HELP - 485 denied used AC21

[wikipedia_fan]

Forum Gurus - I got a denial letter on my 485. I am a July 2007 filer and applied for AOS in July 2007. My 140 was revoked by ex employer in August 2008 and immediately I got a NOID from USCIS and responded to it in a timely manner and my case processing resumed.

But now, I got a denial stating that my 140 has been revoked in August 2008 and thats why my 485 is denied. My Attorney is filing for MTR and says it is a mistake on their side and will be resolved through MTR.

It just baffles me that the person who sent the denial letter never looked into the system to see my case trail and blindly issued the denial notice. My Attorney says, it is very much possible that they do not look at RFEs or responses - they just issue denials when they browse through the 140s.

I am EB2 India with a priority date of March 2006. I think some kind of pre assessment is going on. There are no LUDs and mine is at the TSC.

Is there anyone else in the same boat? How long does it take for MTR to get processed?

[guchi472000]

Hey I have heard that employer can't revoke ur 140 if it is approved and more than 180 days...
Please check this information with Gurus....

[wikipedia_fan]

Hey I have heard that employer can't revoke ur 140 if it is approved and more than 180 days...
Please check this information with Gurus....

Employer can revoke 140 anytime. But if it crosses 180 days, it should not matter, which is not happening in my case

[wandmaker]

Forum Gurus - I got a denial letter on my 485. I am a July 2007 filer and applied for AOS in July 2007. My 140 was revoked by ex employer in August 2008 and immediately I got a NOID from USCIS and responded to it in a timely manner and my case processing resumed.

But now, I got a denial stating that my 140 has been revoked in August 2008 and thats why my 485 is denied. My Attorney is filing for MTR and says it is a mistake on their side and will be resolved through MTR.

It just baffles me that the person who sent the denial letter never looked into the system to see my case trail and blindly issued the denial notice. My Attorney says, it is very much possible that they do not look at RFEs or responses - they just issue denials when they browse through the 140s.

I am EB2 India with a priority date of March 2006. I think some kind of pre assessment is going on. There are no LUDs and mine is at the TSC.

Is there anyone else in the same boat? How long does it take for MTR to get processed?

Nothing to panic, browse through chanduv23's posting(s) - you will be back in track in few weeks.

Most recent case is at http://immigrationvoice.org/forum/showthread.php?t=23800&highlight=revoked+denial

[wikipedia_fan]

Nothing to panic, browse through chanduv23's posting(s) - you will be back in track in few weeks.

Most recent case is at http://immigrationvoice.org/forum/showthread.php?t=23800&highlight=revoked+denial

Thank you. I am trying to find out if people have got denials in spite of going through the NOID process.

[sin94]

Question do we have to stop working upon receipt of the denial and wait until receipt of MTR? What are work options when a situation like this occurs

I have used ac21 and moved to a new employer and although my former employer have indicated that they will not revoke the approved I-140 (485 pending since Oct 07) if they do and USCIS does the same situation as described above for me & wife would I be out of status from that period?

Me being the primary applicant and wife the derivative are not using our H1's (I have 9 months remaining of my 6 year period and wife 3 years) I accepted a full time invoking Ac21 with the new company and joined using EAD. My wife has accepted a contract position using her EAD

I read somewhere that if you get a NOID and its the 485 gets rejected (even upon providing supporting documents) are we allowed to work during any of that period? what happens if we respond with MTR? how long will it normally take to respond?

ADVAthanksNCE :) to all

[unitednations]

Thank you. I am trying to find out if people have got denials in spite of going through the NOID process.

Received one today.

Weirdest thing:

Person's 140 was revoked by employer;

person received notice of intent to deny. NOID clearly stated that 140 was revoked by employer then quoted ac21 law and said beneficiary may be eligible and to give job offer letter.

person responded with letter from new ac21 employer with perfectly matching job duties/descriptions.

uscis sent denial. Denial only stated that 140 was revoked and 140 immigrant petition is needed to get greencard.

Don't know if this is a new procedure that they are following the main law where a valied 140 is needed the whole time.

[DSLStart]

unitednations, you making this statement makes me scared. :eek:
Shouldn't they release some memo or something before making a drastic change like this???

Don't know if this is a new procedure that they are following the main law where a valied 140 is needed the whole time.

[Beemar]

Received one today.

Weirdest thing:

Person's 140 was revoked by employer;

person received notice of intent to deny. NOID clearly stated that 140 was revoked by employer then quoted ac21 law and said beneficiary may be eligible and to give job offer letter.

person responded with letter from new ac21 employer with perfectly matching job duties/descriptions.

uscis sent denial. Denial only stated that 140 was revoked and 140 immigrant petition is needed to get greencard.

Don't know if this is a new procedure that they are following the main law where a valied 140 is needed the whole time.

More likely cause is that the letter from the applicant notifying his new job never reached/registered in CIS systems.

Did the person send the letter in time? Was there any intermediate change in status between NOID and actual denial status? This is crucial to know before jumping to conclusions.

[saileshdude]

More likely cause is that the letter from the applicant notifying his new job never reached/registered in CIS systems.

Did the person send the letter in time? Was there any intermediate change in status between NOID and actual denial status?

AILA should file a lawsuit regarding these denials. They expect people to follow all H/LCA/PERM and target employers/lawyers to send a message to other people but fail to follow their own laws themselves. A lawsuit causing hardship needs to be filed. I dont know why AILA has not taken any action against this practice.

[axp817]

Don't know if this is a new procedure that they are following the main law where a valied 140 is needed the whole time.

Wow, that is indeed scary.

If its possible, please keep us posted on what happens with this case.

Thanks,

[unitednations]

unitednations, you making this statement makes me scared. :eek:
Shouldn't they release some memo or something before making a drastic change like this???

They should...

What is confusing is that in the notice of intent to deny; uscis officer stated that person may be eligible for ac21 and to give a job letter.

The only thing I can think of is that there may have been something wrong with the I-140 (ie., too many cases file by the 140 company and company revoked it in response to an ability to pay query, etc.).

