Carl Shusterman chat for 180 days law

This was hosted more than a year back in Jan 2002. While all other answers are pretty good and known, I am still confused on the Q of taking a lesser salary using AC-21 after 180 days.
Please refer to my earlier post ...which has the latest INS guidelines advicing the wages to be same as that mentioned in the Labor certification. I have'nt got an answer from any attorney on this latest guidelines untill now.
 
You are correct that in AILA meeting with BCIS H.Q the BCIS officers said that new Employer should pay the salary mentioned on LC that was posted by Sheela Murthy in her bulletin few months back but the June 21 AC21 guidance MEMO has stated that it should be above poverty lines. Some confusion still prevails on this topic due to lack up final regulations from BCIS on AC21.

NSC and CSC also denied few cases of I-485 where I-1485 was pending more than 180 days and employer revoked I-140 after 180 days
 
Is the "common believe" still that it is safe to leave the old employer after 180 days following the filing as long as you are sure that the old employer will not revoke the I-140? Or is there a substantial risk that the BCIS would deny the I-485 if you leave the old employer before the I-140 is approved?
 
one question though. what about the cases where there was a labor substitution for i-140. how can one figure out the salary?
 
yes ...check the LCA which was used for your 140. Lawyer should give you a cpoy of approved LCA .and that will have your DOL jobnumber and salary and place for which it was approved .
 
ghost-rider, thank you for the reply. when i asked my company's lawyer for a copy of the approved lca. i was told that a copy of the approved labor certification _cannot_ be given to the employee who is the substitute beneficiary because it is priviledged information and might constitute a breach of attorney/client confidentiality.

given this, is there any way, i can figure out the information about salary and job code.

thanks
 
Krishnakt: You can check with your employer for approved LC, note down the skills from ETA 750A, ETA750 B was signed by you.
Check the column 13 on ETA750 A

Regarding to the recent trend BCIS has denied few I-485 cases, 3 cases in CSC, 2 cases in NSC and 1 case in TSC, all the cases crossed 180 after filing I-485, in 2 cases I-140 was revoked after 180 days and in one case I-140 was revoked after 100 days of filing I-485 but I-485 was pending more than 180 days.
YE-MAN-Chan started a thread long back “ a trick to file I-485 with out employer letter” many filed after reading that thread with out employer letter, got I-485 receipts, EAD, AP, but when it will come to extension of AP or EAD many will have problems and I-485 may be denied if previous employer had revoked I-140 they may also face allegation of immigration fraud. Because they did not have INTENT to return to the past employer whose I-140 they used, BCIS may ask the past employer if they wanted to hire that person when he/she filed I-485.
If you read the complete AC21 and June AC21 guidelines or MEMO from INS, it only says that I-485 should be pending more than 180 days and job should be similar and it was NOT required to pay the wages according to old LC, but recently BCIS changed stand and said in AILA conference that Employer should pay wages according to LC. INS AC21 JUNE MEMO has mentioned nothing about I-140.
Recently Sheela murthy asked NSC abut I-485 pending and I-140 revoked, they replied that they can not answer this question only BCIS national H.Q can answer the question (read recent Murthy Bulletin)
Many lawyers are confused because they don’t have final regulations published, the opinions were based on INS June Memo but BCIS is changing the stand, they said in AILA meetings that revocation of I-140 will have no effect but we notice different trend from service centers recently. Things cannot be clear till the final regulations are published or some good lawyers challenge the BCIS interpretition of AC21 portability law or a law suit against BCIS. Wait ant watch!!

If possible try to maintain H1 status till the time I-485 is not approved/denied. H1 can be saftey net
 
Hello I personally know three people whose 485 were denied at VSC. Out of three in two cases, I -140 revocation letters was sent before 180 days (around 170 days) but opened by INS after 200 days.

These are very recent cases. These things depend upon Officer. The attorney of these cases happens to ' the most famous'
 
tammy2:

My guess about “the most famous attorney” is Sheela Murthy or Rajiv S Khanna or Carl Shusterman, Please let us know who is the lawyer because many can check the status with the particular lawyer about the pending AC21- I-485cases and can take the timely precautions, may start new LC or may try to convert from EAD to H1B status ( because it is possible) . If you don’t want to name him/her just post if he/she is from MD, CA, VA and many will have good guess and they can contact the particular attorney
 
tammy:

Maybe there maybe other circumstances in these denied cases. How long did they stay with the sponsor company. Did that company send a negative letter to ins. how did they cancel 140. If I am not wrong, they have to either say that they dont have enough funds or the employee is not really qualified. job no longer there can be interpreted as the reason the employee is changing to the new company using.

i wonder under what circumstances the move may be justified (how will they prove that the new company has the same job even though the salary may be reduced due to the downturn)

This AC21 is a move in the right direction but still far from a law.
 
