Is my EAD valid after filing appeal against I-140 denial

T

tiredInCA

New Member
Here is my situation:

I have been working for a company A since Feb 2003 and in Sep 2004 a concurrent I-140 and I-485 was filed based on a substituted LC at the Vermont Service Center.

In Feb 2005, the I-140 was denied based on company's inability to pay. I also got a notice saying my 485 also got denied based on the I-140.

I also am in my seventh year H1B extension currently. So I will have to get my H1B extended for the 8th year to work beyond July end.


A Motion to reconsider the I-140 has been filed about 15 days back. It is expected to get okayed as per the lawyer. It looks like INS is denying many I-140s recently instead of issuing RFEs.

Now here are my questions:
1. Is my EAD still valid?
2. Is my I-485 valid too?
3. If yes, can I use AC-21 portability to join another company B right now?
4. Once I join them, what happens if the I-140 gets rejected? Will I be able to join back company A on H1? If yes, what is the H1 process going to be? Will it be a fresh H1 or an H1 transfer?

I will be highly obliged if someone can answer quickly because I have an offer on hand from my client company B.

thanks!
 
tiredInCA said:
Here is my situation:

I have been working for a company A since Feb 2003 and in Sep 2004 a concurrent I-140 and I-485 was filed based on a substituted LC at the Vermont Service Center.

In Feb 2005, the I-140 was denied based on company's inability to pay. I also got a notice saying my 485 also got denied based on the I-140.

I also am in my seventh year H1B extension currently. So I will have to get my H1B extended for the 8th year to work beyond July end.


A Motion to reconsider the I-140 has been filed about 15 days back. It is expected to get okayed as per the lawyer. It looks like INS is denying many I-140s recently instead of issuing RFEs.

Now here are my questions:
1. Is my EAD still valid?
2. Is my I-485 valid too?
3. If yes, can I use AC-21 portability to join another company B right now?
4. Once I join them, what happens if the I-140 gets rejected? Will I be able to join back company A on H1? If yes, what is the H1 process going to be? Will it be a fresh H1 or an H1 transfer?

I will be highly obliged if someone can answer quickly because I have an offer on hand from my client company B.

thanks!
Click to expand...
Chat User : If I-485 is denied, can I continue my job once an MTR is filed within 30 days? Is it legal? I do not have any other visas.

Attorney Murthy : A person is not legally allowed to remain in the U.S. based simply on the filing of an appeal or an MTR. Only if and when the MTR is finally approved, is the person considered to have maintained status in the U.S. Otherwise, the individual is deemed to no longer maintain valid status and this could jeopardize the ability to obtain the GC approval down the road. Depending on the reasons for the I-485 denial, it may be worth speaking with a knowledgeable immigration lawyer to consider other available options. For example, it may be possible to refile a new I-485 with an I-140 to avoid accruing unlawful presence and also be able to obtain an EAD and an AP for the principal and all derivative family members. Did your lawyer discuss that option with you? If not, you need to consult with a good lawyer who may be able to help you. If you do not have a lawyer, then you are welcome to contact our Office to consult with us and consider options before settling in as the MTR being the only option available
http://www.murthy.com/chatlogs/ch040405_P.html
 
My current status

Thanks for your reply.
I haven't been online for sometime hence I saw your reply only today.

Currently I am on the 7th year extension of H1B, hence I am safe for now.

Meanwhile I found my case has gone to the AAO. Obviously, it means the VSC did not find my case strong enough to approve even after looking at the additional documentation that was provided by the lawyer.

Does anyone know what the chances are of getting this approved by the AAO?

thanks!


Keywords: I-140 denial, I-485, AAO
 
More update

It is July of 2006 now.
My I-140 appeal got denied by AAO (they told to file under EB3 instead of EB2) and I re-applied under EB3 (original was under EB2) in Feb 2006 at Vermont office. I am yet to get get a receipt for it and USCIS did not encash the check.

The lawyer opened a query with USCIS regarding the application but no news from them. So lawyer re-applied again in May 2006 and no receipt for it also.

I applied for H1-B extension (9th year) in California and no receipt for it also.

Anyone know what is going on with USCIS?
 
i have the same situation. I-140 got denied together with 485. negligence of my lawyer didnt submit document evidence ability to pay. i am under EB3, current priority date. have approved labor cert.got recently my SS# and working permit. my lawyer RE-File my case. are we still allowed to work? havent got my receipt notice yet. it was filed last july 3, 06
 
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