Working on EAD / 140 Denied - 'Out of Status'?

N

nordkapp

Registered Users (C)
Heres the situation:
I was working with Company A on an H1B. They sponsored my GC in Aug 2002. Labor was cleared & we applied for 140 & 485(concurrent) in April 2003. We got an RFE on the company’s ability to pay in Aug 2003. We responded with company’s Tax Returns, Financial Statements, etc. in Sept 2003. In the mean time, my EAD was approved and is valid from June ’03 – ’04.
Oct ’03, I got an offer from Company B. I asked for my attorney’s advice to take up the offer based on AC-21 using my EAD even though my 140 was not approved. Based on his advice/approval, I took up the offer & started working with Company B.

Last week, my attorney called the USCIS to inquire on the status of my 140 appln. & they said it has been rejected (company’s ability to pay). We recd. a ‘Case Status Inquiry Response’ letter from INS stating that my 140 & 485 applns. have been denied but the letter states that my EAD & AP applns. are pending & the officer needs more time to adjudicate(I applied for EAD renewal & AP appln. In March ’04).
However, we have not recd. a formal denial notice on 140 or 485 from USCIS.

My attorney tells me now, that I am ‘Out of Status’; since my 140 appln. was denied, my EAD is invalid.
Is it accurate that I am ‘Out of Status’? If so, what are my options to get reinstated?
I am planning on contesting USCIS’s decision. Have you come across a similar situation?
Any pointers will be much appreciated.

Thank you.
 
nordkapp,

According to a forum member here you can use AC21 portability even if I-140 is pending(ofcourse 6 months should have passed after 485 filing). So, going by that you can invoke AC21 since you applied in April 2003. But in your case I-140 has been denied, so I don't know how this changes the whole situation.
Best bet would be to consult a few different lawers and see what they say.

Naanshi,

Care to coment on this case? Can he try using AC21, even though I-140 is denied ?

sertra202
 
Serta,

I read his posting. I am sorry to hear this. My view in this is that he should have informed USCIS when he changed his job and should have sent AC21 letter with new employment offer.

According to some attorneys, We can use AC21 when I-140 and I-485 are pending.(Most of the attorneys say that we can use AC21 only after I-140 is approved) Now his cases are denied( not pending) and I don't think he has any option.

AFTER he sent AC21 letter and employment Offer, if his I-140 case got denied, there is a chance of I-485 processing in regular manner. And that is the grey area of AC21. Now it is too late.

Just my thoughts and I may be wrong.

nanshi.
 
Last edited by a moderator:
"Now his cases are denied( not pending) and I don't think he has any option."

Thats what I thought as well.

nordkapp,

I am sorry, looks like your attorney may be right when he says you are out of status. Thats why they say hold on to H1 as lonfg as you can. If you had applied for a H1 transfer with the new company instead of using EAD, you would have been fine. I am sorry, I am stating what you should have done, and this I know is not going to help you, but it may help others who are in a similar situation of deciding whther to use EAD or H1.

As for your choices, first thing you should do is file an appeal for I-140 and 485 rejection, this may help you in being 'in status' until a desicion is reached, and you can continue work using EAD. But I am not too sure about this, so consult your attorney on this. In the meantime also file for H1 through new company.

If however, attorney says filing appeal still means you are out of status, then unfortunatly you may have to leave the country and come back on a fresh H1. Now here again, you may be out of luck because H1 quotas are over for this BCIS fiscal year. The next fiscal year begins in October 2004. But filing now is permissible, and don't wait till October.

Sorry buddy, thats all I can offer as suggestions for now.
 
Thanks for your pointers

Folks, thanks a bunch for all your support.
Interestingly enough I(or my attorney or my sponsor) have not received a 'Notice of Action' denying the 140 or 485 yet.
The 'Case Status Inquiry Response' letter that I recd. from NSC states that the 485 was denied on March 22 '04. So, my attorney raised a request to CIS to send us a copy of the denial...this was a couple of weeks back. No response yet....

