HELP 485 Denied

GCRejected

Registered Users (C)
Hi,

My company's name got changed. They filed I-140 Amendment and becuase of that the old I-140 got revoked and my 485 got denied.
The I-140 amendment is already approved.

Question.
1) What happens if I-140 Amendment is filed during 485 processing.? Does one need to start a new 485. Any one gone through such scenario? Any help would really be appreciated.

Thanks.
 
Sorry to hear the bad news

I have also filed an amended 140 along with my 485 and not after. Have they issued you any RFE before rejecting. Is it possible that your lawyer did not create a strong case linking the two companies. My attorney did not say anything about the possibilty of revocation of old 140. Man, this jungle gets nastier day by day. This is my timeline. Please post yours.

140 Approved Sept 02. Company changed name in July 02. Filed amended 140/485/EAD/AP in Jan2003. No news of any approvals or RFE yet.

Please contact a good attorney who can fight your case.
 
GCRejected

first of all, take heart that this denial is due to documentation deficiencies, and not due to some more serious reason.

worst case scenario, file another i485 based on the approved amended i140. the disadvantage is that you lose the time already invested in the old i485.

if you could get your lawyer to take it up with BCIS to reopen the original i485 by substituting it with the amended i140, that would be best.

in these forums, another person in a comparable situation has posted that his lawyer has filed a new i485 for the amended i140, and at the same time is trying to reopen the old i485 by substituting the amended i140. if the lawyer is successful in the latter action, he will withdraw the new i485, thus regaining the time advantage. this is quite a complex undertaking, and one with a potential of completely blowing up.

talk with your attorney as to which option would be, firstly, the safest, and then secondly, time-saving for you.

good luck!
 
Help Pork Chop/Rsur

Thanks Rsur and Pork Chop for your comments.

There was no RFE issued, directly 485 denial.

I talked to lawyer, he said he is trying to reopen the case and worst come worst we will have to start a new 485. This is as Pork Chop had suggested.

Questions
1)But is there a law saying once the I-140 amendment is filed one should start a new 485 ??

2)What happens if my old I-140 was revoked after 180 days. Would not I come under AC21 ?

Thanks in Advance
 
The answer to your second question is yes. You can use the AC21 in that situation to go and find another employer using your EAD. Since your GC sponsoring employer would not have any control of his I-140 after 180 days, you will have the chance to use AC21.
 
Its incredible that the INS just gave you a denial without even an rfe! No chance to even prove/support the case..
 
answers


1)But is there a law saying once the I-140 amendment is filed one should start a new 485 ??


no, there is no such law, as far as i know. your lawyer can give re-opening your older i485 with i140 substitution a shot, but in the end, it might even be equally worth your while to file fresh new i485. really, it is how your lawyer feels; if s/he thinks that he can swing the revival of the old i485, go for it - else start afresh.

2)What happens if my old I-140 was revoked after 180 days. Would not I come under AC21 ?

it would normally come under AC-21 protection if you changed employers after 180 days, and officially notified BCIS of this while stating your intention to invoke AC-21. however, in this case, you didn't change employers, your employers changed on you. i am assuming that only your company's name changed, not their tax ID, so technically, they would still be the same employer. traditionally, the way to deal with this is an i140 amendment. could you invoke AC-21 for this instead? i am not sure! maybe others can give their opinions.

in any case, this might be a moot point now, since your old i140 is already amended.
 
GCR,

"What happens if my old I-140 was revoked after 180 days. Would not I come under AC21 ?"

What was the case ? Was the revocation after 180 days of 485 pending ?
 
Hi,

The Revocation was part of the I-140 Amendment. The I-140 Amendment was approved after 180 days so i assume the revocation was also after 180 days.

I think AC21 does not say about I-140 Revocation, technically the 485 should be fine after 180 days but one can never be sure. As in my case once the old I-140 was revoked(Part of I-140 Amendment) after 180 days they denied the case and never looked in to AC21.

Thanks.
 
