

I believe, the whole process is just depend on shear luck of individual.

Best of luck to all..

[rockstart]

Guys here is what I found on page 5 of the 12 page AC21 document
--------------------------------------
Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

--------------------------------------------------

Here is another important thing for people wanting to use AC-21

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 7
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.
--------------------------------------------------------
http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

[at0474]

Just a thought. So if the company would itself withdraw 140 after 180 days and after a person invoked AC21, then USCIS wouldn't look into I-140 (what's the reason revoking withdrawn I-140?). Wouldn't that work? If this works isn't it better for us to ask our previous employers to withdraw the damn thing and reduce our risks?

Second. Can't lawyers play that card for dimpi's case? Even if 140 is revoked, 180 days passed, and the person used AC21 and it wasn't fraud, can't I-485 still be approved?

good luck, dimpi.

--Excellent thought. It could work in cases where I-140 has been withdrawn already. In Dimpi's case, it hasn't been. I am not sure if employer withdrawing it now, after the fact that USCIS had already issued an RFE, would work.

We play this card that GC is for future employment. This could also bite us in the rear when USCIS plays the same dice. It ain't over until its over. Until we get GC approved, they can question anything...from labor to I140 to 485. Quitting a sponsoring employer by using AC21 does not mean that everything about the past employer is history. It is still the sponsoring employer and the valid job offer from him/her that gets the GC.

I really wonder what makes AC21 and its underlying intent meaningful though??

[Munna Bhai]

Just a thought. So if the company would itself withdraw 140 after 180 days and after a person invoked AC21, then USCIS wouldn't look into I-140 (what's the reason revoking withdrawn I-140?). Wouldn't that work? If this works isn't it better for us to ask our previous employers to withdraw the damn thing and reduce our risks?

Second. Can't lawyers play that card for dimpi's case? Even if 140 is revoked, 180 days passed, and the person used AC21 and it wasn't fraud, can't I-485 still be approved?

good luck, dimpi.

this is wonderful thought, did anyone tried this...if not..UN what is your take in this regard.

[unitednations]

Sorry Guys for asking question which is not relevant here but I see Unitednations reading the thread so can't stop myself..SO here it goes

I filed 485 in July with approved I 140 (approved in June), In October my company got acquired by another bigger company. I became employee of new company in November.

Do I need to do anything?
How USCIS will interpret this case? Will it be considered as change of company before 90 days.

UN Please advise



there is a memo; i think from 2001 which discusses successor in interest for h-1b and greencard cases.

uscis position is different for h-1b and greencard. For h-1b; new company only needs to show that it is taking on "immigration liabilities" and thus it won't be considered a change of employer.

for greencard cases; "substantially all assets and liabilities" have to be acquired by the successor entity. This is a little difficult in most merger cases because the new entity doesn't want to bring any hidden liabilities into the new company and the agreements generally do not accomodate to take on all liabilities.

USCIS position is that if 485 isn't pending for more then 180 days then petitioner should amend the 140 even if it is approved to include the new entity information. Do people do this; not really; only big companies generally do this because they will have other people filing 140's with new company but using old company labor and it will allow uscis insight that a merger happened and they may go into the old companies 140's on their own.

I doubt you would have access to the merger documents for you to make an intelligent decision in which way to proceed.

[unitednations]

My LC Sub I140 got rejected a month back on education (Dip+AMIETE+MS-bits) after an RFE in EB2. USCIS didn't recognize MS from BITS, Pilani, India is equal to US masters. Our attorney got it evaluated as both are equal. (LC has Masters+2, which I have)

I already have another approved EB2 I140 which was approved in premium processing in April from Texas and we requested to use that I140 for my pending 485 in April, 2007. But we got intent to deny letter for this approved I140 too in early November from NSC. This approved I140 was from TSC, and 485 and first I140 filed with this 485 (rejected I140) are pending at NSC. My attorney replied to this letter last week showing my AMIETE is equal to US bachelors since they are not recognizing my MS. LC has MS+3 years or equivalent (BS plus 5 years progressive experience), but BS lacks 'or equivalent' word and not sure what is going to happen. The attorney is from a big firm. I am waiting for the reply from USCIS on this I140. Luckily my company extended my 8th year H1B immediately which now valid until Jan 2009.

I believe, the whole process is just depend on shear luck of individual.

Best of luck to all..


unfortunately; you got caught in situation that i mentioned earlier; where 485 is at one case center which is more stringent on 140's then where it was originally approved.

I do foresee a lot of issues like this; especially since they are moving around files.

If you remember back; ailf wanted plaintiffs for lawsuits for visa bulletin fiasco. However; they were very particular that they wanted clean cases because they felt uscis would scrutinize the cases a lot.

I always felt that the tremondous pressure everyone put on uscis would cause collateral damage in them getting tougher with everyone.

[unitednations]

Guys here is what I found on page 5 of the 12 page AC21 document
--------------------------------------
Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

--------------------------------------------------

Here is another important thing for people wanting to use AC-21

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 7
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.
--------------------------------------------------------
http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf



"legitimacy of new employer" and "public charge" are key buzzwords for uscis to question successor company ability to pay. We all need to be careful that we read what we want to read into statements to make us feel better.

Every word in a statement has to be dissected. USCIS officers generally dissect it in a way to deny the case (that has been my experience).

[satishku_2000]

"legitimacy of new employer" and "public charge" are key buzzwords for uscis to question successor company ability to pay. We all need to be careful that we read what we want to read into statements to make us feel better.

Every word in a statement has to be dissected. USCIS officers generally dissect it in a way to deny the case (that has been my experience).

They are powers that be . We can read whatever we want to but in the end do they read what we want them to read. Most of the seasoned lawyers would simply ask a company to withdraw the case if they think USCIS is going after the company.

People have to realise that ita'nt over until its over but can worst possible scenario for every individual , chances are low .. :)



UN,

You think USCIS will issue final rules on AC21 anytime soon?

