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Priority dates transfers and Post 140-approval options Discussion related to transferring priority date of old green card file to a new file after 140 approval.

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  #1 (permalink)  
Old 12-04-2007, 01:09 PM
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Default I 140 pending since July07 - Can I use AC 21 after 180 days?

Hi gurus,

I need some feed back on my situation -

My 140 is pending, 485 filled on july 07. Now my company is closing down by business unit. So I am getting terminated. But luckily my termination is after 180 days of 485 pending. Also my company has assured me that 140 will not be withdrawn.

So my concern is about my I-140. I read the AC21 guideline and am still confused on the status of my 140!!

Any one who went through a similar situation??

Any comments??

Thank you!
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  #2 (permalink)  
Old 12-04-2007, 01:15 PM
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Thumbs up Yes, you can avail AC21

crazyAbtUS: If your 140 is approved, you can avail AC21 and move to new employer. make sure the job role/responsibilities are similar to your GC position.
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  #3 (permalink)  
Old 12-04-2007, 01:22 PM
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Default yes, you can

Quote:
Originally Posted by crazyAbtUS View Post
Hi gurus,

I need some feed back on my situation -

My 140 is pending, 485 filled on july 07. Now my company is closing down by business unit. So I am getting terminated. But luckily my termination is after 180 days of 485 pending. Also my company has assured me that 140 will not be withdrawn.

So my concern is about my I-140. I read the AC21 guideline and am still confused on the status of my 140!!

Any one who went through a similar situation??

Any comments??

Thank you!
yes you can, make sure the new company informs USCIS etc after you join them.
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  #4 (permalink)  
Old 12-04-2007, 01:23 PM
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Default

You are shooting yourself in the foot if you use AC21 before 140 is approved. So hang on until its approved and then u can flex ur wings
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Old 12-04-2007, 01:27 PM
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Default I think

Quote:
Originally Posted by averagedesi View Post
You are shooting yourself in the foot if you use AC21 before 140 is approved. So hang on until its approved and then u can flex ur wings
I think you are not trying to understand his situation, the company is closing so no question of I-140 approval. His situation is critical but he can use AC21 with I-140 pending. Contact attorney for more details.
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  #6 (permalink)  
Old 12-04-2007, 01:27 PM
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Default approvable

I think AC21 protects you if the 140 is approvable.
but i guess you can be really sure only if it is approved!!!
what if they issue RFEs... will your prev employer/lawyer respond?

to be safe i guess it would be best to wait for 140 to be approved.
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  #7 (permalink)  
Old 12-04-2007, 01:30 PM
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Default No

Quote:
Originally Posted by crazyAbtUS View Post
Hi gurus,

I need some feed back on my situation -

My 140 is pending, 485 filled on july 07. Now my company is closing down by business unit. So I am getting terminated. But luckily my termination is after 180 days of 485 pending. Also my company has assured me that 140 will not be withdrawn.

So my concern is about my I-140. I read the AC21 guideline and am still confused on the status of my 140!!

Any one who went through a similar situation??

Any comments??

Thank you!
DISCLAIMER : I am not a lawyer. You should seek professional legal counsel for this situation:

In this case, where company is shutting down:
I think you should stay with your current company as long as possible and wait for your 140 to get approved. (stay atleast until 180 days). If premium processing option is available, use it right away and upgrade your pending 140 to premium. However, if your company shuts down and your 140 is still pending, then ofcourse you have no other option but to port your 140 to new employer using AC21 portability option of section 106(C).

If USCIS doesnt find out or inquire about your company, they will approve your 140. Make sure it is mailed to you even after your company offices are shut down. Probably it will go to your lawyer's offices. Let the lawyer know.

If USCIS finds out that you have ported off to new employer using AC21 portability and your 140 is pending, then they will follow the guidance of Aytes Memo of December 2005. If you ported after 180 days of filing, USCIS finds out that you ported off, then USCIS will determine if the 140 would have been approvable in 180 day timeframe based on documents given and if there would have been an ability to pay issue. If there is no "ability to pay issue" with your 140 and your 140, as it stands would have been approvable in 180 day timeframe, then they will go ahead and approve it. In that case you will be safe. But for USCIS to follow this Aytes memo, you HAVE TO STAY FOR 180 DAYS. Otherwise you will be taking a huge risk. Read the question 1 of the memo in quotes below.

Also, you are screwed if USCIS finds an ability to pay issue with your employer that petitioned your 140 and issues an RFE regarding ability to pay. Because if they find an ability to pay issue, then your employer has to be around to answer that RFE regarding the ability to pay. IF they are not around anymore, then you are very very unlucky. So get the documents of your 140 and 485 petition and try to find out - thru a lawyer - what is the likelihood of ability to pay RFE coming in your 140. That is very important for you right now.

