I-140 revoked - H1 3yr extension

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pacha_card

Registered Users (C)
As per AC21 provisions I have moved to a new company. My previous employer revoked my I-140. Now my new employer is applying for my 3yr H1 extension based on approved I-140. I have already got NOID on I-485 and my attorney is responding to that.
Any idea how USCIS would consider this case. Do you think my H1 will be approved.

thanks in advance.

- VG
 
pacha_card said:
As per AC21 provisions I have moved to a new company. My previous employer revoked my I-140. Now my new employer is applying for my 3yr H1 extension based on approved I-140. I have already got NOID on I-485 and my attorney is responding to that.
Any idea how USCIS would consider this case. Do you think my H1 will be approved.

thanks in advance.

- VG
Click to expand...

Unless you are within 6 years, your H1 will be rejected (as per rules)
 
No I have already got my 7th year extension before my I-140 was revoked and now I am applyling for 8th year extension.

But once I prove I am covered as per AC21 provisions wouldn't they consider my case ???
 
pacha_card said:
No I have already got my 7th year extension before my I-140 was revoked and now I am applyling for 8th year extension.

But once I prove I am covered as per AC21 provisions wouldn't they consider my case ???
Click to expand...

Basis for H1 extension is approved I-140. Now that it is revoked, there is no basis.

I am in same situation.
 
I contacted Murthy when my 485 was denied and asked if I could apply for H1 once 485 is reopened, atleast one with no I-94. The answer was No. Even the lawyer who I am working with now said the same.

So I never applied for H1 after 140 was revoked by former employer
 
Thanks Greencardvirus for sharing your case.
My current employer's immigration department didn't know what to do
in my case to apply for H1 or not. Finally they decided to go ahead and
prepared to answer for any RFE by showing the AC21 documentation.

I will update here once I hear any thing from my employer.
 
GreenCardVirus said:
Basis for H1 extension is approved I-140. Now that it is revoked, there is no basis.

I am in same situation.
Click to expand...

Hey but his I140 is approved and also 485 should have been filed atleast 6 months prior to the AC21 - I think if those conditions are met and if the new job is similar to the previous one (description and salary wise) - you are fine
 
nother1inline said:
Hey but his I140 is approved and also 485 should have been filed atleast 6 months prior to the AC21 - I think if those conditions are met and if the new job is similar to the previous one (description and salary wise) - you are fine
Click to expand...

Fine for what? Filing a H1? or just the GC process? GC process will be ok, but H1 extensions cannot be filed beyond 6 years if 140 is revoked.
 
pacha_card said:
As per AC21 provisions I have moved to a new company. My previous employer revoked my I-140. Now my new employer is applying for my 3yr H1 extension based on approved I-140. I have already got NOID on I-485 and my attorney is responding to that.
Any idea how USCIS would consider this case. Do you think my H1 will be approved.

thanks in advance.

- VG
Click to expand...

Pacha_card,
I am in exactly similar situation like you. Please read this thread

http://www.immigrationportal.com/showthread.php?t=204534&page=4

I am also sending you a pvt message. Please keep in touch. Wish you all the best.

I am quoting some Q&As from the latest Memo on AC21 of May 12, 2005.

Question
When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or B. an I-140 is denied or revoked at any time
except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Does this mean even if the approved I-140 was withdrawn after 180 days of pending I-485 then USCIS considers the I-140 valid for Portability Purposes. If the I-140 is considered valid for portability purposes then why should the person not be given H1-7th year extension .

The next question clarifies the same:

Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT Question 1.

Question : Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?

Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

This also clarifies the H1-B will be garnted for a period of 3 years if all other H-1B statutory and regulatory requirements are met.

Question : If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?

Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

The Memo Doesn't specify anything that says the the Approved-140 will not be considered for 7th year extension if it is withdrawn after >180 days of pending I-485.

My lawyer told me his reply after confirming that if my I-140 was approved when I ported to a new employer and he also told me that I should get 3 year extension.

GreenCardvirus, I am still not sure why you were not granted the 7th year extension as per the New Memo Released on May 12, 2005.

Can anyone on this forum please please throw some light on this subject.
 
I am posting the USCIS letter here...

I am just pasting here the core part of the NOID issued by USCIS, please read thru' first.

My question: If you look at the statment in bold letters doesn't this statement convey that my I-140 will be restored once I respond for the NOID and if USCIS decides that I am eligible as per AC21. then I should be able get my 3-yr H1 extension and also I should retain my original PD.....Do you all agree on this ????

