minicooper
Registered Users (C)
Noid
In NOID they mentioned 140 has been revoked in dec.
In NOID they mentioned 140 has been revoked in dec.
485 Denied after AC21 and 140 Revocation
- Thread starter GreenCardVirus
- Start date
minicooper
Registered Users (C)
USCIS document
Please refer to the following link that I found in www.uscis.gov website.
http://uscis.gov/graphics/lawsregs/handbook/ac21intrm122705.pdf
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.
After reading this I feel that,my case is eligible for portability.Also i am planning on not to mention my start date at new job.Thinking of EVL as this person is currently employed at XXX as a XXX with salary XXX and duties XXXXXXXXX .We intent to keep even after the approval of i485...
becasue they didn't ask me for my start date.
Just job description,job title,salary,duties and future employment with the new company.
Also i will say that 1)my 485 is pending for more than 180 days
2) i have attached Employent letter from my current employer.
Any comments on this??
Please refer to the following link that I found in www.uscis.gov website.
http://uscis.gov/graphics/lawsregs/handbook/ac21intrm122705.pdf
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.
After reading this I feel that,my case is eligible for portability.Also i am planning on not to mention my start date at new job.Thinking of EVL as this person is currently employed at XXX as a XXX with salary XXX and duties XXXXXXXXX .We intent to keep even after the approval of i485...
becasue they didn't ask me for my start date.
Just job description,job title,salary,duties and future employment with the new company.
Also i will say that 1)my 485 is pending for more than 180 days
2) i have attached Employent letter from my current employer.
Any comments on this??
Last edited by a moderator:
GreenCardVirus
Registered Users (C)
minicooper said:
Just for the sake of discussion, the specific condition you quoted was when a 485 applicant is not working for the same company that filed for 140.
The whole AC-21 argument comes only when the person is using EAD to work for a different employer. For example, if your GC is filed by company A, you currently working for Company B on H1, you switch to company C using EAD alone, then AC-21 comes into picture. In case you are using EAD to work for company C, then portability happens from A to C. Also, you start working for company C using EAD just after 2 months of filing 485, then it is possible for USCIS to say that you never had any intension to work for company A.
In case you are working for the same company that filed for GC, then you cant use AC-21 before 180 irrespective of the stauts of I-140.
In my personal opinion, if anyone is not currently working for the GC sponsoring company, then AC-21 should never apply for that person. Because the intension of the portability in AC21 law is to allow a person to progress without ababdoning GC process if there are excessive delays in 485 approval.
If USCIS decides in future that it will not allow AC21 for those who are not working for GC sponsoring employer, it would perfectly legal because the law was never meant for them. In my example above, if a person had any intension to join company A (GC sponsoring employer), why not just join company A instead of going from company B to company C.
In some of the posts by "United Nations", he rightly says that dont give too much weight to these memos, because the memos can change and can affect even older cases.
minicooper is right. One can port the job before 180 days of pedinging of 485 and still can use AC21. The problem is, if the employer revokes the 140 within that 180 days, then the service center can deny 485, regardless of what. The 180 days are crucial in the point of view of revokation of 140.
Furthermore, if any one does not work for the GC sponsering employer at any point of time ( either before GC approval or after GC approval) may consitute as a fraud.
Furthermore, if any one does not work for the GC sponsering employer at any point of time ( either before GC approval or after GC approval) may consitute as a fraud.
Last edited by a moderator:
minicooper
Registered Users (C)
prey4gc said:
LUD on both 140 and 485 in dec with out message change.
Noid came after 3 months when I totally forgot about LUD's.
LUD on 3/8 when they issued NOID with out message change
My new lawyer says, there won't be any problem.Will just reply to the NOID to consider my case under AC21 as 485 pending more than 180 days and ,attaching employment letter and latest paystubs.
Now there is nothing more I can do,Lets see how it goes.
I forgot to mention I paid my previous employer every month 1200 dollars
from march thru july.Then they started asking more,because they had trouble in sharing the money among themselves .so demanded more money,I said i can't pay more,then you know what they told me ,'even your wife is working so pay from her salary'.Thats it end of the story.They are blood suckers.
Finally I stoped paying and they revoked in december.
After getting NOID I called them, then they say they didn't revoke.And again asking me to come back and then they can do what ever is necesssary to put my case back into track.I don't know how they will do it.I don't trust them .So i hired a new lawyer paying him $3000.
minicooper.
GreenCardVirus
Registered Users (C)
minicooper said:
minicooper, I think the blame lies first on people like us. We let ourselves down by lowering our standard and lowering our dignity in the first place.
When I look back I feel I should not have succumbed to pressure and let these people abuse me. People are what they are, may be we would behave the same if we are in the same position, who knows.
When I quit using AC21, I wasnt expecting my earlier employer to sit on good moral grounds. So, when they revoked I-140, I was'nt too disappointed.
No expectations, no dissappointments!!
I have resigned myself to the fact that I won't get a green card, I am just riding with this hollow hope. At least now, I have the satisfaction that I have some dignity in life.
minicooper
Registered Users (C)
I think the blame lies first on people like us.
