HELP - 485 denied used AC21

[unitednations]

Originally Posted by wikipedia_fan

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]

Originally Posted by saileshdude

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 When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or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.

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]

Originally Posted by 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.

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]

Originally Posted by unitednations

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]

Originally Posted by unitednations

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]

Originally Posted by unitednations

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]

Originally Posted by unitednations

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]

Originally Posted by unitednations

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]

Originally Posted by axp817

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]

Originally Posted by axp817

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]

Originally Posted by 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.

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.