[Sunx_2004]

You are right, I don't have access to merger documents. I have been told by my old company that Only change needed in my case is to inform USCIS of employer change after 180 days of filing 485 via AC21.

ALso, New company is applying I 140 for those whose 140 was pending at the time of merger.

FYI..My old company applied for my H1 extension 15 days before merger and it got approved on November 30th. I was expecting an RFE since old company do not exist.

What else can be done to make sure everything is right after merger.

there is a memo; i think from 2001 which discusses successor in interest for h-1b and greencard cases.

uscis position is different for h-1b and greencard. For h-1b; new company only needs to show that it is taking on "immigration liabilities" and thus it won't be considered a change of employer.

for greencard cases; "substantially all assets and liabilities" have to be acquired by the successor entity. This is a little difficult in most merger cases because the new entity doesn't want to bring any hidden liabilities into the new company and the agreements generally do not accomodate to take on all liabilities.

USCIS position is that if 485 isn't pending for more then 180 days then petitioner should amend the 140 even if it is approved to include the new entity information. Do people do this; not really; only big companies generally do this because they will have other people filing 140's with new company but using old company labor and it will allow uscis insight that a merger happened and they may go into the old companies 140's on their own.

I doubt you would have access to the merger documents for you to make an intelligent decision in which way to proceed.

[mmillo]

UN,
I have an approved i140 as of JAN 2007(PD-2003). Company was acquired in FEB 2007.

In June we have submitted 485 with new i140 ,

What will happen to my new i140 if the New company is taking the the Liabilites after feb 2007 ( the new company has a new taxID , the job location is the same , the salary is the same)?

Will they revoke the old i140? I just crossed 180 days. I don't have any interest to change employers with out GC.

thank you for answering.


there is a memo; i think from 2001 which discusses successor in interest for h-1b and greencard cases.

uscis position is different for h-1b and greencard. For h-1b; new company only needs to show that it is taking on "immigration liabilities" and thus it won't be considered a change of employer.

for greencard cases; "substantially all assets and liabilities" have to be acquired by the successor entity. This is a little difficult in most merger cases because the new entity doesn't want to bring any hidden liabilities into the new company and the agreements generally do not accomodate to take on all liabilities.

USCIS position is that if 485 isn't pending for more then 180 days then petitioner should amend the 140 even if it is approved to include the new entity information. Do people do this; not really; only big companies generally do this because they will have other people filing 140's with new company but using old company labor and it will allow uscis insight that a merger happened and they may go into the old companies 140's on their own.

I doubt you would have access to the merger documents for you to make an intelligent decision in which way to proceed.

[dimpi]

guys,
while i am waiting for response, i need to explore my back up options.

i need to finish my MBA before i leave this country. I was on my H-1 8th yr extension in 2005. after that i have been on EAD.

My wife is on H-1 but i think she is on extension based on 3 yr extension of my unfortunate 140.

Can I switch to F-1 status next year?
I understand you start accruing illegal time while MTR is pending and if it gets denied? So i don't want to take that risk.

I know i don't have any options, but any suggesstions...

[gc_chahiye]

guys,
while i am waiting for response, i need to explore my back up options.

i need to finish my MBA before i leave this country. I was on my H-1 8th yr extension in 2005. after that i have been on EAD.

My wife is on H-1 but i think she is on extension based on 3 yr extension of my unfortunate 140.

Can I switch to F-1 status next year?
I understand you start accruing illegal time while MTR is pending and if it gets denied? So i don't want to take that risk.

I know i don't have any options, but any suggesstions...

your wife cannot be on an H1 extension based on your I-140. She can only get H1 extensions based on her own LC/I-140. Can you clarify that?
If she has her own H1, you cna change status to H4 and complete your MBA.

[swamy]

guys,
while i am waiting for response, i need to explore my back up options.

i need to finish my MBA before i leave this country. I was on my H-1 8th yr extension in 2005. after that i have been on EAD.

My wife is on H-1 but i think she is on extension based on 3 yr extension of my unfortunate 140.

Can I switch to F-1 status next year?
I understand you start accruing illegal time while MTR is pending and if it gets denied? So i don't want to take that risk.

I know i don't have any options, but any suggesstions...

can she apply for labor/gc? i'm sure her extension of h1 cant be revoked. why dont you swtich over to h4 until you graduate and apply for canada pr as well until things work out

[dimpi]

can she apply for labor/gc? i'm sure her extension of h1 cant be revoked. why dont you swtich over to h4 until you graduate and apply for canada pr as well until things work out

well i thought os switching to h4 but i was scared that they may revoke her h1 also.

we have decided not to pursue the case if there is a denial and move back.

But i need to be in he country to finish my studies until next year.

well, i guess h4 is the only way out. because i think f1 is not possible from 485

[unitednations]

well i thought os switching to h4 but i was scared that they may revoke her h1 also.

we have decided not to pursue the case if there is a denial and move back.

But i need to be in he country to finish my studies until next year.

well, i guess h4 is the only way out. because i think f1 is not possible from 485

You wouldn't be able to get h-4 without going for visa stamping.

You can only extend or change non immigrant status without leaving the country and re-entering if you are currently in non immigrant status.

I do believe that uscis will take their time to take a decision. You may want to try to file h-1b petition for yourself based on 140 approval (I do know some people who filed for three year extension based on employer revocation and got it approved. You would have to file it quickly; go for visa stamping and re-enter usa. If they should deny the 485; you will be safe on your own h-1b and can re-start the gc process.

F-1 is out of the question. You won't get a visa since it is single intent and since you filed gc they won't approve it.

[dimpi]

You wouldn't be able to get h-4 without going for visa stamping.

You can only extend or change non immigrant status without leaving the country and re-entering if you are currently in non immigrant status.