GcRejected, sorry to hear that. Goodluck! It will get sorted out...Here is some info..It certainly makes me nervous...see if this info helps....

Mergers, Acquisitions, Etc. on Pending I-140s and I-485s

If a company has been acquired, merged or had a significant change in its ownership, the new or reorganized entity is generally considered a successor-in-interest ("Successor") to the originally existing company. In the immigration law context, the Successor is required to submit documentation evidencing that it has assumed the rights, duties, obligations and assets of the original employer and that it will be liable for the employment of the beneficiary subject to the terms set forth in the labor certification and I-140 Petition. Similarly, a company that changed its name or corporate structure would need to meet these requirements.

Traditionally, these requirements by the Successor could have been met in cases where the labor certification (LC) has been approved and the I-140 had not yet been filed, by having the Successor company file the I-140 (immigrant visa petition by employer) with the evidence described above, to reaffirm that the Successor is continuing to offer the employment to the beneficiary in accordance with the information stated on the LC. However, in cases where an I-140 had already been filed without the additional evidence or an I-485 (application to adjust status) had already been filed, and no additional evidence related to this aspect of the petition has been requested by the INS, many would ask whether the company has to start the process over from filing a new I-140 Petition?

There has been a debate among immigration lawyers and the traditional view was that the company that assumed all of the duties and obligations of the predecessor company would have to start the process from filing the Form I-140. So if an I-140 or an I-485 was pending at the time of the company's merger, acquisition or other change, that petition would have to be re-filed. The more recent view, which seems to make sense from a practical point of view is that, as long as the successor-in-interest agrees to assume all of the obligations of the previous employer with respect to the employment relationship, including agreeing to be liable to the U.S. Department of Labor for the prevailing wage, the job location, job duties and other factors, as set forth in the 750 A forms and to the INS as set forth in the I-140 Petition, with respect to the permanent nature of the job, etc., the INS will allow the process to continue, without the requirement of having to start the process over.

In a recent liaison meeting with attorneys of the American Immigration Lawyers Association (AILA) the California Service Center (CSC) recently announced its intention to follow the latter interpretation. The head of the Residence Product Division of the CSC has agreed to the following:

If an I-140 is pending at the time that the company changes, according to the CSC, "no action is required" until the completion of the I-140 stage. Evidence of the "bona fides" of the Successor should be submitted at the time of filing the I-485 application

The CSC will allow applicants to supplement the file on an existing I-485 by submitting evidence of the "bona fides" of the Successor that shows that the same position and compensation, etc. are still offered. The CSC has confirmed will not require re-filing of the I-140 or the I-485.

In order to avoid having such evidence routed through the correspondence process, the attorney should clearly establish on the cover letter that attached documents are for consideration in connection with a pending I-485 application, based on CSC/AILA concurrence and make clear reference to the I-485 Receipt number.

In general, we at The Law Office of Sheela Murthy, P.C. have observed, even with the other Service Centers, that as long as the successor-in- interest agrees to be liable for the employment of the foreign national employee as set forth in the documents submitted to the INS at the I-140 or even the I-485 stage, the process has been continued by the INS.

Please note that many important procedures with INS, for example mergers and successors-in-interest, are not specifically addressed in the immigration statutes or regulations but have been the subject of numerous INS Memoranda as well as letters and announcements to AILA and its member attorneys, because of our intense lobbying efforts to help companies and their employees. Please note that if there is a change in the law, these advisory opinions are not binding on the INS, though the INS and the affected companies and their employees tend to rely heavily on such advisory opinions.

I found the above in this link : http://www.murthy.com/UDmaepis.html
 
My amended 140 has been approved yesterday

An update:

Original 140 RD - 05/05 AD 09/02.
Amended 140/485/EAD/AP RD -1/22/03
Amended 140 AD - 4/24/03.

No news on EAD/AP.

Hope this info helps you in your time of turmoil. I still do not understand why filing an amendment revokes your old 140, if anything, it should preserve it to allow the new one to be adjudicated.
 
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