Wrongful I-485 denial

[what_do_u_say]

Dear ImmigrationVoice,

Could you please help me decide about my next course of action, given that I believe my I-485 to be wrongfully denied? My case details are as follows:

Country of birth: India
Country of Citizenship: India
Education: PhD from a US University in Electrical Engineering

Current Immigration Status: H-1B

Category of application for permanent residence: EB2
Priority date: 4th November, 2004
Labor Certification: by substitution; approved in the second half of 2006

Details of multiple I-140 petitions (as a result of acquisitions/mergers) and I-485 petition as follows:
1. I-140 for Firm A: approved on March 12, 2007
2. I-140 (successor-in-interest) for Firm B (B acquired A): approved on January 4, 2008
3. Concurrent filing of I-140 (successor-in-interest) for Firm C (B merges with Firm D to form C) and I-485 in August 2008 for my dependent (H-4) spouse and myself. Soon, we got our Advance Parole documents and EADs as well.
4) In February 2009, Firm C merges with Firm F to form Firm E, of which I am now a part.
5) This latest I-140 has been denied around the beginning of April 2009. Apparent reason cited by USCIS: Firm C is not a proper successor-in-interest of B.
6) A month later our I-485s are denied, based on the above denial of I-140 and also, according to USCIS service records, due to "the absence of any other approved I-140 to base our I-485s on"! My spouse's EAD allegedly (according to my firm's immigration team) becomes invalid with immediate effect !

My company's immigration team is saying that I can't contest/appeal USCIS decision to deny I-140 since Firm C doesn't exist any more. They are suggesting/recommending that we start over again with a fresh I-140 successor-in-interest petition for Firm E and reapply our I-485s whenever (if ever!) our Priority dates become current again!

I have strongly disagreed with them, and am asking them to drive a Motion To Reopen (MTR) with the USCIS. Obviously, I don't want to lose any more time or our rights to work, nor do I want my family to undergo those medical tests again, particularly with the increased vaccination requirements and their associated controversies these days.

I also believe that in delaying the appeal against my denied I-140 (despite my push), my firm's immigration team is partly responsible for my I-485 denial. Still, a plain denial from the USCIS without an RFE is strange. More interestingly, I know that all the others in my firm whose cases for permanent residence also moved in parallel with mine have their I-140s approved!

Please advise me if mine is a case for MTR so that I can push my firm's immigration team through my manager. If that doesn't work out, I am also willing to seek the services of an immigration attorney not affiliated with my firm.

Thanks!

[desi3933]

Originally Posted by what_do_u_say

....
....
4) In February 2009, Firm C merges with Firm F to form Firm E, of which I am now a part.
....
....

Firm E should have filed for the latest I-140 amendment. Any reason, why this was not filed?


_________________
Not a legal advice.

[what_do_u_say]

Well, let's just say, we are slow! Our immigration team is (and has been for a while) "just about to" file the next amendment petition. If they had been prompt with my earlier amendment petition, it would have very likely been approved before we ever transitioned to the present firm. The delay is allegedly about the immigration attorney getting detailed documentation about the firm's new structure with all these mergers ...

What I wonder is that this can't be all that uncommon! I mean, the delay in filing amendment petitions and all that ... There should (must) be a way of making USCIS reopen a case after a firm has taken its time in sorting all its documentation following a merger, isn't there?

Also, any chance that my approved Labor Ceritification will eventually time-out if I-140 amendments are delayed? A new priority date in 2009 would be something ... I might as well pack up and leave!

[nousername]

Sorry to hear about your situation. To begin with your chain of events (merger, etc..) are very complected and given USCIS intelligence level I won't only bank on MTR.

Based on your description, it seems you are with a big company which has lot of money. Assuming this is correct, I would push for MTR and at the same time apply for fresh I-140. To best of my knowledge, now with your Phd and work experience you might qualify for EB1 and get your GC quicker. I know few people who have been getting GC's (under EB1) within 1/1.5 yrs.

I hope this helps.

[what_do_u_say]

Indeed, I am pushing for the new I-140 amendment as well, and that is what our firm's immigration team is recommending too! What I am emphasizing to them, however, is that they also need to drive an MTR in parallel, and pursue it with equal, if not greater, seriousness. That's where our immigration team is differing with me; they say that, since Firm C no longer exists, there is little merit in MTR and that it would be hard to appeal my case. I contend that the USCIS' denial of my I-485 happened on the basis of the absence of any other approved I-140, a point which contradicts the fact. Hence, I believe, I can appeal with the USCIS, and if that doesn't work out, I may want to contest in a court. The latter approach is less preferable, but if pushed, I will be forced into that!

