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AC21 Portability after 180 days of 485 filing AC21 Portability after 180 days of 485 filing. Changing employers without affecting green card process.

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  #1 (permalink)  
Old 01-10-2008, 05:43 PM
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Default I140 denied, employer used revoked I140, any suggestions ?

All,

My employer revoked the i140 of a person after 180 days. He did not reveal this information to me and used labor substitution for me.

The other person used AC21 and got his 485 approved. INS has denied my I140 since a 485 has already been approved and there can be only one GC on one labor. INS says that once the 485 is approved that job ceases to exist.

My company is saying that they have done this in the past and got approvals. They are saying that they applied the I140 substitution long before the 485 approval of the other person.

Now they are saying that they will appeal that the other guy never had the intention of working for the comapany.

Is there any chance for the I140 approval and using the existing labor ? If not will the INS help me keep the Priority Date.

Does anyone have knowledge of such cases (or) know the results of such appeals.

Thanks !
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  #2 (permalink)  
Old 01-10-2008, 05:50 PM
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Default sorry to hear that

but its a long shot.. do u've EAD or H1...r u in status to fight while u work
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  #3 (permalink)  
Old 01-10-2008, 06:08 PM
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If the other guy worked for the company atleast 180 days, then your employer cannot prove that he had no intention to work for the company. If the guy worked for only a short time or didn't work at all for the company, then the company can win the case.

The greencard of the other person will be rescinded. You can then use his labor.
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  #4 (permalink)  
Old 01-10-2008, 06:10 PM
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Just to add, this is the risk of not working for the company after getting the EAD. The employer can easily prove that the person had no intention of working for the company. AC21 cannot protect that person.
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  #5 (permalink)  
Old 01-10-2008, 06:15 PM
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Quote:
Originally Posted by JunRN View Post
Just to add, this is the risk of not working for the company after getting the EAD. The employer can easily prove that the person had no intention of working for the company. AC21 cannot protect that person.
the guy who used AC21 got his GC and rightfully so since he left after 6 months.
Our friend was the one who got the labor sold by his desi employer leech..to him

its good atleast that Ac21 works and it should..now with substitution banned the new AC21s will be protected..as long as they didn't substitute..

Finally labor substitution was a bad choice! thats the moral of the story..
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  #6 (permalink)  
Old 01-10-2008, 06:17 PM
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Default think about it

Quote:
Originally Posted by waiting4gc1234 View Post
All,

My employer revoked the i140 of a person after 180 days. He did not reveal this information to me and used labor substitution for me.

The other person used AC21 and got his 485 approved. INS has denied my I140 since a 485 has already been approved and there can be only one GC on one labor. INS says that once the 485 is approved that job ceases to exist.

My company is saying that they have done this in the past and got approvals. They are saying that they applied the I140 substitution long before the 485 approval of the other person.

Now they are saying that they will appeal that the other guy never had the intention of working for the comapany.

Is there any chance for the I140 approval and using the existing labor ? If not will the INS help me keep the Priority Date.

Does anyone have knowledge of such cases (or) know the results of such appeals.

Thanks !

I personally think you are better off finding another job and another employer and starting the process all over again if you have time and energy.

If this guy (employer) can do this to someone else , what is the guarentee that he will not do it you. Ofcourse you may argue substitution is eliminated etc ...But this guy (Employer) is clearly dishonest ...and he could be very well be running a business based on the US immigration system.

I think we as a community better off if you can reveal who the employer is.
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  #7 (permalink)  
Old 01-10-2008, 06:21 PM
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Quote:
Originally Posted by EndlessWait View Post
the guy who used AC21 got his GC and rightfully so since he left after 6 months.
Our friend was the one who got the labor sold by his desi employer leech..to him

its good atleast that Ac21 works and it should..now with substitution banned the new AC21s will be protected..as long as they didn't substitute..

Finally labor substitution was a bad choice! thats the moral of the story..
I think this is a clear and good example of AC21 working.
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  #8 (permalink)  
Old 01-10-2008, 06:25 PM
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Quote:
Originally Posted by JunRN View Post
If the other guy worked for the company atleast 180 days, then your employer cannot prove that he had no intention to work for the company. If the guy worked for only a short time or didn't work at all for the company, then the company can win the case.

The greencard of the other person will be rescinded. You can then use his labor.
We dont know all the details of the case. If the person who got 485 approved worked for more than 180 days for the sponsering employer.
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  #9 (permalink)  
Old 01-10-2008, 06:31 PM
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Default

That's why I was saying that if he did work for more than 180 days for the employer, his GC is safe. If not, it can be rescinded if the employer appeal to the I-140 denial of the labor sub. and tries to prove that the original beneficiary is a "fraud".

