485 Denied after AC21 and 140 Revocation

[GreenCardVirus]

GreenCardVirus: How did u get to know that your case is stuck in namecheck?

My case was approvable in March 2005 with PD being current. I waited till June (PD was current even then) and then called USCIS. The raised an inquiry and I got a letter after a month saying that security check was pending on my name.

Btw, no point in calling to find out if name check is pending if
1. Priority Date is not current
2. Your 485 application date is not earlier than the published dates on USCIS website for your service center.

 

[dcmetro22042]

Thats what I figured but was just curious. The way it looks, its going to be years before my PD gets current Sucks..but what to do.

 

[gc_vsc]

GreenCardVirus - Did you contact congressman/Senator

GreenCardVirus,

I saw a submission where the one who's case was similar, his MTR was approved within 30 days. Also looking at cases under the thread "Ac21 cases approved" , I saw someone suggesting to ask one's Congressman/Senators office to follow up MTR after explaining their case.

Gc_vsc

 

[GreenCardVirus]

Case Re-opened

Guys,

Got the message below. I think the case got re-opened by BCIS motion. Also, the lawyer got the MTR receipt notice 3 weeks after sending. I wonder what happens to this motion?


"On January 9, 2006, this case was reopened on a BCIS motion, and the case is now in process. It is taking between 365 and 540 days for us to process this kind of case. We will mail you a decision as soon as processing is complete."

 

[babyluck]

Great GreenCardVirus,

Although you lost some money in filing MTR's , atleast it must be kind of releif now that your case in process now.

Well, I have a question though, baed on the message given by USCIS, does that mean you retained your priority date what was on 140 (now revoked). Can you please confirm with your lawyer that your case will be processed with the priority date.

Can you please post your detail like, PD, ND etc .

thanks

 

[kbn_gc]

Congrats GreenCardVirus

Hi GCvirus,

I happy to see your case re-opened...

its a big relief.

Can you post what all you did to have from the I-485 reject till date to have your case re-opened?

Thanks,
KBN

 

[GreenCardVirus]

Hi All,

Please note that the case was re-opened by BCIS Motion, which means that it was re-opened by USCIS itself, not because of my MTR.

The MTR I sent is still pending. I wonder what will happen to this because it has no meaning now.

I read in couple of websites (Murthys and immi law) that this is the standard procedure (BCIS re-opening on its own motion if there is a service error). But again we cannot rely on this happening. One option could be to wait for like 25 days before sending MTR.

In my case USCIS acted after 32 Days. Considering the holiday season, normally they would act say in 20 Days. So, if you are sending MTR and know that it is a USCIS error, and if can control your tensions/anxieties/sleep then wait for 25 days before filing MTR.

My general case details are below:

June 02, Labor Applied, EB2, Priority Date
April 2004, Labor Approved
June 2004, Filed 485/140
February 2005, 140 Approved
Oct 2005, Changed Jobs using AC21
Oct End 2005, Sent AC21
November 14th - LUD Changed on 140/485 (assuming because of AC21)
December 7th, 485 Denied after few LUD's because 140 is Revoked
December 11th, got Denial letter
December 14th, Sent the MTR
Jan 5th, Got Receipt Notices for MTR
Jan 9th, 485 Reopened by BCIS Motion

 

[neocor]

Just a letter stating the 485 Receipt#, A#, New Job title, salary, and saying that the applicant is using AC21 and the new job is similar to old job and that the new job is permanent.

Apart from that the new lawyer needs to G-28. In my case even though the lawyer sent it, it never got updated on the 485 application. It still shows the old lawyers name.

GreenCardVirus,

How do you know that the 485 application still shows the old lawyers name?
How do you see the 485 application once it is with the USCIS?

Good luck with your MTR and stuff.

neocor

 

[GreenCardVirus]

GreenCardVirus,

How do you know that the 485 application still shows the old lawyers name?
How do you see the 485 application once it is with the USCIS?

Good luck with your MTR and stuff.

neocor

Denial letter came to old lawyer. Unless you get something back from USCIS to your lawyer, you would'nt know which laywer is attached to your file.

 

[VHD999]

MTR and BCIS motion

GreenCardVirus:

Don’t you think that BCIS motion triggered by the MTR application you filed?

Normally when you file MTR and service center opens the case, the status message will be same as the one displayed on your case.

I am not sure that, without MTR, service center will proactively verify if the case is denied by an error. I am not sure if there was a communication between your lawyer and the service center before filing MTR.

I strongly think that your case is re-opened after you filed the MTR

In my case, they denied my 140 and we filed MTR and later the case was reopened. The status message for MTR case never changed and status message on 140 case says it is opened by BCIS motion.

Anyway, congratulations and this news is a great relief for many people in this forum who used AC21 and waiting in hell.

Hi All,

Please note that the case was re-opened by BCIS Motion, which means that it was re-opened by USCIS itself, not because of my MTR.

The MTR I sent is still pending. I wonder what will happen to this because it has no meaning now.