In general, the idea of using AC21 before 140 approval:

In general, (not applicable to above case where company is shutting down), is it a good idea to port before 140 approval ? Short answer : NO. DO NOT use AC21 portability option until your 140 is approved. The above case is exception and the business is shutting down. So he has no other option, but to work for someone new.

For potential dangers, read the December 2005 memo from USCIS that deals with FAQ regarding portability (section 106(C) of AC21 Act).

To read USCIS memos, go to

1. Go to USCIS.gov
2. Click on menu item "Laws and Regulations".
3. Then click on the link "Policy Memoranda" on left side menu.
4. Find the memo in Dec 2005, written by Micheal Aytes. Date of the memo is 12/27/2005. Its titled "Interim Guidance for Processing I-140 Employment-Based Immigrant Petitions and I-485 and H-1B Petitions Affected by the American Competetiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)".

The direct link here is :

http://www.uscis.gov/files/pressrele...ntrm122705.pdf

Read question 1.

Quote:
Question 1. How should service centers or district offices process unapproved I-140
petitions that were concurrently filed with I-485 applications that have been pending
180 days in relation to the I-140 portability provisions under 106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has
been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence
establishes that the case is approvable or would have been approvable had it been adjudicated
within 180 days. If the petition is approvable but for an ability to pay issue or any other issue
relating to a time after the filing of the petition, approve the petition on it’s merits. Then
adjudicate the adjustment of status application to determine if the new position is the same or
similar occupational classification for I-140 portability purposes.
B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than
post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a
response is received, and if the petition is approvable, follow the procedures in part A above.
SO what I am saying is, its risky. Its possible, but its risky.
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Last edited by logiclife; 12-04-2007 at 01:41 PM.
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  #8 (permalink)  
Old 12-04-2007, 01:39 PM
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Default

In short, you will be fine unless an RFE is issued for your 140 (ability to pay, education requirements, etc). But these problems can usually be known ahead of time as you know your education credentials + the employer's 'demonstrable' ability to pay. If these are not problems in your case, you should be OK.

If the business unit is closed down and there is an RFE, will the company still respond to the RFE? if Yes, you are fine again. Else your 140 will be denied.

If you filed in TX, there is a good chance your 140 will come through within 180 days. But if you filed in NE, then it is almost certain that your 140 will not see the light of the day anytime soon.

The NE situation may actually help in some way as you can consider getting a new PERM and 140 from the new employer and replace the 140 for your existing 485 app. But I think USCIS has problems with multiple 140s filed at the same time. This is something you may want to check with your lawyer.

Last edited by kaisersose; 12-04-2007 at 01:41 PM.
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  #9 (permalink)  
Old 12-04-2007, 02:06 PM
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Default

Quote:
Originally Posted by kaisersose View Post


If you filed in TX, there is a good chance your 140 will come through within 180 days. But if you filed in NE, then it is almost certain that your 140 will not see the light of the day anytime soon.
May not be true, in July there were flood of 140 applications. May take longer.

Back in June there was a law that stating that I-140 should be applied within 3 months of labor approval.
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  #10 (permalink)  
Old 12-04-2007, 03:49 PM
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Default

Quote:
Originally Posted by somma View Post
Back in June there was a law that stating that I-140 should be applied within 3 months of labor approval.
Starting from July a law has come into place (part of the same ruling that stopped LC substitutions) that says an I-140 must be applied within 6 months of LC approval. All new LCs have this expiry date on them, all older ones are set to expire in Jan (6 months after the ruling was published)
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  #11 (permalink)  
Old 12-04-2007, 03:51 PM
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Default "logiclife"...thanks a lot for the informative response..

Quote:
Originally Posted by logiclife View Post
DISCLAIMER : I am not a lawyer. You should seek professional legal counsel for this situation:

In this case, where company is shutting down:
I think you should stay with your current company as long as possible and wait for your 140 to get approved. (stay atleast until 180 days). If premium processing option is available, use it right away and upgrade your pending 140 to premium. However, if your company shuts down and your 140 is still pending, then ofcourse you have no other option but to port your 140 to new employer using AC21 portability option of section 106(C).

If USCIS doesnt find out or inquire about your company, they will approve your 140. Make sure it is mailed to you even after your company offices are shut down. Probably it will go to your lawyer's offices. Let the lawyer know.

If USCIS finds out that you have ported off to new employer using AC21 portability and your 140 is pending, then they will follow the guidance of Aytes Memo of December 2005. If you ported after 180 days of filing, USCIS finds out that you ported off, then USCIS will determine if the 140 would have been approvable in 180 day timeframe based on documents given and if there would have been an ability to pay issue. If there is no "ability to pay issue" with your 140 and your 140, as it stands would have been approvable in 180 day timeframe, then they will go ahead and approve it. In that case you will be safe. But for USCIS to follow this Aytes memo, you HAVE TO STAY FOR 180 DAYS. Otherwise you will be taking a huge risk. Read the question 1 of the memo in quotes below.

