Complicated AC21 case - need advice

[IL_LABOR]

My Case has a very long history but I will try to summarise:

1) I joined a company "A" which gave me false impressions about the performance of the company in 2002. I joined them because they agreed to file my Green Card immediately on joining.
2) After I came to know that the employer lied to me about the size and performance of the company. Howevere I had no choice but to continue with him.
3) I decided to hire my own attorney "Attorney X" instead of the company As attorney , Attorney Z . Attorney Z had already screwed my H1 transfer case in which 5 serious queries were raised by INS.
4) Fortnately my labor was approved and I did concurrent filing in Feb 2003. Again my I1-40 was approved in June 2003 . After more than a year of filing I-485 , I decided to quit the company as my project was coming to an end.
5) The 3 months since I joined the new company "Comany 'B' " , the online status for approved I-140 got updtaed to RFE. This RFE came because the provious company had filed a letter for withdrwal of I-140 through their attorney 'Z' who as usual did a mistake in filing for the withdrawl. He didn't send the original G-28 from my previous company. However the RFE that was generated came to my attoreny 'Attoeny 'X' and by mistake he responded to the RFE without realiszing that it was supposed to be for the withdrawl letter sent by my previous company. My attorney had a spare copy of original G-28 from my previous company when he filed the I-140 and I1485 in feb 2003.
6) My attorney also suggested me to file for AC21 at this point of time and I provided him with the new G-28 and Employment Verification Letter from my new company 'B'. He included the AC-21 letter with the response for RFE.
7) Its been more than 2 months since the response has been received and there has been no change in the status.
8) My attorney is suggesting that he should send another letter to the INS as they might be confused.

Yesterday he sent me a draft of the letter in which he mentioned that the previous RFE came to him by mistake and he also mentions the folliwing "In any case, without taking the side either of the employer or the employee, it appears that the original response to your Request is still applicable and dispositive either from the perspective of the employer or the employee. Whether or not a withdrawal was attempted or successfully made, at the time of such withdrawal attempt the portability provisions of AC21 applied and continue to apply given that the employee/beneficiary appears to have transitioned on his own accord to a same or similar position with another employer at a salary that exceeds the prevailing wage.

If the foregoing explanation of the confusion we perceive is not sufficient, USCIS may wish to contact the original petitioner to determine how USCIS may wish to proceed with the original petitioner’s request. We apologize for any further confusion that may have been caused and trust that USCIS will adjudicate the matters before it as the law provides."

I need to ask will this letter help in clearing the RFE on "approved" I-140 that has been there for more than 2 months after response. Or should we wait for further correspondence from USCIS. Somehow I don't feel comfortable with this letter. I know that I have not done anything outside the law and I have followed the provisions of AC21. In the worst case INS will send a NOID which should be responded within 30 days with an Employent Verification Letter which my attorney has already sent.

Thank You,
il_labor

 

[sb_tiger]

What ws the RFE - that was generated?
As you understand- attempt to withdraw 140 only results in NOID. You also have sent Ac21 papers. So you should be OK.
The best course of action is to ask the Lawyer to speak directly and get clarification. Sometimes RFEs (even NOIDs) etc generated incorrectly.
Good Luck,

 

[IL_LABOR]

What ws the RFE - that was generated?

The RFE that was generated was something like this "Please send us the original G-28 before action could be taken on attorney's letter of withdrawl". The problem is that my attorney didn't read the RFE correctly and sent a G-28 that he had from my previous employer when he filed for my I-485. But simultaneously he also sent my AC-21 papers. Now what he basically did was he supported the RFE for withdrawl ( which should have been responded by my previous company's lawyer ) and also tried to justify the AC-21 case.

He had prepared this second letter to clarify that mistake, but since he has done the mistake of sending the G-28 he is now acting neutral and he doesn't support emplpoyer / employee.

I am quoting his letter

"In any case, without taking the side either of the employer or the employee, it appears that the original response to your Request is still applicable and dispositive either from the perspective of the employer or the employee. Whether or not a withdrawal was attempted or successfully made, at the time of such withdrawal attempt the portability provisions of AC21 applied and continue to apply given that the employee/beneficiary appears to have transitioned on his own accord to a same or similar position with another employer at a salary that exceeds the prevailing wage.

If the foregoing explanation of the confusion we perceive is not sufficient, USCIS may wish to contact the original petitioner to determine how USCIS may wish to proceed with the original petitioner’s request. We apologize for any further confusion that may have been caused and trust that USCIS will adjudicate the matters before it as the law provides."


In his quote he mentions that "employee/beneficiary appears to have" , this is not an assumption, it is a fact. I am scared that INS might take this letter against me. He also mentions that they contact original petitioner directly, I am also not feeling comfortable about that.


As you understand- attempt to withdraw 140 only results in NOID. You also have sent Ac21 papers. So you should be OK.
The best course of action is to ask the Lawyer to speak directly and get clarification. Sometimes RFEs (even NOIDs) etc generated incorrectly.
Good Luck,

Tiger,
Should I ask the lawyer not to send this letter and wait for further clarification from USCIS.?


Thank You very much
il_labor

 

[kvpt_mm]

In my understanding , if your previous employer requests to Revoke your approved I-140 , it will be Revoked by USCIS based on his request, because your previous employer owns that I-140 and he has full rights in revoking that petition at any point of time.

About sending the RFE on your I-140 to your own attoney, it could be a mistake at their part and if they realise they will send another copy to your previous employer and attorney and response on continue revoking the I-140.

If we knew what was the RFE about on your I-140 revoke request by your previous employer and what was your response by your attorney , we can analyze little bit more on this and can find whether you and your attorney rellay confused USCIS about this matter or not. This is more important. I was wondered how your attorney responded to RFE sent on I140 petition which he didnt file for on your behalf.

I guess because your I-485 is pending over an year and your I-140 already approved ( even it is revoked by your pre. employer ), you should stay calm and wait for USCIS response on your I-485 (mostly NOID) and be very well prepared to respond in 30 days of their notice date to cover yourself.

An advise: You can open congression enquiry by contacting your local senator by explaining your case and ask for what they see in USCIS system for your pending cases. That way you can atleast find out what is happening in your case and see most updated information and be ready for it.

Bottom line: You wouldnt need to worry much. When they open your I-485 case you probably receive a NOID.. which no one can predict. Your best bet is to file EAD extension or AP ...which sometimes trigger to open your I-485.