--------------------------------------------------------------------------
On October 28,2005 the immigrant visa petition(Form-140) that was filed and approved on your behalf was revoked. Based on the current record, you do not appear to be eligible to adjust the status to Lawful permanent Resident since there is no longer an immigrant visa immediately available to you.

However section 106(c) of The American Competitiveness in the Twnety First Century Act (AC21) priovides that you may still adjust status, despite the grounds of ineligiblity listed above, if your application has been pending for 180 days or more and you can establish that you have a bona fide offer of employment from a new employer in same or similar occupation.

In order for the validity of the revoked immigrant visa petition (Form I-140) to be preserved for adjustment of status based upon a new offer of employment pursuant to section 106(c) of the AC21 Act, you must submit the following

1) A Written request to have your application considered under section 106
(c) of the AC21 Act.
2) An orignal letter on company letterhead outlining your employment or offer
of employment by your current or prospective employer containing a
detaild decription of the offered position, duties, remuneration and
prospect for continued employment.
--------------------------------------------------------------------------
 
Last edited by a moderator:
pacha_card said:
I am just pasting here the core part of the NOID issued by USCIS, please read thru' first.

My question: If you look at the statment in bold letters doesn't this statement convey that my I-140 will be restored once I respond for the NOID and if USCIS decides that I am eligible as per AC21. then I should be able get my 3-yr H1 extension and also I should retain my original PD.....Do you all agree on this ????

--------------------------------------------------------------------------
Click to expand...

Your case is classic case of AC-21.
If you respond within 30 days you are eligible to get extension. PD is retained automatically.
 
My attorney responded to NOID on 04/19. Last week there were 4 LUD changes on my I-485. Is there any way I can find out what is happening on my case.

04/21 - RD
04/22 - No message
04/25 - No message
04/26 - No message
04/27 - No Message

Which is the better method to get the accurate info on my case.

- To contact the local USCIS office OR
- Calling USCIS cusotmer service number.OR
- Just wait few more weeks.

Any body any ideas ??
 
pacha_card said:
My attorney responded to NOID on 04/19. Last week there were 4 LUD changes on my I-485. Is there any way I can find out what is happening on my case.

04/21 - RD
04/22 - No message
04/25 - No message
04/26 - No message
04/27 - No Message

Which is the better method to get the accurate info on my case.

- To contact the local USCIS office OR
- Calling USCIS cusotmer service number.OR
- Just wait few more weeks.

Any body any ideas ??
Click to expand...

Wait for 3 weeks and then call USCIS or use InfoPass.
 
Relax dude ... USCIS officer was once a human as well. Let him look into yur file a lil more. ....

Any time .... :)
 
Cheekoo said:
Relax dude ... USCIS officer was once a human as well. Let him look into yur file a lil more. ....

Any time .... :)
Click to expand...

You are right Dude. Just curious and also nervous, nothing else.
Thought if I post the proceedings here sombody who had experienced the same would responsd with his/her experiences, so that I can get prepared for worst case scenario.

Just trying to guess if it is a good or bad sign when an officer is working for so many days on my case. My case looks very simple perfectly eligible for AC21 and new offer letter has the same duties, salary and position. And I know for sure that my previous employer had used the same labor for somebody else.

Since mine is not original labor, my ex-employer had filed my GC with substitution labor, so I am not sure how it works out.
 
pacha_card,

Four months back after my attorney replied to the NOID, there were LUDs (around 4 times) and after that nothing yet happened. It is been four months.

I hope you will receive some good news soon.


Keep us posted with updates.
 
Hello GCdeewana,

Thanks for sharing your case.
You haven't heard because your PD is not current ??
If yes then may be the same case for me.

Have you tried contacting USCIS??

Can you post your case details.

Thanks,
EB3 PD 12/2002 (Substitution)
I-485, I-140 RD: 08/2004
I-140 AD 09/2004 (revoked 10/2005)
NOID issued 03/21/2006
Responded 04/19/2006
 
pacha_card,

Here is my details.
EB2- NSC
I140/I485/EAD/AP - RD - Feb 2nd 2005
EAD/AP Approved on March 31st 2005
FP : April 19th 2005
I140 approved on May 11th 2005
PD: OCT-2000 before revoking 140. Donno what is current one??
11/04/2005 - H1B 3 yrs extension approved beyond 6 yrs from VSC
11/07/2005 - Employment change
12/12/2005 - Revoke 140 by old employer
12/12/2005 - Issued NOID
12/22/2005 - Received NOID
12/29/2005 - Received response to NOID.
485 LUDs --- (12/28, 12/29, 01/02,01/03, 04/03)
 
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