Company will revoke 140 if job changed?? Please Advise

S

sachinsoni

Registered Users (C)
Ginnu, United Nations....other gurus, Please help.

I am currently working with company A and I have approved 140 and 485 is pending for more than 6 months. I am still working on my H1 and my 6 years of H1 expires in Oct 2006. I want to take up a full time offer with a company B but when I mentioned to my company about this, they said that they will send a notice to USCIS for revoking 140. I am not sure if this can be done and if it can be done, what are the consequences. SO, here are my questions:

1. Can a company actually do this? since I will file AC21 to change job.
2. If they do this, whaat effect does that have on my GC processing.
3. Is it advisable to change company if such a situation? I would like to be with my company but with the current retrogression scenario ( I am EB3 from India), who knows how long the GC process will take.

Please help me in answering these questions.

Sachin
 
1. I am pretty sure that a company cannot withdra an already approved application such as the I-140. Until it's approved they can withdraw it, but not after it's approved. Let's see what others in this forum have to say.
2. N/A since they should not be able to withdraw it.
3. You have the legal right use use AC21 if the I-485 has been pending for more than 180 days. Neither the USCIS nor your current company can stop you. Just ensure that you follow the AC21 regulations and submit necessary documentation to the USCIS.
 
The company can definitely revoke an approved I-140. But if they withdraw it after you've already had an I-485 pending for more than 180 days, the I-485 application will still be active.
 
Please read the following analysis by Attorney Oh on www.immigration-law.com

Q93: I am offered an employment by another employer who promises to support my green card proceeding using the labor certification substitution. The job is located in a small town in the Midwest and it is not a good place to live and raise my children. However, since I will be able to change employment after 180 days of filing of I-485 application, I intend to accept the job and move the town. Do you think I will be able to change the employment after 180 days of filing I-485 for a job site in San Francisco? I am a Software Engineer and the substitution labor certification is EB-2. I am not an Indian nor a Chinese and there is no visa number problem at this time.

A: You have brought up an important point which everyone should keep in mind. It is true that you are allowed to change employment after 180 days of filing of I-485 under AC 21 I-140 portability provision. Once you pass 180 days, any attempt by your employer to revoke your I-140 petition will have no affect on your pending I-485 application. There is one big "caveat," though. Even though the employer withdrawal and revocation of your I-140 petition will not affect your green card process, the employer can request the USCIS to revoke the petition for certain good causes. Typical ground for revocation is "fraud." There is a concept in the immigration law, "preconceived intent," which constitutes a misrepresentation or in worst case a fraud. When you take the job with the "preconceived intent" not to work for the employer for a period of indefinite duration once your green card is approved, the USCIS can revoke your approved I-140 petition even after 180 days of I-485 filing. Such revocation will kill your pending I-485 as it is not covered by the AC-21 portability provision. One can form such intent to change employment after filing I-140 petition and after passing 180 days. However, should the USCIS obtain a material evidence that before 180 days, you had formed an intent not to work for the petitioning employer, the employer can argue and establish your "preconceived intent" not to work for the employer and request the USCIS to revoke your I-140 petition. In your case, you even formed your intent not to work for the employer for a period of indefinite duration and to work only until you reach 180 days before you join the company. It is a classical case of preconceived intent and a fraud. Such fraudulent activity can haunt even after you obtain the green card once the USCIS establishes it by a material evidence. Sometimes, an angry employer can go all the way to collect such evidence to destroy your green card opportunity. People should never form such "preconcceived intent during the employment with the original green card sponsoring employer, at least not until one is eligible for portability under AC 21. When one does not invoke AC 21 and not change employment, this issue will remain with the current employer even after 180 days of I-485 filing if the employer establishes by a material evidence that you had such a preconceived intent. Good faith is good faith, and fraud is fraud.
Click to expand...

I think immigration law should be called spaghetti law. Once you get into it you can't get out. I think it is easier to satisfy Miss World than USCIS. We will end up spending the best and most productive years of our lives in this spaghetti mess.
 
Last edited by a moderator:
I know this is probably a concept that some people find it hard to understand, but I think people should have at least some good faith and morals. If your employer goes through all the trouble to get you your green card, you really should not try to leave them immediately or even before you get your greencard. This is called fair trade and it will bring you good karma.

In my opinion, AC21 should be used as a way to protect yourself. For example, if you are laid off due to changes in the company financials, your company will unlikely revoke your I140 because they probably would feel sorry to have to let you go. That way, you will be able to get a new job legitimately with AC21. AC21 should not be used as a means to for an applicant to take advantage of situation.

Imagine that you get married recently and decided to include your newly-wed spouse on your GC application. Imagine that your spouse files for divorce immediately after or even before they get their greencard, wouldn't you get upset and feel betrayed?

The employer - employee relationship is pretty much the same in nature. I am not an employer and am not saying that no employer out there will not try to take advantage of foreign workers. However, By reading the messages on this forum, I think some of us have lost our basic morals and values as civilized human beings.
 
