HELP - 485 denied used AC21

[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]

Originally Posted by Beemar

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]

Originally Posted by wikipedia_fan

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]

Originally Posted by saileshdude

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]

Originally Posted by chanduv23

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]

Originally Posted by wikipedia_fan

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]

Originally Posted by unitednations

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]

Originally Posted by unitednations

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]

Originally Posted by unitednations

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/pressrele...ntrm122705.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]

Originally Posted by unitednations

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]

Originally Posted by wikipedia_fan

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]

Originally Posted by 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.

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]

Originally Posted by axp817

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.