485 Pending/140 Revoked - Please Advice

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guest04

Registered Users (C)
I feel like I am in a hopeless situation. I want to get some feedback from members of this forum. I was laid-off before 180 days. My I-485 is pending for more than 2 years. My I-140 was revoked. The request to revoke was made before 180 days but INS took action well past that date.

What are the chances of my approval if I-140 was revoked? The key here is, the request to revoke was made well before 180 days, but was actually revoked by INS much later. Can I still be approved under AC21 or is it pretty much a hopeless case? Your feedback will be much appreciated.
 
Sorry to hear about your case, under a liberal interpretation of AC21 you should still be eligible for a GC. You need to talk to a good AC21 atty immediately. Only lawers who I know have a liberal interpretation are Shustermann, Murthy and Cyrus Mehta. Consult them immediately and see if they can help.

Unfortunately as long as the MTR is pending it will be hard to sustain a legal presence (since your 485 will be declined too). so check with your lawyer. The silver lining is once your 485 is back on track - your legal staus will be retroactive, so everything will work out fine.
 
you must contact Sheela Murthy or Cyrus Mehta (www.Cyrusmehta.com)or Rajiv Khanna


http://www.murthy.com/UDportme.html
from Murthy :First, although not addressed in the Memo, the BCIS has previously verbally stated at various conferences and meetings that the time of the revocation is measured when the BCIS acts on the employer's request, rather than the date of the employer's letter requesting the I-140 revocation. However, this Memo seems to imply that the date of the employer's request for a withdrawal or revocation of the I-140 petition may govern, not the later date, when the BCIS actually withdraws or revokes the I-140 petition.


Take the print out and Read the AC21 august Memo:
http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf
http://www.usavisanow.com/8-13-03-140-485.pdf
 
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However sympathetic I may be to your cause- but the law does say revocation requests within 180 days after filing 485 will be accepted.
I do not agree with the logic- the revocation will count from the date of revocation request adjucation by BCIS. If that be the case- no one will ever get revoked- as BCIS may(rather always will) take a long time to respond. Even though there are some refrences to that effect.
I had seen a while ago Sheela Murthy had successully fought a 140 revocation and got the GC approved.
I-485 Approval After I-140 Revocation

AC21 and I-140 Revocation : INS Inconsistent on I-485s

Good Luck
 
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You ofcourse need to take care of your status. What is it? Can you get back to H1. Did they give you an option of filing appeal. Filing appeal re-insateates your status?
Make sure you get a good lawyer. What does your current lawyer say?

I do think there is hope.

Best of Luck.
 
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Thanks to everyone for your feedback and encouraging words.

I completed 6 years of my H1. I did not receive the denial yet. I-485 is still pending.

I did hire one of the top lawyers mentioned in this thread. The lawyer did not sound as resoundingly optimistic as they did when I first approached them with my case. There was caution in the tone and asked me have a back-up plan. I guess the August Memo made the difference.

I am not sure what backup plan I can have at this time. The lawyer suggested that I file LC again since I cannot go back to H1. And hopefully, if PERM law passes my labor can be approved quickly. Then can file I-140/I-485 concurrently.

So far, in this forum, I haven’t come across a case where I-140 was revoked but I-485 was still approved. Whereas, I have seen plenty (at least a few) of I-485 denials because I-140 was revoked.

What would be encouraging is to see at least one case where I-485 was approved even though I-140 was revoked.

Members, please do update this thread if you come across any new information.
 
7th year H1 option may be open. Get a job with sub labor- you may be able to apply 140/485 immtly and quickly get a new EAD.
Do you have the appeal option?
 
The notice should state it- if you can appeal/time etc. Generally there is always an appeal option for everything- that buys you time. Ask lawyer- even without appeal option- maybe you can appeal- that buys you time.
However- your 485 I assume has not yet been denied. Ask your lawyer- how/when does that happen. That has impact on your status.
HTH
 
Originally posted by sb_tiger
7th year H1 option may be open. Get a job with sub labor- you may be able to apply 140/485 immtly and quickly get a new EAD.
-----I could be wrong but I don't think he has to file 485 again with substitute labor. he can just file I-140 under the service center where the place of work mentioned in the sub LC and once he receives the I-140 filing receipt, he can replace the revoked immigration petition there in his I485 file with new pending I-140, this way he may not loose the 2 years processing time on his I-485. Again your case needs suggestions from more than one good lawyer. Getting birth certificates and having medical done again is pain in the neck, try to save your I-485. They may return original birth certificates if they decide to deny 485

Do you have the appeal option?
Click to expand...
---guest04 has already mentioned saying , his 485 is still pending, the one revoked was I-140. He may receive Intention to deny 485 letter from INS, in that case he will be continued on AOS status until the final deniel of 485 occures.
 
