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  #1 (permalink)  
Old 03-15-2010, 08:53 PM
Donor
Priority Date
:
Dec-03
Category
:
EB3
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-140+I-485
I485 Mailed Date
:
08/10/2007
Compare
Join Date: May 2007
Posts: 139
mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute
Default 140/485 denied due to office location

140/485 denied, filed appeal. what are my options?

I've been with my current employer since early 2003 and was never on bench even for a day.

H1/H4: on 11th year H1b extension, will be filing 12th yr H1b ext in June 2010.

PD: 2003 EB3 India - Regular RIR(own labor and not a substitute)
140: Filed in March 2007
485: July 2007 filer
EAD/AP: Renewing since then but never used EAD, Used AP to travel and maintined H1 for me and H4 for spouse
140: opened Service Request 2 times and finally in Sept 09 got RFE
140 RFE: Company Financials, Experience Letter, Education and Company's office locations.
140 Response: Attorney responded to RFE
140 Denial: Got denial in Jan 2010
485/EAD/AP: Got denials becoz of 140 denial.
For filing appeal hired my own lawyer
Feb 2010: Filed appeal I290B for 140, 485
Today March 15th: Current Status: Appeal/Motion/Certification sent to Administrative Appeals Office for review.

Reason for denials is related to the company's location which they closed. It turns out that the attorney made a mistake stating that I'd be working from my employers Illinois office only. And my employer closed that office sometime in late 2008 and they never told me about that till I got this RFE.

Now the basis for denial is as follows:

Form ETA - 750 was certified on December 16, 2003 by the USDOL. The certification was for business xyz, Inc., located at 1234567, abc, Illinois. The approval of a labor certification application demonstrates that the employer tested the labor market in the geographic area where the permanent job offer was located and established that, at the time, there were no able qualified and available US workers who were willing to accept the permanent job offer. The original job opportunity was located in abc, Illinois. When the petitioner filed the form I-140 petition on behalf of the beneficiary, the job opportunity changed to a location that is located in xxxx, California which is more that 2120 miles away from abc, Illinois. This information was also substantiated in petitioner counsel letter along with a newly completed ETA-750 listing the "Name and Adddress of prospective employer if Alien has job offer in US." and a supporting prevailing wage request issued by State of California, Employment Development Dept, listing the job site address as 123, xxxx, Fremont, CA. It appears the same job opportunity does not exist.


Can I refile I-140 and withdraw existing one? Now I am running out of options, appreciate any suggestions here as to what other options do I have now? FYI...few months back filed a new PERM
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  #2 (permalink)  
Old 03-15-2010, 11:47 PM
Senior Member
Priority Date
:
Nov-10
Category
:
EB2
I140 Mailed Date
:
07/23/2012
Chargeability
:
India
Processing Stage
:
I-140
I485 Mailed Date
:
Compare
Join Date: May 2006
Posts: 142
deecha is on a distinguished road
Default

I am really sorry about your situation. Please keep us posted about the progress in this case.

It looks like USCIS looked at everything in detail and that's why they sat on the case so long. The attorney's mistake, definitely did not help. Hopefully your appeal will be successful and they grant your I-140.

Quote:
Originally Posted by mmanurker View Post
140/485 denied, filed appeal. what are my options?

I've been with my current employer since early 2003 and was never on bench even for a day.

H1/H4: on 11th year H1b extension, will be filing 12th yr H1b ext in June 2010.

PD: 2003 EB3 India - Regular RIR(own labor and not a substitute)
140: Filed in March 2007
485: July 2007 filer
EAD/AP: Renewing since then but never used EAD, Used AP to travel and maintined H1 for me and H4 for spouse
140: opened Service Request 2 times and finally in Sept 09 got RFE
140 RFE: Company Financials, Experience Letter, Education and Company's office locations.
140 Response: Attorney responded to RFE
140 Denial: Got denial in Jan 2010
485/EAD/AP: Got denials becoz of 140 denial.
For filing appeal hired my own lawyer
Feb 2010: Filed appeal I290B for 140, 485
Today March 15th: Current Status: Appeal/Motion/Certification sent to Administrative Appeals Office for review.

