Ginnu & Gurus, issues related to AC21 & if previous employer revokes I-140…

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GCDumbo

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Ginnu & Gurus, appreciate your response related to issues of AC21 & if previous employer revokes I-140…

My I-140 was approved more than 2 years back & I-485 is pending for more than 3 years and due to retrogression I am intending to join new employer because new Job description / Title/Job Code etc is more less same.

Now, my worry is whether I will be safe if my previous employer revokes my I-140? What I heard is that when someone do AC21 he/she takes his/her Labor/I-140 etc with him/herself. Is it correct? If its Yes, then I think I am safe!

Also, when I joins new employer by filing AC21 & if my previous employer revokes my I-140, I will get RFE from USCIS regarding my new employment evaluation & I might have to file MTR to open my I-485 case once again? Is it so?

After revoking my I-140, can my previous employer can “sale” or “substitute” my labor to some one? Does it legally allowed? If my previous employer does that whether my GC processing will be in trouble?

Also, I am bit confused on retaining my previous company lawyer. My previous company lawyer is bit greedy & wants to process my AC21 with $1000. He is saying that he have my I-140 approval, I-485 receipt & he knows my case..etc..etc. I am bit worried whether he will take care of “My Interest” or he will be biased to words my previous employer! Hope he will behave like “Lawyer” and not “liar” at my expenses! I will appreciate your thoughts/guidance/assistance on this retaining lawyer issue also!
 
GCDumbo said:
Also, when I joins new employer by filing AC21 & if my previous employer revokes my I-140, I will get RFE from USCIS regarding my new employment evaluation & I might have to file MTR to open my I-485 case once again? Is it so?
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You should get a Notice of Intent to Deny, which is like an RFE except that you only have 30 days to respond, not 120.

After revoking my I-140, can my previous employer can “sale” or “substitute” my labor to some one? Does it legally allowed? If my previous employer does that whether my GC processing will be in trouble?
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The regulations are silent on this matter. While the employer owns the LC/I-140 and can withdraw them and reuse them, neither USCIS nor the courts have said what happens if two people end up getting a GC from the same Labor Cert. Personally, I'd be far more concerned if I was the second alien, not you.

Also, I am bit confused on retaining my previous company lawyer. My previous company lawyer is bit greedy & wants to process my AC21 with $1000.
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For $1000? I'd personally find different counsel.
 
TheRealCanadian said:
The regulations are silent on this matter.
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I get a feeling that the mitosis theory suggested by several lawyers is working. 1 labor = multiple GCs.

This problem will most probably be solved if they ban labor substitution.
 
Thanks RealCanadian...If Company is "infamous" for labor substitution..

The company who filed my LC is "infamous" for labor substituion & they had lots of problem with DOL last year...and I am not sure whether they will sell my LC/I-140...one time I think that they are "greedy" & they will sell LC for money..while other time I think my company is already in trouble with DOL due to Labor Substituion and they will NOT dare to do...

Only I think they will withdraw I-140 to show DOL that I am not working for them & that may trigger NOID...

Any thoughts, regarding Employer sending DOL/INS # of empoyees working for them on their payroll, that trgiggers NOID when you do AC21?

Thanks in advance..
 
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But, your I-485 has passed 180 days. Revoking I-140 will have no effect on your case. What do you need to worry about?
 
the mitosis theory may not be correct.....

GreenCardVirus....

I still suspect that USCIS has never encountered the scenario of the 1st applicant vs 2nd substituted applicant...in case of I140 revocation and substitution....

I suspect that the first guy, to get the 485 approval might get away with GC....the second guy may be stranded as 1 GC per labor....

it may cost the first guy, if he gets stuck in namecheck for 2 years+ and the second guy successfully clears the namecheck in less than 6 months......

the mitosis theory may not be correct.....
 
banta4gc said:
it may cost the first guy, if he gets stuck in namecheck for 2 years+ and the second guy successfully clears the namecheck in less than 6 months
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I doubt it. The statutory language of AC21 is quite explicit that the LC remains valid after switching jobs. If I was the first alien in such a situation, I'd challenge in court with a decent amount of confidence that I'd win.
 
TheRealCanadian,

I agree.....It would amount to legal battle...

Look at USCIS...it takes years for them to clarify scenarios...like H1B bridging...I140 Revocation...AC21 Scenarios......

But, this scenario of 1st guy vs 2nd substituted guy - is still not clarified and may be subject to interpretation...

It's the classic battle, in a court of law,
Employer may say the position is for the 2nd guy VS Employee may say I am protected under AC21....

USCIS is still not taking sides in this battle (by elimination I140 revocation after 180 days....) or accept that both will get it......they need to issue a memorandum to this effect....or unless somebody sues USCIS for this scenario....and we would know, from which way the verdict went...
 
banta4gc said:
But, this scenario of 1st guy vs 2nd substituted guy - is still not clarified and may be subject to interpretation... they need to issue a memorandum to this effect....or unless somebody sues USCIS for this scenario....and we would know, from which way the verdict went...
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Keep in mind that USCIS has a great deal of latitude for memoranda and regulations in areas where Congress has not said what they want. In the area of multiple GCs on the same LC, Congress has clearly stated in the statutory language of AC21 that "the labor certification shall remain valid". USCIS can't write any memorandum or regulation that goes against this.