AC21

Please mention if the cases denied already had approved I140 or were they pending?
 
Krishna02


There was nothing like what you said. Labor was approved for them. I-140 was approved for them. Almost 5 months after filing 485 they were laid off. Company sent letter stating They are no more employed with us (After six months). (They filed in last year March. revokation letter was sent in November).
That’s it. INS transfered their cases to local office and was denied in first week of December. Company is 4th largest company in their business in whole world.

It looks wired but what can anybody do. I heard they have appealed.

Let us hope these people get through.
 
Last edited by a moderator:
tammy2

We know that there are a lot of flaws at the BCIS but one thing is for sure. If they have reliable info to deny a case, they'll go out of their way to do it.

The basis for which AOS is pending must continue to exist. Therefore, it is plausible that in case one loses a job/job offer, the AOS will be DENIED. As long as the person has a similar job currently, he/she will win the appeal/case although in this tedious process we sure are making the attorneys rich.
 
You are right X-Com. INS went out of their way.
All of them had similar Jobs with similar (between 10% to 12%) of Salary. It is really weird but real.
 
New job salary must be => LC salary?

Trying to understand this rule (especially since like an earlier poster, my company's policy is to NOT release I-140 related info)... What was the rationale that BCIS used for this?

What if you were working in someplace like California, got laid off and found a job in a state like Indiana or Ohio, where the prevailing salary for a similar job description is probably lower. As far as I know, there is still no geographical restriction on the new job, right? With the economic downturn, it's also harder to get the same or higher salary. What's with this new ruling?

For finding out I-140 related info from BCIS, a lawyer has told me that you could use the FOIA (Freedom of Information Act) to ask for copies of your immigration papers (it's form G-639). The lawyer told me that FOIA stuff with the BCIS typically takes 30 days. Anyone tried to get their records this way before?
 
tammy2 and xcom

It is not clear what you mean. Did they get an interview at the local office ? What were the wordings of the RFE ? Does it say that we got a letter of cancellation of your 140 and hence can you provide these evidences ? If not, its just a question of appeal. 180 days of I-485 can be easily proved.

I am very curious since they give gc to illegal cases and then when we are going thru this legal process to the word, they penalize us.

Something definitely is fishy. Did the employer get offended/angry etc ?
 
Also please provide additional info on these denials

like EB ?, how many years in the US and how many working for the employer ? Any other that may affect the psychology of the officer like did they apply for some basic qualifications like the usual java or did they have a special skill ?

It is possible that if the officer doesnt think the skill to be anything special and you have a case like these, he may reject. (from a psychology point of view)

Thanks
 
Hi All,

How do we know that I-140 has not been been revoked by the company? Because of lack of job or non-marketabilty of the skill the person could be laid off by the company( no fault of the candidate).Do we have to wait untill 485 processing of your case has started to know that your 140 has been revoked/withdrawn?Employer may not tell the employee that 140 has been withdrawn or has not been withdrawn.

Is'nt this against the spirit of AC21 (ending employer harsassment/discrimination of employee)?
 
AC21 & portability

Originally posted by divenow
Trying to understand this rule (especially since like an earlier poster, my company's policy is to NOT release I-140 related info)... What was the rationale that BCIS used for this?

What if you were working in someplace like California, got laid off and found a job in a state like Indiana or Ohio, where the prevailing salary for a similar job description is probably lower. As far as I know, there is still no geographical restriction on the new job, right? With the economic downturn, it's also harder to get the same or higher salary. What's with this new ruling?

For finding out I-140 related info from BCIS, a lawyer has told me that you could use the FOIA (Freedom of Information Act) to ask for copies of your immigration papers (it's form G-639). The lawyer told me that FOIA stuff with the BCIS typically takes 30 days. Anyone tried to get their records this way before?
Click to expand...

DiveNow:
Did you have any luck finding more information about FOIA & its success rate? Anyone else used FOIA before?

Also, what if original job required MS (& therefore EB2), but new job requires BS+experience (even though job profiles are similar), would that cause problems for applying portability? Does anyone have similar experience?

Lastly does H1B transfer before 180 days since application of 485 cause problem?

Thanks!
 
You must log in or register to reply here.
Top