485 RFE on Employee Verification for Derivative Applicant

[fundo14]

Hi All,

I received an RFE on my pending 485 application:

Here is my case:
I am a derivative applicant working on my own H1

Here is the content of the RFE:

1. Please submit a properly completed form G325A. Submit all the documentary evidence to support your employment history listed in form G325A.
2. Clear copies of form W2 wage and Tax statements
3. Complete copies of properly filed Tax returns (IRS Form 1040)
4. Any additional document which confirms your employment history.
5. You must submit a currently dated letter from your intended permanent employer, describing your present job duties and position in the organization, your pre-offered position (if different from your current one) , the date you began employment and the offered salary or wage. Form letters are not acceptable. This letter should be in original and signed by an executive or officer of the organization who is authorized to make or confirm an offer of permanent employment. The letter must also indicate whether the terms and conditions of your employment based visa petition (or labor certification) continue to exist.

I can easily provide all the docs above (from number 1 to 4) but I am surprised why I am asked to provide a letter from my intended permanent employer since I am derivative applicant.

Anyone else in the same boat? please share your experience/ suggestion.

Thanks!

[ski_dude12]

It is possible that since you are on H1 they might have assumed that your employer filed for your GC.

[saileshdude]

I don't think it has anything to do with H1. I think its just a mistake on their part that they issued this to derivative instead of principal applicant. This is because they are asking for intended permanent employer letter and that terms of LC /I-140 is same. This seems typical of standard employment letter RFE that is issued to the principal applicant.

Is there a way you contact the IO to get confirmation if the RFE is for you or principal applicant? Do keep us updated on how your attorney plans to respond to this.

[fundo14]

I don't think it has anything to do with H1. I think its just a mistake on their part that they issued this to derivative instead of principal applicant. This is because they are asking for intended permanent employer letter and that terms of LC /I-140 is same. This seems typical of standard employment letter RFE that is issued to the principal applicant.

Is there a way you contact the IO to get confirmation if the RFE is for you or principal applicant? Do keep us updated on how your attorney plans to respond to this.

My Attorney is preparing the reply explaining my derivative applicant status, for all others docs like W2's, Tax returns etc. I am anyway submitting.

[tulips]

Hello,

Sorry to be posting here but how do I start a new post?
Here is my situation:

My husband started GC and our PD is nov 2006. I 140 approved. I am on H1 B. Now, my husband decided to move out of country for studies. So, our application is abandoned right? We have not received any RFEs so can he still apply for AP? Otherwise, how else can he visit USA...H4? Can he still get H4? If yes can it be applied from any US embassy? What all documents are needed? OR should he just try tourist visa now?

Thank you!

[mailmy_gc]

Verify your G-325 application form properly especially the employment history you provided. My wife also got the similar RFE early this year due to technical error that we made in G325 form. (My wife applied for H1 but she did not worked through that company mean while she got her EAD then started working for another company, Which voided H1-B, In G-325 we mentioned that she was working from July 2007 but her H1 is valid from October so Officer might have thought that she worked illegally for 3 months) .

We provided w2's, pay stubs and amended G325 etc to prove that she did not worked on her H1 or illegally.

Hope this helps you.

[fundo14]

Verify your G-325 application form properly especially the employment history you provided. My wife also got the similar RFE early this year due to technical error that we made in G325 form. (My wife applied for H1 but she did not worked through that company mean while she got her EAD then started working for another company, Which voided H1-B, In G-325 we mentioned that she was working from July 2007 but her H1 is valid from October so Officer might have thought that she worked illegally for 3 months) .

We provided w2's, pay stubs and amended G325 etc to prove that she did not worked on her H1 or illegally.

Hope this helps you.

Thanks mailmy_gc.

We verified the submitted G325, all the info related to my work in US is up to date, only thing i can think of is that i missed filling the portion where it asks about details on Last employment abroad. I have filled that part as well now.

As per my attorney, it could also be that they might have misplaced my G325, hence asking for all this info.

what was the outcome of your response? everything went well after that, they accepted the response?

Thanks!

[maxy]

may be not related ... but can someone explain what does this line mean ...

The letter must also indicate whether the terms and conditions of your employment based visa petition (or labor certification) continue to exist.

does this mean that while invoking AC21, you have to tell your new employer to support your GC application ? hope not ! whole purpose of using EAD is to get rid of sponsorship non-sense....

anyone ?

[mailmy_gc]

We had 4-5 continueous LUD's after couple of weeks they recieved response (June 2009) but still status is showing response reeived.

Recently even changed job to local government but not yet submitted AC 21, I am in the process of preparing documentation. I appreciate if any one help me on this.

Thanks,

[nimb]

may be not related ... but can someone explain what does this line mean ...

The letter must also indicate whether the terms and conditions of your employment based visa petition (or labor certification) continue to exist.

does this mean that while invoking AC21, you have to tell your new employer to support your GC application ? hope not ! whole purpose of using EAD is to get rid of sponsorship non-sense....

anyone ?

probably yes. Recently, I saw number of threads on trackitt where AC21 beneficiaries have been asked to submit 'ability to pay' documents from new employer. :(

[maxy]

i think ability 2 pay is fair question under AC21. what future employer will hate to do is put words like petition, labor, immigration, sponsorship, EB preference etc ...

they would just like to issue regular EVL which they are providing to other regular employees. may be salary, role, start date, and permanent nature of job thats it. is that enough for USCIS. thats the question. (they can always look up company papers, tax returns etc.)

[chi_shark]

look at your labor app... it states your proffered wage, job description etc. those are the terms and conditions... you can still get an EVL from your employer and have your lawyer (or have yourself) write a letter explaining how the EVL covers terms and conditions on the labor cert. in any case, this is a really stupid and unenforceable rfe... i mean how can the new employer even know whats in the labor and i-140? and without knowing that how can an employer "indicate" any compliance with t&c of labor and 140? i think you should be fine with just a plain evl that matches your job description and salary... at most, you can write a letter saying that "yeah the t&c continues to be valid".

my 2 cents.

may be not related ... but can someone explain what does this line mean ...

The letter must also indicate whether the terms and conditions of your employment based visa petition (or labor certification) continue to exist.

does this mean that while invoking AC21, you have to tell your new employer to support your GC application ? hope not ! whole purpose of using EAD is to get rid of sponsorship non-sense....

anyone ?

[maxy]

sounds good...thanks

look at your labor app... it states your proffered wage, job description etc. those are the terms and conditions... you can still get an EVL from your employer and have your lawyer (or have yourself) write a letter explaining how the EVL covers terms and conditions on the labor cert. in any case, this is a really stupid and unenforceable rfe... i mean how can the new employer even know whats in the labor and i-140? and without knowing that how can an employer "indicate" any compliance with t&c of labor and 140? i think you should be fine with just a plain evl that matches your job description and salary... at most, you can write a letter saying that "yeah the t&c continues to be valid".

my 2 cents.