I do believe that uscis will take their time to take a decision. You may want to try to file h-1b petition for yourself based on 140 approval (I do know some people who filed for three year extension based on employer revocation and got it approved. You would have to file it quickly; go for visa stamping and re-enter usa. If they should deny the 485; you will be safe on your own h-1b and can re-start the gc process.

F-1 is out of the question. You won't get a visa since it is single intent and since you filed gc they won't approve it.

UN, i am trying to avoid re-entering country as this can jeopardise everything if for some reason i don't get visa.

Do you know whats the status while i file MTR/appeal under scenario if MTR/appeal is rejected.

Also, my h-1 was valid until sometime in 2006 and I started using EAD for new employer from Jan 2006. Is there any way i can extend that H-1 without leaving country?

As I understand, the illegal timeframe is 180 days/6 months? correct? so will i be safe in future if i leave country before 6 months?

What if I file law suit, will i get some temp legal status?

I am trying to avoid the risk of leaving cntry until dec 2008. and am looking for ways.


Isn't that strange i followed law all these 10 yrs and this is what i have to go through?

[lazycis]

As I understand, the illegal timeframe is 180 days/6 months? correct? so will i be safe in future if i leave country before 6 months?


Yes, you have 180 days to leave the country to avoid 3/10 years re-entry bar. 180 days start ticking from the moment the last USCIS appeal is rejected.


What if I file law suit, will i get some temp legal status?


You can request to toll unlawful presense until the lawsuit is resolved. If the court grants it, you will gain at least three months by doing that (the government has 60 days to respond to the lawsuit, then you and government will file motions for summary judgment, then the judge will take some time to make a decision).

[dimpi]

[QUOTE=lazycis;204796]Yes, you have 180 days to leave the country to avoid 3/10 years re-entry bar. 180 days start ticking from the moment the last USCIS appeal is rejected.

so does that mean i am in a legal status while appeal is pending? And as far I read that appeal for 140 takes around 12 months. so if thats the case i should be fine until next dec.


I am laso taking to attorney but want to have second opinion as i doubt few people have gone through this stage.

[skark]

Any updates as to your case status?

[dimpi]

Any updates as to your case status?

i sent my docs that were received on dec 10

after that there was a lud change continuously for 5 days until dec 15.

since then nothing and message remains same rfe received...

i will keep you all posted

[gcwait2007]

i sent my docs that were received on dec 10

after that there was a lud change continuously for 5 days until dec 15.

since then nothing and message remains same rfe received...

i will keep you all posted

Dimpi,

I am praying for you. Let the Almighty be with you in these tough times.

Regards

[skark]

Likewise as the previous poster said, and I wish you all the best and hope that your struggle will conclude to you and your family's best interest.

Best wishes

[JunRN]

Sponsoring companies will soon realize the problem if they do not withdraw I-140 of those who already left and invoked AC21.

Pending I-140 under the name of a particular sponsor will file up and when USCIS check how many I-140's are pending, the petitioner will soon have a problem on its ability to pay. Therefore, the petitioner will have to withdraw even approved I-140s of those who already left and ported.

And then after, those who ported without informing USCIS will receive NOID.

[amsgc]

...

[STAmisha]

Good Luck

[americandesi]

Check with your attorney if you could appeal the case quoting the following

http://www.murthy.com/news/n_140rev.html

[dvb123]

Hi American Desi, you have given a very valuable legal point.

[lazycis]

This is, indeed, very interesting. Here is the link to the court ruling:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAzLTYxMzlfb3BuLnBkZg==/03-6139_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl208b/1/hilite

"Under the plain language of Section 1155, a decision by the INS to revoke its approval of a visa petition shall not “have effect” unless (1) the alien receives notice of the revocation from the Secretary of State (2) before departing for the United States. In this case, it is undisputed that Chai did not receive notice of revocation—from the Secretary of State or any other party—before
departing for the United States; he was already in the United States when the INS revoked its approval of his immigrant visa petition. Indeed, Chai was already in the United States on a nonimmigrant visa when his immigrant visa petition was initially approved. Therefore, under the terms of Section 1155, the revocation of his petition was not effective."

[indianindian2006]

Good luck

[unitednations]

This is, indeed, very interesting. Here is the link to the court ruling:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAzLTYxMzlfb3BuLnBkZg==/03-6139_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl208b/1/hilite

"Under the plain language of Section 1155, a decision by the INS to revoke its approval of a visa petition shall not “have effect” unless (1) the alien receives notice of the revocation from the Secretary of State (2) before departing for the United States. In this case, it is undisputed that Chai did not receive notice of revocation—from the Secretary of State or any other party—before
departing for the United States; he was already in the United States when the INS revoked its approval of his immigrant visa petition. Indeed, Chai was already in the United States on a nonimmigrant visa when his immigrant visa petition was initially approved. Therefore, under the terms of Section 1155, the revocation of his petition was not effective."


I'm not sure if this is the same case but there was a case that happened in 2004 where uscis revoked an 140 petition. The attorney used the INA to state that once a person commences journey to usa then the 140 cannot be revoked. This had been tried many times unsuccessfully. However; in this case the attorney was successful.

Guess what; four months later the law was changed to allow them to revoke petitions. Since they changed the law; the 140 was ultimately revoked.

This was a hot topic in 2004 and 2005.

[unitednations]

Check with your attorney if you could appeal the case quoting the following

http://www.murthy.com/news/n_140rev.html


just read the link. that is the one that i referred to earlier. ultimately law was changed at end of 2004. If you go to matthew oh historical archives to around march 2005; he posted that the law was sneakily changed and people didn't catch it until march 2005.

[lazycis]

just read the link. that is the one that i referred to earlier. ultimately law was changed at end of 2004. If you go to matthew oh historical archives to around march 2005; he posted that the law was sneakily changed and people didn't catch it until march 2005.

You are right, the law was changed in late 2004.
http://www.law.cornell.edu/usc-cgi/get_external.cgi?type=pubL&target=108-458

The current language lets government to revoke I-140 without notice. This is bad.
8 USC 1155
"The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition."

