I485 denied, case of AC21

P

ps0868

Registered Users (C)
All,

I need urgent help.

My I-140 was approved in Mar'2002.

My I485 was filed in Apr'2002 from Vermont SC.

I changed my employer on June 2, 2003. after more than 13 months of filing of I485. I decied not to send any AC21 correspondence and rather wait for RFE.

I got RFE in May'2004.

The RFE stated that response requried by 9th August, 2004. The RFE said to provide "Submit an original letter on company letterhead from your current employer stating your date of hire, duties, remuneration and prospect of continued employment. The evidence may include a) an original letter of employment(stating prospect for continued employment and salary) or a Form I134 or other evidence such as bank letters etc."

I submitted my response on 21st June, 2004. The response had Original letter on company letterhead from my current employer stating date of hire, duties, remuneration and prospect for continued employment, Copy of W2 Wage statement for Year 2001 thru 2003, Copy of last 3 pay stubs and Original Query Letter as received from US Dept of Homeland Security.

I received a decision from USCIS stating.....

"On July 9, 2004 a notice was sent to you revoking your underlying Immigration Petition for Alien Worker, Form I-140. On March 11, 2002 the USCIS approved the petition and it was housed at this office. It has come to the attention of this office that you wish to withdraw the petition, thus, resulting in the revocation of the Form I-140.

The record does not contain evidence that you are the beneficiary of an approved immigrant petition, or that there is a concurrently filed immigrant petition awaiting review in your behalf. For that reason, you have not established that there is an immigrant visa immediately available to you.

Therefore, your application is denied.

The regulations do not provide for an appeal from this decision."

I was hoping for another RFE or an interview where I thought of clarifying my action under AC21. However, now I am thinking of filing a Motion to Reopen. Any clue,

1) How strong is my case?
2) How long that might take?
3) How can one expedite this?
4) What stage of my motion to reopen, will I be able to resume my work? If possible ????

Please help with any input you may have.

Thanks,

ps0868
 
Looks like you have a similar case as me . Did your previous employer file for I-140 withdrawl?

You can try sending a motion to reconsider. Seems like USCIS is not taking the AC21 cases as per the guidelines .

il_labor
 
ps0868 said:
All,

I need urgent help.

My I-140 was approved in Mar'2002.

My I485 was filed in Apr'2002 from Vermont SC.

I changed my employer on June 2, 2003. after more than 13 months of filing of I485. I decied not to send any AC21 correspondence and rather wait for RFE.

I got RFE in May'2004.

The RFE stated that response requried by 9th August, 2004. The RFE said to provide "Submit an original letter on company letterhead from your current employer stating your date of hire, duties, remuneration and prospect of continued employment. The evidence may include a) an original letter of employment(stating prospect for continued employment and salary) or a Form I134 or other evidence such as bank letters etc."

I submitted my response on 21st June, 2004. The response had Original letter on company letterhead from my current employer stating date of hire, duties, remuneration and prospect for continued employment, Copy of W2 Wage statement for Year 2001 thru 2003, Copy of last 3 pay stubs and Original Query Letter as received from US Dept of Homeland Security.

I received a decision from USCIS stating.....

"On July 9, 2004 a notice was sent to you revoking your underlying Immigration Petition for Alien Worker, Form I-140.
----- you did not mention that you recieved a notice for revoking you I-140 on JULY 9,2004

On March 11, 2002 the USCIS approved the petition and it was housed at this office. It has come to the attention of this office that you wish to withdraw the petition, thus, resulting in the revocation of the Form I-140.
----- It seems that they sent I-140 revoking notice to your past employer or company lawyer On July 9, 2004 and employer had earlier sent letter that I-140 should be revoked and now they discovered that I-140 revoking letter, I dont know WHEN your employer sent the I-140 to be revoked letter to USCIS. that is important to know
The record does not contain evidence that you are the beneficiary of an approved immigrant petition, or that there is a concurrently filed immigrant petition awaiting review in your behalf. For that reason, you have not established that there is an immigrant visa immediately available to you.

Therefore, your application is denied.

The regulations do not provide for an appeal from this decision."

I was hoping for another RFE or an interview where I thought of clarifying my action under AC21. However, now I am thinking of filing a Motion to Reopen. Any clue,

1) How strong is my case?
---- A)if the employer sent I-140 revoking letter BEFORE your I-485 was pending less than 180 days then the case is week .
B)yourI485 was filed in Apr'2002 and you left the employer June 2, 2003 and your I-140 was approved at that time and your I-485 was pending more than 180 days and even if the employer sent I-140 revokation latter in this situation the USCIS August 2003 Memo says that I-140 will remain valid you can file Motion to reopen and take the service of good lawyer and must point out the section in MEMO to the officer
2) How long that might take?
---- depends on officer and service center and the USCIS officer can also take the advice of USCIS H.Q in your case
3) How can one expedite this?
4) What stage of my motion to reopen, will I be able to resume my work? If possible ????
---- Dear, you should immidiatly hire good lawyer
Please help with any input you may have.

