AC-21 case - I-140 Denied along with I-485

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IL_LABOR

Registered Users (C)
I switched employer after more than 365 days of filing I-485 and 9 months of I-140 approval. My previous employer withdrew the I-140 . My laywer filed for my AC-21 papers and informed USCIS .

Today he got 2 descisions:

1) I-140 revoked.
2) I-485 also cancelled since I-140 was cancelled.

Looks like AC-21 has no meaning for Nebraska Service Centre.

il_labor
 
Appeal

I suggest you discuss with your lawyer on appealing the decision since you met all the AC-21 requirements. I am assuming that the job description for current and previous job is the same.

HTH
 
Sorry to hear the news. Don't worry. You are going to get approved. Looks like your case went to the wrong officer. Who cancelled your I-1485? I don't think employer can cancel your I-485. Go for Motion to reopen. It is really hard to deal with such inexperienced officers.

naanshi.
 
I am very sorry to hear your situation.

I am very sorry to hear your situation.

I am wondering why you haven't received the I-485 NOID letter from USCIS.

Check with USCIS regarding this.. because August 4th 2003 Yates memo clearly states that USCIS sends a NOID letter on I-485 for continue processing the case if I-140 revoked by the petitioner after the approval.

I hope you sent them the employment verification letter with same job duties and similar category.

I strongly suggest to APPEAL and bring it to the attention of the Local congress men about this matter.
 
Yes, the new job description is 98% same. The salary is 15% higher than Green Card LC salary.

il_labor
 
Don't confuse with Salary or Job Description. That is not the reason for denial.

naanshi.
 
I guess there must some mis understanding about the case.

Have you verified and closely observed your I-485 LUD changes and online status messages. I guess there must be something happend on your case. I suggest you see the I-485 denial letter from USCIS and see the grounds of denial.

If your I-140 approved and I-485 pending more than 180 days and you have a similar job and you notified USCIS (AC21) they can't say they are denying your I-485 based on 'there is no underlying I-140 available/reevoked' according to the Aug 4h memo.

If you feel like you have strong case and it is surely a mistake from them..
I suggest SUE USCIS ... because you can't work now and they are the ones causing this...
 
DECISION ON I-140​

In accordance with the authoriyu contained in Title 8 , Code of Federal Regulations, Section 205.1(a)(3)(iii)(3), the approval of the petition is automatically revoked as of the date of approval because of your written request to withdraw the petition.


DECISION ON I-485 ​

Statue and regulation restrict the eligibility of certain aliens to apply for adjustment of status. See sections 245(a) and (c) of the act.

The Immigration and Nationality Act, section 245(a) states in pertinent part:

The status of an alien who was inspected , admitted or parolled into U.S .. may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien admitted to lawful permanent residence if (1) the alien makes and application for such adjustemnt, (2) the alien is eligible to receive an immigrant visa and is admissible.. and (3) an immigrant visa is immediately available...


Title 8 Code of Federal Regulations, Part 245.1(c) states in pertinent part:

Ineligible Aliens
... (4) Any alien who claims... preference of status under section 203(b) of the Act, unless the applicatnt is the beneficiary of a valid unexpired visa petition filed in accordance with Part 204 of this chapter.


Service records indicate that the Petition for an Immigrant Worker ( Form I-140 ) which was filed in your behalf cuncurrentky with your Form I-485 , has been denied. Therefore you are ineligible to adjust your status, as you are not the beneficiary of a valid unexpired visa petition. Accordingly, your application to Adjust Status ( Form I-485 ) is denied.



I never used my EAD as I am still single and I have to get my spouse to this country , so I have a new vaild H1 with my new employer.

il_labor
 
IL_LABOR said:
I switched employer after more than 365 days of filing I-485 and 9 months of I-140 approval. My previous employer withdrew the I-140 . My laywer filed for my AC-21 papers and informed USCIS .

Today he got 2 descisions:

1) I-140 revoked.
2) I-485 also cancelled since I-140 was cancelled.

Looks like AC-21 has no meaning for Nebraska Service Centre.

il_labor
Click to expand...