[loudobbs]

you are stupid Munna Bhai. So what if it his first post.... why is it not normal????

It s not him its you......


This is your first post in this forum, which doesn't sound normal.Could you please give more info about your case, pd, country etc.

[dimpi]

I'm not sure if this is the same case but there was a case that happened in 2004 where uscis revoked an 140 petition. The attorney used the INA to state that once a person commences journey to usa then the 140 cannot be revoked. This had been tried many times unsuccessfully. However; in this case the attorney was successful.

Guess what; four months later the law was changed to allow them to revoke petitions. Since they changed the law; the 140 was ultimately revoked.

This was a hot topic in 2004 and 2005.

guys,

I am still waiting for response from agency.
But in the mean time this is what i plan to do (my current EAD expires in jun,08)

1. I will file appeal for 140 and also file MTR for 485 if they deny my 485 as decision isn't considered final according to yates memo.

2. Additionally, memo says there has to be sufficient evidence for appeals to approe case. Now i did show i was paid proffered wages, but the only objectionable thing I see is that I was paid $6k in 1099 continuously for 4 yrs (02-05). My labor salary is 85k. now if USCIS says 1099 is not accepted can we still say that employer did have money to pay me, although it was paid in 1099.

Any suggestions as i am planing to gather evidence in case i have to get into appeal process.

thanks for the support.

[unitednations]

guys,

I am still waiting for response from agency.
But in the mean time this is what i plan to do (my current EAD expires in jun,08)

1. I will file appeal for 140 and also file MTR for 485 if they deny my 485 as decision isn't considered final according to yates memo.

2. Additionally, memo says there has to be sufficient evidence for appeals to approe case. Now i did show i was paid proffered wages, but the only objectionable thing I see is that I was paid $6k in 1099 continuously for 4 yrs (02-05). My labor salary is 85k. now if USCIS says 1099 is not accepted can we still say that employer did have money to pay me, although it was paid in 1099.

Any suggestions as i am planing to gather evidence in case i have to get into appeal process.

thanks for the support.


The earlier posting by lacycis was incorrect.

unlawful presence starts accruing from 485 denial date. motion to reopen gives no legal right to stay in usa. Yates wrote a memo that in concurrent filing cases if 140 is denied then all collateral applications are denied/invalid (ie., ead/ap, 485), unless 140 gets approved again. However; if it is denied again then the unlawful presence is from date of 485 denial.

If one is legally here in h-1b then the only benefit you can get from 140 denial is to get h-1b extensions since the 140 denial is not considered final until all appeals have been exhausted. However; you are not on h-1b any longer and you are not appealing 140 but rather a motion to reopen on 485. 485 is not appealable to administrative appeals office.

DO NOT OVERSTAY BY MORE THEN 180 DAYS FROM 485 DENIAL DATE. IT WILL HAVE LETHAL CONSEQUENCES FOR YOU IN THE FUTURE.

[dimpi]

The earlier posting by lacycis was incorrect.

unlawful presence starts accruing from 485 denial date. motion to reopen gives no legal right to stay in usa. Yates wrote a memo that in concurrent filing cases if 140 is denied then all collateral applications are denied/invalid (ie., ead/ap, 485), unless 140 gets approved again. However; if it is denied again then the unlawful presence is from date of 485 denial.

If one is legally here in h-1b then the only benefit you can get from 140 denial is to get h-1b extensions since the 140 denial is not considered final until all appeals have been exhausted. However; you are not on h-1b any longer and you are not appealing 140 but rather a motion to reopen on 485. 485 is not appealable to administrative appeals office.

DO NOT OVERSTAY BY MORE THEN 180 DAYS FROM 485 DENIAL DATE. IT WILL HAVE LETHAL CONSEQUENCES FOR YOU IN THE FUTURE.

thanks un for the info. I guess i don't have any other option as i don't want to start the whole process again.

And appeal decision within 180 days is very difficult. So I guess people, in my scenarion, have to leave country after filing appeal.

- Is there any way we can ask something from court to give us legal staus until appeal is pending.

thanks

[saiimmi]

The earlier posting by lacycis was incorrect.

unlawful presence starts accruing from 485 denial date. motion to reopen gives no legal right to stay in usa. Yates wrote a memo that in concurrent filing cases if 140 is denied then all collateral applications are denied/invalid (ie., ead/ap, 485), unless 140 gets approved again. However; if it is denied again then the unlawful presence is from date of 485 denial.

If one is legally here in h-1b then the only benefit you can get from 140 denial is to get h-1b extensions since the 140 denial is not considered final until all appeals have been exhausted. However; you are not on h-1b any longer and you are not appealing 140 but rather a motion to reopen on 485. 485 is not appealable to administrative appeals office.

DO NOT OVERSTAY BY MORE THEN 180 DAYS FROM 485 DENIAL DATE. IT WILL HAVE LETHAL CONSEQUENCES FOR YOU IN THE FUTURE.


Unitednations,

This is very informative. What happens if one leaves the country while the appeal is pending? Is he/she not abandoning his 485 petition all together and the only recourse is to start over again from scratch which seems very scarry.

Also, considering these kinds of arbitrary denials, do you suggest any one to go on EAD (or EAC) at all?

Thanks much for your input.

[unitednations]

Unitednations,

This is very informative. What happens if one leaves the country while the appeal is pending? Is he/she not abandoning his 485 petition all together and the only recourse is to start over again from scratch which seems very scarry.

Also, considering these kinds of arbitrary denials, do you suggest any one to go on EAD (or EAC) at all?

Thanks much for your input.


Yes; this is a good scenario.

One of the key things of the memo that uscis issued in December 2006 is that if you have a labor older then one year or 140 approved then you are never subject to the h-1b quota; no matter how long ago you got off h-1b or how long you have been outside the country.

