Is this an isuse?? May be I140 cancelled ???

P

pacha_card

Registered Users (C)
Hello All,

My case is EB3 (Labor substitution). I am qualified for Ac21 and I switched the employer5 months back. Today when I look at the case status my I140 LUD changed to 09/30/2005. This is the first time it changed after the approval date. My previous employer once threatened me that he might revoke the I140. Is this LUD change because of I140 revoking or some thing else. How would I know why the date has been changed. Can I call the USCIS customer support to know the status. Please advice.

Thanks,
VG

EB3 - PD - 12/20/2002
I140- Approval - 09/15/2004
2nd EAD and AP approval - 09/01/2005
 
Please advice me

Ginnu, United Nations and other please advice me on this. If anybody had experienced this please let me know.

Thanks in advance,

VG
 
I am not sure here are my comments,

You dont need to panic if you are eligible for AC21
(1485 pending >180 days and 140 is approved and you have permanent job offer and job duties and responsibilities are same/similar)

looks like the I140 petitioner sent letter to USCIS mentioning that you are no more employed for him so that he can use the underlying LC for substitution, so INS acknowledges that and might have revoked.

You have not posed ur 485 ND/RD, looks like you are qualified for AC21. In your case even if 140 is revoked you may expect an RFE / NOID from USCIS for EVL and at least 3 months paystubs (EVL may be mandatory but i guess not the paystubs), so you may need to be prepared for that.

You should have applied for AC21 when you changed your job, Just hang in there till you see any updates or RFE.

One thing is sure these days that sending AC21 proactively is not of much help. it's like they do their job and you do your's.

Other please comment....
 
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unitednations said:
based on the facts you have presented, then it is a good possibility that employer did send in revocation notice.

Stay in touch with your lawyer who has g-28 for your 485. He should notify you if you get rfe or noid.

I posted this in another thread but it is something for you to consider and discuss with lawyer:

Everyone who I know or have seen postings where employer revoked 140 but person was eligible for ac21 eventually got 485 approved, reopened , etc. They all got good results in the end.

An unknown area which everyone needs to strongly consider when using ac21 is that when the 140 is revoked, you do not have a priority date any more. To get the 485 approved, you need to have a priority date. If you don't have one any more then you will probably only get the greencard approved once your visa category is current. You may have lost the old priority date in 2002.

This wasn't an issue before as everyone who received approval, the priority dates were current.

However, it remains to be seen for those who had 140 revoked by employer and visa dates move beyond original prirority date whether USCIS will approve it or not.
Click to expand...

UN,

Once 140 is revoked, What would be the priority date?? It it doesn't have one on what basis 485 gets approved?
 
Thanks a lot 'myI485pending' and 'unitednations' for replying.

As far as AC21 is concernded I am covered and my new employer had already sent the paperwork to USCIS and I am on active payroll too.

Regarding unitednations comments about losing the original priority date, this is the first time I heard and it is not a good news. But I will try to call customer service and findout about the date change and also any change in my priority date because of I140 revoke.

-VG
 
When I-140 LUD changes (assuming previous employer has revoked it), wouldn't that change the status also, but in my case it still showing me the same sattus (This case has been approved on 25 October 2004).

Also wouldn't that change I-485 status, but it didn't change for me.

I also called USCIS and the representative is so aggressive and not friendly at all. When I asked about the status on I-140 and explained her about the LUD change She kept saying "once I-140 is approved it is approved", not more than that. Then when I asked what could be the reason for LUD change she again answered the same thing.

I am so frustated.

-VG
 
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AC21 in my view is not as a straightforward

I had a chance to use AC21 and my lawyer advised me not to. I think people that has no option but to swtich jobs of course should go for it.
One of the problems that my lawyer told me, is that in his view, if the original employer attempts to revoke I-140 THE PRIORITY DATE IS NOT RETAINED !
With this nasty retrogression around the corner, who would like to take this chance ?

unitednations said:
Looks like Matthew Oh thought about it a bit more and updated his FAQ:

