Approved LC / I-140/485 substitution

P

prathilog

New Member
1. Employer is saying that he would substitute a suitable labor
of a former employee for whom the I-140 was approved and the 485 is in progress and the employee has left the company in AC 21. The employer says that he will cancel the I-140 and I-485 of the former employee and
apply for a new I-140 and I-485 for myself.

Is it possible?

2. If I use such a substitution labor after canceling the previous beneficiary
alien's I-140 and I-485 application, will my case get approved or will there be
any other complications?

3. What is your advice for the above said situation?

Thanks for all your help and will greatly help me in looking into other options.
 
prathilog said:
1. Employer is saying that he would substitute a suitable labor
of a former employee for whom the I-140 was approved and the 485 is in progress and the employee has left the company in AC 21. The employer says that he will cancel the I-140 and I-485 of the former employee and
apply for a new I-140 and I-485 for myself.

Is it possible?
Click to expand...

If he/she left company with AC21(I485 pending > 180days), I think he/she should be protected from revocation of I140. He/she can go on with I485 process and get I485 approved, then your LC becomes just a piece of paper.
If he/she left company before 180days pending(which is not AC21 eligible), then what your company said is possible.

Be careful.
 
I am also curious... what happened?
There is no real consensus among various posters but I understand that the employer can revoke I140 *any time* even after 180 days of filing I485 (of course before I485 is approved for the original employee). When I140 is revoked this way, the employee who left the company on AC21 can still get I485 adjudicated. At the same time, the employer can file for new I140 and I485 based on the approved labor for the new employee. Both are possible and legal.

What is not clear is - priority dates for the original employee and the new employee. There is an argument that the employee who moved on AC21 will lose the PD if I140 is revoked. There is also an argument that USCIS is incorrectly giving PD based on the original labor filing for the new (or substituted) employee instead of going by the I140 filing date.

I would request any one to correct my understnading on how it works by quoting relevant regulations/memos.

Thanks!
 
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