Green card is not just a sacrifice on the employer's side; it's often also a sacrifice on the employee who misses out on raises and promotions while waiting out the process. An employee who is treated unfairly should feel no guilt whatsoever in leaving at any time after the 180 days of I-485.
 
You sound like an employer. I think you don't know about the blood sucking Desi employers. They make you pay all the fees for H-1, GC and they also make money by quoting more fees. They do not pay you when you are on bench. Most componies under these category do not have any marketing team to place their employees. They lure people by just promising GC. I can go on and on. So, guys who are working under this condition do not feel any gulty about leaving them as soon as you can.

waitingdood said:
I know this is probably a concept that some people find it hard to understand, but I think people should have at least some good faith and morals. If your employer goes through all the trouble to get you your green card, you really should not try to leave them immediately or even before you get your greencard. This is called fair trade and it will bring you good karma.

In my opinion, AC21 should be used as a way to protect yourself. For example, if you are laid off due to changes in the company financials, your company will unlikely revoke your I140 because they probably would feel sorry to have to let you go. That way, you will be able to get a new job legitimately with AC21. AC21 should not be used as a means to for an applicant to take advantage of situation.

Imagine that you get married recently and decided to include your newly-wed spouse on your GC application. Imagine that your spouse files for divorce immediately after or even before they get their greencard, wouldn't you get upset and feel betrayed?

The employer - employee relationship is pretty much the same in nature. I am not an employer and am not saying that no employer out there will not try to take advantage of foreign workers. However, By reading the messages on this forum, I think some of us have lost our basic morals and values as civilized human beings.
Click to expand...
 
GC_DJ said:
You sound like an employer. I think you don't know about the blood sucking Desi employers. They make you pay all the fees for H-1, GC and they also make money by quoting more fees. They do not pay you when you are on bench. Most componies under these category do not have any marketing team to place their employees. They lure people by just promising GC. I can go on and on. So, guys who are working under this condition do not feel any gulty about leaving them as soon as you can.
Click to expand...

I actually agree with waitingdood.

If I were told to pay for H1, I would immediately leave before starting GC with that employer.
One can notice these issues way before starting GC , and why dont' they leave the employer immediately. I'll tell you it's because these employees are also trying to take advantage of employer as GC vehicle and just waiting for 180days I485 pending. Most likely these people does not even have intent to work for that employer after GC approval. To me, these type of employees and blood sucking employers are equally out of moral.
 
Last edited by a moderator:
Thanks for your comments.
waitingdood, I can understand where you are coming from.. but I filed my 140/485 in Aug 2004. I got 140 approved in May 2005, so I am not leaving or planning to leave my employer because I have used my employer, that would be a true statement if I were to leave in 6 months.. however, for me its nearly 1.5 years.. so I don't feel what you are saying is true atleast in my case. And, everything, including the GC, is a give and take relation, the compnay made a lot of money off me and now it is time for me to get my piece of the pie.
 
GotPR? said:
I actually agree with waitingdood.

If I were told to pay for H1, I would immediately leave before starting GC with that employer.
One can notice these issues way before starting GC, and why dont' they leave the employer immediately.
Click to expand...
Often those issues don't start until after the GC process has started. Once you're in the process they know it will be difficult to leave, so they start to suck you dry. Leaving immediately upon mistreatment would mean starting from scratch with a new employer.

If the employer has not promised (in writing) to keep you employed until X years after you get the green card, why should you promise to stay with them for so long?
 
I agree with you man. It a give and take relationship and not one way street. The law makers gave us AC21 so that we can have a choice and not get stuck with an employer. I will not feel any guilt to use it.

sachinsoni said:
Thanks for your comments.
waitingdood, I can understand where you are coming from.. but I filed my 140/485 in Aug 2004. I got 140 approved in May 2005, so I am not leaving or planning to leave my employer because I have used my employer, that would be a true statement if I were to leave in 6 months.. however, for me its nearly 1.5 years.. so I don't feel what you are saying is true atleast in my case. And, everything, including the GC, is a give and take relation, the compnay made a lot of money off me and now it is time for me to get my piece of the pie.
Click to expand...
 
If companies don't want people leaving so soon after the AC21/180-day portability legally allows them to leave, why don't they just pay and treat their people better? Some people will leave anyway for different reasons, but if there is a pattern of most leaving for another job as soon as they pass the 180 days, it clearly shows the employer isn't treating and paying people like they should. Finding a new job and adjusting into it is stressful and time-consuming; people aren't going to rush to run away if you're treating and paying them as well as the other employers.
 
Jackolantern said:
If companies don't want people leaving so soon after the AC21/180-day portability legally allows them to leave, why don't they just pay and treat their people better? Some people will leave anyway for different reasons, but if there is a pattern of most leaving for another job as soon as they pass the 180 days, it clearly shows the employer isn't treating and paying people like they should. Finding a new job and adjusting into it is stressful and time-consuming; people aren't going to rush to run away if you're treating and paying them as well as the other employers.
Click to expand...


