Intend to Revoke

[lohith]

.
My I-140 is already approved. My I-485 is caught in retrogression.
I have completed more than 180days after applying for my I-485.

2. My labor has been approved from a different center, and I-140/485 applied a month apart, at a center different from the federal labor center. Is that a cause for concern?
NO
3. I was not given the number of my labor application, does the company have to apply with the same annual salary that they paid at the time the labor application was submitted. If the company cannot file any amendments at a later date, I can always find out by my salary information and approximate application date and designation.

If are a IT guy, you can compute from DOL disclosure data, how many LCs are filed and approved when and where. I posted sample SQL queries in UN's A2p thread around Apr 15-20 dates.


4. I am not getting any pay-hike for the past 4yrs, and I am seeing that many citizens and GC holders are getting promoted. Do companies have some kind of restriction in promoting GC applicants? None of the GC applicants in my company are promoted for the last 4yrs. I am not saying I am cream of the crop, but isn't it statistically impossible for such a condition to occur across the board. Is there a recourse?

As per Ac-21, 180 days passed with 140 approved/pending, you gotto worry about A2p till your 140 filing date only (max 180 days after that) from LC's PD. Thing is, 140 should be approvable by its 'own merits' means your stand-alone 140 and its supporting docs should establist A2P while it was filed.


I have some important and pertinent questions post I-140 approval:

1. If I become a Software Development manager from a Software Engineer in 4 yrs (from labor application to I-140 approval, Is a promotion considered a same/similiar job?), with added responsibilites and significantly more pay (the new Yates memo is discouraging on this!), will USCIS deny my I-485?

NO, the new job can SUPERSET of LC's job duties as experential career advancement. more pay is good. I love to have it.

2. If I take up a new job with a startup (may not be having good balance sheets), in a same/similiar job(?) using AC-21 and EAD, will USCIS reopen my approved I-140 for ability to pay, and reject my 1-485.

New employer is good for nothing other than just EVL/job-offer with same/similar job to approve your pending 485.

3. If I take up a new job, can my old company use my approved labor (of the approved I-140) for some other employee? (I do not care, as long as I am safe, but I just wanted to know, for the sake of information).

See above ans(4)

I might sound very pessimistic, but certain actions by my employer like withholding information and not telling my EB category, and application numbers are not helping either.



well, you can be pessimistic, if your employer is a 'GC factory' and your 140's approval based more on company's finances rather than on your W2s.

 

[tammy2]

What I've gathered is that uscis does not like what they are seeing from candidates and companies. They don't believe that the concept of employment based greencards are within the spirit of the laws.

Applying green card some think like two people promising each other. One is saying i have opening and otherone is saying i will join once i get the green card. Legally and ethically you can promise one person and one job. That is the reason you cannot apply for the Labor in multiple locations.

But Do you think getting two green card on one Labor is ethical or within the sprit of the Law? Why all ethics and law should be followed only by USCIS or DOL anyway?

 

[pralay]

Applying green card some think like two people promising each other. One is saying i have opening and otherone is saying i will join once i get the green card. Legally and ethically you can promise one person and one job. That is the reason you cannot apply for the Labor in multiple locations.

I never heard that a person cannot apply LC in multiple locations. USCIS/DOL may not like it, but it has nothing to do with legality. If only promise is good enough to sponsor green card or get a green card, then the whole GC process (LC, I-140, I-485) was not required at all. But the green card process goes beyond "promise". It has criteria of eligibility (both employer and employee), job availability over time. Therefore, it's perfectly fine to pursue miltiple jobs (because some of them may not get approved at all). If you are looking for job, do you think it's illegal to accept two offers? It's unethical and not illegal.

 

[pralay]

New employer is good for nothing other than just EVL/job-offer with same/similar job to approve your pending 485.

Oh, ya. We read that line many times, but no solid argument supporting it!

Intent is required from both sides - from employee and from AC-21 employer. Otherwise, AC-21 can be just another "greencard factory" (using your own word).

 

[pralay]

What I've gathered is that uscis does not like what they are seeing from candidates and companies. They don't believe that the concept of employment based greencards are within the spirit of the laws.