In scnearios where 140 has been revoked by employer or uscis and you have exhausted all six years of h-1b then there is no way for you to get back on h-1b without leaving the country for one year and re-applying. In the labor substitution days; if the labor was older then one year; you could have used that as a basis to get back on h-1b; however; you can no longer do that.

If you leave and your ap has expired and they wind up eventually re-open the case; then you would not be able to renew the ap because you are outside the country; you would miss fingerprint appointment etc and your case would ultimately be denied. If the ap is still valid then you could re-enter. If you could get back on h-1b then you could re-enter on h-1b since entering on h-1b is not considered abandoning the adjustment of status application.

Labor substitution really helped in these scenarios of getting a person back on track but no longer.

Three and 10 year bars are pretty fatal. Even if you overstayed by more then 180 days and you left and somehow you were able to obtain a visa to come back before the ban was over; it would not be considered a lawful entry and would come back to haunt you when you apply for aos again (I do know people where this happened).

It is difficult for me to tell people to do "as I say" and not "as I do"; since i used ac21 portability myself (took 4 years to get my aos approved). However; my situtation was different; i worked for a big public company which had little history of filing greencards (it was not a greencard factory) like a lot of the companies whom people file with.

in 2004-2006 when i was on immigration portal; a lot of people contacted me regarding rfe's, denials, appelas, etc; I can tell you that very little of the situations actually make it to the immigration boards. Most people take a very simplistic approach to things until big problems happen. USCIS is denying h-1b's (even 7th, 8th year extensions); revoking 140's for various reasons; department of labor can revoke a labor approval at any stage (even if 140 was approved).

over the next few months; years; uscis will continue to develop more investigative tools; be able to put together more information and become increasinly more narrow in their interpretations of laws/rules/memos. Main thing I can tell you is to stay on h-1 until you ultimately get the greencard.

Depends on how risk averse/taker one is. I've found that most people walk around scared until they get greencard and then all of a sudden they become risk takers.

[newindian]

United Nations,

I have read a few of your posts and respect your knowledge.Can you please advice me as to what I should do.Here is my case.

I applied for a EB3 labor in Dec 2002 which was stuck in the PBEC and just got approved.Meanwhile I changed employers and filed for a EB2 green card for which the 140 is already approved.I also got the AP and EAD card from this petition.Now as my old labor has gotten approved the old employer says that he would let me use it if I paid him all his expenses for the labor and also attorney charges for the attorney of his company.All of this add upto $15000. Please suggest that if I should go with the old priority date and spend the money or just let it go.What would come faster EB3 OF Dec 2002 or EB2 of April 2006.
Also as the job titles are different I cannot do interfiling.The employer wants all the money as attorney fees for an attorney of his choice.
Please help.

TIA

[unitednations]

United Nations,

I have read a few of your posts and respect your knowledge.Can you please advice me as to what I should do.Here is my case.

I applied for a EB3 labor in Dec 2002 which was stuck in the PBEC and just got approved.Meanwhile I changed employers and filed for a EB2 green card for which the 140 is already approved.I also got the AP and EAD card from this petition.Now as my old labor has gotten approved the old employer says that he would let me use it if I paid him all his expenses for the labor and also attorney charges for the attorney of his company.All of this add upto $15000. Please suggest that if I should go with the old priority date and spend the money or just let it go.What would come faster EB3 OF Dec 2002 or EB2 of April 2006.
Also as the job titles are different I cannot do interfiling.The employer wants all the money as attorney fees for an attorney of his choice.
Please help.

TIA

One thing I have learned is that gc candidates will spare no expense to get a greencard faster. In some cases I've talked people out of filing second labor and transferring priority date but if they know a friend who got a greencard faster doing it this way then they only want one answer (just do it).

There are a few people in your situation. Proceduraly it is a little difficult. Ultimately; you will get your greencard on the eb2 labor.

How it works: File 140 in eb3. Wait for approval. Once it is approved; you will be eligible for the eb3 priority date of december 2002 on your eb2. Once eb2 priority date of december 2002 becomes current; then you would send an expedite request (fax) explaining the law and how you have two approved 140's and then you are eligible for eb2 priority date of december 2002 and it is current and they should adjudicate your 485.

My experience is that if your 485 is at texas service center then they will hone the expedite request and if all security checks; fingerprinting is clear then you will get the greencard in less then one month.

However;

nebraska is different. I tried the expedite request and nebraska came back and said they do not honor expedite requests on 485 (even though this is counter to their own procedure; we ran out of time and will have to wait). if your 485 is at nebraska then once the eb2 priority date gets to december 2002 then you need to immediately do a case status inquiry. The case status inquiry will come back that a visa date is not current. At this point it would be a uscis error and then they will honor the expedite request; however; you have to keep on them through inquiries and senator before they will do it.

Note: inter-filing of 485 to another 140 (the job doesn't need to be similar; don't know who told you this). You actually would not be inter-filing because you are not attaching your existing 485 to the eb3 140; instead you are pointing out to uscis that you are eligible for the eb3 priority date on your eb2 petition and the date is current.

Note: I am talking from experience in the above.

Definitely eb2 will become current faster then eb3. eb3 will be a black whole for a few years. EB2 gets first crack at the unused visas from row and then eb3.

Choice is yours.

[Munna Bhai]

you are stupid Munna Bhai. So what if it his first post.... why is it not normal????

It s not him its you......

Dear Loudobbs, you are useless fool..trust me..you are useless as well as big fool..you have posted only 104 post. Lot of people are using this forum to convey wrong message and that is creating panic.

The person who started this thread had huge problem and this was his first post..so it is very normal to get the questions and I was the first to respond and it was natural for me to ask that question.

[dimpi]

UN,

doesn't it mean that a person in my scenario has no way to continue my GC processing because -

1. i can't stay in country as h1 6 yrs exhausted

2. Once outside country can't renew AP or come back on H1 until one year during which time if FPs are received in case, case reopened. 485 will be denied

So in legal terms, scenraios like mine has no options for applicants to continue GC process once appeal is approved. This is really strange.

