Ever seen this kind of labor substitution????

W

wantgcasap

Registered Users (C)
My case is a labor substitution case and my company applied my 140/485 using approved labor of candidate A. But they DID NOT have the ORIGINAL approved labor at the time of filing as it was used to file 140 for the candidate A

Candidate A’s 140 was approved and my company never applied 485 for candidate A as he/she left the company.

When my attorney applied my 140/485 using the COPY of approved labor of candidate A, they sent a letter to USCIS to withdraw the old 140 for candidate A as one cannot file two 140’s using the same approved labor.

Mine was filed concurrently with ND : 10/17/03. Recently on June’9th , my attorney received a letter from USCIS stating that they had withdrawn old 140 for candidate A and they sent the ORIGINAL approved LABOR of Candidate A to my attorney.

I’m not sure how they are going to process my 140 with the COPY of approved labor.
I thought USCIS will request the ORIGINAL directly from DOL, but I don’t understand how my lawyer got the original. Anybody had this kind of situation in the past?

I asked my lawyer to send that ORIGINAL approved labor to USCIS now as they need it to process my 140. But my lawyer says that they do not have to send the ORIGINAL approved labor to USCIS, they will send it only if they request for it.

My Last updated date was never changed from 10/23/03. I guess they might have touched my application as they had withdrawn the old 140.

Do I have to take any action at this point or just wait n see? I think I cannot initiate a query as the processing dates for EB3 are Oct’23. Any suggestions????

:confused: :mad: :(
 
Yours is complicated to some extent. You need to probably wait and see what the INS says to your attorney regarding your file. I know its a bit hard to advise you at this point, but there is nothing else that we can do other than to keep our fingers crossed.

Most of the cases, INS requests a original Labor approval copy from DOL directly. Check with your attorney after a couple of days to see if he has received something or give INS a call and initiate a query on the file. Dont talk that you are the applicant.

Want GC Soon :)
 
Hi

I tried initiating query with INS, but they were not able to do it as my ND : 10/17/03 have not passed 30 days from the current processing date.

My lawyer is not able to answer the question to why they got the ORIGINAL?
 
wantgcasap said:
Hi

I tried initiating query with INS, but they were not able to do it as my ND : 10/17/03 have not passed 30 days from the current processing date.

My lawyer is not able to answer the question to why they got the ORIGINAL?
Click to expand...
I would suggest that you wait. I do not think that original or copy should make a difference. As long as the number is there on labor, USCIS can always check with DOL if they suspect foul play. Also they will check their DataBase to make sure no one else has already used the same labor. Since the other applicants 140 has been withdrawn and the labor has been returned to your attorney they have already checked their systems that the labor is not in use. I think you should get your approval soon.... :) :) But you should try to do a level II inquiry once your case is 30 days past the current JIT and you do not get your approval by that time.
 
WantGcSoon

Hi WantGcSoon..
Doesnt WantGcAsap 's situation contardicts AC21.

So if I have an approved 140 , and I use AC21 right now to change employer,
then IS IT POSSIBLE for my previuos employer to cancel my 140 ????
In that case It wont be possible for everybody to Use AC21 ( I dont think any employer will be happy if his employee leaves him after 140 gets cleared ).
What I think is ( guys correct me if I am wrong here ) once an approved labor has been used for a 140 petition ( attached to a perticular employee) ..then that same approved labor cannot be used for another 140 petition.

NVC
 
NVC said:
Hi WantGcSoon..
Doesnt WantGcAsap 's situation contardicts AC21.

So if I have an approved 140 , and I use AC21 right now to change employer,
then IS IT POSSIBLE for my previuos employer to cancel my 140 ????
In that case It wont be possible for everybody to Use AC21 ( I dont think any employer will be happy if his employee leaves him after 140 gets cleared ).
What I think is ( guys correct me if I am wrong here ) once an approved labor has been used for a 140 petition ( attached to a perticular employee) ..then that same approved labor cannot be used for another 140 petition.

NVC
Click to expand...
If the person whose 140 was approved never applied for 485 and never got EAD / AP, then why not. I think USCIS here checked if the beneficiary whose 140 was approved is using that approval or not and since they found he is not, they returned the labor to his lawyer.
 
Hi NYC,
Only if I140 is approved, and 485 pending for 180 days, AC21 comes to play. If he has EAD he can join permanent with some other company and do it.

