I140 approved on appeal !

[popsy]

I just got an email from my attorney that AAO has sustained my appeal! This means that the original denial has been overturned by AAO.. I'm not sure what the timeline is for CSC to approve my 140 and re-open the original 485 for processing..

UN knows my case details very well.. for others, here are my details, briefly:

Orig labor, EB2, Concurrent Filing 8/17/03
EAD was put on hold, RFE on 140 received in Dec'03
Responded to RFE Feb'04
I-140/765/485 denied on March 18th, 2004 (Ability to pay and few other reasons -mostly errors or oversight on the part of CSC)
MTR and Appeal filed on April 15th, 2004
Case transferred to AAO May 6th, 2004
Re-filed 140/765/485 using same labor (as a backup option to appeal) 6/10/04
EAD received (based on refiling) 10/18/04
Appeal on the original 140 approved on 11/18/04 !!!


Infact, I wasn't expecting any development on the Appeal based on processing times at AAO. Instead I thought, the re-filed 140 would come up for processing sooner than the appeal - but, here is a decision from AAO in less than 7 months!!

The most encouraging thing from this, for all of you out there dealing with this problem, especially ability to pay issue, is that AAO is taking a very reasonable stand on it - it doesn't matter whether the company made a profit or loss - what matters is whether you've been paid the salary as specified in the labor - as long as you can prove that you should be fine. Also, there is a perception that AAO usually doesn't like to overeturn the service center's decision even if they were in the wrong - that is not true- they seem to correct mistakes, especially if there is addl. evidence on appeal.

I don't know how much longer it will take for me to actually get the 140/485 approval but the uncertainty seems to have gone. Good luck to all of you -don't lose hope and get a good attorney when it comes to appeal.

 

[GC Guy]

Can we file MTR + Re-Filing at the same time? or in Sequence?

My lawyer says we can either for MTR or Re-filing, not both, is that true?

Thanks,

 

[popsy]

We filed MTR along with appeal. Did the re-filing couple of months later (we decided to re-file once the MTR was rejected and the case was forwarded to AAO)

Can we file MTR + Re-Filing at the same time? or in Sequence?

My lawyer says we can either for MTR or Re-filing, not both, is that true?

Thanks,

 

[popsy]

To UN

UN, Thankyou. For the pro-rated wage issue, we basically did the math on the appeal - Showed a monthly salary based on annual salary (as per labor)divided by 12 and start date with the employer (March) and established that the income as per W2 represented 9 months worth of salary for the year. My lawyer had also cited some case laws to counter the 'ability to pay' issue interestingly, in the decision, AAO has said that those cases cannot be used as precedents because they were 'unpublished' but, in my case, found that my employer has established 'ability to pay' based on the fact that they did pay me the contracted wage. On the whole, a very interesting 6 page decision.

My fingerprints are definitely less than 15 months.. My lawyer is suggesting that we file an application to re-open the old 485 (based on the AAO approval), rather than to wait for them to do so automatically. I'm not sure if I want to spend any more money on this .. do you think it will happen automatically pretty quickly or should I file that request? Also, is the old 140 treated as approved at this point or that is another step in itself?

BTW, I continue to get ridiculous queries on my pending H1 extension and I'm finally deciding to abandon it on the strength of the EAD / AAO approval!

Popsy, congratulations.

I know that you were going by the standard that as long as one is paid proferred wage from priority date then it will get approved. It is a good basis and there were some other AAO decisions which supported this.

What I am interested to know is how did you argue the prorated proferred wage and how did AAO address this in their decision.

Also, if your fingerprints are current (less than 15 months) and name check is clear, you should get approved very fast.

 

[popsy]

My H1 Extension was filed before the denial of my original 140 - just a month before my 6 years was to expire and I had a valid pending 140/485 at the time

One more thing. When you applied for 7th year extension, was it on the appeal or on the new 140.

Thanks.

 

[popsy]

Hi UN, I still have a valid 'pending' H1 extension and the latest query on it gives me time till mid-Jan '05 to respond. I also have an approved EAD - I don't know what constitutes switching to 'EAD' from a 'H1' status - I don't it is the mere fact of having an approved EAD - I would think one would have to officially switch from h1 to ead .. in my case, all my terms with my employer are still the same and I think I will continue to be on this 'pending H1 extn' status until the the due date for the response....my hope is, I will get the 140 (and preferably 485) approved by then based on my appeal result. Do you think I still need to respond to the H1 extn query?

It is USCIS procedure to re-open all applications once the 140 is approved. You do not need to do anything. However, 140 still isn't approved and sometimes the service centers take their time in approving. However, in the next couple of days or one week they should approve the 140. If at that time they don't re-open the 485 then you are going to need to request them to do it.

With regards to the h-1, better take advice from lawyer. There has been some cases where USCIS has gone back to h-1 to ensure that the terms of h-1 are valid and that you or your company haven't broken terms. They pick on the admissability issue.

 

[popsy]

quick questions: how long do they take to approve once you make a request to re-open 485 based on AAO decision ? what is the admissability issue you are talking about?

It is USCIS procedure to re-open all applications once the 140 is approved. You do not need to do anything. However, 140 still isn't approved and sometimes the service centers take their time in approving. However, in the next couple of days or one week they should approve the 140. If at that time they don't re-open the 485 then you are going to need to request them to do it.

With regards to the h-1, better take advice from lawyer. There has been some cases where USCIS has gone back to h-1 to ensure that the terms of h-1 are valid and that you or your company haven't broken terms. They pick on the admissability issue.

 

[popsy]

Thanks for your reply. But, the more you write, the more questions I have - so, please bear with me and respond to the foll:

1. How do you say that 485 processing dates are current for me and not for you?

2. Was that alarming 'baltimore' case a 'reversal' of a successful 140 appeal?

3. Come Jan'05, assuming they still didn't process my 485 yet, will I not be automatically covered under my EAD if I choose to withdraw the H1 extension or simply not respond to the latest RFE?? In other words, am I not entitled to work on my EAD and continue to renew it until my 485 is adjudicated?

I do not have any issues with any of the items you've specified in the 485 stage - criminal, health or status (I have continuously maintained H1 status) -Last almost 4 years of which with the current employer. Though for some reason they have decided to ask every possible question under the sun re. my company, myself and the job, when it came to extension.

Having gone through the ordeal of an unjust 140 denial, I was just begining to feel a sense of relief with the AAO decision and here you are saying that it may not yet be over for me because of the pending H1 extn - and that is freaking me out (though, I'm sure that it wasn't your intention to scare me

Appreciate your response. thanks

My 485 has been reopened since end of April 2004 but no approval. They won't approve mine until the processing dates become current.

However, once your 485 gets reopened, it should be a matter of days for approval as the processing dates are current for you.

There was an alarming AAO decision that we have termed "denied-baltimore case". It is in the vermont 485 forum and it is an AAO decision in 2004 under "certification" category.

Essentially, uscis didn't like the fact that the person was working in a different location other then the one specified on the labor cert. AAO went on to say it is for future job and that it was fine, blah, blah, blah.

However, AAO picked up on the fact that the person's h-1b didn't allow for work in multiple locations and that this was a possible violation of h-1b that could render the person inadmissable. Essentially, at the 485 stage they look at criminal, health issues and the most important is if one stayed in status while they were in USA.

 

[popsy]

re: baltimore case

UN, thanks for the link. the latest update on that case (as per the link) seems to be that it was approved by AAO...has there been a subsequent rejection of this decision??