I am not a lawyer, but I suspect that if this ever went to Federal Court, the courts would find that the original alien gets the GC and any subsequent aliens do not, or that both get a GC. The least likely scenario is that the original alien gets screwed, since the AC21 language is quite clear that they remain eligible for a GC even if they have switched jobs.
 
Yep, I think so too...

Yep, I think so...too...the Employee should protected under AC21 regulations...
 
Thanks TheRealCanadian, banta4gc for discussing it further..

Thanks TheRealCanadian, banta4gc for discussing it further..When I posted this question, I had same scenario in my mind which you guys are discussing..
because my employer (with hand in hand with my company lawyer) is very in-famous for "Selling labors". Therefore, I was worried about if I invoke AC21, I am sure for greed of couple of thousand dollars they(employer & company lawyer) wont hesitate to sell my labor. They dont care who gets screwed in this process of law suit with USCIS....Original LC holder or Substitute LC holder...!

Another scenario I sensed that...if Second guy (Labor Substitute guy) tries to port PD of my EB3 LC to his EB2 LC and tries to get away by getting his GC thru EB2 porting route using my PD!!!! In such scenario, whether I will be safe by AC21?

Thanks & appreciate your inputs..

TheRealCanadian said:
Keep in mind that USCIS has a great deal of latitude for memoranda and regulations in areas where Congress has not said what they want. In the area of multiple GCs on the same LC, Congress has clearly stated in the statutory language of AC21 that "the labor certification shall remain valid". USCIS can't write any memorandum or regulation that goes against this.

I am not a lawyer, but I suspect that if this ever went to Federal Court, the courts would find that the original alien gets the GC and any subsequent aliens do not, or that both get a GC. The least likely scenario is that the original alien gets screwed, since the AC21 language is quite clear that they remain eligible for a GC even if they have switched jobs.
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GCDumbo said:
Another scenario I sensed that...if Second guy (Labor Substitute guy) tries to port PD of my EB3 LC to his EB2 LC and tries to get away by getting his GC thru EB2 porting route using my PD!!!! In such scenario, whether I will be safe by AC21?
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Before I go further, you're asking questions that no one really knows the answer to, not even USCIS.

In the scenario you describe, the second alien would need to get an approved I-140 based on your EB3 LC to obtain the PD, then after his EB2 LC gets approved he would need to get another approved I-140 in EB2. I doubt that's going to happen, but even then the GC would be granted in EB2, not EB3 so I wouldn't be too worried.

Seriously, you shouldn't worry so much. Do what you feel is right. USCIS has been consistent over the past half-decade that the ultimate goal of AC21 is that an alien can leave the employer and still get a Green Card, and that any implementation must respect this core intent of Congress.
 
banta4gc said:
GreenCardVirus....

I still suspect that USCIS has never encountered the scenario of the 1st applicant vs 2nd substituted applicant...in case of I140 revocation and substitution....

I suspect that the first guy, to get the 485 approval might get away with GC....the second guy may be stranded as 1 GC per labor....

it may cost the first guy, if he gets stuck in namecheck for 2 years+ and the second guy successfully clears the namecheck in less than 6 months......

the mitosis theory may not be correct.....
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In my case, I got stuck in NC and my approval got delayed by about 1yr 8 months. I changed using AC21 and my employer immediately revoked my 140.

I am very sure that the labor is used for someone else (got inside info). Unless that person is also stuck in NC, it is highly possible that there are already 2 GCs on the same labor.
 
Many Thanks..TheRealCanadian, banta4gc...

Many Thanks..TheRealCanadian, banta4gc.

Also, thanks GCVirus for sharing your case....I was visualizing the scenario which you are going thru..and now in near feature I will look at your case as a guideline to help me out..

TheRealCanadian said:
Before I go further, you're asking questions that no one really knows the answer to, not even USCIS.

In the scenario you describe, the second alien would need to get an approved I-140 based on your EB3 LC to obtain the PD, then after his EB2 LC gets approved he would need to get another approved I-140 in EB2. I doubt that's going to happen, but even then the GC would be granted in EB2, not EB3 so I wouldn't be too worried.

Seriously, you shouldn't worry so much. Do what you feel is right. USCIS has been consistent over the past half-decade that the ultimate goal of AC21 is that an alien can leave the employer and still get a Green Card, and that any implementation must respect this core intent of Congress.
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I don't think the employer could revoke the case, they can only withdraw the case.

Only uscis can revoke the case, right????
 
Dont know "Legal" diffrenece between "Revoke" & "Withdraw"..

Can anyone tell whats the "Legal" diffrenece between "Revoke" & "Withdraw"? What is the impact of "Revoke" & "Withdraw" on your case?


yuren said:
I don't think the employer could revoke the case, they can only withdraw the case.

Only uscis can revoke the case, right????
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GCDumbo said:
Can anyone tell whats the "Legal" diffrenece between "Revoke" & "Withdraw"? What is the impact of "Revoke" & "Withdraw" on your case?
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No big difference practically.
Revoke=after 140 approval.
Withdrawal=before 140 approval.
 
Thanks GCVirus..for making so simple to understand...

Thanks GCVirus..for making it so simple to understand...

GreenCardVirus said:
No big difference practically.
Revoke=after 140 approval.
Withdrawal=before 140 approval.
Click to expand...
 
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