My firm has not been very interested in pushing my case in EB1 category because of the apparent higher scrutiny.

I will just be content to get back the rights that are now being taken away through non-factual reasoning.

Any advice? Thanks.

[chanduv23]

140 is an employer petition and to file for MTR - it depends on your employer. Many employers (atleast their lawyers) are interpret things in such a way that if USCIS has issues with their (company's) petitions - then they may look bad in the books of USCIS so they will not want to go out of the way if you have a choice of doing another 140.

Doing a second 140 with the company locks you up for a longer time.

Always remember - immigration is a previlige and not a right.

Your company should have applied for MTR when your 140 was denied. Such MTR would have stopped the denial of your 485.

In your case, if you have facts - documents about everything, you must seek opinion through a different lawyer and then talk to your immigration department.

[sbmallik]

Motion to Reopen is of no use here ... re-apply for I-140 through the Firm E - that's the only option.

[what_do_u_say]

Sorry for the misleading terminology in using the word "rights". I guess the context of that usage is the application for permanent residence as a promised benefit by my firm. I understand that USCIS, as such, is not obliged to grant permanent residence to anybody.

sbmallik, could you please elaborate why MTR is not an option? The following sequence is what I meant by MTR:
1) Firstly, my firm would apply for a new I-140 successor in interest amendment petition.
2) Then, if I can have my way, my firm would appeal with an MTR for the denied I-140 petition. Even though Firm C no longer exists, it did exist in the past and the denied I-140 was also applied when C existed. It just so happened that C ceased to exist by the time USCIS came around to looking at that I-140. (Thus USCIS' prolonged processing times, and the non-availability of premium processing except in special cases are also partly to be blamed!)
3) Then, again if I can have my way, my firm would appeal with an MTR for the denied I-485. The USCIS specifically stated "absence of any other approved I-140 petition to use as the basis for I-485" as a reason to deny I-485. This reason is clearly cotradicting the fact, since I already have two approved I-140s. Isn't this sufficient ground for appeal?

Sure, there are time limits, but there was not even an RFE! From the look of it, it seems to me that USCIS also based its decision to deny I-485 from faulty reasoning, and hence, should be amenable to appeal!

I am now looking for a good immigration lawyer. Any suggestions?

Also, I heard about appealing through Ombudsman office or through local Senators and the like. Can any good come from such?

[morchu]

Just my 2 cents...

From my understanding, I140 for C was denied and when you filed 485 you based it on I140-C. That means 140-A and 140-B jobs were non existent (since A & B were non-existent) at the time of your 485 filing. That means having 140A or 140B approved has no meaning for your 485 (since jobs A & B were technically non-existent at that time). And USCIS 485 denial is based on the fact that 140C is denied.

So technically the 485 denial was right (as long as 140C is denied), and 140 denial might have been a wrong one. Logically if 140C denial is appealed, that should make 485 denial wrong. But it might be a difficult case. But what can you do if the immigration team doesnt do that.

Now be aware that you keep your priority date, since you have your 140A and 140B. So even if you start over the whole thing (from LC), you still get the older priority date.

So file 140E as soon as possible and then as a secondary option try to push the lawyers to appeal for 140C. What was the reason for denial of 140C?

[what_do_u_say]

Thanks morchu! In the last few days, I have suspected what you explained, but when my I-140C was initially denied, I asked my immigration team the exact question, and they expressly stated that because of the existence of previously approved I-140s, my I-485/AP/EAD are not in danger of getting denied/revoked. If the normal procedure of USCIS is as explained by you, then I must be dealing with an immigration team that is not only slow but also incompetent. Or perhaps, hopefully, USCIS is at fault in not considering I-140A and I-140B, since they are all linked by the successor in interest clause!

The apparent reason (as stated by the immigration team) for the denial of I-140C is that C is not a proper successor in interest to B. Like I mentioned before, there are others in my firm whose I-140Cs got approved around the same time as mine got denied. What explains such inconsistency? Just incidental?

I also think that I-140C would not have been denied, if my firm had already filed I-140E. It is possible that USCIS noticed that C didn't exist any more (only in my case, and not in my colleagues' cases), but was not aware of the existence of E as the successor of C. It might have appeared to USCIS that C vanished into thin air!! (This normally would have led to an RFE rather than a straight denial is what I was told.) Thus, I too think that the denial of I-140C can be appealed by using an applied I-140E and meticulous documentation of the entire chain of events.

