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I-140 withdrawl question
- Thread starter hkond
- Start date
pashwin said:If I-140 is not yet approved, employer can withdraw that petition.
pashwin,
A slight correction to you post. Actually, you can withdraw a 140 petition even after it is approved and use the underlying labor for another applicant. The only drawback in this case is that since you don't have the original labor to file the substitution case, there might be delay in processing the new I-140.
hkond, To answer your question, yes it is possible to substitute somebody even if a 140 was approved for the prior applicant.
Cheers
H1BneedGC,H1BneedGC said:pashwin,
A slight correction to you post. Actually, you can withdraw a 140 petition even after it is approved and use the underlying labor for another applicant. The only drawback in this case is that since you don't have the original labor to file the substitution case, there might be delay in processing the new I-140.
hkond, To answer your question, yes it is possible to substitute somebody even if a 140 was approved for the prior applicant.
Cheers
So you mean that if a person A with approved I-140 leaves the current job and join any other company using AC21. The former employer can revoke the I-140 and use his labor with some other person B. So now what happens to the status of the person A for whom the labor was done and I-140 was approved and what would be his standing.
Thanks H1BneedGC!
My employer has 2 approved I-140's (both employees left the country 4 years back, not applied for 485) and I am trying to convince Emplyr & attorney to withdraw and use it for me. Been waiting on the NY labor for last 3 years. Surviving on 8th yr extension.
Thanks
My employer has 2 approved I-140's (both employees left the country 4 years back, not applied for 485) and I am trying to convince Emplyr & attorney to withdraw and use it for me. Been waiting on the NY labor for last 3 years. Surviving on 8th yr extension.
Thanks
H1BneedGC said:pashwin,
A slight correction to you post. Actually, you can withdraw a 140 petition even after it is approved and use the underlying labor for another applicant. The only drawback in this case is that since you don't have the original labor to file the substitution case, there might be delay in processing the new I-140.
hkond, To answer your question, yes it is possible to substitute somebody even if a 140 was approved for the prior applicant.
Cheers
hkond said:Thanks H1BneedGC!
My employer has 2 approved I-140's (both employees left the country 4 years back, not applied for 485) and I am trying to convince Emplyr & attorney to withdraw and use it for me. Been waiting on the NY labor for last 3 years. Surviving on 8th yr extension.
Thanks
Your employer can revoke/withdraw the old approved I-140s and substitute you on one of them. The only care that needs to be taken is that your company will have to prove the "Ability to Pay" from the Priority date of the original labor (in this case it would be over 4 years as you mentioned). If the company's financial status has been good, then nothing to worry.
Good Luck and keep us posted how it goes.
Cheers
gckajadoo said:H1BneedGC,
So you mean that if a person A with approved I-140 leaves the current job and join any other company using AC21. The former employer can revoke the I-140 and use his labor with some other person B. So now what happens to the status of the person A for whom the labor was done and I-140 was approved and what would be his standing.
The scenario that you mentioned is kind of loop hole in the process. If the original beneficiary uses AC21 (and informs USCIS about it) and changes jobs and then the employer revokes that I-140 and substitutes a second applicant, I think the second applicant also will get his I-140 approval. Its a bit tricky and a good competent lawyer should be able to handle it with ease.
Good Luck. Let us know how this goes.
H1BneedGC said:The scenario that you mentioned is kind of loop hole in the process. If the original beneficiary uses AC21 (and informs USCIS about it) and changes jobs and then the employer revokes that I-140 and substitutes a second applicant, I think the second applicant also will get his I-140 approval. Its a bit tricky and a good competent lawyer should be able to handle it with ease.
Good Luck. Let us know how this goes.
Actually, I disagree (does that make me a non-competent lawyer). It is far more than "a bit tricky" and there were disagreements among panel members at the last AILA annual conference about this. Without regulations, USCIS has nothing but guidance (which is not binding and does not directly address this situation in any event).
As a practical matter, I am willing to bet that USCIS will NOT interpret AC21 to mean that an employer can use the same LC to file I-140s and I-485s for employees forever. All a company would need is approved LCs for all of its employees and it would never need to file for another LC, it could just recycle the used LC when an alien leaves and then refile a new I-140 and I-485 for a new alien employee.
The best that I could conclude at the end of the AILA conference (and this too is subjective and may be inaccurate) is that after the I-140 has been approved and the I-485 pending for more than 180 days, the alien is free to port and the cancellation of the underlying I-140 at that point would not affect the the alien's ability to adjust. At that point, the alien is deemed to own the I-140.
Again, without regulations this is all guesswork.
Jim Mills said:Actually, I disagree (does that make me a non-competent lawyer). It is far more than "a bit tricky" and there were disagreements among panel members at the last AILA annual conference about this. Without regulations, USCIS has nothing but guidance (which is not binding and does not directly address this situation in any event).
As a practical matter, I am willing to bet that USCIS will NOT interpret AC21 to mean that an employer can use the same LC to file I-140s and I-485s for employees forever. All a company would need is approved LCs for all of its employees and it would never need to file for another LC, it could just recycle the used LC when an alien leaves and then refile a new I-140 and I-485 for a new alien employee.
The best that I could conclude at the end of the AILA conference (and this too is subjective and may be inaccurate) is that after the I-140 has been approved and the I-485 pending for more than 180 days, the alien is free to port and the cancellation of the underlying I-140 at that point would not affect the the alien's ability to adjust. At that point, the alien is deemed to own the I-140.
Again, without regulations this is all guesswork.
Jim,
Thanks for your insights. Appreciate it.