I485, EAD denied... please help

P

piyopiyo

Registered Users (C)
hello

My application for the I140 and I485 were filed on december 20th 2004. These applications were filed through my previous employer through which I had an approved labor
certification.My labor certification wage was $95000. I received a query on Feb. 26 2005 from USCIS to provide salary information, my previous employer provided an
incorrect information to my attorney stating that my salary is $53000. My attorney sent this information to USCIS without checking the details. Now on April 8th I received notices
stating that all my petitions are denied. It also says "there are no provisions in Service regulations that provide for an appeal from this decision.
This decision is without prejudice to consideration of subsequent appplicationsfor employment authorization filed with the USCIS". My attorney said that we can file
a motion to reconsider the petition. Could someone help me here. Is there any chance that USCIS reconsider this case. If so, how long it might take to get a new decision.
I am currently employed through another company and in June 2005 I have to extend my H1B for the 9th year. I really appreciate any advice.

thanks,
piyo

:mad: :confused:
 
piyopiyo said:
hello

My application for the I140 and I485 were filed on december 20th 2004. These applications were filed through my previous employer through which I had an approved labor
certification.My labor certification wage was $95000. I received a query on Feb. 26 2005 from USCIS to provide salary information, my previous employer provided an
incorrect information to my attorney stating that my salary is $53000. My attorney sent this information to USCIS without checking the details. Now on
Click to expand...

Looks like your underlying I-140 was denied based on Gc sponsor's 'Ability To Pay' / finances. if 140 denied, all dependant 485/ap/ead also denied.

You have 33 days to respond/appeal on denied cases. Get more details on 140 denial from attorney or GC sponsor. in the mean time , read ' Ability to pay' thread to educate yourself on this issue.

http://www.immigrationportal.com/showthread.php?t=137088

I wish you good luck on your 140.

I
 
piyopiyo said:
hello

My application for the I140 and I485 were filed on december 20th 2004. These applications were filed through my previous employer through which I had an approved labor
certification.My labor certification wage was $95000. I received a query on Feb. 26 2005 from USCIS to provide salary information, my previous employer provided an
incorrect information to my attorney stating that my salary is $53000. My attorney sent this information to USCIS without checking the details. Now on April 8th I received notices
stating that all my petitions are denied. It also says "there are no provisions in Service regulations that provide for an appeal from this decision.
This decision is without prejudice to consideration of subsequent appplicationsfor employment authorization filed with the USCIS". My attorney said that we can file
a motion to reconsider the petition. Could someone help me here. Is there any chance that USCIS reconsider this case. If so, how long it might take to get a new decision.
I am currently employed through another company and in June 2005 I have to extend my H1B for the 9th year. I really appreciate any advice.

thanks,
piyo

:mad: :confused:
Click to expand...

Two questions.
How Much was your salary?
Do you have good relation with former employer?
 
My salary was $95000 and I have a good relationship with my former employer. My H1b with the current employer is valid only till June 15, 2005. I got three H1b extensions after my 6th year based on the labor certification from my former employer. My plan was to join my former employer once I get my EAD. Please let me know what are my options. What would be my status after June 15th if I file for the motion to reopen the case?

thanks in advance.
piyo
 
piyopiyo said:
My salary was $95000 and I have a good relationship with my former employer. My H1b with the current employer is valid only till June 15, 2005. I got three H1b extensions after my 6th year based on the labor certification from my former employer. My plan was to join my former employer once I get my EAD. Please let me know what are my options. What would be my status after June 15th if I file for the motion to reopen the case?

thanks in advance.
piyo
Click to expand...

You better maintain your H1 status as a safe measure.

To get H1-B ext, you must file motion to reopen(MTR)/Appeal for denied 140 with in 33 days. As soon as you get a filing receipt for MTR/appeal, you must attach that receipt along with youtr LC to file for 7th H1 ext. Do it in premium processing.
 
See posts / comments given by "unitednations". Those posts gives you an extensive insight on the "Ability to pay" issues.
 
thanks for your responses. just one more issue. couple of weeks ago i received the finger print notice and it's on april 14th, 2005. since my petitions are denied, do i still have to go for the finger print? if not, will i get another finger print notice after the motion to reopen is filed? i will check with my attorney about this today but would like to hear a second opinion from you. i am not able to trust my attorney after all these mess up.

thanks in advance
piyo
 
piyopiyo said:
thanks for your responses. just one more issue. couple of weeks ago i received the finger print notice and it's on april 14th, 2005. since my petitions are denied, do i still have to go for the finger print? if not, will i get another finger print notice after the motion to reopen is filed? i will check with my attorney about this today but would like to hear a second opinion from you. i am not able to trust my attorney after all these mess up.

thanks in advance
piyo
Click to expand...

Obviously, Your FP notice had been generated before your 485 was denied.