Now in USA, spirit of laws don't mean much.

Since uscis knows that people may be in the legal boundaries, they are using the gray areas of the law to their advantage in denying cases.

Just about every area of the law where there is a word "may"; uscis is using that to their benefit in denying cases and any area of the law where there is "discretion", uscis is also using that to deny cases. Essentially, the adjudicators are abusing the discretionary powers. However, if people took it further, they generally are acting within the law and it is difficult to overcome.

I don't agree. Sprit of the law means something - but it's wrong to assume that it is a paragon of fairness which has only one purpose - providing benefit to US industry and immigrants. The spirit of most of the immigration laws are definitely not so. Laws are made by politicians. Therefore, most of the laws has political touch - depending on the current situation (when the law is made) and political opportunities. Do you think a year back when amnesty to illegal immigrant law was passed, it really intended to providing fair treatment to illegal immigrant? But rather it's was a law passed to exploit political opportunity. And, some way, that is the spirit of the law.
And USCIS can make decision of cases based on their discretion as long as within the law. Most of the laws in the world are not blank and white - which can only have either YES or NO answers. But they have gray areas where discretions are required from authorities who make decisions. Therefore, USCIS certainly enjoys a wide magnitude of "discretionary power" - as long it's within the law. If they want to practice the strictest form of standard, many of us would not get GC today. On the other hand, they have power to practice most flexible form of standard. I do believe they practice later one, and that's why 99% employment based GCs get approved. Even when they deny cases, many of the decisions get overturned by immigration judges. Secondly, with time economic scenario changed in USA and that affected USCIS decision making standard too. After all, it's a learning process for USCIS too and that's why we see so many memos for AC-21, Life Act etc. So I don't think it's abuse by adjucators, but it's a clear sign that they are trying to change the standard. Probably they are thinking that in hitech industry the job are so scarce and so many American citizens are unemployed that probably many of the LC jobs don't exist anymore. Or, many hitech industry are doing so bad that they don't have ability-to-pay.


However I still agree with following statement:

Since uscis knows that people may be in the legal boundaries, they are using the gray areas of the law to their advantage in denying cases.

There is proverb in my mother-tongue: rules and laws work for people who are able to exploit them.

 

[tammy2]

I never heard that a person cannot apply LC in multiple locations. USCIS/DOL may not like it, but it has nothing to do with legality. If only promise is good enough to sponsor green card or get a green card, then the whole GC process (LC, I-140, I-485) was not required at all. But the green card process goes beyond "promise". It has criteria of eligibility (both employer and employee), job availability over time. Therefore, it's perfectly fine to pursue miltiple jobs (because some of them may not get approved at all). If you are looking for job, do you think it's illegal to accept two offers? It's unethical and not illegal.

Probably I over STATED IT.
You can apply Labor from two employers But if you apply two I-485 one of them is invalid. You cannot pursue two jobs after applying I-485. It will not be in good faith.

But with company like ACE they should act firmly. In 2002 I was about to join them. In last moment it was not realized.

If it is hurting the people then a law (some thing similar battered spouses) should be considered. Or Else they should check whether they can use - T VISAS FOR VICTIMS OF TRAFFICKING.

 

[pralay]

Probably I over STATED IT.
You can apply Labor from two employers But if you apply two I-485 one of them is invalid. You cannot pursue two jobs after applying I-485. It will not be in good faith.

It can happen in within a company too.
I have one of my ex-colleagues who had two LCs pending from IBM, Austin and IBM, Bay Area. They are perfectly valid LCs for two different positions. Only thing is that he could not make up his mind which one to pursue (he was working in bay area but IBM was more interesting to relocate him in Austin). So his IBM attorney filed two two different locations anyway (because he did not want to wait because LC process takes long time anyway).

LC is not a contract. Therefore there is no question of "good faith". A prospective employee can (not necessaril always) enter into contract with prospective employer only at the time of filing I-140. Before that, it's a plain field for both employee and employer. Employer can substitute LC with another prospective employee if they feel that candidate can serve better for the required position. Same way, I don't see why employee has to keep the promise from his end.

But with company like ACE they should act firmly.