Here is what I found at http://www.murthy.com/news/n_140rev.html :
"I-140 Revocation Impermissible if Beneficiary is in U.S.
Posted Aug 27, 2004
©MurthyDotCom
An August 2, 2004, the Court of U.S. Appeals, Second Circuit, in the case of Firstland International, Inc. v. Ashcroft, found that the Immigration and Nationality Act does not permit the USCIS to revoke an approved I-140 petition if the beneficiary has entered the United States. This means that, if an I-140 petition is approved and the beneficiary is in the U.S. or comes to the U.S. before the USCIS gives notice that it intends to revoke the I-140 petition, the revocation will not be effective. This addresses only USCIS initiated actions to revoke I-140s such as when an I-140 petition is approved and, at some later stage, the USCIS reviews it and comes to the conclusion that the prior approval was in error. In that event, they would issue a Notice of Intent to Revoke, with a very short response time.
©MurthyDotCom
This should not be confused with situations in which the employer chooses to revoke the offer of employment and the I-140 petition. The decision in no way limits the power of the employer to take this action.
©MurthyDotCom
This is a well-conceived opinion by the Second Circuit Court of Appeals. The Second Circuit has jurisdiction only over the states of Connecticut, New York, and Vermont, however. This means that other circuits do not have to follow the decision of this case. When a federal circuit court of appeals issues such a decision, it nevertheless can positively impact decisions of other federal courts on a same or similar issue."
Hope it may help!
 
Yes.. You should quote the following ruling from the Court of U.S. Appeals, Second Circuit.

They can't just DENY your I-140 just because your prev. Employer revoked it .Its still valid after the approval and USCIS can't change the decision they already made.

You have a point ... fight this... you sure will win

Contact a good attorney and bring it to upto USCIS on this.
 
il_labor:

I think it happened because of your attorney's mistake. When USCIS asked for the original G-28 they were processing your I-140 denial request. And when your lawyer (mistakenly) provided them with the form, they took it as an indication you did not want your case processed.

I guess you need to find out the reason for denial first. Talk to someone in USCIS (National Service Center) and see what they say.

Keep us informed.
 
> I never used my EAD as I am still single and I have to get
> my spouse to this country , so I have a new vaild H1 with
> my new employer.

Hope you realize that as soon as your 485 gets approved, your H1 is cancelled and your wife will be subject to the long wait.

Don't assume motion to reopen will take long to process - for some people, it has been quick.

~T
 
talkative said:
> I never used my EAD as I am still single and I have to get
> my spouse to this country , so I have a new vaild H1 with
> my new employer.

Hope you realize that as soon as your 485 gets approved, your H1 is cancelled
----- Not correct if I-485 is denied and he has valid H1 then that H1 is valid , if that H1 is 7th year H1 then also it is valid but he may not be able to extend it based on pending I-485 for 8th year, once I-485 is denied then EAD AP also got invalidated, no affect on H1, both are difreent petitions
and your wife will be subject to the long wait.
---- if he is on H1 status still he can bring his wife to US on H4
Don't assume motion to reopen will take long to process - for some people, it has been quick.


~T
Click to expand...
 
Motion to Reconsider and letter to senator / congressmen

My case was filed from nebraska Service Centre. I am with my new employer which is based in Vermont Service Centre in Virginia.

Can someone please tell me do I need to conact a senator / congressman from Nebraska or vermont or virgina.

How do I find their contact information?

Thanks
il_labor
 
go to www.congress.org

click on state in the quick links.

Select your state and select the senator or congressman.

And also when you write to them, keep a copy of August 04, 2003 memo and explain them very clearly that you are fully eligible for using AC21 and this denial is not proper.

I am sure, you are going to get approved, but it may take little time and little effort.


All the best.

naanshi.
 
I do not think it is going to create problem you will get approval. Apply for FOIA so that you will get what both attorneys have done. Your case is similar to LongGC case. If you search you will get the details. His case/advice might help you.
Appeal ASAP.
Congressman/Senator may not be helpful at this point because this is an administrative error. You need service of good attorney
 
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