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attorney help-IL-Law suite-Harasing employer
- Thread starter approved_lab
- Start date
So, are we sayin that,
1) I-140 is revoked by employer
1a) Let's say - I-485 was applied and pening for 180 days - then - and his I-485 is valid based on AC-21 laws and the employee loses the PD ? That's no fun - losing PD?
1b) Let's say (as in this case) 485 was never applied...So the employee losed PD?
Are we saying that in both cases (1a) and (1b) employee loses Priority Date?
1) I-140 is revoked by employer
1a) Let's say - I-485 was applied and pening for 180 days - then - and his I-485 is valid based on AC-21 laws and the employee loses the PD ? That's no fun - losing PD?
1b) Let's say (as in this case) 485 was never applied...So the employee losed PD?
Are we saying that in both cases (1a) and (1b) employee loses Priority Date?
banta4gc said:So, are we sayin that,
1) I-140 is revoked by employer
1a) Let's say - I-485 was applied and pening for 180 days - then - and his I-485 is valid based on AC-21 laws and the employee loses the PD ? That's no fun - losing PD?
If AC-21 is applicable then I-140 stays active and there is no question of losing PD.
1b) Let's say (as in this case) 485 was never applied...So the employee losed PD?
PD is gone. If another person is substituted for that labor, that person gets that PD.
Are we saying that in both cases (1a) and (1b) employee loses Priority Date?
Could you please post how USCIS confirmed about this error? did they send you a letter or they reoponed your case?
thanks,
thanks,
Positive4GC said:My I-140 was revoked by prev employer and I filed MTR for my 485 denial. What is my priority date now? USCIS confirmed that they issued 485 denial in an error based on a revoked I-140. Please guide me.
desi3933, What about this scenario,
1c) Using Substitute Labor, one files I-140 and I-485 and it's been pending 6 months and employee ports using AC21 and employer revokes I-140 - then would I-485 be still valid with the original PD of the labor substituted?
1c) Using Substitute Labor, one files I-140 and I-485 and it's been pending 6 months and employee ports using AC21 and employer revokes I-140 - then would I-485 be still valid with the original PD of the labor substituted?
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unitednations said:According to the law; once 140 is revoked by employer or uscis then priority date is gone.
USCIS has gone out of their way to say approval of I-140 remains intact even if employer revokes 140 after person is eligible for portability.
I believe USCIS got it right on this one as AC21 law intends to protect an employee after 180 days.
What do you think will really happen if is USCIS says one looses PD after 140 revocation and this case goes to a court of law? Basically USCIS will be saying - AC21 is great but your ba**s are still in the hands of previous employer?? Is that the intension of AC21?
desi3933, What about this scenario,
1c) Using Substitute Labor, one files I-140 and I-485 and it's been pending 6 months and employee ports using AC21 and employer revokes I-140 - then would I-485 be still valid with the original PD of the labor substituted?
1d) Employee gets I-485 approved and leaves the company after 3 months and employer revokes I-140....then what happens......GC gets denied?
unlike, this guys case wherein, he had luckily used AC21 before he got GC,
http://www.murthy.com/news/n_apprea.html
1c) Using Substitute Labor, one files I-140 and I-485 and it's been pending 6 months and employee ports using AC21 and employer revokes I-140 - then would I-485 be still valid with the original PD of the labor substituted?
1d) Employee gets I-485 approved and leaves the company after 3 months and employer revokes I-140....then what happens......GC gets denied?
unlike, this guys case wherein, he had luckily used AC21 before he got GC,
http://www.murthy.com/news/n_apprea.html
Yes, PD is original PD of the labor substituted
After I-140 approved, PD belongs to the beneficiary (unless revoked). Since the option of AC-21 keeps I-140 active (even after employer has revoked it), PD does not change for I-485 application.
banta4gc said:desi3933, What about this scenario,
1c) Using Substitute Labor, one files I-140 and I-485 and it's been pending 6 months and employee ports using AC21 and employer revokes I-140 - then would I-485 be still valid with the original PD of the labor substituted?
After I-140 approved, PD belongs to the beneficiary (unless revoked). Since the option of AC-21 keeps I-140 active (even after employer has revoked it), PD does not change for I-485 application.
Why do you keep saying I-140 remains active? I never heard USCIS use that word...
U sound like a lawyer - firm in all your opinions - unlike most of us - who are just trying to opine on the Yates Memos...
ok, I agree with what you say...
let's say case (1b) and employee is safe - as you say -
and then what happens if the I-140 is revoked and the employer goes ahead and tries to reuse the labor - what stops him from reusing the labor and refuting the principle of one gc per labor?
U sound like a lawyer - firm in all your opinions - unlike most of us - who are just trying to opine on the Yates Memos...
ok, I agree with what you say...
let's say case (1b) and employee is safe - as you say -
and then what happens if the I-140 is revoked and the employer goes ahead and tries to reuse the labor - what stops him from reusing the labor and refuting the principle of one gc per labor?
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banta4gc said:desi3933, What about this scenario,
1c) Using Substitute Labor, one files I-140 and I-485 and it's been pending 6 months and employee ports using AC21 and employer revokes I-140 - then would I-485 be still valid with the original PD of the labor substituted?
