Ginnu, UN or other gurus please help

[gc4now]

Hi All,

My I-140 and 485 have been in pending for more than 180 days and there is an RFE on I-140 which is not answered yet. Now I am about to lose the job and my employer will withdraw 140 immediately. could you please help me how to use AC-21 in this situation.
How can I answer RFE if I change employer now?

Should I file AC-21 first and and request USCIS about RFE details. My employer did not give RFE details it is almost one month old and he is not willing to answer. I called USCIS but they are not giving details of RFE.

I need help please advise me how to answer RFE my self or thru another attorney or employer?




Regards,
GC4NOW

 

[roy1]

Hey buddy,

As per the new Yates memo, as long as your 140 is pending >180 days you can port to another employer. In your case you have 2 options. 1. Port to another employer by enacting the AC21. Have your attorney send a letter to your employer requesting them to send in the RFE with an OR ELSE...... Statement.

I think your best option is probabally the AC 21.
I too am new at this. That is just my recommendation. See what other feedback you get from this forum.

Roy1

 

[kulkave]

Though I visit this Forum every day, this is my first posting!!
My H1B is expiring in about 6 months. I have my EAD. I-140 is cleared, and I-485 is pending for more than 1 year. I would like to Join another company using EAD under AC21 and at the same want apply for 7th year H1 extension through my GC Sponsering company.
With 7th year extension I can comeback to my H1 company if I-485 is denied. Is this someting permitted to do legally.


Any replies in this regard is highly appreciated.
Thanks ( vkulkarni70@hotmail.com )

 

[aws]

you are in a problem!

gc4now,

i understand ur situation, but it appears that u r in a real problem:

Hi All,

My I-140 and 485 have been in pending for more than 180 days and there is an RFE on I-140 which is not answered yet.

~~~ if ur current comp. replies properly to the rfe, then u should be able to port ur 140 to a similar job. if they don't reply to the rfe, then even the new memo cannot help u. it clearly keeps the burden of replying to rfe on the original comp.

Now I am about to lose the job and my employer will withdraw 140 immediately. could you please help me how to use AC-21 in this situation.
How can I answer RFE if I change employer now?

~~~ if u r sure to have 140 withdrawn, then there is least u can do.
can u hang on there until the reply to rfe and have 140 approved?

Should I file AC-21 first and and request USCIS about RFE details. My employer did not give RFE details it is almost one month old and he is not willing to answer. I called USCIS but they are not giving details of RFE.

I need help please advise me how to answer RFE my self or thru another attorney or employer?

~~~ i am really sorry to hear ur situation --- pl try to get in good terms with current comp and settle this rfe.
good luck!



Regards,
GC4NOW

 

[IndiraGandhi]

USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days

Hi All,

My I-140 and 485 have been in pending for more than 180 days and there is an RFE on I-140 which is not answered yet. Now I am about to lose the job and my employer will withdraw 140 immediately. could you please help me how to use AC-21 in this situation.
How can I answer RFE if I change employer now?

Should I file AC-21 first and and request USCIS about RFE details. My employer did not give RFE details it is almost one month old and he is not willing to answer. I called USCIS but they are not giving details of RFE.

I need help please advise me how to answer RFE my self or thru another attorney or employer?

Regards,
GC4NOW

Please read the below text very carefully as this has been posted in immigation-law web site as well. This is a very recent YATES memo of 12th May.

Summarizing the context, you should convince your employer to answer that RFE, which is likely to be an ability to pay issue. Show them some ravenousness that you will pay them few extra thousand dollars. If you can do this, once your RFE is sent out, more likely your implore will get approved in weeks if not in days.

1) AILA has reported a new USCIS Memorandum of May 12, 2005 on AC 21 issues which have either been answered or unanswered. In the answered issues, the USCIS is amending its policies. One of these key issues which it reverses by this new memorandum is I-140 portability after 180 days of filing of EB-485 applications.

2) When the alien beneficiary changes employment before I-140 petition is approved but I-485 application has been pending 180 days or longer, the USCIS field offices have been instructed not to automatically deny such I-140 petition and I-485 applications unless they first take the following steps:
i) First determine whether the preponderance of the evidence establishes that the I-140 petition is approvable or would have been approvable, had it been adjudicated within 180 days.
ii) If the I-140 petition is approvable but for an ability to pay or any other issues relating to a time after the filing of the petition, the USCIS should approve the I-140 petition on its merits.
iii) The adjudicator should determine whether the new employment is "same or similar" occupational classification.
iv) If the answer is yes, the adjudicator should approve EB-485 applications.

3) In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.

4) In the context of RFE, if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that the beneficiary no longer works for the petitioner, the petition is considered unapprovable and consequently the I-140 will be denied and at the same time, I-485 will also be denied.

 

[gc4now]

Thanks for all replies.

What I can understand from this is the employer can not withdraw I-140 after 180 days (That means he can not re-use lc to another beneficiary). The possibility is only denial or approval.
While RFE is in pending can employer withdraw I-140 petition because he doesn't want to answer RFE. Does it affect the company if RFE not been answered. I saw few cases on this forum on which RFE has been issued and RFE answered by AC21 employer.

As I lost confidence on this employer and he may answer RFE, I want to leave the company. I would appreciate if any suggstions on this.

Regards,
gc4now

 

[IndiraGandhi]

Your current employer MUST respond to that RFE.

Yes, employer cannot withdraw 140 after 180 days.

Even you invoke AC-21, your new employer CANNOT answer to that RFE.

The possibility of not getting denial even the RFE was issued would be, IF you change your employment while 140 is pending and 485 has crossed 180 days limit, you should have invoke AC21 BEFORE RFE was issued on their behalf. Now, since you are with the same employer when they received the RFE, most likely they have to respond.

 

[willget]

"The possibility of not getting denial even the RFE was issued would be, IF you change your employment while 140 is pending and 485 has crossed 180 days limit, you should have invoke AC21 BEFORE RFE was issued on their behalf. Now, since you are with the same employer when they received the RFE, most likely they have to respond"

Does this mean if 140/480 past 180 days AND didn't get REF, then we should Invoke AC21 to make this possible? mean after all that, even if we got REF after all this(180/no ref/invoke AC21), we'll still be OK? then who will response REF if any? I thought still old company; if true, how doesn't it work?

 

[TheRealCanadian]

If 140/480 past 180 days AND didn't get REF, then we should Invoke AC21 to make this possible? mean after all that, even if we got REF after all this(180/no ref/invoke AC21), we'll still be OK? then who will response REF if any? I thought still old company; if true, how doesn't it work?

If the RFE is raised because the I-140 did not have enough evidence to be approved, invoking AC21 will not save you.

 

[gc4now]

What if RFE is related to a document from beneficiary. They may issue RFE on educational certs or exp letters also. Can we answer ourselves if it is one of above.

Regards,
GC4now

 

[TheRealCanadian]

What if RFE is related to a document from beneficiary. They may issue RFE on educational certs or exp letters also. Can we answer ourselves if it is one of above.

Since the beneficiary is not a party to the I-140, that's an interesting question that I could only answer "maybe" to. Unless you are sharing an attorney, there is no guarantee you will even get the RFE.