Q45: I am an Indian and my labor certification was approved in May 2004. I immediately filed concurrent I-140/I-485 which are currently pending. My I 140 petition was approved in September 2004. In June 2005, I changed the employment of a same occupational classification. I have just learned that my former employer had withdrawn the I-140 petition in October 2004. I know I am O.K. as far as pending I-485 application is concerned. However, I am terrified that my priority date was lost because of the revocation. What would be my priority date at this point? A: Under the rule of the priority date retention, once the approved I-140 is revoked, the alien beneficiary does not retain the priority date. The withdrawal of I-140 petition constitutes an "automatic" revocation under the immigration statute and the revocation takes effect upon receipt of withdrawal and agency notice. It appears that this raises a serious question of the effect of employer's withdrawal of the approved I-140 petition after 180 days of I-485 filing. This question remains a grey area in the interpretation of the AC 21 Section 106(c). Relevant to this question is the legislative intent of Section 106(c) of AC 21 as related to the question of whether Section 106(c) of AC 21 overrides the immigration regulation which provides that the alien beneficiary does not retain the priority date if the petition is withdrawn and revoked. It should be kept in mind that Section 106(c) provides porting of I-140 petition and not I-485 application. Again, it is not I-485 which is ported but it is I-140 petition which is ported. Under this provision, I-485 is not affected when I-140 petition is ported and the law must assume that the ported I-140 petition remains valid. This theory is supported by the current policy of USCIS which is enunciated in the Yates Memorandum which states that the I-140 becomes invalid in one of the two situations: (1) Either I-140 is withdrawn before the alien beneficiary's I-485 has been pending 180 days; or (2) the I-140 is denied or revoked "at any time" except when it is revoked based on a withdrawal that was submitted after the I-485 application has been pending for more than 180 days. In other part of the Memorandum, Mr. Yates also stated that priority date was not affected by porting under Section 106(c) of the AC 21. Yates Memorandum also states that no matter what happened with the I-140 petition, when the alien ported after 185 days of I-485 filing, the USCIS should still go back to the pending (yet to be approved) I-140 petition and adjudicate the pending petition. If they find out it was not approvable at the time of I-140 filing, they were required to deny the pending I-140 petition and related I-485 application. Analogy is found in other section of the AC 21 as related to H-1B porting. When an H-1B alien changes employer who files a new H-1B petition and ports, it is the underlying exiisting valid H-1B petition which is ported. It appears that once the H-1B alien ports, the law assumes that the existing H-1B remains valid for the remaining period of I-94 and it will not be affected by the old employer's withdrawal of the H-1B petition. Different lawyers may have a different view and you should seek legal counsel from your own lawyer. This Q&A is not a law but just an opinion which does not have a legally binding force. You are reminded that you should never act purely in reliance on information on the internet, including this web site. There is a disclaimer in each site.
Click to expand...
 
UnitedNations thanks to you for getting the answers. You are correct, this is really an intresting scenario where most of the people will have questions, and also there is no surprise that 140 revocation will become standard just for LC substitution, and there will be a big pool for AC21.

I am not sure here are my comments... pacha_card I think USCIS representatives will not know more than what you and I know. I feel if you are eligible for AC21 then you should be OK, the only issue is since no one knows when they will adjudicate the case, so it's always better to make sure that one has a stable job that meets the AC21 criteria so that you can respond to "anytime/anywhere" RFE from USCIS.
I think If there is any change on 140 the response goes to I140 Petitioner's attorney you won't see that in the status, but they may send REF/NOID on your 485 provided if they don't find AC21.
 
Here is the response from one of Murthy's chat sessions.. hope it helps.

Question: I-140 was approved but was revoked when I changed employers while the I-485 was pending. Will I retain my priority date if the I-485 is denied?

Answer: A person retains the original priority date if the I-140 had been approved even when one has to start a new LC case with a new employer in the future. In some cases, even if the I-140 has been revoked and it was after 180 days, then it should be possible to at least argue AC21 portability before throwing in the towel and giving up all hope on the case. We have won many such cases by successfully arguing AC21 portability even after the revocation of the I-140 petition by the employer if the person was entitled to the AC21 portability benefit.
 
Also she said "won many cases", not necessarily all of them. It seems this idea of priority dates are really up to interpretation then.

unitednations said:
she didn't address the issue. she didn't s ay what would be the priority date if 140 is revoked. She only stated that you could enjoy portability.
Click to expand...
 
How the new Pd will be decided

But is there any way to find out if my priority date has been changed.

Assuming priority date changes for AC21 cases if the emlpoyer revokes I-140
then what would be the new PD and how it would be decided. Based on the joining date of new company or the date on which the I-140 has been revoked???
 