Reason for denials is related to the company's location which they closed. It turns out that the attorney made a mistake stating that I'd be working from my employers Illinois office only. And my employer closed that office sometime in late 2008 and they never told me about that till I got this RFE.

Now the basis for denial is as follows:

Form ETA - 750 was certified on December 16, 2003 by the USDOL. The certification was for business xyz, Inc., located at 1234567, abc, Illinois. The approval of a labor certification application demonstrates that the employer tested the labor market in the geographic area where the permanent job offer was located and established that, at the time, there were no able qualified and available US workers who were willing to accept the permanent job offer. The original job opportunity was located in abc, Illinois. When the petitioner filed the form I-140 petition on behalf of the beneficiary, the job opportunity changed to a location that is located in xxxx, California which is more that 2120 miles away from abc, Illinois. This information was also substantiated in petitioner counsel letter along with a newly completed ETA-750 listing the "Name and Adddress of prospective employer if Alien has job offer in US." and a supporting prevailing wage request issued by State of California, Employment Development Dept, listing the job site address as 123, xxxx, Fremont, CA. It appears the same job opportunity does not exist.


Can I refile I-140 and withdraw existing one? Now I am running out of options, appreciate any suggestions here as to what other options do I have now? FYI...few months back filed a new PERM
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  #3 (permalink)  
Old 03-16-2010, 05:16 PM
US Immigration Attorney
Law Office of Elaine Martin
6333 E. Mockingbird Ln Ste 147-910
Dallas, Texas-75214
http://www.martinvisalaw.com
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Boy, that's tough. I don't see grounds for filing a new I-140, since you'd have the same problem. In addition, your PERM is now out of date - the I-140 needs to be filed within 6 months of PERM approval.

Good luck with the MTR.
__________________
Elaine Martin
Law Office of Elaine Martin
Phone: (214) 329-4148
Toll-free phone: 1-866-318-8813
emartin@martinvisalaw.com
www.martinvisalaw.com
www.martinvisalaw.blogspot.com
Dedicated exclusively to immigration law since 1997

This message does not create an attorney-client relationship if we have not both signed an engagement letter. This message discusses general legal questions and other matters. It should not be used or relied on by anyone as legal advice.
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  #4 (permalink)  
Old 03-16-2010, 05:40 PM
Senior Member
Priority Date
:
Aug-06
Category
:
EB2
I140 Mailed Date
:
08/07/2006
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
08/07/2006
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Join Date: Jan 2006
Posts: 176
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I have an old approved labor, not PERM- does I-140 have to be applied within 6 months of the old labor's approval?
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  #5 (permalink)  
Old 03-16-2010, 05:44 PM
Senior Member
Priority Date
:
Nov-03
Category
:
EB3
I140 Mailed Date
:
03/03/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
06/30/2007
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Join Date: Sep 2006
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In my opinion, I think the chances to get a favorable decision for your appeal are very limited. Filing a fresh I-140 based on your pending PERM application would be your only chance. Worst of all, you will lose your earlier PD and have to wait for years to file I-485 based on your PERM PD. Hopefully, you will be able to get your PERM/I-140 approved before your current H1 expires so you can get 3 yr H1 extensions. I wish you the best....
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  #6 (permalink)  
Old 03-16-2010, 07:26 PM
Donor
Priority Date
:
May-04
Category
:
EB3
I140 Mailed Date
:
08/14/2007
Chargeability
:
India
Processing Stage
:
I-140+I-485
I485 Mailed Date
:
08/14/2007
Compare
Join Date: Jun 2007
Posts: 997
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Default

OP,

When did the IL office close ? Was it after your I-140 was filed ?
Thinking about taking AC21 route ( having a same/similar job offer from a different company). If the I-140 was "approvable" at the date of filing, there could be a possibility that you could use AC21 to save this.

Note: I am not a lawyer/legal expert. Just doing some creative thinking.

Check with a lawyer whether this is an option.
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  #7 (permalink)  
Old 03-17-2010, 12:46 AM
Donor
Priority Date
:
Dec-03
Category
:
EB3
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-140+I-485
I485 Mailed Date
:
08/10/2007
Compare
Join Date: May 2007
Posts: 139
mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute
Default

Quote:
Originally Posted by gc28262 View Post
OP,

When did the IL office close ? Was it after your I-140 was filed ?
Thinking about taking AC21 route ( having a same/similar job offer from a different company). If the I-140 was "approvable" at the date of filing, there could be a possibility that you could use AC21 to save this.