Technically, FP review won't happen on denied cases, I guess even if you made it thru. Well, you can reschedule FP after 2-3 months with your local FP center if you wanna pour your energy/time/effort on battling 140 denial issue which is vital to salvage entire GC process as you have only 30 days.
 
piyopiyo said:
thanks for your responses. just one more issue. couple of weeks ago i received the finger print notice and it's on april 14th, 2005. since my petitions are denied, do i still have to go for the finger print? if not, will i get another finger print notice after the motion to reopen is filed? i will check with my attorney about this today but would like to hear a second opinion from you. i am not able to trust my attorney after all these mess up.

thanks in advance
piyo
Click to expand...
Do you have the actual RFE that the attorney responded to last? Also, get a fax or copy of exactly what the attorney responded with.
 
piyopiyo said:
My salary was $95000 and I have a good relationship with my former employer. My H1b with the current employer is valid only till June 15, 2005. I got three H1b extensions after my 6th year based on the labor certification from my former employer. My plan was to join my former employer once I get my EAD. Please let me know what are my options. What would be my status after June 15th if I file for the motion to reopen the case?

thanks in advance.
piyo
Click to expand...

Piyo,
I see that fellow forum users are guiding you in a good way. Good work everyone!

For everyone to help you in a better way, you need to provide more details, if you want. This is my understanding of relavent aspects of your case, please correct it with exact details:
1> Your labor PD (applied date) is before June 15 2002. Exact PD?
2> Your proferred wage is 95K.
3> You are not currently employed with your sponsoring employer. Since when?

As per my understanding, this is the problem. As you are not with your sponsoring employer, it does not matter how much salary you are making currently. So as you are not drawing your salary from that employer, your sponsoring employer need to show that he has the ability to pay 95K to you if you were with him. Now when you say my salary was not 53K but 95K, what year you are refering to and what employer?
I hope you would have read the ability to pay thread refered by Lohit over the weekend. If you have any question, feel free to post here or in that thread. I will also ask you to provide more details about your case so that a meaningful analysis can be done of your case.

All the best!

BTW, I am not a attorner or anything like that. I am just a registerd user just like you. My 140 was also denied. I got so much help from this forum, especially from user UnitedNations, now I am trying to help others, whatever I can.
 
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>For everyone to help you in a better way, you need to provide more details, if >you want. This is my understanding of relavent aspects of your case, please >correct it with exact details:
1> Your labor PD (applied date) is before June 15 2002. Exact PD?
2> Your proferred wage is 95K.
3> You are not currently employed with your sponsoring employer. Since when?

1 & 2)
my labor cert. with my former employer was filed in february 2001 and was approved in may 2003. i worked for this employer only from july 2000 to july 2001. during this time my salary was 95000. i did not apply for the I-140 in 2003 because my ex. employer mentioned that his company has some financial issues and the I-140 may get denied. in 2004 dec my ex. employer called me and mentioned that his company is in a better shape and i could file my I-140/485 if i want to. based on this conversation i filed the petitions in dec 2004.

3)
i changed my employer in 2001 july and since then i am working for my current employer. i have a pending labor cert. throuh my current empoyer( who is in a bad financial state now) which is filed in july of 2002 . i am palnning to extend my H1B for the 9th year based on this pending labor cert.


my fingerprint is on this 14th and i checked with my attorney about this today. he asked me to go for it. i am little confused here. should I call the local FP office and tell them that my petitions were denied? would this cause problems if i file for the MTR? will I get another FP notice after filed the MTR?

i know it's too complicated. i really appreciate you for taking time to help others.

thanks in advance

piyo
 
piyopiyo said:
>For everyone to help you in a better way, you need to provide more details, if >you want. This is my understanding of relavent aspects of your case, please >correct it with exact details:
1> Your labor PD (applied date) is before June 15 2002. Exact PD?
2> Your proferred wage is 95K.
3> You are not currently employed with your sponsoring employer. Since when?

1 & 2)
my labor cert. with my former employer was filed in february 2001 and was approved in may 2003. i worked for this employer only from july 2000 to july 2001. during this time my salary was 95000. i did not apply for the I-140 in 2003 because my ex. employer mentioned that his company has some financial issues and the I-140 may get denied. in 2004 dec my ex. employer called me and mentioned that his company is in a better shape and i could file my I-140/485 if i want to. based on this conversation i filed the petitions in dec 2004.

3)
i changed my employer in 2001 july and since then i am working for my current employer. i have a pending labor cert. throuh my current empoyer( who is in a bad financial state now) which is filed in july of 2002 . i am palnning to extend my H1B for the 9th year based on this pending labor cert.


my fingerprint is on this 14th and i checked with my attorney about this today. he asked me to go for it. i am little confused here. should I call the local FP office and tell them that my petitions were denied? would this cause problems if i file for the MTR? will I get another FP notice after filed the MTR?

i know it's too complicated. i really appreciate you for taking time to help others.

thanks in advance

piyo
Click to expand...
Ok, for FP, in my opinion, no harm in going for the FP, the only thing, as Lohit mentioned, FP may not be processed. So either resechedule it or go for it. No point in not doing the FP, as it is vey hard to get it afterwards. Even better, do not reschedule, just go after 15-20 days. Your FP notice should mention what days you can go for FP after the date. By that time you would have decided how you are proceeding with the MTR.