It can happen to anyone. So to be on the safe side, work for the original petitioner for more than 180 days. If the petitioner is a GC factory, then both beneficiaries will suffer.

Yeah, it's good to know that AC21 works and that one labor is not used to produce many GCs.
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  #10 (permalink)  
Old 01-10-2008, 07:01 PM
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Default Ac21

If he stayed for 180 days and used AC21 then AC21 WILL protect this person


Quote:
Originally Posted by JunRN View Post
Just to add, this is the risk of not working for the company after getting the EAD. The employer can easily prove that the person had no intention of working for the company. AC21 cannot protect that person.
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  #11 (permalink)  
Old 01-10-2008, 07:27 PM
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Default

Quote:
Originally Posted by nogc_noproblem View Post
If he stayed for 180 days and used AC21 then AC21 WILL protect this person
Not exactly. That person has more leverage, even if he/she does not worked 180 days after filing 485. How? If that first guy worked considerable period of time with that employer in H1B status, and if that guy was working with that employer when that (fradulant?) employer filed LC and 140, he has a strong intent to work for that employer. In no court employer can win. Even if that guy left with in 2 months after 485 filing date, he is so safe.

Read the recent AC21 memo. It clarly says one can leave the sponsering employer before 6 months of 485 pending, if the intent is strong in both parties at the time of filing 485. The AC21 rule is that, a if 485 is not adjudicated in 180 days, it is a valid one for a new job which is similar to the orginal one. That does not mean that one has to wait atleast 6 months to change the job.

Here is the part of memo

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.
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  #12 (permalink)  
Old 01-10-2008, 09:36 PM
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Default

Labor substitution case..eh..
Quote:
Originally Posted by waiting4gc1234 View Post
All,

My employer revoked the i140 of a person after 180 days. He did not reveal this information to me and used labor substitution for me.

The other person used AC21 and got his 485 approved. INS has denied my I140 since a 485 has already been approved and there can be only one GC on one labor. INS says that once the 485 is approved that job ceases to exist.

My company is saying that they have done this in the past and got approvals. They are saying that they applied the I140 substitution long before the 485 approval of the other person.

Now they are saying that they will appeal that the other guy never had the intention of working for the comapany.

Is there any chance for the I140 approval and using the existing labor ? If not will the INS help me keep the Priority Date.

Does anyone have knowledge of such cases (or) know the results of such appeals.

Thanks !
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  #13 (permalink)  
Old 01-10-2008, 09:58 PM
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Default

labor sub is not neccessarily always bad.
I have seen lot of folks who were stuck in a bad wait and only way could leave was to use labor sub.
Having said that, this case seems just bad situation..
Why couldn't he just check before he filed I140 if someone else has already used that labor?
It's easy to do...
Also why not just use I140 premium when it was allowed back then..
I am thinking someone got greedy and got conned while trying to con immigration system..
you play with fire .. sometimes fingers get burnt.. I feel pity for this guy but I got no love for him..
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  #14 (permalink)  
Old 01-10-2008, 10:40 PM
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Arrow Move on

Quote:
Originally Posted by waiting4gc1234 View Post
All,

My employer revoked the i140 of a person after 180 days. He did not reveal this information to me and used labor substitution for me.

The other person used AC21 and got his 485 approved. INS has denied my I140 since a 485 has already been approved and there can be only one GC on one labor. INS says that once the 485 is approved that job ceases to exist.

My company is saying that they have done this in the past and got approvals. They are saying that they applied the I140 substitution long before the 485 approval of the other person.

Now they are saying that they will appeal that the other guy never had the intention of working for the comapany.

Is there any chance for the I140 approval and using the existing labor ? If not will the INS help me keep the Priority Date.

Does anyone have knowledge of such cases (or) know the results of such appeals.

Thanks !
Chances of getting your 140 appoved after appeal is less than 0.0001%; You can not keep the priority date because it is not yours to keep. You have played the game of risk vs rewards, Move on.
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  #15 (permalink)  
Old 01-10-2008, 11:16 PM
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Default how do u check if a 485 isn't being filed based on I 140

Quote:
Originally Posted by zCool View Post
labor sub is not neccessarily always bad.
I have seen lot of folks who were stuck in a bad wait and only way could leave was to use labor sub.
Having said that, this case seems just bad situation..
Why couldn't he just check before he filed I140 if someone else has already used that labor?
It's easy to do...
Also why not just use I140 premium when it was allowed back then..
I am thinking someone got greedy and got conned while trying to con immigration system..
you play with fire .. sometimes fingers get burnt.. I feel pity for this guy but I got no love for him..
how do u check if a 485 isn't being filed based on I 140
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