This particular company is pretty large staffing company. i do not have any interaction with them but from what I know; they have been cancelling a lot of people's h-1b's and telling them to find other employers to transfer to. Don't know if there is a story within a story.

[unitednations]

More likely cause is that the letter from the applicant notifying his new job never reached/registered in CIS systems.

Did the person send the letter in time? Was there any intermediate change in status between NOID and actual denial status? This is crucial to know before jumping to conclusions.

It was received well within time. If they don't receive resonse to request for evidence; they specifically mention it in the denial.

right now; there is issue with on-line case status with uscis. Not always updating. This is not what it is.

[chanduv23]

Received one today.

Weirdest thing:

Person's 140 was revoked by employer;

person received notice of intent to deny. NOID clearly stated that 140 was revoked by employer then quoted ac21 law and said beneficiary may be eligible and to give job offer letter.

person responded with letter from new ac21 employer with perfectly matching job duties/descriptions.

uscis sent denial. Denial only stated that 140 was revoked and 140 immigrant petition is needed to get greencard.

Don't know if this is a new procedure that they are following the main law where a valied 140 is needed the whole time.


So do you think they are going after AC21 folks as a scapegoat? I spoke to few people on this including lawyers and they say that "denials on 485" when 140 gets revoked is a common thing and usually the officer who issues the denial letter does not check and verify to see other details. Thats why they have to go through the MTR process.

[pd_recapturing]

This is definitely scary. I think, we need to kick start our campaign again in full throttle. Last time, we thought, things were changing and we kind of stopped our campaign. There was a Ombudsman link where they suggested to contact them if 485 is wrongfully denied. Did someone contact them?

[saileshdude]

A lawsuit should bring things back on track. This is what happened in Jul 07. If it was not for the lawsuit dates would not have become current for Jul 07 filers. I feel there is pretty strong case here considering there are so many people who faced the same thing.

[axp817]

So do you think they are going after AC21 folks as a scapegoat? I spoke to few people on this including lawyers and they say that "denials on 485" when 140 gets revoked is a common thing and usually the officer who issues the denial letter does not check and verify to see other details. Thats why they have to go through the MTR process.

Although, UN seems to suspect that there might be more beneath the surface here.

What still beats me is that if the 140 had problems, why would they even bother requesting for AC21 evidence and not just deny the 485 in the first place.

Unless..., when the 140 got revoked they realized that it had been more than a 180 days since the 485 was filed, and gave the applicant the benefit of doubt and asked for a new EVL, but while the applicant was in the process of replying to the NOID, they did some more digging, found that the underlying approved 140 had ability to pay (or other) issues and then denied the 485 on that basis.

UN,
You seem to be 'in the know' about this case/applicant, do you happen to know what the next steps are/would be/should be in this particular case?

Thanks,

[axp817]

I (and I’m sure others too) would like to know how the following works,

Employer X filed labor, 140 for their employee. Both were approved (assumption - no RFEs, etc. until now), 485 was filed for in July 2007, and remains pending.

The employee was employed with Employer X from before the labor was applied and until ~360 days after the 485 was filed, and was always paid more than the LC prevailing wage/offered salary.

In July 2008, the employee leaves employer X and joins employer Y under AC21 provisions. An AC21 letter, G-28N are submitted.

140 never gets revoked by employer X.

In Jan 2009, employer X receives an Ability to Pay RFE for another pending 140 of theirs.

At this point, employer X has 16 140s that are open (pending OR approved with 485 pending to be filed/filed and pending). Out of those 16 140s, one was for the employee that left under AC21.

When they respond to that RFE, I do understand that they could be asked to show ability to pay for all 16 140s, even for the one that doesn’t work for them anymore, because of the fact that it was never revoked.

In this case, is the employee (that left) covered or at risk? I ask this question because the employee that left submitted AC21 documentation immediately upon leaving, thus notifying the USCIS that the ‘ability to pay’ responsibility for his case, if any at all, now lies with the new future employer. There probably isn’t any clear definition of such a situation in the law, but can such an argument ever hold up in court, and protect the employee’s AOS application from getting affected due to any ability to pay issues the old employer (X) has had AFTER the employee left them.

The only person on here that I expect to be able to give a non-speculative answer to this is UN, unless someone else has personally gone through something similar.

Long post, I know, and I hope it does get read.

Thank you.

[wikipedia_fan]

More likely cause is that the letter from the applicant notifying his new job never reached/registered in CIS systems.

Did the person send the letter in time? Was there any intermediate change in status between NOID and actual denial status? This is crucial to know before jumping to conclusions.

Hello,
Here is my case trail

worked with employer A from June 2005 on h1b visa.
Employer A applied for GC under PERM EB2 with PD - March, 2nd 2006 - labor approved in a couple of weeks
Employer A applied for i 140 in June 2006 and got approved in July 2006
Filed for i 485 in July 2008 never received FP notices
Project got over in last week of February 2008 and unable to find new project.
I switched jobs in last week of April 2008 using EAD - using AC21
Sent AC21 letter to USCIS in July 2008 about job change.
Employer A requested 140 revoke in August 2008.
Spouse got FP notice in August 2008 whereas I (primary) got NOID asking for new employment details.
Responded to NOID in a timely manner and on August 25th, 2008 - my status changed to "Response received - case processing resumed"
In Jan 2009 I got my FP notice.
In Jan 2009 - I travelled using AP and got back fine.
In March 2009 - I got a denial notice saying "485 is denied because 140 was revoked on August 2008. No appeal only MTR" - thisletter comes from a different officer id than the one who sent the NOID.