Thanks,

ps0868
Click to expand...
 
As ginnu said, if your former company revoked your I-140 prior to the 180 days of filing the I-485, then your case is weak. However, if the request to withdraw took place after the 180 days, then you are in good shape. Since, you worked with the former company well after you filed the I-485, I don't believe your former would withdraw that I-140 during the time you are with them. Your case seems good to me. Get a good attorney and you will be fine. Good luck!
 
anxiouslady said:
I think the main reason you got the trouble is, you didn't send the petition letter for AC21 in your response in June. As you know, INS will not take AC21 by default. You have to have the petition letter for it. It is OK you did not notify INS when you changed the job in 2003. But you SHOULD use AC21 when you got the RFE in May 2004!!!!!! This is absolutely the key!!!!!! I don't know why you did not say that when you replied the RFE.
Click to expand...

There is no petition letter for AC21, nor does it need to be specifically claimed. The fact that the EVL submitted with the RFE had a different employer automatically meant that our original poster was invoking AC21 provisions for portability.

This looks like a clear case of service error - the Yates memorandum clearly states that I-140 revocation should not result in the automatic denial of the adjustment. This is a case where the original poster should get a new attorney and file a Motion to Reconsider claiming Service error.

Move quickly! He only has 30 days.
 
I disagree with TheRealCanadian

When USCIS sent me a NOID on my pending case they specifically asked for a personal letter explaining my eligibility under AC21 106 (c) with a employment verification letter

Just replying with new employment job offer letter does not invoke you being using AC21. One need to follow the guidelines and respond appropriately to activate your eiligibility under AC21 law with supporting evidence to continue process your I-485 case.

But looking in practical, and service center very well aware of the fact about the changing jobs after 180 days itself will invoke the AC21 applicable.. but we never know with USCIS ..

in my case they specifically asked for it on my NOID notice
 
what now??

so what happens if a case is denied in such a situation?- assuming it cannot be reopened, how long do we have to finish up affairs and leave the country- do we get time to work out notice with a current employer?

Not that I wish this on anyone-especially not the origianla poster, but I am curoius with so many of the new AC21 cases leading to denials, what happens in such a situation?
 
kvpt_mm said:
I disagree with TheRealCanadian. When USCIS sent me a NOID on my pending case they specifically asked for a personal letter explaining my eligibility under AC21 106 (c) with a employment verification letter
Click to expand...

When the I-140 gets revoked then the only thing that can save you is AC21. USCIS is giving you a strong hint that this is the only thing that can overcome your NOID. However, there is absolutely nothing in law, regulation or memorandum that states that one must explicitly invoke AC21 provisions when porting an I-485.

Just replying with new employment job offer letter does not invoke you being using AC21. One need to follow the guidelines and respond appropriately to activate your eiligibility under AC21 law with supporting evidence to continue process your I-485 case.
Click to expand...

Perhaps you can explain to me how I was able to use AC21 to port my I-485 not once but twice, once at the RFE stage and then for a second time at the interview, making no explicit invocation of AC21 and providing just an EVL. I am not making my claims based on idle speculation, but my own experience.

service center very well aware of the fact about the changing jobs after 180 days itself will invoke the AC21 applicable.. but we never know with USCIS .. in my case they specifically asked for it on my NOID notice
Click to expand...

Absolutely. It never hurts to explicitly mention AC21 and to lead USCIS in the direction you wish to go. They too can lead you in a particular direction based on the wording of the RFE or NOID.

The only thing I am stating is that explicit mention or invocation of AC21 is not required in order to avail oneself of I-485 portability.
 
Thanks. I tend to agree and that exactly is my understanding of AC21. I ran it by couple of attornies and all stated the same. Only unfortunate thing this have caused is I can not work till my Motion to reopen is reconsidered. My job / career is at stake. Hope to hear back soon from USCIS once motion is filed.
 
No, I never received such notice on I140 withdrawal nor my previous attorney have, unless he is lying.
 
ps0868 said:
No, I never received such notice on I140 withdrawal nor my previous attorney have, unless he is lying.
Click to expand...

Well, since you aren't a party to the I-140 it wouldn't surprise me that you weren't informed. Get that MOTR out the door ASAP (since it's clear service error) quoting the Yates Memorandum and providing a new EVL.