There is nothing in any regulation that lets the applicant stay until appeal is adjudicated.

Did you ever encounter case like mine on immigration boards, and if yes what did they do?

thanks




Yes; this is a good scenario.

One of the key things of the memo that uscis issued in December 2006 is that if you have a labor older then one year or 140 approved then you are never subject to the h-1b quota; no matter how long ago you got off h-1b or how long you have been outside the country.

In scnearios where 140 has been revoked by employer or uscis and you have exhausted all six years of h-1b then there is no way for you to get back on h-1b without leaving the country for one year and re-applying. In the labor substitution days; if the labor was older then one year; you could have used that as a basis to get back on h-1b; however; you can no longer do that.

If you leave and your ap has expired and they wind up eventually re-open the case; then you would not be able to renew the ap because you are outside the country; you would miss fingerprint appointment etc and your case would ultimately be denied. If the ap is still valid then you could re-enter. If you could get back on h-1b then you could re-enter on h-1b since entering on h-1b is not considered abandoning the adjustment of status application.

Labor substitution really helped in these scenarios of getting a person back on track but no longer.

Three and 10 year bars are pretty fatal. Even if you overstayed by more then 180 days and you left and somehow you were able to obtain a visa to come back before the ban was over; it would not be considered a lawful entry and would come back to haunt you when you apply for aos again (I do know people where this happened).

It is difficult for me to tell people to do "as I say" and not "as I do"; since i used ac21 portability myself (took 4 years to get my aos approved). However; my situtation was different; i worked for a big public company which had little history of filing greencards (it was not a greencard factory) like a lot of the companies whom people file with.

in 2004-2006 when i was on immigration portal; a lot of people contacted me regarding rfe's, denials, appelas, etc; I can tell you that very little of the situations actually make it to the immigration boards. Most people take a very simplistic approach to things until big problems happen. USCIS is denying h-1b's (even 7th, 8th year extensions); revoking 140's for various reasons; department of labor can revoke a labor approval at any stage (even if 140 was approved).

over the next few months; years; uscis will continue to develop more investigative tools; be able to put together more information and become increasinly more narrow in their interpretations of laws/rules/memos. Main thing I can tell you is to stay on h-1 until you ultimately get the greencard.

Depends on how risk averse/taker one is. I've found that most people walk around scared until they get greencard and then all of a sudden they become risk takers.

[samsharma]

I was going through this thread and like to know would it be possible to convert aos to consular processing on worst case if one has to leave the USA and like to continue the GC process.

[axp817]

United Nations makes some good points, seeing him active, and digging through his posts brought me to this thread.

I wonder what ended up happening to the OP in this thread. I hope everything worked out in his/her favor.

[Wendyzhu77]

Working in a staffing company and working on contracts totally does not mean there is no "permanent" job. Almost all companies work on contracts, contracts of all sorts. Staffing company provides a service, just as a plumbing company provides service for your clogged sink. Totally no difference.
I think the issue in this case is the 45/55k salary and the 80k gc wage. Too large a gap. If he can provide a W2 showing income above 80k, there can't be any "ability to pay" issue, since the fact that the company paid him over 80k is the best evidence to prove the "ability to pay".
And if your wage is below gc wage, your case is naturally subject to all kind of scrutiny.
One thing to keep in mind is that the concept of employment base greencard is that there is a permanent full time job.


the nature of a consulting company also known as staffing companies is that they do not have a permanent full time job. They are outsourcing you. The only reason uscis will even approve these petitions is that there is a precedent lawsuit from 1963 or 1964 which said a temporary staffing company can file 140's if they indeed have a permannet full time job. About three years ago; uscis did deny and revoke 140's mainly in california service center because they researrched the companies web-site and job postings on dice (this was in the denial notice); and noted that all the job postings they had listed were contract positions for 3 to 6 months. USCIS denied 35 petitions and then revokd a few more after this and this was one of the reasons.

Now; how most people use portability is very similar. You basically want to change your billing to another company or your own company and want to go from a staffing company to a permanent job. This is not employment base greencard is really meant for. As things develop with the rule making; department of labor; etc. we will see how this will flush out with EB greencards.

Now to answer your question; greencard can be rescinded upto 5 years after approval if it was approved in error and there is no time limit to rescinding/revoking if the greencard was fraudulent. If ice/uscis/dol detects fraud in a company then I don't believe they will just let the greencard holders go (remember; under PERM; the labor can be revoked at any time).

[unitednations]

Working in a staffing company and working on contracts totally does not mean there is no "permanent" job. Almost all companies work on contracts, contracts of all sorts. Staffing company provides a service, just as a plumbing company provides service for your clogged sink. Totally no difference.
I think the issue in this case is the 45/55k salary and the 80k gc wage. Too large a gap. If he can provide a W2 showing income above 80k, there can't be any "ability to pay" issue, since the fact that the company paid him over 80k is the best evidence to prove the "ability to pay".
And if your wage is below gc wage, your case is naturally subject to all kind of scrutiny.

In 2005; uscis california denied 38 in a row i-140's for the same issue that I wrote here.

Consulting and staffing are two different things. As I stated before there is a legally precedent decision that staffing companies can file 14's if they have a permanent job. This is the main reason why uscis doesn't pick on this issue much. However; if you give them too much evidence that the job is temporary then it can be a problem.

[gc28262]

In 2005; uscis california denied 38 in a row i-140's for the same issue that I wrote here.

Consulting and staffing are two different things. As I stated before there is a legally precedent decision that staffing companies can file 14's if they have a permanent job. This is the main reason why uscis doesn't pick on this issue much. However; if you give them too much evidence that the job is temporary then it can be a problem.

What is the difference between a staffing company and consulting company from a USCIS perspective ?

[desi3933]

What is the difference between a staffing company and consulting company from a USCIS perspective ?

Company A just providing a personnel to work at client site is staffing. They are just providers and no effective control how they work at client site.