Going thru your case details, you will have to work hard in showing ability to pay(A2P). The key here is that your employer needs to show A2P from Feb 2001 till now. As you said, your previous employer's financial position was not good during 2002 and 2003 some time and you were also not working there, so your previous employer need to show the whole amount of 95K to prove the A2P. Check with your attorney what he thinks. You can also contact user UnitedNations and he can tell you the exact possibility after looking at the financial statements of your previous employer. Can you get that from your previous employer?

For your H1 extension, the LC filed with your current employer should be good enough. Also, as you have been working with this employer from day one of your LC, it will be easier to show the A2P when you file 140 based on this LC. Remember, if you are getting paid proferred wage from the date of LC filing, even if your employer's financial condition is not so good, your 140 will get approved.

You really need to hurry if you want to save your current 485. Let us know if you have any more questions.
 
thanks for the reply. i am going for the FP. i will try to get the financial statements from my ex. employer. i will try anything to keep this 485. thanks again.

piyo
 
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i checked with my employer about what my attorney wants them to send to file the MTR. they responded like this:
"attorney just wants a letter from our Accountant that basically says even though the company lost money we are able to make payroll though financing or whatever other means"

they also told me that they have already submitted the company's financial statements along with my I140 application.

i really don't know if how this is going to help. any advice?

piyo :tired:
 
piyopiyo said:
i checked with my employer about what my attorney wants them to send to file the MTR. they responded like this:
"attorney just wants a letter from our Accountant that basically says even though the company lost money we are able to make payroll though financing or whatever other means"

they also told me that they have already submitted the company's financial statements along with my I140 application.

i really don't know if how this is going to help. any advice?

piyo :tired:
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Piyo,
My friend, USCIS does not buy that kind of argument. There is hardly any chance that this kind of argument will work, other than USCIS makes a mistake.
You have to present a strong case. Believe me, and sorry to say, from above statement it is clear that your attorney does not know about what A2P is and how to overcome it. This argument would have worked, if you were employed with that employer and were drawing your proferred wage, even thoug the employer lost money. But you also know, that is not the case. If you want to do something, you have to first educate yourself about it. The best way to educate yourself is to read the thread that Lohit has suggested. If you need some inspiration, read my post #1450 in that thread that has most of the sucess stories of this argument about A2P. Here is the link. Go to each story in that post and read it, you will come to know what we are trying to tell you.
http://www.immigrationportal.com/showpost.php?p=1069848&postcount=1450
 
piyopiyo said:
"attorney just wants a letter from our Accountant that basically says even though the company lost money we are able to make payroll though financing or whatever other means"

they also told me that they have already submitted the company's financial statements along with my I140 application.
Click to expand...

Eric is absolutely practical (it may not sound sweet !) with USCIS practices and policies in scrutinizing A2P cases since we had been thru toughest times with company finances.

Obviously, submitted financial stmts dont have A2P, that's why 140 was denied in first place.

Accountant /CFO's stmt MAY suffice only if your sponsor employs more than 100 employees. If not, USCIS just derives/calculates A2P from sponsor's Tax returns/W2s in straight forward manner using Yates memo.
 
piyopiyo said:
i checked with my employer about what my attorney wants them to send to file the MTR. they responded like this:
"attorney just wants a letter from our Accountant that basically says even though the company lost money we are able to make payroll though financing or whatever other means"

they also told me that they have already submitted the company's financial statements along with my I140 application.

i really don't know if how this is going to help. any advice?

piyo :tired:
Click to expand...
If the financial statement/tax returns show a loss, you will either need to adjust the returns or provide bank statements which show that on a month-to-month basis, the company has sufficient liquidity to show ability to pay. My situation was like this and that is what I had to provide to get approved. Read UN's thread and you'll be in a better position to guide what your company and attorney do from this point forward. Ultimately, a lot of this is up to you. Don't rely strictly on what the attorney and company tell you. As everyone else has said, educate yourself first.
 
did the FP today. on the way back, met with my present company's attorney. he mentioned that chances of getting this case approved is so little because of the financial status of my ex. employer. he also suggeted to get the letter from the company accountant that shows how comapny can make payment of the proffered wage.
since he doesn't know the exact financial details he could not help much further. i am taking the chance and filing for the MTR. i'll let you know how it goes. wish me luck!

thanks

piyo
 
all,

i have filed the motion to reopen the i-140 on may 6th and and today i received an e-mail from INS stating:

"Our last written notice in this case was returned as undeliverable by the post office on July 15, 2005. To update the mailing address so this notice can be re-sent, please call the National Customer Service Center at (800) 375-5283"

i called the number but the representative told me that he cannot disclose any information to me because i'm not the petitioner(i-140 belong to the company , i guess). called my lawyer and he hasn't received anyhing and he told me that he will check with INS and let me know on monday.

i am hoping for the best.

thanks again for all you support
 
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