I-140 Pending and AC21

snafu

Registered Users (C)
My I-140 has been pending since Dec'03. I'm now planning to use AC21 to join the company where I have been working as a contractor for the past 20 months. So far I have received 3 APs and 3 EADs and have compeleted my 2nd FP (same with the spouse). I have just applied for my 8th year extn.

My current employer(sponsor of my GC) and my potential future employer have agreed to support me through this process. I'm depending on the 5/12 Yates Memo.

Based on my interpretation of the Yates Memo, I believe that AC21 should force USCIS to actually look into my file(I-140) that has been gathering dust. My case is currently under security check. They can now make a decision as to approve, issue RFE or deny my case (which they should have done a long time ago). If I don't take any action, they will eventually get around to it in, say, the next 1-5 years. At that time they would still have to either approve, issue RFE or deny my case. The under lying details remain the same, unless new laws change the way they process I-140s.

There are certain issues with my case. I'm using a sub labor. The PD for that LC is Feb 2002. The company showed losses for the year 2002 (shown profits since then). I have been working since Oct 2003 for the company. I was told that USCIS had rejected quite a few I-140s filed by my company with LCs that were applied in 2002 (they approved a couple of applications). The reason for denial, as per USCIS is that the company didn't have the means or ability to pay as they showed losses for the year in which the labor was applied for. This is a very narrow interpretation of the law. My company could amend the tax returns for 2002 (show receivables) and appeal the case but isn't inclined to do so (they want to avoid any issues with IRS).

Based on the above facts,
1) What is the worst case scenario if I use AC21 and my I-140 gets denied?
2) In the above scenario, what are my options?
3) Will I be able to switch to H1 and if so how can I go about doing that?
4) If the USCIS issues the ability to pay RFE, how should my company respond?
5) Has any one successfully appealed/replied to an RFE with ability to pay issue where the compant showed lossed in the year the LC was filed.

Sorry about the lengthy post. Any insight/advice will be really, really appreciated.

Thanks
 
snafu said:
My I-140 has been pending since Dec'03. I'm now planning to use AC21 to join the company where I have been working as a contractor for the past 20 months. So far I have received 3 APs and 3 EADs and have compeleted my 2nd FP (same with the spouse). I have just applied for my 8th year extn.

My current employer(sponsor of my GC) and my potential future employer have agreed to support me through this process. I'm depending on the 5/12 Yates Memo.

Based on my interpretation of the Yates Memo, I believe that AC21 should force USCIS to actually look into my file(I-140) that has been gathering dust.
---------- what if the AC21 papers dont get attached to your I-485 file?
My case is currently under security check. They can now make a decision as to approve, issue RFE or deny my case (which they should have done a long time ago). If I don't take any action, they will eventually get around to it in, say, the next 1-5 years. At that time they would still have to either approve, issue RFE or deny my case. The under lying details remain the same, unless new laws change the way they process I-140s.

There are certain issues with my case. I'm using a sub labor. The PD for that LC is Feb 2002. The company showed losses for the year 2002 (shown profits since then). I have been working since Oct 2003 for the company. I was told that USCIS had rejected quite a few I-140s filed by my company with LCs that were applied in 2002 (they approved a couple of applications). The reason for denial, as per USCIS is that the company didn't have the means or ability to pay as they showed losses for the year in which the labor was applied for. This is a very narrow interpretation of the law. My company could amend the tax returns for 2002 (show receivables) and appeal the case but isn't inclined to do so (they want to avoid any issues with IRS).

Based on the above facts,
1) What is the worst case scenario if I use AC21 and my I-140 gets denied?

------------- I-485, EAD AP all will be denied
2) In the above scenario, what are my options?
---------- Keep on extending H1 and remain on H1 let the new employer file LC through PERM don’t send AC21 papers, send only when they ask or send RFE. You will get time to get your PERM LC approved and then new employer can file I-140 (while I-485 filed earlier is still pending) once the new I-140 gets approved you will be safe and can Interfile new I-140 with pending I-485 and make a request to approve the pending I-485 based on new I-140. I am giving you that suggestion because the past company has to show ABILITY TO PAY from the date your LC was filed. Your pending I-140 may be rejected because of the company history you have provided
3) Will I be able to switch to H1 and if so how can I go about doing that?
-----find new employer let them file H1 trasfer
4) If the USCIS issues the ability to pay RFE, how should my company respond?
---------- that need to be answered by your company or wait what others say
5) Has any one successfully appealed/replied to an RFE with ability to pay issue where the compant showed lossed in the year the LC was filed.
----- I dont know any case wait for others comment
Sorry about the lengthy post. Any insight/advice will be really, really appreciated.

Thanks
 
Hi! ginnu

Thanks for the info.

So as long as I have a backup option (LC and/or I-140) from another company, I should be fine..I guess.

So how sure are you of the fact that I can interfile the new I-140 with a pending I-485? I was under the impression that the I-485 would be tied to the previous I-485.

Thanks,

Snafu
 
I meant "I was under the impression that the I-485 would be tied to the previous I-140".
 
snafu said:
I meant "I was under the impression that the I-485 would be tied to the previous I-140".
--------------yes your I-485 rests on the I-140 at this time and if you get your second I-140 approved then you can interfile second I-140 with Pending I-485
 
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