I-485 denied, reason unlawful, please help

[mikemleo]

Please find below timelines related to my case:

# Initial EB3 LCA priority date - Oct 28, 2004 (Company A)
# EB3 LCA approval date - Jan 08, 2007
# EB3 I-140 approval date - Oct 13, 2007 (filing date May 2007)
# EB3 I-485 filing date - July 19, 2007
# Left Company A and became self employed (with Company B) - March 2009 (approx. > 500 days)
# AC21 filing date (with Company B) - Jan 6, 2011
# EB3 I-140 withdrawn by Company A for ability to pay - Jan 25, 2011
# Rejoined Company A on March 2011. Didn't file AC21 again for the transfer from company B to company A.
# New EB2 PERM priority date with Company A - May 20, 2011 (approved on July 25, 2011)
# New EB2 I-140 filed with Company A on Aug 10, 2011 and approved on Aug 23, 2011
# I-485 denied on the same day, Aug 23, 2011 (probably while doing the EB3 to EB2 porting and finding an uncommon scenario where the underlying EB3 I-140 is withdrawn and porting is attempted with the same employer)
# Working on MTR...

Company A withdrew (in good faith) my approved EB3 I-140 to support other applications. I moved to company B (as self employed) after 500+ days of I-485 filing. Filed AC21 prior to I-140 withdrawal. But when I moved back to Company A in March 2011, I didn't file AC21.

Recently, I got the I-485 denial notice in mail citing the below reason:
"As Company A has previously withdrawn its support for this petition, their new job offer cannot preserve the approval of Form I-140."

To me it looks like USCIS is looking for a similar or same job offer letter from Company A to preserve the approval of EB3 Form I-140 (under AC21). I didn't file AC21 twice. May be that was my mistake.

Can the experts please advise. Thank you.

[cleopatra]

My advice would be to talk to an attorney. If I were to guess, it looks like they considered your old 140, but not the new one. I am not sure you need to file AC21 as your case is not AC21, It is a new EB2 job and hence they should have ported.

But since this is a bit convoluted, pls. talk to an attorney.

[ArkBird]

One of the potential interpretation can be that since your company withdrew your earlier I140 due to "Ability to Pay" how it is going to pay you salary mentioned in EB2 LC?

[mikemleo]

One of the potential interpretation can be that since your company withdrew your earlier I140 due to "Ability to Pay" how it is going to pay you salary mentioned in EB2 LC?

Good point. But ability of pay is no longer an issue with my employer. He was able to get various I140 approvals including my latest EB2 based on his financial statements. Only an isolated RFE on some unapproved I140 triggered the thought in my employer's mind and he withdrew few approved I140s leading me to this scenario.
Irrespective, for an ability of pay issue, I would have gladly accepted an RFE instead of straight denial.

[mikemleo]

My advice would be to talk to an attorney. If I were to guess, it looks like they considered your old 140, but not the new one. I am not sure you need to file AC21 as your case is not AC21, It is a new EB2 job and hence they should have ported.

But since this is a bit convoluted, pls. talk to an attorney.

Thank you, Cleopatra. I am working with a top attorney but wanted to have my experience shared across forums as well as thought of learning from other experts around.

I agree my scenario is indeed a convoluted one for USCIS to understand.