Need Help: Date porting for I-140 Rejected

[vivekkhurana]

Need help with porting date and filing I-485. I am in VERY good terms with my employer and have a copy of all I-140 and other communications

Here is a copy of the message from USCIS
------------------------
he receipt SRC0XXXXXXXX per our records was revoked on December 08, 2010. We are unable to change the above receipt to the priority date you requested. The priority date of November 12, 2010 is the correct date for SRC119XXXXXXX.

XM03XX
Immigration Services Officer
USCIS - Texas Service Center


--------------------------

Company A
Original I-140 Approved with Priority date March 2008
Moved to company B - May 2009
Labor and I-140 approved with priority date Nov 2010
August - 2011-Requested priority Date transfer -
No response
Several SR and escalation Requests.
December 7, 2011 - Response from USCIS received stating original I-140 was revoked and cannot be ported.

[dmitri]

hey

contact ron gotcher or murthy
i spoke with them and they said that in the event that the old PD is not ported due to the fact that old employer has revoked the I 140 -you need to send 'some yates memo' and they will correct it...
this has started recently where USCIS is not porting the date.
I am concerned with your case because I am looking to do the same...
contact them and let me know what happens.
I am sending a private message where we can communicate...

thanks

[vivekkhurana]

Thank you for your email. I hate to be the continued bearer of bad news, but the Yates Memo guidance for I-140 portability does not apply in your situation. Yates specifically writes,

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 When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or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

Your underlying I-140 was revoked or withdrawn before the I-485 was pending (scenario A).

The guidance in the Yates Memo would help those individuals who filed their I-485’s back in 2007 and then the priority dates retrogressed and they have been waiting and perhaps switched jobs. Feel free to call or email if you have any questions.

Originally Posted by dmitri

hey

contact ron gotcher or murthy
i spoke with them and they said that in the event that the old PD is not ported due to the fact that old employer has revoked the I 140 -you need to send 'some yates memo' and they will correct it...
this has started recently where USCIS is not porting the date.
I am concerned with your case because I am looking to do the same...
contact them and let me know what happens.
I am sending a private message where we can communicate...

thanks

[dmitri]

have you confirmed this with an attorney?
Someone in this forum was able to retain the old date despite revocation of I 140.
I spoke with Murthy on Dev 12(paid consultation)and she said that they are able to retain the PD for the their clients using that memo...
let me know
If you dont mind sharing your contact #,please send me a private message or email me.
thanks

[pkak]

Originally Posted by vivekkhurana

Thank you for your email. I hate to be the continued bearer of bad news, but the Yates Memo guidance for I-140 portability does not apply in your situation. Yates specifically writes,

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.

Your underlying I-140 was revoked or withdrawn before the I-485 was pending (scenario A).

The guidance in the Yates Memo would help those individuals who filed their I-485’s back in 2007 and then the priority dates retrogressed and they have been waiting and perhaps switched jobs. Feel free to call or email if you have any questions.

Here is the memo:
http://www.uscis.gov/files/pressrele...22_091206R.pdf

(1) Determining the Priority Date.
In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest).

(3) Priority Date Based on Earlier Petition.
If an alien is the beneficiary of two (or more) approved employment-based immigrant visa petitions, the priority of the earlier petition may be applied to all subsequently-filed employment-based petitions. For example:
Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB-1 or the EB-3 classification.

[vivekkhurana]

The above is the response from my attorney.
I did send you my email as a PM

Originally Posted by dmitri

have you confirmed this with an attorney?
Someone in this forum was able to retain the old date despite revocation of I 140.
I spoke with Murthy on Dev 12(paid consultation)and she said that they are able to retain the PD for the their clients using that memo...
let me know
If you dont mind sharing your contact #,please send me a private message or email me.
thanks

[vivekkhurana]

Thank you for the details. I did send this to my attorney. I will keep you posted.

Originally Posted by pkak

Here is the memo:
http://www.uscis.gov/files/pressrele...22_091206R.pdf

[rorlig]

Hey guys,

We (my wife's i140) is in a similar situation. They gave her a new priority date on the receipt notice. The lawyer said that the priority date is ported successfully would be on the new I140 accepted notice and not necessarily on the receipt notice. Is this true?

Rorlig

[vivekkhurana]

With all due respect, this is a slightly different situation.
Your lawyer is correct in saying that the new priority date will be in the approval notice. In case it does not come, the lawyer can make explicit Service Request to request porting.

I am in a situation where all this has happened and USCIS responded by saying that my date could not be ported.

Originally Posted by rorlig

Hey guys,

We (my wife's i140) is in a similar situation. They gave her a new priority date on the receipt notice. The lawyer said that the priority date is ported successfully would be on the new I140 accepted notice and not necessarily on the receipt notice. Is this true?

Rorlig

[dmitri]

Originally Posted by rorlig

Hey guys,

We (my wife's i140) is in a similar situation. They gave her a new priority date on the receipt notice. The lawyer said that the priority date is ported successfully would be on the new I140 accepted notice and not necessarily on the receipt notice. Is this true?

Rorlig

was the old I 140 revoked by the employer(do you know?)
if it was revoked then it seems USCIS no longer ports the date...

[rorlig]

how would i know if the old i140 was revoked?

[gc_when]

Let's say I140 approved with old PD and there was no 485 from prev GC processing. Now as per new trend file 485(first time) and old employer withdraws old 140. Will there be any issue?

[homealone26]

Sorry to hear about your case. Few questions

1) Why did your previous employer revoke your i-140 , you just said you have good terms with him...
2) My understanding if he has withdrawn due to Fraud or mus-representation then you cannot port your dates .....

Originally Posted by vivekkhurana

Need help with porting date and filing I-485. I am in VERY good terms with my employer and have a copy of all I-140 and other communications

Here is a copy of the message from USCIS
------------------------
he receipt SRC0XXXXXXXX per our records was revoked on December 08, 2010. We are unable to change the above receipt to the priority date you requested. The priority date of November 12, 2010 is the correct date for SRC119XXXXXXX.

XM03XX
Immigration Services Officer
USCIS - Texas Service Center


--------------------------

Company A
Original I-140 Approved with Priority date March 2008
Moved to company B - May 2009
Labor and I-140 approved with priority date Nov 2010
August - 2011-Requested priority Date transfer -
No response
Several SR and escalation Requests.
December 7, 2011 - Response from USCIS received stating original I-140 was revoked and cannot be ported.

[vivekkhurana]

The old I 140 was not revoked for fraud. I am 100 % sure as I have the letter from USCIS to employer confirming their request.

It was revoked based on mutual agreement as the lawyers confirmed at that time that revoking will not have any effect on porting dates.

Originally Posted by homealone26

Sorry to hear about your case. Few questions

1) Why did your previous employer revoke your i-140 , you just said you have good terms with him...
2) My understanding if he has withdrawn due to Fraud or mus-representation then you cannot port your dates .....

[w1seguy]

Hi Vivek,
I'm also in similar situation i.e. trying to port PD of an revoked I140.

I would like to how it worked out for you. Have you appealed the USCIS decision referencing the yates memo.

Please share your experience. I've sent a PM to you as well.

Thank you for your time.

Mani