Originally posted by sb_tiger
7th year H1 option may be open. Get a job with sub labor- you may be able to apply 140/485 immtly and quickly get a new EAD.

Do you have the appeal option?
Click to expand...
---guest04 has already mentioned saying , his 485 is still pending, the one revoked was I-140. He may receive Intention to deny 485 letter from INS, in that case he will be continued on AOS status until the final deniel of 485 occures.

-----I could be wrong but I don't think he has to file 485 again with substitute labor. he can just file I-140 under the service center where the place of work mentioned in the sub LC and once he receives the I-140 filing receipt, he can replace the revoked immigration petition there in his I485 file with new pending I-140, this way he may not loose the 2 years processing time on his I-485. Again your case needs suggestions from more than one good lawyer. Getting birth certificates and having medical done again is pain in the neck, try to save your I-485. They may return original birth certificates if they decide to deny 485
 
KrishnaMK:
Like I had said I don't how or when 485 gets denied. It would very certainly get denied.
I am not sure how you reconnect a new 140 with old 485. It may be possible- I am not aware of that process.
Original Birth Certificate: No originals are ever required to be submitted to BCIS. BCIS does not return back any documents.

guest04,
If 140 gets denied- the 485 will get denied- there is no around on that. Unless a lawyer comes up with a way to stop the revocation. So a good lawyer is your way to go.
Good Luck
 
To clear up some confusion, if any, here is the sequence of events in my case:

1) My I-140 was approved in 2000.
2) I applied for I-485 in 2001 when my PD became current.
3) I was laid-off a month later.
4) I received all the receipts for AOS, EAD, AP, etc.
5) Since then, I-485 has been in pending status.
6) Six months later found out that the company attorney had requested revocation of I-140, even though the company HR representative told me that they would not do so.
7) I received my EAD, and also getting renewals so far.
8) I received my first AP. I applied for another AP after the first had expired, and got an RFE.
 
The issue is when did the company request the 140 revocation. Was it within 180 days of 485 application or not.

Your 485 is still pending and may be in the process of getting denied. You are in status till 485 is not denied.
You will get APs/EADs etc till 485 is not denied. What was the RFE on AP?

HTH
 
Yes, as far as I know the request to withdraw 140 petition was made before 180 days, but action by INS was taken after 180 days.

The RFE says "there is no evidence there is a qualified underlying I-140 to warrant a valid I-485... the burden proof lies on you... please provide a copy of the approval notice for an approved I-140 or you may provide the SRC number".

I have not responded to the RFE yet, and it is the reason that I am now concerned about the 485 approval.
 
How do you know if 140 was revoked- did you receive a revocation notice. Do you have the app#. If so go check it on the website. Are you in touch with the attorney that may have filed the revocation request.
 
Originally posted by sb_tiger
How do you know if 140 was revoked- did you receive a revocation notice.
Click to expand...
INS sent a notice, a copy of which was forwarded to me by my previous employer HR. However, the online status as well as the VM message say this case has been approved, etc.
 
Originally posted by sb_tiger
Date on the notice, reasons for revocation, appeal option???????
Click to expand...
Remember, 140 belongs to the employer, not the beneficiary. The notice simply says "it has come to our attention that you wish to withraw the petition filed on befhalf of... therefore, the approval of your petition is automatically revoked in accordance with..."

The beneficiary cannot appeal the revocation of 140, whereas one can appeal the denial of 485 because it belongs to the beneficiary.

BTW, the date on the notice is 04/02.
I-485 RD 05/01, ND 08/01, FP 04/03.
 
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I guess INS don't update revokation status online, you and me are examples for it. My I-140 was revoked after it was approved by my previous employer in 2001, it still says "Approved" online

You better go to Lawyer Murthy, you may not need to hire , if you want you can just by 1 hour time. There is 3 months difference between your I-485 RD and ND. 180 days should be counted from the day the INS receive your I-485( 05/01), we should not get punsihed for mail room delays. Why don't you call INS and ask about your I-485 staus. In my case when I called INS, they even told me when my I-14o was revoked, some officers will refuse to tell you about I-140 since it is employer petition but don't worry hang the phone and call again , some else will tell you.

One more important thing we should notice is year 2001/2002. In those years INS officers didn't follow 180 days rule until Sheela Murthy took that issue to washington DC. It's there in murthy.com.

Sorry to here that your I-140 was revoked.

Good luck
Krishna


Originally posted by guest04
Remember, 140 belongs to the employer, not the beneficiary. The notice simply says "it has come to our attention that you wish to withraw the petition filed on befhalf of... therefore, the approval of your petition is automatically revoked in accordance with..."

The beneficiary cannot appeal the revocation of 140, whereas one can appeal the denial of 485 because it belongs to the beneficiary.

BTW, the date on the notice is 04/02.
I-485 RD 05/01, ND 08/01, FP 04/03.
Click to expand...
 
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