Note: I am not a lawyer/legal expert. Just doing some creative thinking.

Check with a lawyer whether this is an option.


IL office was closed sometime in late 2008 and my I-140 was filed in March 2007.
I'll talk to attorney abt using AC21 though my 485 is also in denied status so now not sure if I can use AC21 but I dont see any harm in discussing this option with my attorney one more time...Thanks for this suggestion

FYI...my attorney thinks that we should re-file I-140. so I am also looking in to this option as well as he says that my appeal will still be active while we re-file I-140. If re-filed 140 gets approved then my existing appeal for 140 and 485 will be withdrawn and if re-file also get denied then the appeal would still be active.
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  #8 (permalink)  
Old 03-17-2010, 12:53 AM
Donor
Priority Date
:
Dec-03
Category
:
EB3
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-140+I-485
I485 Mailed Date
:
08/10/2007
Compare
Join Date: May 2007
Posts: 139
mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute
Default

Quote:
Originally Posted by martinvisalaw View Post
Boy, that's tough. I don't see grounds for filing a new I-140, since you'd have the same problem. In addition, your PERM is now out of date - the I-140 needs to be filed within 6 months of PERM approval.

Good luck with the MTR.
Thanks for your response....

My PERM is still pending as of now as it was filed in first week of Feb'2010, once I get PERM approval I'll make sure that we file 140 within the timeframe.
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  #9 (permalink)  
Old 03-17-2010, 10:57 AM
Senior Member
Priority Date
:
Sep-04
Category
:
EB3
I140 Mailed Date
:
01/02/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
07/01/2007
Compare
Join Date: Jun 2008
Posts: 129
EB3_SEP04 is a splendid one to behold EB3_SEP04 is a splendid one to behold EB3_SEP04 is a splendid one to behold EB3_SEP04 is a splendid one to behold EB3_SEP04 is a splendid one to behold EB3_SEP04 is a splendid one to behold
Default

If the job location on I140 was different that the one in Labor the denial is in line with the law/rule. I'd plan as if the appeal is going to be rejected.

worst case scenario:
Since the green card application has been rejected/denied the EAD/AP and i think even the H1 is now invalid since it was based on GC in progress. (not sure if having appealed keeps them valid) so you are already out of status and using your 180 days buffer. If you continue to be in US while out of status for more than 180 days then you risk being barred from entering US for 3 years on any visa.

Options(if you do not wish to go back to your home country):

Probably you know them already but still...

Canadian permanent residence? if you already have one i'd simply move to canada and forget US gc. if not then apply for one right away(btw not all IT proffesionals qualify, only managers).

if you have $500k in savings (not kidding) you can apply in EB5 category (of course you will need to actually invest them in a US business).

single and have an american girlfriend/boyfriend? get married...

Good luck...
__________________
Sep_2004/EB3/India/July_filer
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  #10 (permalink)  
Old 03-17-2010, 11:19 AM
Senior Member/Moderator
Priority Date
:
Jul-07
Category
:
EB2
I140 Mailed Date
:
10/15/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
11/01/2011
Compare
Join Date: Sep 2009
Posts: 1,512
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Default All the best

Quote:
Originally Posted by mmanurker View Post
Thanks for your response....

My PERM is still pending as of now as it was filed in first week of Feb'2010, once I get PERM approval I'll make sure that we file 140 within the timeframe.
I wish you all the very best, you are in this unfortunate situation for really no fault of yours. I sincerely hope that there is a positive outcome in your case and all the years of your efforts and wait pays off. Great that you have maintained your H1B status.

