I-1485 - Spouse - Question - Please advise

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lagasmt

Registered Users (C)
This may be a weird situation.

I was working for a "comp A" since 2004. My labor was done by "Comp A" and they filed I140 and I485 for me, in 2007. I140 was approved, I485 is pending. After that, in 2009, there was a corporate restructuring as a spin off of the "comp A". "comp B" (with a new name) emerged, which is just a successor of interest and taken over all the assets and liabilities of "comp A" and carried out all the operations as the "comp A". "comp B" said, as per the immigration law, they didn't need to file my amended H1 petition, because my roles and responsibilities have not changed. So, "comp B" continued to keep me with the same approved H1 (from "comp A") and with my I140 ("comp A" approved) and was running my payroll ever since. Also, "comp B" sent me all the proof of spin off from attorney office. I trust them.

Just before the restructure, I got married and brought my spouse on H4. My PD is current now and My spouse would like to apply I 485 as a derivative applicant.

Question: As per the I 485 requirements, I think, I need to submit my employment letter when applying I485 application for my spouse.
Currently comp B (with a new name) is my employer.
Can I submit employment letter from comp B and other letters from attorney explaining why it was not needed to file an amended H1 petition?
Will these be accepted?

My approved I-140, I-485 receipts are from Old comp A.
If I submit a mix and match of documents from comp A and comp B, would that cause any problem?
Does it create any problem in my primary application too?

Has anyone come across (or) heard such a scenario before?

Experts, please help me.
Reg
 
lagasmt said:
Question: As per the I 485 requirements, I think, I need to submit my employment letter when applying I485 application for my spouse.
Click to expand...

That's not necessary for a derivative I-485, since your I-485 is already filed. Just submit a copy of the I-140 approval notice and your I-485 receipt. Include an explanation letter about the company restructuring with some documents to prove it, and she'll be OK.
 
Need help again.

Jack, Thanks for your quick response.

While waiting for the response to my post, I was looking at a memorandum issued by the USCIS.
www DOT uscis DOT gov /USCIS/Laws%20and%20Regulations/Memoranda/2009%20Memos%20By%20Month/August%202009/Successor-in-Interest-8-6-09.pdf

Refer to Page 12.

It states about filing Amended I140 by the new employer to retain the previously filed and approved I140 petition. However, it doesn't state if that's applicable for derivative petitions as well.

Can you shed some light on this? I'm trying to understand it clearly.
 
If an amended I-140 is not required for you the primary to sustain your own I-485, it's not required for her as the derivative to file or sustain her I-485.
 
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I think the only loophole available is:

1. I have my I-485 pending for more than 180 days. So I have the option of porting to new "Comp B" without any filing a new I-140 petition.
2. The "Comp B" is a true successor in interest.
3. It's just a name change of the company.

I think, my spouse can go ahead and apply her I-485 with my new employment letter and explaining "comp B" is a true successor-in-interest and the above stated points.

I believe, if USCIS still needs an amended I-140, they would issue an RFE. So we can think about the actions at that time.

Thanx
 
lagasmt said:
I think the only loophole available is:

1. I have my I-485 pending for more than 180 days. So I have the option of porting to new "Comp B" without any filing a new I-140 petition.
2. The "Comp B" is a true successor in interest.
3. It's just a name change of the company.
Click to expand...

From your description at the top of the thread, it seems like more than just a name change. However, if the Federal tax ID of B is the same as it was for A, USCIS would consider it to be the same company. Check your W-2 and you'll see their Tax ID.
 
You are correct. Tax IDs are different between comp A and comp B.
It's not just a name change.

Ok. I'm ruling out the 3rd point i mentioned earlier.

If my spouse would file her I-485 along with:

My employment letter from Comp B,
An explanation about my pending I-485 for more than 180 days,
Letter stating Comp B is a Successor-in-interest with all obligations from Comp A,
Explaining no material change in these companies and my employment (job, duties, salary, location).

Does it have any impact on my primary application? and/or only the derivative application?

I'm little confused and concerned. Please advise.
 
I got a response from a anonymous user:

By providing a job offer letter from B, you are using AC21. Basically, your case needs either AC21 or I-140 ammendment, and if you are eligibile for AC21, it is always the easier route. In a supporting letter, all you need to do is to mention that you are using AC21 portability to B, which is a successor to A, and your job is similar.

Now, my Questions:

After consulting with their attorney, my employer advised me to just file the EVL along with my spouse's applications.
Also, they said, there is no need to volunteer information unless asked. meaning no AC21 notification and no Successor-in-interest letters.
They said, If we provide a new Employment Verification Letter from "company B", that will clearly explain, I'm taking AC21 route. However, if the USCIS comes with an RFE, my employer said they are ready to furnish details at that time.

Is this a good approach? Any risks involved in this approach?
(or)
We must send a AC21 letter and/or successor-in-interest letters?

Please advise.
 
Proactively submitting documentation for AC21 would be to protect yourself in case the employer asks USCIS to revoke the I-140. That surely isn't going to happen when they're employing you.

Submit the EVL with a copy of the I-140 approval and your I-485 receipt, and you shouldn't have a problem. If you get an RFE deal with it, but it's unlikely.
 
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