Consequences of a 245(i) beneficiary's I-140 being denied

Max Spider X

Registered Users (C)
Hi. My cousin was approved for the labor certificate under 245(i) and then submitted the I-140 and I-485 application for employment-based immigration. It was last year that her I-140 was denied by INS due to employer's failure to show the ability to pay the future wage. She subsequently appealed the case to the Board of Immigration Appeals, which was also denied recently. At this point, is she subject to be removal/deportation from the country? or would she be eligible to apply with a new employer once the retrogression becomes current? And if the Guest Worker Program is to become law, would she be qualified for it?

Oh yea, was she supposed to be able to renew her employment authorization (I-765) during the waiting time of the appeal? The attorney told her no.
 
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hadron

Registered Users (C)
The key phrase here is 'approvable as filed'. So, a denial based on information pertinent at the time of filing (in this case the insufficient funds of the employer at the time of LC filing), can cause the LC to loose its 245i usefulness.

Your cousin should try to get the original LC back from USCIS, I believe there is a way to do that.

If she finds a new employer who can get a new LC and I140 going, she can try to use the old LC to get 'grandfathered' for the 245i benefit. There is however an opinion by USCIS that you only have 'one bite at the apple' of 245i benefits. So if your initial 245i application was denied, you have lost any hope to adjust under 245i provisions.

This could be just another case of 245i based immigrants receiving p### poor legal advice. In a 245i case, I consider it professional misconduct if an attorney files an I140 which doesn't have bomb-proof evidence of ability to pay. As long as she hadn't filed an I140, the approved LC would have been good to adjust under the grandfathering conditions through a new employer. Now, who knows.

And yes, there is some risk of removal proceedings. Although ICE doesn't seem to put too much energy into these cases, they have their hands full trying to track down all the people who already ave removal orders but absconded.
 

Max Spider X

Registered Users (C)
Hey thanks for the awesome response. So whether if you get another shot at a new I140 will depend on luck?

Hmm..if the rule of "one bite at the apple" is set in stone, will the beneficiary's spouse and child be able to submit employment-based applications under 245i on their own behalf?

To get the original LC back, are you referring to form G-884?

http://www.uscis.gov/graphics/formsfee/forms/files/g-884.pdf
 
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hadron

Registered Users (C)
> So whether if you get another shot at a new I140 will depend on luck?

Pretty much. The problem is that now that entire denied I140 rigmarole is documented in their computer.
The key element of USCIS is the 'right hand doesn't know what left hand does doctrine'. It is entirely possible that someone looking at the second 245i petition would just check off 'fee paid' and 'supplemental statement provided' and 'labor cert pre 4/30/01 provided' and put the chart in the approved stack.
They have like 12minutes to approve an I485, lately they have received a lot of flak for being slow, so their willingness to investigate things deeply is pretty low.

> Hmm..if the rule of "one bite at the apple" is set in stone, will
> the beneficiary's spouse and child be able to submit employment-
> based applications under 245i on their own behalf?

Don't think so. You have to be 'the beneficiary' of a labor cert or petition filed before 4/30/01 in order to be eligible for 245i. So they could potentially adjust if the primary got approved, but independently, I don't think so.

> To get the original LC back, are you referring to form G-884?

Why am I suprised that they have a form for this ?

I guess that would be the right process, I never had to do this so I wasn't aware of the details.
 

hadron

Registered Users (C)
> USCIS has given an extremely difficult time for 245i candidates who had
> their I-140's denied.

That is why I think it is such a tragedy that some attorneys will file an I140 with sketchy company finances in a 245i case.

As long as you have the approved LC, you are golden, even if the china-wok that filed it was never able to pay you that 35k managers salary in the first place.

If you find a new employer who can file PERM and I140 for you, you can use the LC to get grandfathered. The LC doesn't look at ability to pay, and in the absence of having gone through the I140 process, USCIS doesn't look at the LC filing employer either.

The cases you mentioned illustrate some things about USCIS:

- they are incredibly 'benevolent lethargic' in 95% of cases.
- they will approve stuff that nobody expected to go through
- however, IF they decided that you are not worthy of mercy, they will keep denying stuff, even if the re-filed documents fulfill their original requirements

With USCIS it is key to nail it on the first shot. Right between the eyes. You rarely get a chance to reload with these guys.
 
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Max Spider X

Registered Users (C)
I found the following from this USCIS page regarding removal proceeding upon denial of application:

How Can I Appeal?
If your application to adjust to permanent residence status is denied, you will receive a letter that will tell you why the application was denied. If you are not in a current, legal status, the process to remove you from the country will begin as soon as your application is denied.

http://www.uscis.gov/graphics/howdoi/hdi245i.htm

I have never before heard of anyone being deported because of a denied I-140 under 245i, nor has she received any letter telling her to pack up and leave the country. But will this bar her from seeking any other methods to obtain GC in the future?
 

Max Spider X

Registered Users (C)
Ok, she filed a complaint with the Attorney Disciplinary Committee against the attorney who handled that case regarding breach of contract(refusal to refund the retainer) and other ethical and disciplinary issues. The attorney responded saying how she is an illegal immigrant now playing with the law system. My question is can that scumbag actually write a letter to INS and ask them to deport her?
 

Jim Mills

Registered Users (C)
The attorney can do whatever he or she wants. However, it would be a MAJOR ethical violation to try to get a former client removed from the United States. I do not think that there is an ethical violation at this point, so I see no reason for an ethics complaint, and I am not sure that I agree that any denial for a failure of ability to pay is per se attorney malpractice. Of course, I am biased here. Sometimes the situation changes. The fact is, the Labor Certification WAS approvable when filed and this is clearly evidenced by the fact that it was certified. Therefore, the person is grandfathered under 245i. The issue then becomes the two bites at the apple rule. I am not familiar enough with that rule to analyze the issue at 10:45 at night without reviewing the rule and associated memos, but it is not an absolute. Certainly, the denial of the I-140 will not trigger it but the denial of the I-485 MIGHT.

Good luck.
 

Max Spider X

Registered Users (C)
Well, the attorney closed down his firm and moved to another state with her retainer(which would be paid back if the appeal fails) without notice before a decision from BIA was issued. We found his # on the internet. He is now arguing that:

1. the retainer was paid to the firm(which was solely owned and operated by him), so he takes no responsibility as an individual to pay it back.
2. on the retainer agreement, he stated a refund would be issued if the appeal "fails." While the BIA decision letter states that the appeal was "dismissed." He childishly claimed that the words are different, so even if his firm was still open, she would not be entitled to the refund.

She filed complaint with the committee based on those. He brought up the fact that she is an illegal now as a defense for himself. Now we are worried if we pushed him any harder and he writes a letter to the INS, would they actually heed his call.
 
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envision

Registered Users (C)
Hi unitednations,
Here is my question. I am filling
the forms for AOS (i485 , i485 supplement A) and I have a dilema as far as my last name is concerned. All along I've been spelling it one way
, but I got a hold of my original birth certificate from my home country and
it's written in the abbreviated way .) Personally I'd like to have
it the way it's on my birth certificate. Sould I go ahead and fill out the forms
with that and attach a note, or with the name used on the petition???

Confused

P.S. I got the email stating my approval, but I haven't recieved the regular mail yet. Since I filed under 245i. Is my priority date 4/30/2001?
 

envision

Registered Users (C)
Thanks :) Unfortunately, I don't have a lawyer :eek: I've been doing everything solo from after the labor certification was filed.
 

envision

Registered Users (C)
I hear you, but when one's ass is as broke as mine :rolleyes: there's no other choice. The i485 supplement A fee really did me in :eek:
 
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