I heard from some folks that 140 can still be revoked within 180 days after approval. If you are confident with your employer that he wouldn't revoke 140, then you can go ahead with AC21.

Any company wouldnt be happy if you move out after 140 approval(human tendancy - especially more in desi companies). If 140 is already approved, then you cannot use the same labor to someone else. If they revoke it, then ofcourse they can use it.

Want GC Soon :)
 
NVC said:
Hi WantGcSoon..
Doesnt WantGcAsap 's situation contardicts AC21.

So if I have an approved 140 , and I use AC21 right now to change employer,
then IS IT POSSIBLE for my previuos employer to cancel my 140 ????
In that case It wont be possible for everybody to Use AC21 ( I dont think any employer will be happy if his employee leaves him after 140 gets cleared ).
NVC
Click to expand...

that is why you have to inform CIS of your intention that your are going to use AC21. so that your I140 hence your labour are/will be still valid.(if you feel that your employer will withdraw your I140 after you leave him)


in the previous case the canditate didn't file for I485 using the approved I140 so that approved I140 was still active and unused.Hence the company could withdraw the I140 .
 
hmd said:
that is why you have to inform CIS of your intention that your are going to use AC21. so that your I140 hence your labour are/will be still valid.(if you feel that your employer will withdraw your I140 after you leave him)


in the previous case the canditate didn't file for I485 using the approved I140 so that approved I140 was still active and unused.Hence the company could withdraw the I140 .
Click to expand...

hmd/others,
one question.. do we get any kind of confirmation/acknowledgement from USCIS when we use AC21?
 
dazzling,

After reading ur reply, i felt comfortable with my situation. mY LUD is the same though. I'm not sure why they have not updated my LUD as they revoked the candidate A's 140?

Approved labor can be used even after 140 is approved provided the other candidate did not use the labor to get GC for him/her.
 
wantgcasap said:
dazzling,

After reading ur reply, i felt comfortable with my situation. mY LUD is the same though. I'm not sure why they have not updated my LUD as they revoked the candidate A's 140?

Approved labor can be used even after 140 is approved provided the other candidate did not use the labor to get GC for him/her.
Click to expand...
These guys are very intermittent with updating the online Case Status. I think this is a different database. I can think of a good reason. They would not want the actual system statuses to be available to be viewed by customers. What I mean to say is that there are more statuses then we outsiders know and they possibly do not want that to be displayed. That is the reason why people report approvals on Sundays etc. (even I got my AP approved on a Sunday !!!!)

So I would still suggest, dont sweat too much. If your ND is 30 days beyond JIT data, do start a FAX inquiry though. I would also suggest ask your lawyer to fax you the copy of approved labor received from USCIS for your records. If your lawyer has the original labor and you can see it with your eyes in some way, I think you should be safe. Best of Luck.
 
Dazzling,

My lawyer faxed me a copy of approved labor when they filed my 140/485.

Yesterday i asked my lawyer how come they received the ORIGINAL approved labor? She said they sent a letter to the INS with my I-140 to withdraw the old I-140 and send them the original.

She also says, "For now there is nothing wrong with your case, if the INS wants the original they will request it. At this point we don't have to do anything but just wait."

Can we initiate the query by fax also? I did not know about that. Did they list the fax number on their website?
 
wantgcasap said:
My case is a labor substitution case and my company applied my 140/485 using approved labor of candidate A. But they DID NOT have the ORIGINAL approved labor at the time of filing as it was used to file 140 for the candidate A

Candidate A’s 140 was approved and my company never applied 485 for candidate A as he/she left the company.

When my attorney applied my 140/485 using the COPY of approved labor of candidate A, they sent a letter to USCIS to withdraw the old 140 for candidate A as one cannot file two 140’s using the same approved labor.

Mine was filed concurrently with ND : 10/17/03. Recently on June’9th , my attorney received a letter from USCIS stating that they had withdrawn old 140 for candidate A and they sent the ORIGINAL approved LABOR of Candidate A to my attorney.

I’m not sure how they are going to process my 140 with the COPY of approved labor.
I thought USCIS will request the ORIGINAL directly from DOL, but I don’t understand how my lawyer got the original. Anybody had this kind of situation in the past?

I asked my lawyer to send that ORIGINAL approved labor to USCIS now as they need it to process my 140. But my lawyer says that they do not have to send the ORIGINAL approved labor to USCIS, they will send it only if they request for it.