My question to UN and other gurus. Does it have anything to do with a changed interpretation? My lawyer says "This is a training issue - the new officer did not know about AC21 and as soon as he/she saw 140 as revoked - just ignored your other details on the case and issued a denial notice. This is very common and can be resolved using MTR"

[saileshdude]

Hello,
Here is my case trail

worked with employer A from June 2005 on h1b visa.
Employer A applied for GC under PERM EB2 with PD - March, 2nd 2006 - labor approved in a couple of weeks
Employer A applied for i 140 in June 2006 and got approved in July 2006
Filed for i 485 in July 2008 never received FP notices
Project got over in last week of February 2008 and unable to find new project.
I switched jobs in last week of April 2008 using EAD - using AC21
Sent AC21 letter to USCIS in July 2008 about job change.
Employer A requested 140 revoke in August 2008.
Spouse got FP notice in August 2008 whereas I (primary) got NOID asking for new employment details.
Responded to NOID in a timely manner and on August 25th, 2008 - my status changed to "Response received - case processing resumed"
In Jan 2009 I got my FP notice.
In Jan 2009 - I travelled using AP and got back fine.
In March 2009 - I got a denial notice saying "485 is denied because 140 was revoked on August 2008. No appeal only MTR" - thisletter comes from a different officer id than the one who sent the NOID.

My question to UN and other gurus. Does it have anything to do with a changed interpretation? My lawyer says "This is a training issue - the new officer did not know about AC21 and as soon as he/she saw 140 as revoked - just ignored your other details on the case and issued a denial notice. This is very common and can be resolved using MTR"

Your lawyer is probably correct. This has to do with IO who are not aware of AC21 laws. But make sure your employer did not have any issues with DOL, USCIS in responding to RFEs related to other employees like H1 RFE, ability to pay , etc which may be used against your application.

[wikipedia_fan]

Your lawyer is probably correct. This has to do with IO who are not aware of AC21 laws. But make sure your employer did not have any issues with DOL, USCIS in responding to RFEs related to other employees like H1 RFE, ability to pay , etc which may be used against your application.

Well - I left them long back how will I find out?

[unitednations]

So do you think they are going after AC21 folks as a scapegoat? I spoke to few people on this including lawyers and they say that "denials on 485" when 140 gets revoked is a common thing and usually the officer who issues the denial letter does not check and verify to see other details. Thats why they have to go through the MTR process.

That was the case when uscis would send straight denial and then person would do mtr with ac21.

the OP and the particular case I am talking about; they responded to the notice of intent to deny (NOID specifcally said person may be elgiible for ac21 and to give job letter, etc.); however they denied it after the response was sent. It would be different story if they denied due to job mismatching. However, that was not the case. They denied stating the 140 was revoked. Basically, this is a new type of denial and may be a shift in how uscis is doing things.

I spoke to candidate earlier and he talked to the original 140 company. They told him that their h-1b's aren't getting approved (common issue right now with vermont service center for just about everyone) and that in the clean up they revoked almost 70 I-140's for people who had left. He doesn't know if it was in response to an I-140 query or not (uscis adds up cases frequently in rfe's on the 140). When companies revoke 140 to a RFE; USCIS could be making a determination that the 140's company is now revoking were approved iun error and people are not eligible for ac21. Now; if this was the case; uscis officer should have put this in the denial but they did not.

I'll keep everyone posted of what happens to this case.

[unitednations]

Hello,
Here is my case trail

worked with employer A from June 2005 on h1b visa.
Employer A applied for GC under PERM EB2 with PD - March, 2nd 2006 - labor approved in a couple of weeks
Employer A applied for i 140 in June 2006 and got approved in July 2006
Filed for i 485 in July 2008 never received FP notices
Project got over in last week of February 2008 and unable to find new project.
I switched jobs in last week of April 2008 using EAD - using AC21
Sent AC21 letter to USCIS in July 2008 about job change.
Employer A requested 140 revoke in August 2008.
Spouse got FP notice in August 2008 whereas I (primary) got NOID asking for new employment details.
Responded to NOID in a timely manner and on August 25th, 2008 - my status changed to "Response received - case processing resumed"
In Jan 2009 I got my FP notice.
In Jan 2009 - I travelled using AP and got back fine.
In March 2009 - I got a denial notice saying "485 is denied because 140 was revoked on August 2008. No appeal only MTR" - thisletter comes from a different officer id than the one who sent the NOID.

My question to UN and other gurus. Does it have anything to do with a changed interpretation? My lawyer says "This is a training issue - the new officer did not know about AC21 and as soon as he/she saw 140 as revoked - just ignored your other details on the case and issued a denial notice. This is very common and can be resolved using MTR"

To me; it looks like it could be a shift in change of policy. In the denial notice; it is the same officer number who sent the notice of intent to deny. Therefore; it is not a training issue; looks like something else is happening.

training issue is when they send straght denial after 140 is revoked.

[axp817]

USCIS could be making a determination that the 140's company is now revoking were approved iun error and people are not eligible for ac21.


If it is determined that that is indeed why they (USCIS) denied a certain 485, and then the applicant proceeds to hire/seek the help of competent lawyers and accounting professionals (I’m not naming anyone here :)) to file an MTR where the old employer’s ability to pay for that particular employee (from the time of filing the labor until the employee left the old employer/submitted AC21 documents) is demonstrated via the employee's W-2s, do you think the applicant has a chance to get the 485 re-instated?

I'll keep everyone posted of what happens to this case.

Thanks, highly appreciated, as always.

[wikipedia_fan]

To me; it looks like it could be a shift in change of policy. In the denial notice; it is the same officer number who sent the notice of intent to deny. Therefore; it is not a training issue; looks like something else is happening.

training issue is when they send straght denial after 140 is revoked.

It is hard to believe that someone can suddenly change policy internally and not talk about it. In my case the officer id who issued denial is different from the officer id who issued NOID.

UNITEDNATIONS - for some reason, I think you are trying to spread unnecessary fear with your conspiracy theories. Agreed that USCIS is going tough on consulting companies and that stuff, but "internal policy change" seems to be more of a conspiracy.

[saileshdude]

To me; it looks like it could be a shift in change of policy. In the denial notice; it is the same officer number who sent the notice of intent to deny. Therefore; it is not a training issue; looks like something else is happening.

training issue is when they send straght denial after 140 is revoked.

UnitedNations,

Whatever be the shift in policy, they cannot go against the AC21 law, which is if the job is in similar classification then the applicant can use portability if the underlying I-140 is revoked. Also you must have seen the latest yates memo , link, http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf

If you see Q.11 it asks,
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:
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.