I read in couple of websites (Murthys and immi law) that this is the standard procedure (BCIS re-opening on its own motion if there is a service error). But again we cannot rely on this happening. One option could be to wait for like 25 days before sending MTR.

In my case USCIS acted after 32 Days. Considering the holiday season, normally they would act say in 20 Days. So, if you are sending MTR and know that it is a USCIS error, and if can control your tensions/anxieties/sleep then wait for 25 days before filing MTR.

My general case details are below:

June 02, Labor Applied, EB2, Priority Date
April 2004, Labor Approved
June 2004, Filed 485/140
February 2005, 140 Approved
Oct 2005, Changed Jobs using AC21
Oct End 2005, Sent AC21
November 14th - LUD Changed on 140/485 (assuming because of AC21)
December 7th, 485 Denied after few LUD's because 140 is Revoked
December 11th, got Denial letter
December 14th, Sent the MTR
Jan 5th, Got Receipt Notices for MTR
Jan 9th, 485 Reopened by BCIS Motion

 

[GreenCardVirus]

GreenCardVirus:

Don’t you think that BCIS motion triggered by the MTR application you filed?

Normally when you file MTR and service center opens the case, the status message will be same as the one displayed on your case.

I am not sure that, without MTR, service center will proactively verify if the case is denied by an error. I am not sure if there was a communication between your lawyer and the service center before filing MTR.

I strongly think that your case is re-opened after you filed the MTR

In my case, they denied my 140 and we filed MTR and later the case was reopened. The status message for MTR case never changed and status message on 140 case says it is opened by BCIS motion.

Anyway, congratulations and this news is a great relief for many people in this forum who used AC21 and waiting in hell.

That is a doubt we will have untill we receive a response on the MTR. As for BCIS Motion, look at this from immigration law web site.

Question: I filed 140/485 with substituted labor. After few months, NSC denied my 140/485 allegedly in error. Since that was service center error, I was allowed to file the motion to reconsider. What happens during the period of the motion with respect to the AC-21 portability and my priority date? Will I be allowed to apply for advance parole pending motion to reconsider application? If I change my residence from NSC service area to Texas service area, will it affect my application processing time?

Answer: When the Service Center erroneously denied I-140 and I-485, they usually reopen the decision on their own motion. In this case, apparently they denied I-140 and as a consequence of I-140 denial, they also denied I-485, and revoked EAD and AP. Legally, motion to reopen or reconsider does not give any right or privilege to the employer or the alien to stop running of unlawful presence nor they are allowed to apply for EAD or Advance Parole pending the motion. However, once they accept the motion and reverse their decision of denial, they revive the denied I-140 and I-485 without affecting the lawful presence in the U.S. and without affecting the priority date and related AC-21 benefits. In your case, you filed the motion to reconsider rather than the Service Center decided to reconsider the decision on their own motion. I would look at the situation closely to find out whether the denial was made on the agency's error. Motion to reconsider is different from motion to reopen. Motion to reconsider is allowed when there was an error in law or fact in deciding the case by the agency, while motion to reopen is not available unless one proves that certain evidence was not available at the time of filing of the petition or application and subsequently certain new evidence or facts have developed that makes the case approvable. One thing you will have to watch out is the deadline for appeal. I-485 is not appealable but I-140 is appealable to AAO. Unless the appeal is filed within 30 days from the decision of denial, you permanently lose the opportunity to appeal the decision not only before the AAO but also before the federal courts. People often file an appeal of the denial of I-140 before AAO. The appeal is filed through the Service Center that denied the petition. Then the agency relook at their decision of denial before they decide to forward the appeal to the AAO. Once they decide to reverse themselves, they will just approve the I-140 petition and continue to process the accompanying I-485 application as well. This may be sometimes very important to preserve a right to appeal. Just filing a motion alone may be sometimes very risky unless the case is not appealable. Once the motion is denied after 30 days, one permanently loses the opportunity to appeal the denial of I-140 petition. Appeal of I-140 petition gives one important benefit. Pending the appeal, the alien is eligible for the AC-21 H-1B extensions! Motion gives no such benefit.

 

[kbn_gc]

GCvirus,Did you work for the whole of 32 days

GC virus,

Did you work for the past 32 days?

is it legal to work ?

Does the case have to be re-opened before you start working?

what the USCIS rule for this.

Thanks for your help.
KBN

 

[GreenCardVirus]

GC virus,

Did you work for the past 32 days?

is it legal to work ?

Does the case have to be re-opened before you start working?

what the USCIS rule for this.

Thanks for your help.
KBN

It depends on your lawyer's advise. If you have absolute confidence that it is USCIS error, then you can keep working. Even Murthy does not have a fixed opnion. In my case, my lawyer asked me to keep working.

In my personal opinion, if you think it is 100% USCIS error, then you can go on until you get a letter saying that EAD is cancelled.

Question: Thanks for a great service. Primary I-140/I-485 was denied. If my wife uses the EAD because of the denial, what is her current status? She has a valid H-4 visa until June 2005.

