HELP - 485 denied used AC21

[chanduv23]

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.

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]

Originally Posted by chanduv23

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]

Originally Posted by axp817

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]

Originally Posted by Ramba

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]

Originally Posted by 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]

Originally Posted by wikipedia_fan

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?

Originally Posted by wikipedia_fan

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]

Originally Posted by 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?

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

[wikipedia_fan]

Originally Posted by Marphad

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

Originally Posted by 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]

Originally Posted by 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

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?