Answer B seems pretty vague. How do you interpret this?

Also can you tell, if the case you are referring to is based in TSC or NSC. I have seen cases where TSC applicants are facing this kind of situations more.

[wikipedia_fan]

To me; it looks like it could be a shift in change of policy. In the denial notice; it is the same officer number who sent the notice of intent to deny. Therefore; it is not a training issue; looks like something else is happening.

training issue is when they send straght denial after 140 is revoked.

Can you upload the denial notice - off course you can erase the confidential information. It will be useful to us.

[axp817]

It is hard to believe that someone can suddenly change policy internally and not talk about it. In my case the officer id who issued denial is different from the officer id who issued NOID.

UNITEDNATIONS - for some reason, I think you are trying to spread unnecessary fear with your conspiracy theories. Agreed that USCIS is going tough on consulting companies and that stuff, but "internal policy change" seems to be more of a conspiracy.

UN probably didn't realize that the officer id. was different. The id. being different is a good thing, it makes the likelihood of the IO not having noticed the old NOID higher.

I am sure you are under a lot of stress, and I feel your pain, but click on UN's profile and look at his old posts carefully, he knows what he is talking about.

Again, hope things work out in your favor, keep us posted.

[unitednations]

I (and I’m sure others too) would like to know how the following works,

Employer X filed labor, 140 for their employee. Both were approved (assumption - no RFEs, etc. until now), 485 was filed for in July 2007, and remains pending.

The employee was employed with Employer X from before the labor was applied and until ~360 days after the 485 was filed, and was always paid more than the LC prevailing wage/offered salary.

In July 2008, the employee leaves employer X and joins employer Y under AC21 provisions. An AC21 letter, G-28N are submitted.

140 never gets revoked by employer X.

In Jan 2009, employer X receives an Ability to Pay RFE for another pending 140 of theirs.

At this point, employer X has 16 140s that are open (pending OR approved with 485 pending to be filed/filed and pending). Out of those 16 140s, one was for the employee that left under AC21.

When they respond to that RFE, I do understand that they could be asked to show ability to pay for all 16 140s, even for the one that doesn’t work for them anymore, because of the fact that it was never revoked.

In this case, is the employee (that left) covered or at risk? I ask this question because the employee that left submitted AC21 documentation immediately upon leaving, thus notifying the USCIS that the ‘ability to pay’ responsibility for his case, if any at all, now lies with the new future employer. There probably isn’t any clear definition of such a situation in the law, but can such an argument ever hold up in court, and protect the employee’s AOS application from getting affected due to any ability to pay issues the old employer (X) has had AFTER the employee left them.

The only person on here that I expect to be able to give a non-speculative answer to this is UN, unless someone else has personally gone through something similar.

Long post, I know, and I hope it does get read.

Thank you.

I worked on a very big case back in 2006.

Company had 20 pending 140's which were filed in 2005
Company had 42 approved 140's

in Janaury 2006 they sent RFE on one of the cases and asked for ability to pay. Before response was sent; second rfe is received on another pending casestating ability to pay and that uscis has noted company has filed many 140's; then third rfe is received on another case asking ability to pay on all pending cases (note this was in vermont service center and at this time the whole cybersoftech issue was going on; so there was a heightened alert from vermont service center).

In preparing for the response to the 20 pending cases; we had to analyze the 42 approved cases to ensure that just in case USCIS went after those cases together with the 20 then we should be ready in this particular response to justify the 42 approved cases.

In the response we only showed the 20 pending cases and that we had ability to pay for them.

Within three weeks; USCIS sent notice of intent to revoke the approved 140's. In the notice of intent to revoke; they stated that their records showed 20 pending; 42 approved cases and 205 h-1b's filed. USCIS went through their calculations and stated that if the average salary was xxx on all these petitions then the company would have to have paid close to $15 million in salaries which was (at that time the 2004 tax returns) more then five times the revenue. USCIS also went on to state they thought the company was involved in fraudulently obtaining h-1b's and 140's.

Now; company guy talks to Shusterman and he wants $2k per case and he can only handle the immigration component and that he neeed a CPA (which was me) and the company guy should also get a criminal attorney.

Well anyways; because in the first 20 cases we thought uscis may go after the approved 140's; the financials looked the right way to support all the cases.

The response was very scientific; hire dates; priority dates; amounts people got paid before priority date; amounts paid after; dates people left the company, etc.

In the various calculations; we proved out that even with people leaving who used ac21; we still had ability to pay for them (ie., even though they were no longer there we still had the financials to pay them). Then we gave another scenario that ability to pay clock should stop once person used ac21. We then did recalculation under this scenario.

In every scenario we showed we had ability to pay. Now; we never requested USCIS to revoke the approved 140's for people who had left; in one of the scenarios we adjusted the calculation to stop showing ability to pay once a person left.

USCIS re-approved all the cases. However; they sent notice of intent to deny for pepole who left using ac21. those candidates then gave updated letters and they all eventually got the greencards approved.

Now;this particular case is a little different because even though people left; the company still had ability to pay for them. Therefore, it is difficult to draw conclusion from this for other peoples particular cases. In this case; the fair value of the work I did for them would have cost them about $100K (i actually did audited financial statements for them; they are the only company I did audited financial statements for becuase the stakes were very very high for everyone concerned).

I can tell you that when a company does get this type of RFE; it is very difficult to substantiate everyone together and the calculations and supporting documentation is very complex AND companies have very little desire to help those who have already left. In these types of queries; the company/lawyer doesn't even bother to justify those who have already left; they just ask for revoation and they prove ability to pay for those who are still left with the company. Therefore; USCIS could just make the determination that those revoked cases were approved in error.

The main law for ability to pay is that company has to prove it from priority date until person obtains lawful permanent residency; law was never changed/modified to accomodate ability to pay for a company whose candidates have left using ac21.

Note: This is all pure speculation of what is going on in these cases. I am just writing out loud of why/if there is a shift within uscis.