I had a question for you your I140 was applied in 2007, so was it pending for so long or it was approved and then they denied the I140 & I485. If the latter is true then potentially they are re-verifying everything before approving the 485 application (This is a alarming situation as with the wait times things can change from what was originally stated).
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  #11 (permalink)  
Old 03-17-2010, 11:30 AM
Donor
Priority Date
:
Feb-07
Category
:
EB2
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
07/19/2007
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Join Date: May 2006
Posts: 362
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Pardon my ignorance.....so does the job location has to be same as in the labor even if one starts using EAD and files AC21 after 6 months of I-140 approval?
I thought only job description and salary requirements needed to be met....
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  #12 (permalink)  
Old 03-17-2010, 12:00 PM
Donor
Priority Date
:
Dec-03
Category
:
EB3
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-140+I-485
I485 Mailed Date
:
08/10/2007
Compare
Join Date: May 2007
Posts: 139
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Please see my comments below:

Quote:
Originally Posted by EB3_SEP04 View Post
If the job location on I140 was different that the one in Labor the denial is in line with the law/rule. I'd plan as if the appeal is going to be rejected.

worst case scenario:
Since the green card application has been rejected/denied the EAD/AP and i think even the H1 is now invalid since it was based on GC in progress. (not sure if having appealed keeps them valid) so you are already out of status and using your 180 days buffer. If you continue to be in US while out of status for more than 180 days then you risk being barred from entering US for 3 years on any visa.
EAD/AP is invalid now but not H1 even though the extension was based on GC process. Once you have H1 approved, you are not out of status till the validity of H1B and as long as you have the job and getting paid by your employer. That is the reason that attorneys recommend to maintain H1 status if your 140 is not approved and you are beyond your 6th yr H1 extension.
Also one can always keep extending H1B based on the pending appeal. So i am preparing to file my 12th yr H1 extension based on the I 140 appeal.
I've confirmed this with two different attorneys, one my employers attorney and the one I hired to appeal my case. I'd appreciate if the attorneys on this forum can re-confirm this.

Options(if you do not wish to go back to your home country):
I dont mind going back to my country but that will be my last option as I first want to fight this till the end as its not my mistake so dont want to give up easily.I am now prepared for worst case scenairo

Probably you know them already but still...

Canadian permanent residence? if you already have one i'd simply move to canada and forget US gc. if not then apply for one right away(btw not all IT proffesionals qualify, only managers).

if you have $500k in savings (not kidding) you can apply in EB5 category (of course you will need to actually invest them in a US business).
no, i dont have that kind of money so this option is ruled out

single and have an american girlfriend/boyfriend? get married...
this option is ruled out as I am already married with two kids(both kids US born)...

Good luck...
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  #13 (permalink)  
Old 03-17-2010, 12:04 PM
Donor
Priority Date
:
Dec-03
Category
:
EB3
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-140+I-485
I485 Mailed Date
:
08/10/2007
Compare
Join Date: May 2007
Posts: 139
mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute mmanurker has a reputation beyond repute
Default

Quote:
Originally Posted by TeddyKoochu View Post
I wish you all the very best, you are in this unfortunate situation for really no fault of yours. I sincerely hope that there is a positive outcome in your case and all the years of your efforts and wait pays off. Great that you have maintained your H1B status.

I had a question for you your I140 was applied in 2007, so was it pending for so long or it was approved and then they denied the I140 & I485. If the latter is true then potentially they are re-verifying everything before approving the 485 application (This is a alarming situation as with the wait times things can change from what was originally stated).
my I-140 was never approved, its been pending since 2007. I opened couple of service requests with USCIS in last 2 yrs and still there was no response and then one fine day they issued this RFE and subsequent denial...
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  #14 (permalink)  
Old 03-17-2010, 12:43 PM
US Immigration Attorney
Law Office of Elaine Martin
6333 E. Mockingbird Ln Ste 147-910
Dallas, Texas-75214
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Quote:
Originally Posted by bluekayal View Post
I have an old approved labor, not PERM- does I-140 have to be applied within 6 months of the old labor's approval?
The I-140 needed to be filed within 180 days of July 16, 2007, if the LC was approved before that date. That's when the new 180-day rule took effect.
__________________
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Law Office of Elaine Martin
Phone: (214) 329-4148
Toll-free phone: 1-866-318-8813
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www.martinvisalaw.blogspot.com
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This message does not create an attorney-client relationship if we have not both signed an engagement letter. This message discusses general legal questions and other matters. It should not be used or relied on by anyone as legal advice.
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