Company B executing a project for company xyz is consulting. This may involve sending personnel at client site, but they have project level interaction with the client.

Some companies do both - staffing and consulting.

[shx]

Dear Loudobbs, you are useless fool..trust me..you are useless as well as big fool..you have posted only 104 post. Lot of people are using this forum to convey wrong message and that is creating panic.

The person who started this thread had huge problem and this was his first post..so it is very normal to get the questions and I was the first to respond and it was natural for me to ask that question.

I disagree. Whenever I read your posts, I want to send the exact same response as Loudobbs sent. Now a days, IV is filled with a bunch of losers who are impolite, rude and downright disgusting. It is not posts like 'dimpi's that are a problem for IV. It is people like you, who create a problem, by exposing the so many, so called 'Highly Skilled' immigrants, who can't write one proper sentence in English, or show one good trait of an educated man. The sad part is that they are totally ignorant about their ignorance.

Don't bother to respond. Lets see if you at least follow this.

[indianindian2006]

In 2005; uscis california denied 38 in a row i-140's for the same issue that I wrote here.

Consulting and staffing are two different things. As I stated before there is a legally precedent decision that staffing companies can file 14's if they have a permanent job. This is the main reason why uscis doesn't pick on this issue much. However; if you give them too much evidence that the job is temporary then it can be a problem.

Welcome back United Nations, good to see you back.

[unitednations]

Welcome back United Nations, good to see you back.

thanks.

Lots of negative things going on for immigrants with government agencies. I felt the forums were going to start heating up with issues.

[axp817]

UN,
It is very kind of you to share your experience here. In your posts, I often see mention of having helped clients/people with immigration matters off and on.

Do you offer professional assistance on immigration or tax (or both) matters? If so, it might help members to know that you do and ways to contact you.

Given how much input you have provided on these boards, I am sure no one would see that as a using the forum for promotional purposes.

Best,

[unitednations]

UN,
It is very kind of you to share your experience here. In your posts, I often see mention of having helped clients/people with immigration matters off and on.

Do you offer professional assistance on immigration or tax (or both) matters? If so, it might help members to know that you do and ways to contact you.

Given how much input you have provided on these boards, I am sure no one would see that as a using the forum for promotional purposes.

Best,

Honestly; I am extremely busy. Anyone who deals with me; knows they have to call me 5 times before I pick up their phone call.

Only reason I even disclose that I do this type of work is when we get onto obscure issues of immigration law and I have to draw examples from real life cases.

I'm sure people are aware of the principle of six degrees of separation. World is a small place; someone knows someone who knows someone; if it is an important enough issue; eventually they'll be able to contact me.

Main thing I will do is work on ability to pay cases. Mainly because I am really the only one who knows how to do them; if it is serious enough issue then i'll work on it for people.

Other then that; I prefer to just post on the forums to give people things to think about and discuss with their companies and lawyers.

[lahiribaba]

thanks.

Lots of negative things going on for immigrants with government agencies. I felt the forums were going to start heating up with issues.


I thnk overall people have started to give up on USA. USA does not represent a "GOOD LIFE" anymore..and the reason is for everyone to see. Even with a GC the way things go you might lose your job and God Forbid .. but if you are hit by a serious illness and you have mortgages to pay you can end up homeless..not much fun eh?

[TwinkleM]

I read your posts in this thread. I found the information very useful & would like to ask you question regarding my issue. Would appreacite your input on that as you already mentioned that you use real life experiences.

I am sailing in similar boat as one the member above. Is there anyways I couls send PM to you?

[unitednations]

I read your posts in this thread. I found the information very useful & would like to ask you question regarding my issue. Would appreacite your input on that as you already mentioned that you use real life experiences.

I am sailing in similar boat as one the member above. Is there anyways I couls send PM to you?

In last seven years; I have seen very few unique postings. Usually ; it is same issues over and over again.

You will see that when a question is answered; then it starts everyone thinking. Issue identification is the most important thing that the immigration boards have to offer. If it is an issue for you then it should be an issue for many others. It is better for all of us if we can share this information.


You can take out personal details and post it through here. I'll answer it in the boards.

[axp817]

You will see that when a question is answered; then it starts everyone thinking. Issue identification is the most important thing that the immigration boards have to offer.

+1, I couldn't say it any better.

I don't come here just to read about the things that I already know, but to learn about the issues that someone else is facing and how they were resolved, in case I were ever to face the same.

Of course, if I experience something out of the ordinary, I return the favor by sharing my story.

Thank you, those of you who have been constructive on this forum.

[TwinkleM]

Thanx UN,
I would appreciate ur input. I had already posted my issue before but would do it again.

I was on H1 for 4 yrs (1 yr with one co. & then got transfered to another co. for 3 yrs) & this year Got denial notice on the extention. My H1 expired sept. 08 but recd. denial in Jan 09. Have already appealed the denial.

As for GC, I have LC (EB3) approved in april 06 & I-140 filed in June 06. Recd. an RFE on I-140 & replied back by may 07. Unfortunately, my I140 is stuck since then. After contacting the senetor, recd. the update saying that my case is in detailed investigation.

Filed I485 in july fiasco & recd. EAD. Valid till sept. 2010.'

NOw have few Questions:

1) Do I have apply for new H1 immediately or can I wait till dec'09. What is the better option, to wait or apply immediately?
2) Can I apply new GC in EB2 category from the same co. who sponsored my old GC in EB3 category. If I do so, will I be able to retain my old priority date even though my old I-140 is not yet approved?

Would appreciate all the inputs.

Thanx in advance.

[sundeep14]

I did check with USCIS customer service but they say as long as you have an approved physical copy u should be fine...only thing that i am worryin now if while tryin to approve my case if USCIS themselves see as pending...they might just keep my case on hold..




Application Type: I140, IMMIGRANT PETITION FOR ALIEN WORKER

Current Status: Case received and pending.