[unitednations]

UN probably didn't realize that the officer id. was different. The id. being different is a good thing, it makes the likelihood of the IO not having noticed the old NOID higher.

I am sure you are under a lot of stress, and I feel your pain, but click on UN's profile and look at his old posts carefully, he knows what he is talking about.

Again, hope things work out in your favor, keep us posted.

The one that I am looking at the officer id is the same. Timeline is different from OP. Response was received end of February 2009; denial dated end of March 2009.

[unitednations]

Can you upload the denial notice - off course you can erase the confidential information. It will be useful to us.


I'll have to do it by tomorrow. there is nothing special in the denial notice.

[unitednations]

UnitedNations,

Whatever be the shift in policy, they cannot go against the AC21 law, which is if the job is in similar classification then the applicant can use portability if the underlying I-140 is revoked. Also you must have seen the latest yates memo , link, http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf

If you see Q.11 it asks,
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:
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.

Answer B seems pretty vague. How do you interpret this?

Also can you tell, if the case you are referring to is based in TSC or NSC. I have seen cases where TSC applicants are facing this kind of situations more.


We have to understand that there is a myriad of laws; INA, CFR's; USCIS policy binding memos; internal memos; appeals decisions, court cases, precedent aao decisions, precedent legal cases.

Now; the ac21 memo is a memo that uscis officers have to follow. However; the memo is not in accordanc with INA 245 or AC21.

INA 245 states that a valid and approved 140 is needed for a person to get lawful permanent residency.

ac21 says that a person can change jobs after 485 has been pending for more then 180 days.

The above two things are the law.

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.

USCIS in their memos realized that ac21 law would not have any meaning if the employer still controlled the 140 if a person was eligible for ac21; therefore, they issued the memo (memo is not law but binding; memos can be changed; however, there has been nothing public about any possible change).

Memo is clarification which they have been following for many years and as far as I know still binding.

[unitednations]

shailesh;

it is texas case/

[axp817]

UN,
I don't mean to embarass you or make you feel awkward by thanking you every time you post, but the excruciating detail that you get into, in your posts, to back your statements never ceases to amaze me, and I know I speak for a lot of people here.

That being said, if I may bother you with one more question.

Lets assume that the 140 is revoked right after the employee leaves, and the employer had 100% abilitiy to pay the employee until that moment.

6 months after the employee left, and after the 140 was revoked, the employer gets an ability to pay RFE on some other pending or unrevoked 140 of theirs. In that case ,can the 140 that was revoked 5 months ago be in danger?

Of course, this is assuming that all AC21 memos till date are considered binding, and no memo changes to AC21 have happened.

[unitednations]

UN,
I don't mean to embarass you or make you feel awkward by thanking you every time you post, but the excruciating detail that you get into, in your posts, to back your statements never ceases to amaze me, and I know I speak for a lot of people here.

That being said, if I may bother you with one more question.

Lets assume that the 140 is revoked right after the employee leaves, and the employer had 100% abilitiy to pay the employee until that moment.

6 months after the employee left, and after the 140 was revoked, the employer gets an ability to pay RFE on some other pending or unrevoked 140 of theirs. In that case ,can the 140 that was revoked 5 months ago be in danger?

Of course, this is assuming that all AC21 memos till date are considered binding, and no memo changes to AC21 have happened.


USCIS uses three criteria in deetermining ability to pay;

1) net income is more then labor wage
2) net current assets is greater then labor wage
3) person is getting paid labor wage from date of filing labor

#3 is the only one that does not have dependency on employer financials and the # of filings that a company may have done. If person wasn't getting paid labor wage from date of labor filing then dependency is on company financials and if there is adding up together then there is issues.

If in 485 denial it is due to ability to pay and they state so in 485 denial and you were paid labor wage from priority date until you left and were eligible for ac21 then the denial would not have been in error and you would be fine.

[minimalist]

We have to understand that there is a myriad of laws; INA, CFR's; USCIS policy binding memos; internal memos; appeals decisions, court cases, precedent aao decisions, precedent legal cases.

Now; the ac21 memo is a memo that uscis officers have to follow. However; the memo is not in accordanc with INA 245 or AC21.

INA 245 states that a valid and approved 140 is needed for a person to get lawful permanent residency.

ac21 says that a person can change jobs after 485 has been pending for more then 180 days.

The above two things are the law.

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.

USCIS in their memos realized that ac21 law would not have any meaning if the employer still controlled the 140 if a person was eligible for ac21; therefore, they issued the memo (memo is not law but binding; memos can be changed; however, there has been nothing public about any possible change).

Memo is clarification which they have been following for many years and as far as I know still binding.

Kepp up the good work.

[wikipedia_fan]

We have to understand that there is a myriad of laws; INA, CFR's; USCIS policy binding memos; internal memos; appeals decisions, court cases, precedent aao decisions, precedent legal cases.

Now; the ac21 memo is a memo that uscis officers have to follow. However; the memo is not in accordanc with INA 245 or AC21.

INA 245 states that a valid and approved 140 is needed for a person to get lawful permanent residency.

ac21 says that a person can change jobs after 485 has been pending for more then 180 days.

The above two things are the law.

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.

USCIS in their memos realized that ac21 law would not have any meaning if the employer still controlled the 140 if a person was eligible for ac21; therefore, they issued the memo (memo is not law but binding; memos can be changed; however, there has been nothing public about any possible change).

Memo is clarification which they have been following for many years and as far as I know still binding.

Thanks for the clarification. I wish my issue gets resolved soon :)

[axp817]

If in 485 denial it is due to ability to pay and they state so in 485 denial and you were paid labor wage from priority date until you left and were eligible for ac21 then the denial would not have been in error and you would be fine.

I assume you meant to say "denial would have been in error".

[chanduv23]

We have to understand that there is a myriad of laws; INA, CFR's; USCIS policy binding memos; internal memos; appeals decisions, court cases, precedent aao decisions, precedent legal cases.

Now; the ac21 memo is a memo that uscis officers have to follow. However; the memo is not in accordanc with INA 245 or AC21.