The point here is that your unhappiness did not just happen over night right around when you pass your 180 day mark. If you aren't happy now, the chances you weren't happy in the first place. So, why did you stay??
 
waitingdood said:
The point here is that your unhappiness did not just happen over night right around when you pass your 180 day mark. If you aren't happy now, the chances you weren't happy in the first place. So, why did you stay??
Click to expand...
Obviously, because changing jobs before would have either been legally impossible, or would mean having to restart the green card process.

Of course, the (weak) point implied in your question must be that because the employer is sponsoring the green card it means you should stay longer. If that is indeed your point you must either be an employer who exploits people, or somebody who likes being exploited. The green card process doesn't give them the right to underpay and overwork anybody. They can get away with doing so before the 180-day mark, but that doesn't mean it is morally or legally right (it is in fact illegal) for them to do so, and it definitely doesn't mean that they should expect to be able to continue the mistreatment as long as they want.
 
Read the Q&A again - be careful when using AC21

As the Q&A from immmigration-law.com mentions, if an employee files a GC applicaiton with the intent of leaving the employer as soon as 180 days are passed, the employer can revoke the approved I-140 for this cause and that will kill the pending I-485 case for the employee. Of course, the employer has to submit some evidence that the employee had this intent from the beginning.

I dont want to get into the debate about good/bad employer/employee. I just want to say, be careful. If you work for such an employer who might go the extra miles to kill your GC on this ground (if you leave too soon), plan carefully.
 
Thanks for the advise TXAsian.
What is too soon in your opinion? I have been with the companyfor 2 years and have filed 140 and 485 since Aug 2004.
 
Jackolantern said:
Obviously, because changing jobs before would have either been legally impossible, or would mean having to restart the green card process.

Of course, the (weak) point implied in your question must be that because the employer is sponsoring the green card it means you should stay longer. If that is indeed your point you must either be an employer who exploits people, or somebody who likes being exploited. The green card process doesn't give them the right to underpay and overwork anybody. They can get away with doing so before the 180-day mark, but that doesn't mean it is morally or legally right (it is in fact illegal) for them to do so, and it definitely doesn't mean that they should expect to be able to continue the mistreatment as long as they want.
Click to expand...

Dude my question was a rhetoric one. Of course I knew the reasons why you didn't switch employers. Again, the point is why you didn't leave BEFORE you even started the GC process and look for another H1 sponsor you might be happy with? You should have been smart enough to find out not long after you started working for them whether you would be happy with them for the next several years to come, knowing that it will take several years to get your GC. I am willing to bet that you already formed the intent to leave the moment you determined that you were unhappy and still decided to stick around. In my opinion, after one starts with a new employer on H1, one should wait for several months before trying to start your GC application. One should try to use that time to find out whether this is an employer you want to be with for a long time. That way, you can avoid feeling being stuck.

I never said treating foreign workers unfairly is ok. I am sure that there are employers out there that do that. But think about it, you were in total control in the first place to avoid getting into this total mess.

I am neither an employer nor an employee that likes to be exploited. There is something fundamentally missing in your statement. Perhaps that's why you were only considered for EB3 (btw I wasn't going to go there but since you started personal insult first...). Did it ever occur to you that I might someone who feels happy and appreciative of my employer?

All more control and morals to your life will do you no harm.
 
Last edited by a moderator:
waitingdood said:
I know this is probably a concept that some people find it hard to understand, but I think people should have at least some good faith and morals. If your employer goes through all the trouble to get you your green card, you really should not try to leave them immediately or even before you get your greencard. This is called fair trade and it will bring you good karma.
Click to expand...

Forget about good Karma. You don't even know what in hell that employer might have made the employee to go thru. No employer does any damn favor to an employee by supplying the papers to file an H1B or the green card. They supply the papers cause they know they can make money out of the employees. And I know so many cases where the employees were treated like bonded labor. And unfortunately those treating the employees so bad are mostly the people who got their green cards just a few years before the people they are sponsering.

So IMHO no employee should have any guilt about leaving any employer at any time if that servers his interests.

No employer would hesitate for a second to fire an employee, if the employee can't make any more money for them.

Sonu
 
Take a good attorney opinion and do what you got to do. Put your interestes first before anybody. Do not listen to "waitingdood" sorry axx comments.

sachinsoni said:
Thanks for the advise TXAsian.
What is too soon in your opinion? I have been with the companyfor 2 years and have filed 140 and 485 since Aug 2004.
Click to expand...
 
Oh boy, this thread took off into a new tangent. Well, my 2 cents is that there are employers out there who systematically abuse foreign labor as modern slaves, knowing the long time it takes to get the GC, so they get lots of mileage out of a desperate foreign worker. On the other side of the coin, there are foreigners who are indeed just looking for a GC and then plan to leave the sponsoring employer behind for better opportunities using AC21. I think we as foreign workers we must evaluate what kind of employer we are working for and what kind of morals/ethics we as individuals have. Then we know if our current employer/employee relationship is genuine.
 
You must log in or register to reply here.
Top