I guess they filed for positions which did not exist at all. As they move around their employees all over USA, therefore they filed LCs for same person all over USA. Issue is not multiple LCs here, but the very validity of multiple positions.

If it is hurting the people then a law (some thing similar battered spouses) should be considered. Or Else they should check whether they can use - T VISAS FOR VICTIMS OF TRAFFICKING.

I think USCIS have enough laws in its hand. Even with existing laws they cannot keep up. They don't need any new law, but they need to enforce laws whatever they already have - in proper and fair way. That means proper standarized review, more clarity in laws and guidelines to adjucators by publishing more memos. That way, less people will be victimized too.

 

[pralay]

1) in ability to pay, they generally will not consider "compiled financial statements". Even though within the CFR it says in "appropriate cases they will accept". Financial statements can give much, much different results then tax returns

I think it's more of procedural issue. If CFR says that and USCIS does not buy it, then probably USCIS does not understand its responsibility very well. USCIS makes decision, but it is not the ultimate authority. There is immigration court. USCIS can make mistake - just like cops on the streets or IRS auditor on your tax return. But then there are courts to correct them.

2) greencard is for a future job. once you filed AOS, you can stay at home and watch tv and not join the company until greencard approval. However, USCIS still asks for recent pay stubs, different jobs that you have done since your last entry, etc.

Yes, that's perfectly legal. But that would be very unusual for employer to wait for that long for a simple programmer position. Take an example. Assume I am a C++/Java programmer with 2 years of experience. Today company X filed for LC today. If I give you some timeframe that my LC is going to be approved 2006 and then I-140 on 2007, and I-485 on 2008. If I will tell you today that company X is going to employ after three years, believe me, you are not going to believe me. Because no sane company waits for a C++/java programmer from foreign country for that long period. Now, if you don't believe me, you should not expect that USCIS is going to believe me, It's as simple as that. However, in special circumstances, with convincing reason I don't see why USCIS will not accept it. For example, if today an American company wants to sponsor GC for Linux creator Linus Torvalds from Norway and Linus wants to "sit at home and watch TV", USCIS better believes it, because there are companies in USA who are ready to wait 3 years for him. Probably I gave an extreme example, but this type of situation is possible for certain skills, for certain positions in certain economic condition in USA.
Unfortunately, even though EB GC is for people with exceptional skills, but most of us don't fall into that kind of profile where an American company can wait for 3 years to fill (and an American citizen is not available). Therefore, current paystubs, current positions, past employment history provide an authenticity and assurence to USCIS that the position the employer is sponsoring is a valid one. I doubt that absence of any of these items is going to be a ground for denial, but it can definitely cause suspicions about beneficiaries profile or validity of future job position - hence, more scrutiny, which can ultimately result in denial. So, "sitting home and watching TV" can affect the decision indirectly, but definitely not directly.

 

[pralay]

1. If I become a Software Development manager from a Software Engineer in 4 yrs (from labor application to I-140 approval, Is a promotion considered a same/similiar job?), with added responsibilites and significantly more pay (the new Yates memo is discouraging on this!), will USCIS deny my I-485?

I believe it should be OK if it falls into the natural growth of career within the trameframe from when LC/I-140 was filed to the time when USCIS is about to grant your GC. But many lawyers have reservation about it. I think your lawyer will be able to better answer this question.

2. If I take up a new job with a startup (may not be having good balance sheets), in a same/similiar job(?) using AC-21 and EAD, will USCIS reopen my approved I-140 for ability to pay, and reject my 1-485.

USCIS can revisit your I-140 before approving your I-485. It can happen with or without AC-21 (it's not an factor here).

3. If I take up a new job, can my old company use my approved labor (of the approved I-140) for some other employee? (I do not care, as long as I am safe, but I just wanted to know, for the sake of information).

If you quit, your old company can revoke your I-140 and file a new I-140 (for another employee) based on your LC. However, if 180 days passed from your I-485 receipt date, this revocation won't affect your I-485 provided you invoked AC-21.

 

[hp2blv]

Thanks for your informed replies Lohith,
I am better prepared for my next step.