I agree with you.But in my case they are the people who told me change job on EAD.And they won't revoke my 140,we were in very good terms.Why would I change job before 180 days and screw my own 485?
Anyways Its my fault too.I shouldn't have listened to them,rather wait for somemore time and then would have changed job.
Minicooper.
I agree with you.But in my case they are the people who told me change job on EAD.And they won't revoke my 140,we were in very good terms.Why would I change job before 180 days and screw my own 485?
Anyways Its my fault too.I shouldn't have listened to them,rather wait for somemore time and then would have changed job.
Minicooper.
WorryForGC
Registered Users (C)
what was your PD, that is not a whole lot for the labor 6K
minicooper said:
minicooper
Registered Users (C)
Its a big story
Pd is april 2003 EB3.
Yes now there is no point in thinking about past.
OK now i have a question,what happens after 485 screws up?
Do people have to leave country immediately?or can the current employer file H1?
Can they work when H1 is pending?If anybody has any information let me know.
Minicooper.
Pd is april 2003 EB3.
Yes now there is no point in thinking about past.
OK now i have a question,what happens after 485 screws up?
Do people have to leave country immediately?or can the current employer file H1?
Can they work when H1 is pending?If anybody has any information let me know.
Minicooper.
Thank you all for providing very educational info about using AC21. Here I have a question -
My I-140 was approved last year. And my I-485 was file about 1.5 years back. So I felt very safe to change employer by using AC 21.
Today I called the company's immigration lawyer. I told her I am going to change my job and asked if she can still represent me to file AC21 paper work and following up with the pending I-485, should any further work need to be done for that case. She said it is fine for her to represent me BUT - if my current company decides to re-use my approved (original) Labor Certification for another person(although it will most likely not happen), then my AC 21 will be at risk.
Anyone has any idea about if this statement is true and how to reduce the risk?
Thanks a bunch
My I-140 was approved last year. And my I-485 was file about 1.5 years back. So I felt very safe to change employer by using AC 21.
Today I called the company's immigration lawyer. I told her I am going to change my job and asked if she can still represent me to file AC21 paper work and following up with the pending I-485, should any further work need to be done for that case. She said it is fine for her to represent me BUT - if my current company decides to re-use my approved (original) Labor Certification for another person(although it will most likely not happen), then my AC 21 will be at risk.
Anyone has any idea about if this statement is true and how to reduce the risk?
Thanks a bunch
GreenCardVirus
Registered Users (C)
NCFolk said:Thank you all for providing very educational info about using AC21. Here I have a question -
My I-140 was approved last year. And my I-485 was file about 1.5 years back. So I felt very safe to change employer by using AC 21.
Today I called the company's immigration lawyer. I told her I am going to change my job and asked if she can still represent me to file AC21 paper work and following up with the pending I-485, should any further work need to be done for that case. She said it is fine for her to represent me BUT - if my current company decides to re-use my approved (original) Labor Certification for another person(although it will most likely not happen), then my AC 21 will be at risk.
Anyone has any idea about if this statement is true and how to reduce the risk?
Thanks a bunch
No one including lawyers Murthy and Mathew Oh did not provide a clear to this. I know for sure that the labor approved in my name is used for someone else. I am stuck in name check and I dont know what is my future.
minicooper
Registered Users (C)
Lud
Just an update on my case
Replied NOIDon 03/28
LUD on 485 with message change 03/29.
On March 29, 2006, we received your response to our request for evidence or information. It is taking between 365 and 540 days for us to process this kind of case. However because preliminary processing was complete, the remaining processing time will be less than the maximum stated in this message. You will receive a written decision on this case.
LUD on 485 with out message change 03/30,03/31.
Minicooper
EB3 PD:04/2003.
Just an update on my case
Replied NOIDon 03/28
LUD on 485 with message change 03/29.
On March 29, 2006, we received your response to our request for evidence or information. It is taking between 365 and 540 days for us to process this kind of case. However because preliminary processing was complete, the remaining processing time will be less than the maximum stated in this message. You will receive a written decision on this case.
LUD on 485 with out message change 03/30,03/31.
Minicooper
EB3 PD:04/2003.
GreenCardVirus
Registered Users (C)
Had some recent LUD changes that are successfully keeping me awake in the nights.
August 97, Entered US on H1
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
PD Current as per April 2006 Bulletin
Recent LUD's
1/09/2006--------- 485(both) -------- Reopened by BCIS
1/10/2006--------- 485(both) -------- No Message Change
1/16/2006--------- 485(prim) -------- No Message Change
------------------ 140 -------------- No Message Change
1/17/2006--------- 485(prim) -------- No Message Change
------------------ 140 -------------- No Message Change
3/18/2006--------- 485(both) -------- No Message Change
3/25/2006--------- 485(both) -------- No Message Change
------------------ 140 --------------- No Message Change
3/30/2006--------- MOTIC(both) ------ No Message Change
August 97, Entered US on H1
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
PD Current as per April 2006 Bulletin
Recent LUD's
1/09/2006--------- 485(both) -------- Reopened by BCIS
1/10/2006--------- 485(both) -------- No Message Change
1/16/2006--------- 485(prim) -------- No Message Change
------------------ 140 -------------- No Message Change
1/17/2006--------- 485(prim) -------- No Message Change
------------------ 140 -------------- No Message Change
3/18/2006--------- 485(both) -------- No Message Change
3/25/2006--------- 485(both) -------- No Message Change
------------------ 140 --------------- No Message Change
3/30/2006--------- MOTIC(both) ------ No Message Change
GreenCardVirus - Pls suggest?