Now that you mention it, it will be at least a consolation if I can retain my Priority date based on the existing approved I-140s.

[what_do_u_say]

UPDATE:

I spoke to our immigration team this afternoon. And, here is the new spin!

Our immigration team still insists that USCIS was wrong in denying my I-485, citing AC21 portability. It turns out that the I-485 denial happened more than 6 months after receiving the receipt for the filing of I-485 (receipt date: August 11, 2008). After all, I-140(C) was not filed concurrently with I-485, but rather a few months after that (November 13, 2008). Hence, I-485 was filed on the basis of the existing approved I-140s. They are saying that, since I already have two approved I-140s linked by the successor in interest clause, the denial of I-485 based on the denial of an I-140 amendment petition that was filed later was wrong.

Now, what they will do is to drive an MTR based on the AC21 claim. In parallel, they will also apply for a new I-140 petition with my current firm E, if only as a back up. Some time will be lost in my spouse's EAD, but this seems to be the best course of action.

Since I doubted the competence of our immigration team before, I thought I would just ask if anybody sees a problem with this approach. I myself don't see any though ...

[morchu]

That is a good twist.

Technically there are two ways to do the "successor of interest" thing.

1. The successor restarts the I140 stage, and files all documentention alongwith a new 140 application. (uses already approved LC).

2. Successor uses the already approved I140, and at 485 filing stage submits evidence of the "bona fides" of the successor to prove that the same position is still offered and all LC conditions are valid.

So if you did 2, you can file MTR for 485 showing these facts. From the last twist it seems like that is the case.

Now the basis of the rejection for 140C should be carefully reviewed, since the same can happen on the "I140A/B successor of interest" documentation also. Maybe there was some extra documentation submitted for your colleagues (for which they approved 140).

Originally Posted by what_do_u_say

UPDATE:

I spoke to our immigration team this afternoon. And, here is the new spin!

Our immigration team still insists that USCIS was wrong in denying my I-485, citing AC21 portability. It turns out that the I-485 denial happened more than 6 months after receiving the receipt for the filing of I-485 (receipt date: August 11, 2008). After all, I-140(C) was not filed concurrently with I-485, but rather a few months after that (November 13, 2008). Hence, I-485 was filed on the basis of the existing approved I-140s. They are saying that, since I already have two approved I-140s linked by the successor in interest clause, the denial of I-485 based on the denial of an I-140 amendment petition that was filed later was wrong.

Now, what they will do is to drive an MTR based on the AC21 claim. In parallel, they will also apply for a new I-140 petition with my current firm E, if only as a back up. Some time will be lost in my spouse's EAD, but this seems to be the best course of action.

Since I doubted the competence of our immigration team before, I thought I would just ask if anybody sees a problem with this approach. I myself don't see any though ...

[what_do_u_say]

Thanks morchu! I just sent an email asking my immigration team the exact question. Will post about further developments as they evolve ...

[Prashanthi]

I cannot comment on the I-140 denial as i have not looked at the denial or the documents submitted with the I-140. I do not know if E or C is a successor in interest or not.

However presuming that the I-140 is approvable and an appeal on the I-140 was filed, i would file a motion to re-open the I-485. The most that could happen would be that the motion gets denied based of the fact that the I-140 is not yet approved, they might later on re-open the I-485 themselves once the I-140 gets approved. If they do not, you can at that point file a motion to re-open the I-485 even though the time period for filing the motion is over. They have accepted such filings in the past, we can give them the reason that we were waiting for the I-140 approval. This way you do not have to wait for the visa number again.

If all else fails you will of course be able to re-file the I-485 once the visa numbers become available. You cannot use EAD until your I-485 is re-opened.

[what_do_u_say]

Thanks Prashanthi! Is there a 30-day limit on appealing (MTR) a denied I-140 amendment petition? My immigration team decided "not to appeal" a few weeks ago, citing that there is no ground to appeal for I-140C since C no longer exists. At that time, they also told me that my I-485 would not be affected by the denial of I-140C because of the existence of I-140A and I-140B. Now, after the I-485 denial, they are saying that USCIS is wrong in overlooking AC21.

If they can't appeal my I-140C denial due to the expiration of any time limit on its MTR, is there any other way out? Can we put behind the I-140C denial by applying for a new I-140E and explaining the series of acquisitions and mergers in detail now, and then appeal for an MTR on I-485 whether through AC21 or otherwise?