Answer: Both the primary and dependent family members should try and extend the H1B and H-4 status respectively to remain legally in the U.S. When the principal"s I-140 and I-485 are denied all incidental benefits, like the EAD and AP for the principal and family members, will likely be denied in the near future, but arguably are no longer considered valid upon the I-485 denial itself.

 

[need_info1]

MOTIC MOTION TO REOPEN BEFORE THE COMMISSIONER - local office

GC virus,

If you have any idea on the below kind of message and what is means to the applicant.

"On January 11, 2006, we transferred your MOTIC MOTION TO REOPEN BEFORE THE COMMISSIONER to an office in NEWARK, NJ for processing. That office will notify you when they take action on your case. You should receive a notice informing you that your case has been transferred to a local office. Please call the National Customer Service Center at (800) 375-5283, to receive information about local office processing times."

Currently, I was out of job and EAD will expire on 01/30/2006, H1 was pending with the GC filed employer, but he is not in public.

Thanks for your reply.
Need Info

 

[kbn_gc]

GCvirus,thanks for sharing the information.

GCvirus,

if we applied for I-140 and I-485 and 14 months have passed by

After invoking AC-21 we shift to another company and I-140/I-485/EAD is revoked by uscis? (similar to your case)

Do you think it is 100% uscis error and we can continue working?

In your case ..were you confident that it was 100% USCIS error and why?
Thanks,
KBN

 

[GreenCardVirus]

GCvirus,

if we applied for I-140 and I-485 and 14 months have passed by

After invoking AC-21 we shift to another company and I-140/I-485/EAD is revoked by uscis? (similar to your case)

Do you think it is 100% uscis error and we can continue working?

In your case ..were you confident that it was 100% USCIS error and why?
Thanks,
KBN

There should bot be any problem if your I-140 was approved before it was revoked. If 140 is not approved, then there is a problem.

The yates memo on AC21 (2003 year) is very clear about 140 being revoked after the 485 applicant used 180 day rule to change jobs. It says that if 140 is revoked, and if there is no AC21 documentation in the file, then the officer is supposed to issue NOID. Based on your response to NOID, they will decide whether to keep the 485 file open or not.

If you receive letter of revocation/cancellation for EAD, then you cannot work.

My case was pretty simple. USCIS over looked AC21. There is no other is no other reason why they denied my application. Moreover they erred in not issuing NOID first even if you assume that AC21 letter is not in the file. Even if I had the slightest doubt, I would not have changed jobs, not after letting myself exploited like a slave for 3.5 years.

Issue eventually boils down to your current employer, whether they are willing to let you work. In my case, my employer listened to what lawyer says.

 

[GreenCardVirus]

GC virus,

If you have any idea on the below kind of message and what is means to the applicant.

"On January 11, 2006, we transferred your MOTIC MOTION TO REOPEN BEFORE THE COMMISSIONER to an office in NEWARK, NJ for processing. That office will notify you when they take action on your case. You should receive a notice informing you that your case has been transferred to a local office. Please call the National Customer Service Center at (800) 375-5283, to receive information about local office processing times."

Currently, I was out of job and EAD will expire on 01/30/2006, H1 was pending with the GC filed employer, but he is not in public.

Thanks for your reply.
Need Info

No clue. I'd say take the message by face value. Wait for physical notice of the above message to come in mail, take it to Newark office and ask them.
What did you file the MTR for? 485 or 140?

 

[dcmetro22042]

What is a good resource to study changing jobs under AC-21. I am planning to change jobs once 6 months have passed after filing 485 but want to make sure that the job classification/profile remains the same. Any pointers to what I should be looking for? My lawyer shall not help me in this as he was hired by the company.

 

[GreenCardVirus]

What is a good resource to study changing jobs under AC-21. I am planning to change jobs once 6 months have passed after filing 485 but want to make sure that the job classification/profile remains the same. Any pointers to what I should be looking for? My lawyer shall not help me in this as he was hired by the company.

When planning job change under AC21, single most important this is to get exact Job Description, Job duties, Job Eligibilities (EB category) and Salary on the Labor Certification. It is fine even if you dont have the exact labor certification document.

You need this because you have to show to USCIS that your new job is similar to the one offered when applying for GC. When you applied for labor, you must have signed couple of forms. You can pick the Job title and duties from there. For Pay, you can get it from some labor dept websites for that state. There is also a thread (sticky) on finding prevailing wage. It will be standard for your category and job title. example EB2, CT, Masters is 80k.
(all these are suggestions, in my case I had the labor certification copy).

People suggest lot of stuff but most of the information is already with USCIS, like 140 approval, 485 receipt notice etc. If you have the Receipt Number, dont forget to take a print out of the current status from the USCIS website.

 

[need_info1]

MOTIC - Transferred to Local office

No clue. I'd say take the message by face value. Wait for physical notice of the above message to come in mail, take it to Newark office and ask them.
What did you file the MTR for? 485 or 140?

GC VIRUS,

Thanks for your quick reply. This MTR for I-485.

Regards,
Need Info