 

[hp2blv]

If you quit, your old company can revoke your I-140 and file a new I-140 (for another employee) based on your LC. However, if 180 days passed from your I-485 receipt date, this revocation won't affect your I-485 provided you invoked AC-21.

Thanks Pralay,

Can my old company revoke the I-140 applied on my behalf when I am still employed with them ? (Why would they? - Can they?)
How much time do I have within which I have to invoke AC-21, in the event of a lay-off by my employer ?

Thanks again for your earlier responses.

 

[srireddy]

Guys, Read the link carefully. http://www.murthy.com/news/UDportme.html
Revocation or Withdrawal of the I-140 Petition

The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal. Those who chose concurrent filing enjoy an advantage, as they are accruing time toward the 180 days while the I-140 is pending, as long as it is finally approved.


Also read the following:

http://www.murthy.com/news/UD140rev.html

 

[tammy2]

Employer can substitute LC with another prospective employee if they feel that candidate can serve better for the required position. Same way, I don't see why employee has to keep the promise from his end.

If the intents are questionable within 180 days for any parties GC will be in soup. Employee has keep the promise because that promise is the base for GC.

I guess they filed for positions which did not exist at all. As they move around their employees all over USA, therefore they filed LCs for same person all over USA. Issue is not multiple LCs here, but the very validity of multiple positions.

There is no question of existence of the position as long as they have given the proper advertisements. They have done that. It is multiple LC for the same person. That is what triggered whole controversy. Because of that DOL thinking position itself was not their.

I think USCIS have enough laws in its hand. Even with existing laws they cannot keep up. They don't need any new law, but they need to enforce laws whatever they already have - in proper and fair way. That means proper standarized review, more clarity in laws and guidelines to adjucators by publishing more memos. That way, less people will be victimized too.

What does law says to victims of such companies? Where the people have duped with multiple LC filing in his name without his knowledge? What does it says for filing issuing same labor to two people (looks like selling same property to two people) ?

No GC? Out of status?

 

[pralay]

Can my old company revoke the I-140 applied on my behalf when I am still employed with them ? (Why would they? - Can they?)

Yes, employer can revoke I-140 even if the employee is still employed. In that case revocation of I-140 means that employer does not want that employee for the permanent prospective position (eventhough the employee is still working with them on temporary working visa). But the question is "why would they"? Good employers don't do that (unless they have some crooked plan in their mind).

How much time do I have within which I have to invoke AC-21, in the event of a lay-off by my employer ?

There is no timelimit. Basically you have to show new EVL/job offer if USCIS asks for it (in RFE/interview). For RFE response, you have 85 days. For interview, you have the time till interview date. If you have bad luck, lay-off can coincide with RFE/interview date.
However, in some cases I have seen people got approved without RFE/interview eventhough they were sitting unemployed after getting laid off. Esepecially if someone is working for pretty big company and I-140/I-485 are filed properly, normally employment/validity of job/ability-to-pay does not raise any issue to adjucator and they are approved without RFE/interview.

 

[pralay]

If the intents are questionable within 180 days for any parties GC will be in soup. Employee has keep the promise because that promise is the base for GC.

Again, there is no intent involved when LC is filed. Legally intent starts only when employer files I-140. That's why I-140 cannot be substituted. But LC can be substituted by another person. It can be unethical to substitute LC when employee is still interested for the prospective GC job position, but legal point of view employee is no case.

There is no question of existence of the position as long as they have given the proper advertisements. They have done that. It is multiple LC for the same person. That is what triggered whole controversy. Because of that DOL thinking position itself was not their.

Well, I have seen many cases when consulting companies pursuing LCs in different locations for the positions that does not exist at all. And yes they are filed proper way - with advertisements. For example, I remember in around 1998/1999 one of my friends was working for consulting company. As he was working in NJ, his LC was filed there. As he was in EB3 category, his LC was taking years anyway. Meanwhile he was relocated to Denver and about to file LC in Denver too (that time Denver EB3 LC procssing was faster than NJ). But after one year he was hired by his client company in Denver. Then after few months his New Jersey LC got approved. Now, if he was still working with the consulting company probably he would have pursued that approved New Jersey LC. But technically that NJ LC job position does not exist anymore, even though it was filed properly with advertisement years back and it was valid at the time of filing. But when it was approved, that position does not exist. Technically employer should not pursue that LC because the very validity of that job position is question now (but many employers do pursue that, because in many cases it takes years to get a LC approved). And, in many cases consulting companies don't bother to file as many LCs in different locations because they are all filed in employee's expense (including newpaper advertisement). So in that sense, multiple LC is not in question, but the multiple job positions (probably we are pointing to same issue, but in different words).