The online case status says that my 140, 485, EAD renewal & AP are all pending.

How disjointed can CIS' processes get?
 
I believe u applied AC21 before denail. So, it' may not be a issue about status. you can fight with INS for this based on leakage on Portability memo.

As per USCIS law: change employment after 180 of ND of 485 with AC21 portability is legal. No where it is specified about 140 in the memo.

Please post some details RD/ND of AC21.





nordkapp said:
Heres the situation:
I was working with Company A on an H1B. They sponsored my GC in Aug 2002. Labor was cleared & we applied for 140 & 485(concurrent) in April 2003. We got an RFE on the company’s ability to pay in Aug 2003. We responded with company’s Tax Returns, Financial Statements, etc. in Sept 2003. In the mean time, my EAD was approved and is valid from June ’03 – ’04.
Oct ’03, I got an offer from Company B. I asked for my attorney’s advice to take up the offer based on AC-21 using my EAD even though my 140 was not approved. Based on his advice/approval, I took up the offer & started working with Company B.

Last week, my attorney called the USCIS to inquire on the status of my 140 appln. & they said it has been rejected (company’s ability to pay). We recd. a ‘Case Status Inquiry Response’ letter from INS stating that my 140 & 485 applns. have been denied but the letter states that my EAD & AP applns. are pending & the officer needs more time to adjudicate(I applied for EAD renewal & AP appln. In March ’04).
However, we have not recd. a formal denial notice on 140 or 485 from USCIS.

My attorney tells me now, that I am ‘Out of Status’; since my 140 appln. was denied, my EAD is invalid.
Is it accurate that I am ‘Out of Status’? If so, what are my options to get reinstated?
I am planning on contesting USCIS’s decision. Have you come across a similar situation?
Any pointers will be much appreciated.

Thank you.
Click to expand...
 
Last edited by a moderator:
140, 485, EAD - RD: April 4, 2003, ND: April 8, 2003
EAD: AD - July 24, 03
140, RFE ND: August 19, 2003, Response RD: Sept. 29, 2003
AC-21 from H1 to EAD: Employer Change on Oct. 13, 2003
140 & 485 Denied on March 22, per 'Case Status Inquiry Response' letter.
Waiting for denial notices.
 
when did you sent AC21 paper work to INS?
Is it Oct. 13, 2003!!!!!

nordkapp said:
140, 485, EAD - RD: April 4, 2003, ND: April 8, 2003
EAD: AD - July 24, 03
140, RFE ND: August 19, 2003, Response RD: Sept. 29, 2003
AC-21 from H1 to EAD: Employer Change on Oct. 13, 2003
140 & 485 Denied on March 22, per 'Case Status Inquiry Response' letter.
Waiting for denial notices.
Click to expand...
 
I have a bad feeling about this......

Do I need to send a document of some sort to CIS indicating AC21 transfer from one employer to another?
If so, I never did it.
I am sure my attorney did not do it either.
 
Ya.. you have file AC21 paper work, once if you made changed employer.
other wise How INS will know? how could you able to use 180 day's policy.


nordkapp said:
I have a bad feeling about this......

Do I need to send a document of some sort to CIS indicating AC21 transfer from one employer to another?
If so, I never did it.
I am sure my attorney did not do it either.
Click to expand...
 
nordkapp said:
I have a bad feeling about this......

Do I need to send a document of some sort to CIS indicating AC21 transfer from one employer to another?
If so, I never did it.
I am sure my attorney did not do it either.
Click to expand...


This was the greatest mistake. You should have asked some folks here in this message board. We could have helped you.

After sending AC21 letter, if I-140 gets denied , what will happen to I-485 petition is still not very clear. But you could have tried that, instead of getting direct denial. But now, by not sending AC21 letter earlier in October, it is too late.


Naanshi.
 
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bcis said:
I believe u applied AC21 before denail. So, it' may not be a issue about status. you can fight with INS for this based on leakage on Portability memo.

As per USCIS law: change employment after 180 of ND of 485 with AC21 portability is legal. No where it is specified about 140 in the memo.