INA 245 states that a valid and approved 140 is needed for a person to get lawful permanent residency.

ac21 says that a person can change jobs after 485 has been pending for more then 180 days.

The above two things are the law.

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.

USCIS in their memos realized that ac21 law would not have any meaning if the employer still controlled the 140 if a person was eligible for ac21; therefore, they issued the memo (memo is not law but binding; memos can be changed; however, there has been nothing public about any possible change).

Memo is clarification which they have been following for many years and as far as I know still binding.

If we look at all the denials on 485 - when 140 is revoked the officer quotes "INA 245" and when MTR is filed - the case gets reopened stating AC21.

It is clear that AC21 supersedes the INA 245 rule.

Ability to pay is an interesting topic but I don't think this kind of denial has anything to do with ability to pay.

[axp817]

Received one today.

Weirdest thing:

Person's 140 was revoked by employer;

person received notice of intent to deny. NOID clearly stated that 140 was revoked by employer then quoted ac21 law and said beneficiary may be eligible and to give job offer letter.

person responded with letter from new ac21 employer with perfectly matching job duties/descriptions.

uscis sent denial. Denial only stated that 140 was revoked and 140 immigrant petition is needed to get greencard.

Don't know if this is a new procedure that they are following the main law where a valied 140 is needed the whole time.

UN,
Have there been any updates on this case that you are at liberty to share?

Thanks in advance.

[chanduv23]

UN,
Have there been any updates on this case that you are at liberty to share?

Thanks in advance.

Yes, I am also interested to find out what is happening.

[ramaonline]

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.
AFAIK:

AC21 is not a law, just a guidance. Assume an immigration case goes to court hearing, the judge would completely ignore AC21 guidelines. Any employment per AC21 will be considered unlawful in this case. The probability of a case going to court is not very common though.

The above is just FYI.. You can google for more info.

[chanduv23]

UN,
Have there been any updates on this case that you are at liberty to share?

Thanks in advance.

Ok, lets not confuse this case with Ability to pay and get worried about that stuff. I spoke to another person who contacted me and is having the same issue. His 140 was revoked 2 years back and at that time he got a NOID and responded in a timely manner and he was fine. Now he has a denial on 485 stating that his 140 was revoked 2 years back.

This person is neither desi nor did he worked for desi consulting company or had ability to pay issues and has applied for MTR and waiting.

All that float on internet is "indivisdual prespectives" and "interpretations". So do not think too much about it.

AC21 guidelines are clear - you can refer to them on DHS website, Ombudsman's page, USCIS website etc....

From what I have been seeing and as I did a lot of research and continue to do, 140 revocation and 485 denial does have a pattern and this seems to be a procedural or a serious training issue.

Thats why IV core suggests that we have to collectively gettogether and fix this issue and any other issue.

[saileshdude]

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.
AFAIK:

AC21 is not a law, just a guidance. Assume an immigration case goes to court hearing, the judge would completely ignore AC21 guidelines. Any employment per AC21 will be considered unlawful in this case. The probability of a case going to court is not very common though.

The above is just FYI.. You can google for more info.

AC21 is a law. AC21 Memos issued are guidelines that IOs are supposed to follow. E.g. If one IO issues NOID if I-140 is revoked and another denies I-485 directly then the latter needs to explain why he/she chose to not follow the memo. In any case, there should be consistency across board to follow AC21 regulations.

[Legal_In_A_Limbo]

Another LUD on my case. Seems like they are actively working on my case.

[chanduv23]

In ac21 law; it doesn't say anything about the scenario if 140 is revoked by employer. It is totally silent to it.
AFAIK:

AC21 is not a law, just a guidance. Assume an immigration case goes to court hearing, the judge would completely ignore AC21 guidelines. Any employment per AC21 will be considered unlawful in this case. The probability of a case going to court is not very common though.

The above is just FYI.. You can google for more info.

Don't let lack of knowledge and fear of oppression take over your "thought process".

AC21 is a public law - 106-313 .

AC21 can very well be challenged in court. The reason AC21 cases do not go to courts is because they are resolved through MTRs.

The issue with all this is that we are not raising our voices loud enough about this training issue or procedural issue ant it is always the individual who deals with the case at individual level by filing MTR.

The entire beurocracy and red tape that one has to deal with in such instances is an issue. People have to file MTR - pay legal fee, involve lawmakers if they don't get response soon, write to Ombudsman .....

So lets stop all "speculation", "fear mongering", "own intrerpretations" and work towards helping ourselves

[akhilmahajan]

Its a law and if one follows it, there is nothing wrong in it.

As Chandu has mentioned, lets not interpret it the way we want. Its a law, and it gives us the option to have some kind of liberty. If you have not done anything wrong, and have followed the law, eventually everything will fall in place. Although during this journey we will have to face some tough challenges but in the end we will win it.

So, lets all get together in getting ourselves heard.

[Ramba]

Don't let lack of knowledge and fear of oppression take over your "thought process".

AC21 is a public law - 106-313 .

AC21 can very well be challenged in court. The reason AC21 cases do not go to courts is because they are resolved through MTRs.

The issue with all this is that we are not raising our voices loud enough about this training issue or procedural issue ant it is always the individual who deals with the case at individual level by filing MTR.

The entire beurocracy and red tape that one has to deal with in such instances is an issue. People have to file MTR - pay legal fee, involve lawmakers if they don't get response soon, write to Ombudsman .....

So lets stop all "speculation", "fear mongering", "own intrerpretations" and work towards helping ourselves

AC21 is a law. However, USCIS not yet published the regulation since year 2000, that binds everyone. All these memos since 2000, are internal to USCIS and not binding. They are very clear in the memo that revokation (except on fraud) of an already approved 140 by the petitioner, after 180 days of pending of 485, will not stop the approval of 485, if employee changes to similar occupation. This is just a non bining internal standard of USCIS. It does not have teeth, as it is not a public regulation. However, this internal standard can be changed by any time with/without public notice or through a regulation. Also, one should remember that, they mentioned in one of their memos that, regulation will be much tougher than memo.