 

[tammy2]

Again, there is no intent involved when LC is filed. Legally intent starts only when employer files I-140. That's why I-140 cannot be substituted. But LC can be substituted by another person. It can be unethical to substitute LC when employee is still interested for the prospective GC job position, but legal point of view employee is no case.

Intent is always there. That is the reason you give resume to apply the Labor. Employee and employer are just asserting that old intent by applying I-140 and I-485. at any stage you loose your intent you loose your GC (Except AC-21 relief after 180 days)

Well, I have seen many cases when consulting companies pursuing LCs in different locations for the positions that does not exist at all. And yes they are filed proper way - with advertisements. For example, I remember in around 1998/1999 one of my friends was working for consulting company. As he was working in NJ, his LC was filed there. As he was in EB3 category, his LC was taking years anyway. Meanwhile he was relocated to Denver and about to file LC in Denver too (that time Denver EB3 LC procssing was faster than NJ). But after one year he was hired by his client company in Denver. Then after few months his New Jersey LC got approved. Now, if he was still working with the consulting company probably he would have pursued that approved New Jersey LC. But technically that NJ LC job position does not exist anymore, even though it was filed properly with advertisement years back and it was valid at the time of filing. But when it was approved, that position does not exist. Technically employer should not pursue that LC because the very validity of that job position is question now (but many employers do pursue that, because in many cases it takes years to get a LC approved). And, in many cases consulting companies don't bother to file as many LCs in different locations because they are all filed in employee's expense (including newpaper advertisement). So in that sense, multiple LC is not in question, but the multiple job positions (probably we are pointing to same issue, but in different words).

If they given separate advertisement at Denver that Labor is valid. You need to inform the DOL if the said position does not exists at NJ. They would have used Labor for someone else. If employee has gone does not mean position has gone. Problem with friend's case they applied the labor for same person twice.

 

[pralay]

Intent is always there. That is the reason you give resume to apply the Labor. Employee and employer are just asserting that old intent by applying I-140 and I-485. at any stage you loose your intent you loose your GC (Except AC-21 relief after 180 days)

I never gave my resume for LC filing. Why would I? LC is filed based on the requirement in company. It has nothing to with the details of my past experience. However, as I meet that requirement, that is my LC (or I can be substituted into that LC). Again, as has nothing to do with my resume.

If they given separate advertisement at Denver that Labor is valid. You need to inform the DOL if the said position does not exists at NJ. They would have used Labor for someone else. If employee has gone does not mean position has gone. Problem with friend's case they applied the labor for same person twice.

All the cases I know advertisements are given locally. In fact it's not easy to get approved LC from state labor department without local advertisement. That's not an issue here. And for my friend's case they did not apply for two cases. As I mentioned in IBM case earlier, two LCs are perfectly valid if both job positions are valid and from legal point of view there is no issue.
Secondly, I am talking about consulting position here. If someone is consulting in Lucent, NJ and after one year consulting contract gets over and the person relocated to another consulting position, that NJ position does not exist anymore. As UN mentioned somewhere, DOL/USCIS does not like this kind of positions which are not "permanent" in nature (as a requirement of GC). Actually in this kind of scenario the things are just opposite to what you are describing - the person is there, the position is gone (and that why the person has to relocate somewhere else).

 

[pralay]

What does law says to victims of such companies? Where the people have duped with multiple LC filing in his name without his knowledge? What does it says for filing issuing same labor to two people (looks like selling same property to two people) ?

No GC? Out of status?