Look up feb6361 - I think he was in a similar situation to you and filed an MOTR. You should be able to find him in the Atlanta Local office thread under VSC I-485 transfers.
 
Thanks TheRealCanadian for yr suggestion. I have identified an attorney to work on this case and she will file MTRO by end of this week. Hope to hear decision (positive) soon.
 
I Am In The Same Boat

Hi Guys,
Reading Your Stories I Thought To Share My Story As Well:
My Employer Has Also Revoked My I-140 Which Results The Denial Of 1-485.i Apply For Mtr And With The Help Of Senator My Case Got Reopened.after Several Visit To Ins Office Baltimore And Several Telephone Conversations With The Vermont Staff It Feels Like At Uscis Its An Absolute Chaos.nobody Knows Any Thing.i Have Filed For Ac21 As My I-140 Was Approved And 1-485 Was Pending For More Than 180 Days. In The Meantime I Have Changed My Attorney Too.i Hav Esimilar Job Capacity With The Similar Salary And Job Responsibilities.
I-140 Rd 14jan2002
1-485 Rd 14may2002
Fp1 Done:09aug2002
Fp2 Done 13feb2004
1-140 Revoked 16mar2003
Mtr Filed 26mar2004
Any Chances For Me?
 
zj1965 said:
Hi Guys,
Reading Your Stories I Thought To Share My Story As Well:
My Employer Has Also Revoked My I-140 Which Results The Denial Of 1-485.

-- do you have any info when the employer sent letter to revoke your I-140??
if it was after I-140 approval and I-485 was pending more than 180 days then very good chances for your approval.
i Apply For Mtr And With The Help Of Senator My Case Got Reopened.
------ who is your Senator??
--- Did they transfer your case to Baltimore for Interview?
was your case denied by USCIS service center or by Baltimore District Local office at the time of interview?
If it was at the time of interview at local USCIS office Baltimore did you provide them the AC21 letter and argued or showed the USCIS MEMO of AC21 (august 2003)? what did officer say, or the reason given by officer, was it officer A, B, C D at Baltimore who conducted the Interview?
I am confused becase Baltimore has good officers and they know about AC21 and about MEMO

after Several Visit To Ins Office Baltimore And Several Telephone Conversations With The Vermont Staff It Feels Like At Uscis Its An Absolute Chaos.nobody Knows Any Thing.i Have Filed For Ac21 As My I-140 Was Approved And 1-485 Was Pending For More Than 180 Days.
--- Did you sent AC21 letter to USCIS service center or to Local USCIS Baltimore after your case was transfred to Baltimore
In The Meantime I Have Changed My Attorney Too.i Hav Esimilar Job Capacity With The Similar Salary And Job Responsibilities.
I-140 Rd 14jan2002
1-485 Rd 14may2002
Fp1 Done:09aug2002
Fp2 Done 13feb2004
1-140 Revoked 16mar2003
Mtr Filed 26mar2004
Any Chances For Me?
Click to expand...
 
Ginnu, No offense but could you please not quote the entire message? Your responses are valuable to most members here but they would be so much easier to read if you did not quote the entire message and just posted you responses.
 
Answers To Your Questions:

1.employer Has Sent The Letter To Ins On 26mar2003.
2.yes, It Was Way After The Approval Of 1-140 And 1-485 Pending For More Than 180 Days.
3.my Case Has Not Been Transferred To Local Office Still At Vsc.
4.my Attorney Has Already Sent The Ac21 Memo And New Employers Letter.

The Major Problem Is This That When Ever I Call Vsc There Are Different Stories I Am Hearing.and Really Worried About My Case.
 
zj1965 said:
Answers To Your Questions:

1.employer Has Sent The Letter To Ins On 26mar2003.
------------- It means employer sent letter to revoke I-140 after the I-140 was approved and I-485 was pending more than 180 days, it seems that case went to new officer and I hope the case will be approved as you are eligible to use AC21
2.yes, It Was Way After The Approval Of 1-140 And 1-485 Pending For More Than 180 Days.
3.my Case Has Not Been Transferred To Local Office Still At Vsc.
4.my Attorney Has Already Sent The Ac21 Memo And New Employers Letter.
---- that is OK
The Major Problem Is This That When Ever I Call Vsc There Are Different Stories I Am Hearing.
---- how can you calll VSC??????? VSC has no direct line at this time. I hope you are calling NCSC 1-800-375-5283 and that Ph # is not of VSC and some contractor picks up the phone and they dont have direct access to your file.

and Really Worried About My Case.
Click to expand...
 
You must log in or register to reply here.
Top