Therefore, as some one is mentioned that, an approved immigrant visa pettion should be always available at the time of issuing GC. That is also a law. This law also need to be met at the time of approval of 485. Therfore AC21 and requirement for availability of approved 140 is two different and counteracting issues.

In practical situation, the employee has no control over 140 in any stage as it is employer's petition. Therefore, if employee leaves the job as per the AC21 law, employer verywell withdraw the 140 even after 180 days of 485 pending and create a situation of unavailability of approved immigrat visa petion for the employee. Therefore, in the final regulation they will make a rule that favours the employee, if everything was bonafide. It is like a aboundened spouse in family catagory.

I think, USCIS is currently taking the tough standard to weed out the consulting compaines (to put a leash on GC factories/body shoppers), as they are the one mostly abusing the EB system. Only those people working in GC factories need to worry. It may be mainly due the current economic situation. I feel thats why they are delaying the regulation. Others need not worry.

[unitednations]

UN,
Have there been any updates on this case that you are at liberty to share?

Thanks in advance.

nothing yet.

Longest I have seen a 485 denial go without getting reopened is 5 months.

If a person doesn't have h-1b then six months is a magic number. If person overstys six months and uscis ultimately denies it again then person is in terrible situation (3 year bar).

[chanduv23]

AC21 is a law. However, USCIS not yet published the regulation since year 2000, that binds everyone. All these memos since 2000, are internal to USCIS and not binding. They are very clear in the memo that revokation (except on fraud) of an already approved 140 by the petitioner, after 180 days of pending of 485, will not stop the approval of 485, if employee changes to similar occupation. This is just a non bining internal standard of USCIS. It does not have teeth, as it is not a public regulation. However, this internal standard can be changed by any time with/without public notice or through a regulation. Also, one should remember that, they mentioned in one of their memos that, regulation will be much tougher than memo.

Therefore, as some one is mentioned that, an approved immigrant visa pettion should be always available at the time of issuing GC. That is also a law. This law also need to be met at the time of approval of 485. Therfore AC21 and requirement for availability of approved 140 is two different and counteracting issues.

In practical situation, the employee has no control over 140 in any stage as it is employer's petition. Therefore, if employee leaves the job as per the AC21 law, employer verywell withdraw the 140 even after 180 days of 485 pending and create a situation of unavailability of approved immigrat visa petion for the employee. Therefore, in the final regulation they will make a rule that favours the employee, if everything was bonafide. It is like a aboundened spouse in family catagory.

I think, USCIS is currently taking the tough standard to weed out the consulting compaines (to put a leash on GC factories/body shoppers), as they are the one mostly abusing the EB system. Only those people working in GC factories need to worry. It may be mainly due the current economic situation. I feel thats why they are delaying the regulation. Others need not worry.

Well, 485 denials on ac21 where 140 was revoked has always been happening.
Your interpretation might be right about consulting companies but these denials not necessarily happening to people in consulting companies, they happen to anyone whose 140 was revoked.

[wikipedia_fan]

Forum Gurus - I got a denial letter on my 485. I am a July 2007 filer and applied for AOS in July 2007. My 140 was revoked by ex employer in August 2008 and immediately I got a NOID from USCIS and responded to it in a timely manner and my case processing resumed.

But now, I got a denial stating that my 140 has been revoked in August 2008 and thats why my 485 is denied. My Attorney is filing for MTR and says it is a mistake on their side and will be resolved through MTR.

It just baffles me that the person who sent the denial letter never looked into the system to see my case trail and blindly issued the denial notice. My Attorney says, it is very much possible that they do not look at RFEs or responses - they just issue denials when they browse through the 140s.

I am EB2 India with a priority date of March 2006. I think some kind of pre assessment is going on. There are no LUDs and mine is at the TSC.

Is there anyone else in the same boat? How long does it take for MTR to get processed?

Folks I have an update on my case.

We filed for Motion to reopen on which were receipted on March 27th, 2009. I wrote to Congressman, Senators and also Ombudsman. Today my congressman's office got an update that our MTRs were approved on April 30th and our 485s got reopened and they have sent letters to that effect.

What a relief. It was a stressful 6 week ordeal. Thanks to IV and its members for the help and support.

[Marphad]

Folks I have an update on my case.

We filed for Motion to reopen on which were receipted on March 27th, 2009. I wrote to Congressman, Senators and also Ombudsman. Today my congressman's office got an update that our MTRs were approved on April 30th and our 485s got reopened and they have sent letters to that effect.

What a relief. It was a stressful 6 week ordeal. Thanks to IV and its members for the help and support.

Congratulations. I wish you never had to go through all these.

[crazyghoda]

Congrats! I know how relieved you must be feeling.

If you dont mind my asking, did you work at all during these 6 weeks?

Folks I have an update on my case.

We filed for Motion to reopen on which were receipted on March 27th, 2009. I wrote to Congressman, Senators and also Ombudsman. Today my congressman's office got an update that our MTRs were approved on April 30th and our 485s got reopened and they have sent letters to that effect.

What a relief. It was a stressful 6 week ordeal. Thanks to IV and its members for the help and support.

[wikipedia_fan]

Folks - another update on my case.

As i had been following up my case with the help from my Senator's office, they requested USCIS to give a written decision on my MTR.

Here is the written decision that USCIS gave

"On March 27, 2009, you filed a motion to reopen. You indicated the use of the applicant's ability to "port" under section 106(c) of the American Competitiveness in the 21st Century Act (AC21). The requirements were met and the motion to reopen was approved.

CONCLUSION: It is concluded that the grounds stated for denial have been overcome.

ORDER: It is ordered that the motion to reopen be approved. The Form I-485 is "pre-adjudicated" awaiting visa availability."

I hope this encourages people to go ahead with AC21

[wikipedia_fan]

Congrats! I know how relieved you must be feeling.

If you dont mind my asking, did you work at all during these 6 weeks?

Yes, because a motion "if approved" will set your status back to authorized retroactively

[wikipedia_fan]

Congratulations. I wish you never had to go through all these.

I wished the same - but as long as our petitions are sill pendng anything can happen :)

[sundarpn]

Cool.