This makes me feel very optimistic because if there is no priority date for me then my case might get an approval also. :) Because I won't fall under cutoff date concept. Any way I will just wait with fingers crossed and post here if there any updates.
 
UnitedNations one thing is confusing here since there is no concept of PD, on what EB category would they consider this AC21 case for adjudication?

assuming 140/LC does not exist hence EB3 category does not exist anymore, so on what EB visa category will they consider? so will they consider which ever EB category becomes current?
 
i am looking into the ac21 document i will try to attach the same...this should be in this site..i got it from here. it does not say anywhere that your i140 is revoked as soon as your company files for withdrawal..from what i understand that the INS officer expects that the alien might have filed the evidence for new employment, if you did not he is going to send a NOID to you and you have 30 days to respond.
if you respond in timely manner then your I140 will still remain valid. so your 485 also remains valid the way it was filed.
the logical question to ask is "when the I140 was never revoked in the first place...why is there is need for priority date?"
because you are not creating a new 485 ..the undrelying 140 still remains valid so is the 485. and hence your priority date.
again everyone can read the same sentence and come to different conclusions...from the looks of it...if the person goes through AC21 and he loses priority date in the process because his employer withdraws 140..then this defeats the very purpose of the law that is "American competitiveness act for 21st century" where is the competitiveness...if you change jobs when in 485 you lose out...doesn't look like much of a law to me...

just my 2 cents...i am no attorney...this issue needs to be clarified...cuz my whole stay in this country depends on the ability to AC21....if my worst fears come true...many ppl might as well pack their bags and go home...now, instead of wasting any more time..on the GC
 
pacha_card said:
This makes me feel very optimistic because if there is no priority date for me then my case might get an approval also. :) Because I won't fall under cutoff date concept. Any way I will just wait with fingers crossed and post here if there any updates.
Click to expand...

A kid asks why gun man closes one eye to shoot the gun. Anwser: if he closes both eyes, he can't see anything. :D

You have same line of thinking :)
 
"The law says your 140 is automatically revoked upon notice from employer to uscis"

can you give me a link or a document (not the user's post) that says clearly an I140 will revoked as soon a notice from employer is received.?

from the document i have, it clearly states the steps INS or USCIS follows during the 140 revocation process.

"USCIS/Congress never envisioned employers would revoke an approved I-140. Law change needs to be made that employer cannot revoke approved 140 once a 485 has been pending for more then 6 months. That is the way to take care of the issue."

not really...if you look at the attached pdf file...there is clearly a section which says that
B. Provisions in cases of Revocation of Approved Form I-140.

so obviously the law makers or INS has envisioned that aspect...the issue is it is not clarified. i checked attorney murthy website..even she admits that the issue of AC21 is left discretion of INS and there is some grey area.

i don't know about you, but from what i read it clearly says that an employer can revoke (or withdraw) an approved i-140 but i INS will not do it, until it gives the applicant an opportunity to respond to the NOID or if the applicant bolts before 180 days.
 
I seen my frd's PD unchanged

I am not too expert but seen my frd's (close buddy) AC-21 case approved with the same priority date.

His details:

Labor filed - April 2002 (EB3)
September 2002 - LC approved

140 filed - November 2002 @ NSC
Feb 2003 - 140 approved.

485 filed - April 2003

Changed Job (AC-21) on Dec 2004.. -- but not informed NSC

Employer revoked his 140 - May 2005

Responed in end of may and got his approval in June 2005.

Which means...the PD remains same eventhough the approved 140 was withdrawn or revoked...my 2 cents ...but i have strong and solid evidence because he is my close close buddy..... I wouldn't worry much on those cases......so chill out..

Thanks
 
hmm.. the case you posted
"My I 140 petition was approved in September 2004. In June 2005, I changed the employment of a same occupational classification. I have just learned that my former employer had withdrawn the I-140 petition in October 2004. "

seems to me that this person changed jobs in june 2005 whereas his 140 was revoked in oct 2004...in which case he never really responded to the NOID request...because he was not aware of it...from his case explanation i assume. i guess in his case his 140 might have been revoked obviously...since he never established that he is working for a new employer in a similar category...this case seems to be an exception than a rule.
the yates memo which everyone refers to, clearly says that the priority dates are kept intact as long as the alien reponds to NOID.

i guess to each his own....thanks for posting the links...appreciate your help.
 
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