VAWA (for "battered spouses") was enacted in humantarian ground. It's difficult to make same case for employment issues. Even though we immigrants understand the ordeals of other immigrants, but this kind of GC/LC irregularities (or "frauds" in harsher term) may not generate too much empathy/sympathy to USCIS or American citizens (hence, lawmakers). On the contrary, this kind of irregularities are mostly done by companies own/managed/operated by immigrants, it only make anti-immigrants voice stronger. Their answer would be simple - "you guys came here in temporary working visa. If you get GC, good for you. Stay here. If you don't get it, too bad. Go back to your own country". Being in Sillicon Valley I have seen, here, many American ctitizens don't like the facts that there are companies who employs "only desi people".

Secondly, with my very limited exposure, personally I have not come across any incident where LC was filed without the knowledge of beneficiary. I can be wrong, because every company has its own way/policies to deal with immigration issues. Now, in many cases beneficiaries don't understand all the nuts and bolts of GC process (but rather treat it as a whole "GC process"), therefore agree with whatever companies or lawyers tell them. But this kind of innocence/ignorance diffcult to defend for the purpose of making a new law.

In many cases I have seen where USCIS gave enough room to beneficiaries where employers were clearly guilty and were exploiting employees. There are cases where USCIS (INS then) raided apartments rented by employers where they found 15-16 H1 holders are sleeping and they are all in bench without any salary. In most of the cases they were given 1-2 months to find other jobs, instead of deporting them immediately.

 

[tammy2]

I never gave my resume for LC filing. Why would I? LC is filed based on the requirement in company. It has nothing to with the details of my past experience. However, as I meet that requirement, that is my LC (or I can be substituted into that LC). Again, as has nothing to do with my resume.

you did not sign the ETA 750?
http://workforcesecurity.doleta.gov/foreign/750inst.asp

All the cases I know advertisements are given locally. In fact it's not easy to get approved LC from state labor department without local advertisement. That's not an issue here. And for my friend's case they did not apply for two cases. As I mentioned in IBM case earlier, two LCs are perfectly valid if both job positions are valid and from legal point of view there is no issue.
Secondly, I am talking about consulting position here. If someone is consulting in Lucent, NJ and after one year consulting contract gets over and the person relocated to another consulting position, that NJ position does not exist anymore. As UN mentioned somewhere, DOL/USCIS does not like this kind of positions which are not "permanent" in nature (as a requirement of GC). Actually in this kind of scenario the things are just opposite to what you are describing - the person is there, the position is gone (and that why the person has to relocate somewhere else).

You are getting confused here. If that consultant is left that position is vacant. They will hire some one for that position. No one will say this person is going to be work in employee augmentation for some other company. They will always say some kind of internal development. More then 90% of the people who apply from EB jobs are such consulting peoples augmenting in some other company

 

[pralay]

You are getting confused here. If that consultant is left that position is vacant. They will hire some one for that position.

No I am not getting confused. You are assuming any job position is eternal. But reality job positions are dynamic and at some point it may not exist anymore. What do you mean by "they"? If consultant leaves (or contract gets over), the job position for client company becomes open (if exists at all). But that job position is does not belong to the consulting company. In this case, consultant company's job position is based on the client company's requirement. If client company is not giving/renewing contract to the same consulting company anymore, then for consutling company that position does not exist anymore. Logically if job position in certain location really existed, then the consultant was not required to be relocated at all. That is the very reason many consulting company file their employees LC from single location (preferably from their HQ location) and declare In LC/I-140 that the person can located "anywhere in USA".

No one will say this person is going to be work in employee augmentation for some other company. They will always say some kind of internal development. More then 90% of the people who apply from EB jobs are such consulting peoples augmenting in some other company

Not sure where you got that number (90%). But augmentation is not an issue here. Many good consulting company do so in proper way. One options I already explained above - filing LC from HQ and clearly declaring it as consulting position. But many consulting company don't do so, but rather to make case stonger they stress on a job opening (in client location) in a specific location - with very specific skillsets. It's mostly lawyer's mistake. But hey, many of them got thru successfully (except a few scapegoats - like here in ACE case) and lawyers are making money. Who am I to tell what is proper, what is mistake and what is wrong.