How does one go about writing to the senator's office for an individual's case?
Can you share how you went about this?

thx

Folks - another update on my case.

As i had been following up my case with the help from my Senator's office, they requested USCIS to give a written decision on my MTR.

Here is the written decision that USCIS gave

"On March 27, 2009, you filed a motion to reopen. You indicated the use of the applicant's ability to "port" under section 106(c) of the American Competitiveness in the 21st Century Act (AC21). The requirements were met and the motion to reopen was approved.

CONCLUSION: It is concluded that the grounds stated for denial have been overcome.

ORDER: It is ordered that the motion to reopen be approved. The Form I-485 is "pre-adjudicated" awaiting visa availability."

I hope this encourages people to go ahead with AC21

[wikipedia_fan]

Cool.

How does one go about writing to the senator's office for an individual's case?
Can you share how you went about this?

thx

Go to their website and look for consitutent services. Utilize their services ONLY if your's is a genuine problem and follow their instructions - write clearly what your problem is and what kind of help you are expecting. Spome of them are very helpful - they stay on top of the case till they get you a written decision

[chanduv23]

I am wondering if this is still happening. We don't see any new posts stating 485 has been denied.

If anyone is facing this situation, please send me a private message.

[ganguteli]

Chanduv23,

Can someone use AC21 even if the person has not worked in the company but 180 days has passed?

[leoindiano]

Go to their website and look for consitutent services. Utilize their services ONLY if your's is a genuine problem and follow their instructions - write clearly what your problem is and what kind of help you are expecting. Spome of them are very helpful - they stay on top of the case till they get you a written decision

Nevermind, i found you worked in these 6 weeks and result of MTR is retroactive.

[desi3933]

Chanduv23,

Can someone use AC21 even if the person has not worked in the company but 180 days has passed?


Yes,
assuming I-140 is already approved and it is past 180 calendar days after I-485 filing date.


.
________________________
Not a legal advice.

[axp817]

"On March 27, 2009, you filed a motion to reopen. You indicated the use of the applicant's ability to "port" under section 106(c) of the American Competitiveness in the 21st Century Act (AC21). The requirements were met and the motion to reopen was approved.

CONCLUSION: It is concluded that the grounds stated for denial have been overcome.

ORDER: It is ordered that the motion to reopen be approved. The Form I-485 is "pre-adjudicated" awaiting visa availability."



Congratulations, and that is probably the most 'relieving' MTR approval message ever.

Thank you for sharing your story.

[chanduv23]

Congratulations, and that is probably the most 'relieving' MTR approval message ever.

Thank you for sharing your story.

Definitely - some "comforting words after the person went through so much stress" looks like the officer knows what exactly to write :)

It is like a cardiologist saying "I can fix any kind of heart except a broken heart" :) :) :)

[GreenCard4US]

Company A applied for my labor and I140(approved and Active currently) in 2005. Moved to company C in April 2007(H1 transfer), applied for I485 using Company A's EVL in July 2007. I got a 485 RFE now for EVL. Can I now say that I have used AC 21 by sending relevant documents or should I send EVL from Company A?

Forum Gurus - I got a denial letter on my 485. I am a July 2007 filer and applied for AOS in July 2007. My 140 was revoked by ex employer in August 2008 and immediately I got a NOID from USCIS and responded to it in a timely manner and my case processing resumed.

But now, I got a denial stating that my 140 has been revoked in August 2008 and thats why my 485 is denied. My Attorney is filing for MTR and says it is a mistake on their side and will be resolved through MTR.

It just baffles me that the person who sent the denial letter never looked into the system to see my case trail and blindly issued the denial notice. My Attorney says, it is very much possible that they do not look at RFEs or responses - they just issue denials when they browse through the 140s.

I am EB2 India with a priority date of March 2006. I think some kind of pre assessment is going on. There are no LUDs and mine is at the TSC.

Is there anyone else in the same boat? How long does it take for MTR to get processed?

[meridiani.planum]

Company A applied for my labor and I140(approved and Active currently) in 2005. Moved to company C in April 2007(H1 transfer), applied for I485 using Company A's EVL in July 2007. I got a 485 RFE now for EVL. Can I now say that I have used AC 21 by sending relevant documents or should I send EVL from Company A?

Either way is fine. Is company A willing to hire you, and you intend to join them when GC comes through? If so, send that letter. There might be alittle bit more scrutiny that way.
If you intend to stick with company C in the future, you can send the EVL of C and include a letter explanining you invoked AC21.
Its not an issue that your H1 transfer to C occured before the 485 filed by A. Once its past 180 days, you are free to work whereever you wish.

[GreenCard4US]

Thank you for the reply. When you say that if I go with Company A that there will be more scrutiny, do you mean they will check the vailidity of the offer and their ability to pay? I work for a Govt. Agency(Company C), they will give me an EVL but I am not sure if they will specify "in accordance with I140". I am actually doing the same job, same place, before as a contractor(Company A) and now as an Employee(Company C).

Either way is fine. Is company A willing to hire you, and you intend to join them when GC comes through? If so, send that letter. There might be alittle bit more scrutiny that way.
If you intend to stick with company C in the future, you can send the EVL of C and include a letter explanining you invoked AC21.
Its not an issue that your H1 transfer to C occured before the 485 filed by A. Once its past 180 days, you are free to work whereever you wish.

[rockstart]

Thank you for the reply. When you say that if I go with Company A that there will be more scrutiny, do you mean they will check the vailidity of the offer and their ability to pay? I work for a Govt. Agency(Company C), they will give me an EVL but I am not sure if they will specify "in accordance with I140". I am actually doing the same job, same place, before as a contractor(Company A) and now as an Employee(Company C).

This is what you could do. Take the updated EVL letter from your HR/ Supervisor. Attach latest paystubs as additional proof. Now for duties if the EVL does not contain this info then attach a copy of job posting advertisement that was issued when you were hired. Every govt job needs to be advertised. It can be in papers or their own website. Then get the lawyer to draft the AC21 letter and to point out the similarities between this job and your labor.