My Last updated date was never changed from 10/23/03. I guess they might have touched my application as they had withdrawn the old 140.

Do I have to take any action at this point or just wait n see? I think I cannot initiate a query as the processing dates for EB3 are Oct’23. Any suggestions????

:confused: :mad: :(
Click to expand...
Getting LC back is a mistake done by service center - you do not have to worry about it. If they will need it - they will ask for it. If no one knows where did it go - they will send RFE to lawyer. In any case initiate query. Also ask your lawyer to initiate query - 140 belongs to the employer - you cannot initiate query on it.
 
NVC said:
Hi WantGcSoon..
Doesnt WantGcAsap 's situation contardicts AC21.

So if I have an approved 140 , and I use AC21 right now to change employer,
then IS IT POSSIBLE for my previuos employer to cancel my 140 ????
In that case It wont be possible for everybody to Use AC21 ( I dont think any employer will be happy if his employee leaves him after 140 gets cleared ).
What I think is ( guys correct me if I am wrong here ) once an approved labor has been used for a 140 petition ( attached to a perticular employee) ..then that same approved labor cannot be used for another 140 petition.

NVC
Click to expand...
No it doesn't. AC-21 can be used only when 485 is pending 180 days - here it was not even applied!
 
hmd said:
that is why you have to inform CIS of your intention that your are going to use AC21. so that your I140 hence your labour are/will be still valid.(if you feel that your employer will withdraw your I140 after you leave him)


in the previous case the canditate didn't file for I485 using the approved I140 so that approved I140 was still active and unused.Hence the company could withdraw the I140 .
Click to expand...
Even in the case where USCIS is not informed - you will get notice of intent to deny(NOID). You have to respond it properly. But yes it is always good to inform USCIS.
 
So the summary is ..

If I have my 140 approved and , I also have EAD and AP and my 485 is pending more than 180 days I can change my employer.

According to dazzling..
Now because I HAVE approved EAD and AP , my old employer cannot revoke my 140 and use MY labor for someone else.

So if I use AC21 , I have to notify USCIS of my employer change by sending them a letter , and just hope that my previous employer doesnt end up revoking my 140.

So basically if you try to use AC21 to free yourself from your previous employer, still, you will always be at his mercy (because he can revoke your 140), till you get your 485 cleared... Then whats the use of AC21 anyways ..
NVC
 
Jharkhandi said:
Even in the case where USCIS is not informed - you will get notice of intent to deny(NOID). You have to respond it properly. But yes it is always good to inform USCIS.
Click to expand...

In this case the original canditate didn't file I485 at all. so that is why the approvedI140 has been lying with Employer untill he found someone (wantgcasap) where he can use the underlying Labour (By withdrawing I140 for original canditate) .

so JK i don't understand what do you mean you will get NOID.
Unless you mean that if you don't inform USCIS after using Ac21 and if your employer withdraws I140 then you will get NOID.. Is that what you mean..??
 
I think it is good to inform in your situation - this way there will not be any confusion. In your case 140 cannot be revoked.
 
hmd said:
In this case the original canditate didn't file I485 at all. so that is why the approvedI140 has been lying with Employer untill he found someone (wantgcasap) where he can use the underlying Labour (By withdrawing I140 for original canditate) .

so JK i don't understand what do you mean you will get NOID.
Unless you mean that if you don't inform USCIS after using Ac21 and if your employer withdraws I140 then you will get NOID.. Is that what you mean..??
Click to expand...
I was talking about the case where 485 is pending more than 180 days and you used AC-21.
 
NVC said:
If I have my 140 approved and , I also have EAD and AP and my 485 is pending more than 180 days I can change my employer.

According to dazzling..
Now because I HAVE approved EAD and AP , my old employer cannot revoke my 140 and use MY labor for someone else.

So if I use AC21 , I have to notify USCIS of my employer change by sending them a letter , and just hope that my previous employer doesnt end up revoking my 140.

So basically if you try to use AC21 to free yourself from your previous employer, still, you will always be at his mercy (because he can revoke your 140), till you get your 485 cleared... Then whats the use of AC21 anyways ..
NVC
Click to expand...


No

If I140 approved and I485 > 180 days then

if you inform USICS after using AC21 then even if your employer tries to revoke the I140, your are still good which means the employer cannot revoke I140.

If you don't inform USICS and if your employer tries to revoke the I140 then USCIS will send you NOID , then you just have respond to with proper Ac21 documentation.
 
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