On January 3, 2006, we received this I140 IMMIGRANT PETITION FOR ALIEN WORKER, and mailed you a notice describing how we will process your case. Please follow any instructions on this notice. We will notify you by mail when we make a decision or if we need something from you. If you move while this case is pending, call customer service. We process cases in the order we receive them. You can use our processing dates to estimate when yours will be done. This case is at our VERMONT SERVICE CENTER location. Follow the link below to check processing dates. You can also receive automatic e-mail updates as we process your case. Just follow the link below to register.


You can choose to receive automatic case status updates, which will be sent via email. Please click here to create an account online.

[aagch]

Hi, UN,
I registered on this site2-3 yrs. ago, but never really participated. I just read threads to see answers. But I haven't got a solid answer so I'm turning to you, pls. be patient w/ me. RE: 8 CFR 204.5
This is in regards w/ Porting/retention of Priority date. I have 2 approved I-140. 1st one PD was 9/2001, EB-3, I was in I.T. (company long gone, and i left as a network support). My 2nd I-140 PD is 12/2006, also EB-3, now a registered nurse. Can I use my earlier PD. I have both the letters saying "this petition has been approved."

I would like to take advantage of this PD Porting so to make sure, I checked the first one's case status, now it's saying the status has changed. I was thinking maybe that I-140 was re-used. But wouldn't I still be able to use that priority date?
Any response via would be very much appreciated. As you know, current dates for EB-3 has retrogressed. I'm from Philippines. Thank you again.
I have a lawyer handling my case, he said, I don't satisfy this rule since it's not the same company, and I totally have different occupations stated both in LC for both I-140.
The lawyer from my previous company in I.T. said, I can go ahead and pursue this option. Who is right? What is the correct info? Thank you for any reply.

[unitednations]

Hi, UN,
I registered on this site2-3 yrs. ago, but never really participated. I just read threads to see answers. But I haven't got a solid answer so I'm turning to you, pls. be patient w/ me. RE: 8 CFR 204.5
This is in regards w/ Porting/retention of Priority date. I have 2 approved I-140. 1st one PD was 9/2001, EB-3, I was in I.T. (company long gone, and i left as a network support). My 2nd I-140 PD is 12/2006, also EB-3, now a registered nurse. Can I use my earlier PD. I have both the letters saying "this petition has been approved."

I would like to take advantage of this PD Porting so to make sure, I checked the first one's case status, now it's saying the status has changed. I was thinking maybe that I-140 was re-used. But wouldn't I still be able to use that priority date?
Any response via would be very much appreciated. As you know, current dates for EB-3 has retrogressed. I'm from Philippines. Thank you again.
I have a lawyer handling my case, he said, I don't satisfy this rule since it's not the same company, and I totally have different occupations stated both in LC for both I-140.
The lawyer from my previous company in I.T. said, I can go ahead and pursue this option. Who is right? What is the correct info? Thank you for any reply.


It is 100% clear that if a person is the beneficiary of multiple approved I-140 immigrant petitions then the person is eligible for the earliest priority date on all i-140's.

Your current lawyer is wrong. I would just tell him that you want to file the 485 by showing both 140's and attach a big cover letter stating the law. Usually; uscis mailroom accepts it but sometimes there is a knucklehead working in the mail room who will reject it and you gotta keep sending it in.

Warning though: In all probability your first 140 was revoked and substituted to someone else.. The law states that if the petition is revoked then priority date is gone. However; there is a uscis memo that says unless the 140 was revoked due to fraud then the person retains the priority date. The memo conflicts with the actual law.

I do know of a case which is still going on:

Person A files 140. 140 gets denied due to ability to pay. Case gets appealed and appeals office reopens and approves the case. This is sometime in November 2004. It has a priority date of 1998.

Person didn't file the 485 on this case. In 2005 the person leaves and joins another company and files perm labor in eb2. perm labor gets approved and when filing 140; attorney mentions earlier approval and files 485 with it (this is not known to first company).

Person B comes along in 2006 and wants labor substitituion. First company says that they have an approved 140 but candidate never filed 485 and they can substitute for him.

He gets substituted onto it and files 485. Case stays pending for a long time and is stuck in background check. USCIS after close to 2.5 years denies the 140/485 straight outright stating that the original beneficary received the greencard and had used the priority date of this particular labor. Since the person used the priority date then the labor is considered used and a person has obtained the greencard based on this priority date (note: he never filed 485 on this 140).

The case is currently sitting in appeals office.

Therefore; my advice to you is to go ahead and file the 485 by showing both approved 140's but do not get off of non immigrant status just in case same thing happens to you.

[satish_hello]

Dear UN, can you help me with my case

I have been working in my GC sponsoring company with last 5 years

I have Approved EB2/I-140(PD:2006) through PERM and Filed I-485 on 2007.

I have my Approved EB3/I-140 (PD:2003) on 2008. I left my GC sponsoring Company in 2008 and joined new employer , And Through my Lawyer we tried to porting the date (Lawyer sent Eb3/140 and EB2/I-140 approval copies to USCIS) to port the earlier priority Date.

During that process my GC Sponsoring Employer informed me that They have to cancel one of the I-140, Since USCIS contacted them, So they said they have canceled my EB3/I-140.

Then Online Status for Approved EB2/I-140 Status become 'Case Received and Pending' ( We don't know the Reason) after its approval of 2 years. There was LUD on EB3/I-140 and message remain same 'approval notice sent'


I got My RFE for Simple EVL from current employer , we are responding to that with AC21.

I am concerned my GC sponsored Employer was going through auditing for all his cases PERM EB2/I-140 for ability to pay issue. He (My GC Sponsored) also advised me not to do any status change (like AC21).

Even if do AC21, i have to since i got my RFE , USCIS will check any Ability pay issue or they might revoke my Approved I-140 , i am bit worried.

Can we ask porting the date again or simply file for AC21 with current EVL.

Thanks