Also, you are screwed if USCIS finds an ability to pay issue with your employer that petitioned your 140 and issues an RFE regarding ability to pay. Because if they find an ability to pay issue, then your employer has to be around to answer that RFE regarding the ability to pay. IF they are not around anymore, then you are very very unlucky. So get the documents of your 140 and 485 petition and try to find out - thru a lawyer - what is the likelihood of ability to pay RFE coming in your 140. That is very important for you right now.

In general, the idea of using AC21 before 140 approval:

In general, (not applicable to above case where company is shutting down), is it a good idea to port before 140 approval ? Short answer : NO. DO NOT use AC21 portability option until your 140 is approved. The above case is exception and the business is shutting down. So he has no other option, but to work for someone new.

For potential dangers, read the December 2005 memo from USCIS that deals with FAQ regarding portability (section 106(C) of AC21 Act).

To read USCIS memos, go to

1. Go to USCIS.gov
2. Click on menu item "Laws and Regulations".
3. Then click on the link "Policy Memoranda" on left side menu.
4. Find the memo in Dec 2005, written by Micheal Aytes. Date of the memo is 12/27/2005. Its titled "Interim Guidance for Processing I-140 Employment-Based Immigrant Petitions and I-485 and H-1B Petitions Affected by the American Competetiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)".

The direct link here is :

http://www.uscis.gov/files/pressrele...ntrm122705.pdf

Read question 1.



SO what I am saying is, its risky. Its possible, but its risky.
"logiclife"...thanks a lot for the informative response.. One quick question and comment though..I work for American firm fairly well known and respected. You mention verifying my I-140 petition file and see if there is any liklyhood of an RFE. What if I do find any issues in the file (which I dont think should be there..), is there anyway the issue can be corrected before I get terminated?
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  #12 (permalink)  
Old 12-04-2007, 03:57 PM
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Default

Quote:
Originally Posted by kaisersose View Post
In short, you will be fine unless an RFE is issued for your 140 (ability to pay, education requirements, etc). But these problems can usually be known ahead of time as you know your education credentials + the employer's 'demonstrable' ability to pay. If these are not problems in your case, you should be OK.

If the business unit is closed down and there is an RFE, will the company still respond to the RFE? if Yes, you are fine again. Else your 140 will be denied.

If you filed in TX, there is a good chance your 140 will come through within 180 days. But if you filed in NE, then it is almost certain that your 140 will not see the light of the day anytime soon.

The NE situation may actually help in some way as you can consider getting a new PERM and 140 from the new employer and replace the 140 for your existing 485 app. But I think USCIS has problems with multiple 140s filed at the same time. This is something you may want to check with your lawyer.
"kaisersose"...thanks a lot for the informative response as well.. One quick question and comment though (this is the same one I asked logiclife as well sorry for repeating it again here)..I work for American firm fairly well known and respected (And yes they are only terminating the business unit i work in, and they have assured us that they will respond to the RFE's as far as possible). You mention verifying my I-140 petition file and see if there is any liklyhood of an RFE. What if I do find any issues in the file (which I dont think should be there..), is there anyway the issue can be corrected before I get terminated?
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  #13 (permalink)  
Old 12-04-2007, 05:10 PM
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Default

From the Aytes Memo - The one thing that is wide open is "A substantial discrepancy between the previous and the new wage."

How much is considered a substantial discrepancy? Is it upside or downside that they are concerned?

For example, if the I-140 is for 60k, will 120k be an issue or will 40k be an issue?
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  #14 (permalink)  
Old 12-04-2007, 05:35 PM
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Quote:
Originally Posted by crazyAbtUS View Post
"kaisersose"...thanks a lot for the informative response as well.. One quick question and comment though (this is the same one I asked logiclife as well sorry for repeating it again here)..I work for American firm fairly well known and respected (And yes they are only terminating the business unit i work in, and they have assured us that they will respond to the RFE's as far as possible). You mention verifying my I-140 petition file and see if there is any liklyhood of an RFE. What if I do find any issues in the file (which I dont think should be there..), is there anyway the issue can be corrected before I get terminated?
Common problems for 140 RFE are,

1. Company's ability to pay wages Since you are in a farily well known and respected firm, this is a non-issue.

2. Education matching job req. If the candidate has a degree not relevant to the job reqs or if the degree requirement is met indirectly through a combination of degrees (3yr degree + 2 yr degree <=> 4 yr degree). In general the qualifications of the candidate are not a simple match to the req.

But if your company is willing to respond to RFEs as you say, then you are all set.

Good luck
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  #15 (permalink)  
Old 01-24-2008, 11:48 PM
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I wouldn't be so sure about RFE reasons. I had an RFE for a typo error.
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