I think you got a lot of exp with changing employer and also using AC21. What do u suggest who is also in the same boat as yours? My case is also pending for more than 180 at VSC and I am sure that by seeing my priority dates I will not able to get my actual card before 2-3 yrs (Unless Immigration reforms) passes. ?
Whats your say .. a valuable guidance would be really appreciated.
I think you got a lot of exp with changing employer and also using AC21. What do u suggest who is also in the same boat as yours? My case is also pending for more than 180 at VSC and I am sure that by seeing my priority dates I will not able to get my actual card before 2-3 yrs (Unless Immigration reforms) passes. ?
Whats your say .. a valuable guidance would be really appreciated.
GreenCardVirus
Registered Users (C)
checkmate said:
The rules for Labor Substitution might change very soon. They are planning to choke the concept of Labor Substitution using a 45 day rule. If this comes into effect, then your previous employer (if you use AC21) wont be able re-use the labor. So, the incentive to revoke I-140 will be minimal.
I'd say wait for couple of more months and see.
Changing Employer using AC 21
My I 485 is pending due to name check and I have no idea how long it will take before my application gets Approved so I got a very attractive offer and thinking of swicthing employer.
By reading you guys post looks like AC 21 is not a safe route but I did my research and read some USCIS documents and memorandoms.
I have just read the following on 2nd paragraph of page 3 of HQBCIS 70/6.2.8-P dated Aug 04, 2003. This can be found at http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf which states:
"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has ot established that the new offer of employment is in the same or similar occupation, the djudicating officer may immediately deny the Form I-485. If the alien does not respond or failsto timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny he Form I-485."
Accordong to this guideline it is very clear that we can change employer after our I 485 is pending for more than 180 days.
I do not understand why it is still very unsafe to do that???
Any comment?
Cheers,
IJ
My I 485 is pending due to name check and I have no idea how long it will take before my application gets Approved so I got a very attractive offer and thinking of swicthing employer.
By reading you guys post looks like AC 21 is not a safe route but I did my research and read some USCIS documents and memorandoms.
I have just read the following on 2nd paragraph of page 3 of HQBCIS 70/6.2.8-P dated Aug 04, 2003. This can be found at http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf which states:
"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has ot established that the new offer of employment is in the same or similar occupation, the djudicating officer may immediately deny the Form I-485. If the alien does not respond or failsto timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny he Form I-485."
Accordong to this guideline it is very clear that we can change employer after our I 485 is pending for more than 180 days.
I do not understand why it is still very unsafe to do that???
Any comment?
Cheers,
IJ
GreenCardVirus
Registered Users (C)
ijaffery said:
Problem comes when your former employer revokes 140 and reuses labor to someone else and that person is able to file and adjucate 485 becore you.
Law says 1 Labor can get only 1 GC. AC21 says you should get GC even after moving on. The other person to whom Labor was substituted will also get GC.
Does it mean one law is broken to follow other law?
Neither USCIS nor any lawyers are clear on this.
I-485 Denied
GreenCardVirus,
I've gone thru almost all your threads. My case is very similar to your case. I-140 was revoked by my company after I joined other company.
I moved to company 'B' after I-140 approved and 210 days of I-485 pending.
I've received I-140 revoked letter from USCIS and they provided I'm eligible under AC21. I've filed AC21 thru Attorney. Again, I've received I-485 Denial letter from USCIS and again filed 'MTR'.
Last week I've received MOTIC receipt. How long it will take to reopen (In receipt say 30-60 days) MTR? Any good chances to get thru? Do they take the decision right away?
I'm on EAD and expires in other couple of months. Can I apply for renewal?
Awaithing for your reply...
Thanks in Advance
GreenCardVirus,
I've gone thru almost all your threads. My case is very similar to your case. I-140 was revoked by my company after I joined other company.
I moved to company 'B' after I-140 approved and 210 days of I-485 pending.
I've received I-140 revoked letter from USCIS and they provided I'm eligible under AC21. I've filed AC21 thru Attorney. Again, I've received I-485 Denial letter from USCIS and again filed 'MTR'.
Last week I've received MOTIC receipt. How long it will take to reopen (In receipt say 30-60 days) MTR? Any good chances to get thru? Do they take the decision right away?
I'm on EAD and expires in other couple of months. Can I apply for renewal?
Awaithing for your reply...
Thanks in Advance