1d)Employee gets I-485 approved and leaves the company after 3 months and employer revokes I-140....then what happens......GC gets denied?
Employer can not revoke I-140 after I-485 is approved. My understanding is that, only USCIS can revoke I-140 (after I-485 approval) if it was approved due to fraud. This will, most likely, result in GC being revoked. Just as UN has mentioned, USCIS can revoke GC upto 5 years after approval if it was approved in error, or anytime if I-485 was approved due to fraud. It does not matter if fraud was attributed due to employee or employer. In any case, the person was not eligible for immigration benefit.
unlike, this guys case wherein, he had luckily used AC21 before he got GC,
http://www.murthy.com/news/n_apprea.html
banta4gc said:Why do you keep saying I-140 remains active? I never heard USCIS use that word...
U sound like a lawyer - firm in all your opinions - unlike most of us - who are just trying to opine on the Yates Memos...
ok, I agree with what you say...
let's say case (1b) and employee is safe - as you say -
and then what happens if the I-140 is revoked and the employer goes ahead and tries to reuse the labor - what stops him from reusing the labor and refuting the principle of one gc per labor?
Since I-140 is still active*, LC/I-140 can not be substituted. If allowed (by mistake) for another I-140, it can potentially lead to problems at I-485 approval time.
---------------------------------
I am not a lawyer. I am just an IT person with Computer Science and Accounting background. It is little OT, I am starting a new job starting tomorrow that has IT title.
banta4gc said:......
Why do you keep saying I-140 remains active? I never heard USCIS use that word...
I am an IT person and anything that is boolean (that has true/false value) is either Active or Inactive (0 or 1 in other words). On the similar lines, an approved I-140 petition is either valid (or Active) or invalid.
U sound like a lawyer - firm in all your opinions - unlike most of us - who are just trying to opine on the Yates Memos...
I am not a lawyer. I did some law subjects when I was doing Accounting subjects along with my BS from IIT Kharagpur (India).
.....
"Firstland International Case" is a scenario of USCIS executing it's right to revoke I140 for an EB1 abuser and the company (out of pure luck) happened to stumble across a loophole "of USCIS only having authority to revoke I140 when outside US"
- USCIS promptly accepted the verdict and rewrote the laws to cover the loophole, so that nobody could ever use it again...It's one off thing for a lucky dude!
and that makes sense.....
but this case is out of context...and only highlights legal hardships that USCIS encounters in enforcing any laws...hence, it's happy to not push any laws but just exercise it's own right and discretion...
I agree that USCIS needs to pass the verdict of removing employer authority to revoke I-140 after 180 days - as AC21 would just result in multiple petitions per labor!
- USCIS promptly accepted the verdict and rewrote the laws to cover the loophole, so that nobody could ever use it again...It's one off thing for a lucky dude!
and that makes sense.....
but this case is out of context...and only highlights legal hardships that USCIS encounters in enforcing any laws...hence, it's happy to not push any laws but just exercise it's own right and discretion...
I agree that USCIS needs to pass the verdict of removing employer authority to revoke I-140 after 180 days - as AC21 would just result in multiple petitions per labor!
unitednations, let's simple look at the memo,
In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification
Please note the bold text, it says the new employer needs to file LC again, and also I140 of course. If this memo only for people eligible for Ac21, which means they have I485 pending for more than 180 days, which means they can keep they I485 in new employment, why do the new employer need to file new application for them???
In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification
Please note the bold text, it says the new employer needs to file LC again, and also I140 of course. If this memo only for people eligible for Ac21, which means they have I485 pending for more than 180 days, which means they can keep they I485 in new employment, why do the new employer need to file new application for them???
unitednations said:Common sense principles don't have much weight in wording of laws/rules. Laws/rules are designed to be gray/open ended because the people making the laws cannot anticipate every scenario when drafting laws.
Company can do anything they want. They can revoke/re-use even if person was eligible for ac21.
If uscis comes back and says I-140 remains valid for other person and you cannot use; then company decides to file lawsuit.
Lawsuit would say; Law says uscis has to revoke I-140 upon request of employer.
Labor certificate remains valid forever (no expiry date).
Employer can substitute at will.
Nothing in law says labor can't be reused before person gets greencard.
Government position:
Person has ported due to 485 being outstanding for more then 180 days. I-140 remains valid and cannot be revoked.
Employer:
Where in Law does it say 140 remains valid/intact
Government:
That is spirit of Ac21
Judge/Employer:
Why hasn't law been changed to say employer can't revoke I-140 after 485 has been pending for more then 180 days.
Government:
We are drafting regulations
Judge/Employer:
It is six years and you haven't done it.
Final Verdict:
USCIS has no support in their position.
Emploeyer wins lawsuit
Next step:
USCIS then changes law retroactively
Above is what happened in Firstland International Case regarding revocation of I-140's.
This is the original text of the USCIS memo, which you said only for people ellligible for ac21. You didn't look at the original memo?
Memo is supposed to make things clear, revocation by employer is much more common than fraud and misrepresentation. So if revocation by employer can void the PD, memo should have mentioned at least, not like it says unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation
Memo is supposed to make things clear, revocation by employer is much more common than fraud and misrepresentation. So if revocation by employer can void the PD, memo should have mentioned at least, not like it says unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation
unitednations said:What are you quoting? What is the source?