Please post some details RD/ND of AC21.
Click to expand...

BCIS,
How did you get this info? From any attorney? Looks like according to lot of attorneys You are correct.

AC21 August 2003 Memo tells about the "Validity of Approved I-140, while using AC21" and it never says the "Eligibility of AC21"

naanshi.
 
naanshi said:
BCIS,
How did you get this info? From any attorney? Looks like according to lot of attorneys You are correct.

AC21 August 2003 Memo tells about the "Validity of Approved I-140, while using AC21" and it never says the "Eligibility of AC21"

naanshi.
Click to expand...

August memo clearly says

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied


If you send AC-21 letter before the approval of I-140 you may run into trouble. I quote from same memo

In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment.

If you send AC-21 letter before I-140 approval you may get an RFE to confirm about the offer. Please be careful before doing some thing very new.
 
tammy2 said:
August memo clearly says

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied


It says about the validity of the approved I-140 form. What else you are trying to say?

If a form I-140 is withdrawn, then how will you get I-140 approval???????
(Withdrawn means to withdraw a pending petition, not approved one)
Click to expand...
 
naanshi said:
tammy2 said:
August memo clearly says

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied


It says about the validity of the approved I-140 form. What else you are trying to say?

If a form I-140 is withdrawn, then how will you get I-140 approval???????
(Withdrawn means to withdraw a pending petition, not approved one)
Click to expand...
Word Revoked for approved one
Click to expand...
 
Nice. Revoked is for Approved one and Withdrawn is for Pending one. So what is your point here? Where in AC21 law or memo, it is written, You cannot change employer while I-140 is pending???

naanshi.
 
naanshi said:
Nice. Revoked is for Approved one and Withdrawn is for Pending one. So what is your point here? Where in AC21 law or memo, it is written, You cannot change employer while I-140 is pending???

naanshi.
Click to expand...
It is not you cannot change. You can always change. Even you do not need to work. I my self changed (rather laid off) employer before the approval of I-140 and found a new job. But you have heavy risk. Since i went through same situation i have discussed with three different top attorneys.


If you are not informing the BCIS that may workout fine if you get an approval without company related RFE. If you get an RFE related to company case is almost gone (assuming company is not co-operating)

If you inform the BCIS
The August memo expects the both parties should have proper intents at the time approval of I-140. By sending AC-21 letter essentially you are stating that you do not have intension of working for the your I-140 employer before the I-140 approval itself.. So per memo they cannot give you benefits of AC-21.
 
Thanks for the explanation Tammy. But few questions.

1. If I-140 case gets RFE and the Original sponsor replies properly, what will happen?(After sending AC21 letter to USCIS)

2. After 180 days, if the I-140 case is withdrawn while it is pending , then what will happen? From your Posting: The August memo expects the both parties should have proper intents at the time approval of I-140. In this case I-140 is not going to get approved ever or there is no underlying I-140 case at all.

nanshi.
 
naanshi said:
Thanks for the explanation Tammy. But few questions.

1. If I-140 case gets RFE and the Original sponsor replies properly, what will happen?(After sending AC21 letter to USCIS)
Click to expand...

Since the applicant has changed intent the case may be denied. But in response if the employer supports the employee case might be reopened and approved. I have not seen any practical cases in which AC-21 letter was sent but seen case where earlier employer revoked I-140 and sent letter again stating that he did not have intent revoking. This case was denied after first letter reached the BCIS. The case was approved after they got second letter. Sheela Murthy handled this case. I know this case personally as he is my friend

2. After 180 days, if the I-140 case is withdrawn while it is pending , then what will happen? From your Posting:
The August memo expects the both parties should have proper intents at the time approval of I-140. In this case I-140 is not going to get approved ever or there is no underlying I-140 case at all.
Click to expand...

I know a case in which withdrawn. I-140 was denied and I-485, EAD, and AP every thing got denial notice. The same labor was used for some one else.

Whatever i quoted is directly form August memo. You can read it in memo itself.
 
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