Jaxen, Can this case be approved if Filed!!

I

Ishwar

Registered Users (C)
Dear Jaxen,
I was not knowing much about AC21 but you made me aware of AC21 and I-485 Portability, my friend is in some confusion I informed him what I read in your posts and others who posted on this thread my thanks to all for sharing the info and thanks to Rajiv S Khanna for this site.
Here is his case:


1. He worked for Company A on H1B visa, company A filed for his LC in RIR, LC was cleared and I-140 was also filed and then the company A told him to cut his Pay because he Sponsored his GC, my friend kept quit for few months and worked on less salary, he did not have any option

2. Then he found a Job with Company B and transferred his H1B and worked with company B and same thing happened with B, Company B also filed his LC that is still pending
B was also not doing good he also started Salary cut for many H1B employees and sent many back to India, my friend was also told to go to India but he found Employer C, who had a good job for him so he got his H1b transferred from B to C.

3 My friend is currently working with employer C on H1b for last 15 months, C has also filed for his LC in RIR that will take more than a year just to get LC cleared my friend
My friends job duty or skill set is same for A, B, and C in other word Jobs are similar

@@
4. Few days’ back he met one of the friend who worked with him in company A and told him that I-140 of my friend was approved long back for A, then my friend asked him can he get him a copy of filing the I-140 or copy of approved I-140, then my friend received the I-140 filing receipt only through a friend who is working for A and he told my friend that his I-140 has NOT been revoked by A and then after getting the filing receipt of I-140 my friend found on AVM that his I-140 has been approved in Feb, 2001, it means that employer has not cancelled the I-140, he wanted to request Employer A for the copy of I-140 but he had a fear that if he asks A for copy he may try to Cancel it so he kept quiet

5. My friend met a lawyer he told my friend that Still he can file for I-485 with just WAC # that was approved for A and pray that his I-485 is not approved in less than 180 days, once 180 days have been passed he will be safe and can use AC21 and can inform INS about change in Intent at that time or wait for RFE if any from INS and can provide company C letter,
My friend asked the lawyer that if the Employer A cancels the I-140 during the I-485 then lawyer replied that normally INS does not give any priority to cancel H1b or I-140 these requests take more than 6 months and most of the time die on the shelf, so he should not worry about this and should not inform A that you are filing for I-485 just to avoid any complications. I-485 belongs to you not to employer A
Lawyer told my friend that he should maintain his H1b with C and continue working on H1B and file for I-485 based on approved I-140 for A, lawyer said that he does not need the copy of approved I-140, just he provide him WAC # of I-140 filing INS has the record and they will check it, then my friend asked the lawyer that he needs Employer A letter to file I-485 but the lawyer told no problem, he will manage with out it because nobody checks it till the final approval and INS may have “ lost it”, they even loose the files ……… they send the notices to wrong addresses

My friend asked the lawyer about the INTENT, he told it can be changed and do not worry, you have the Intent to work with A at this time don’t you?, just file the I-485 he will take care of every thing latter just let the 180 days pass after filling and INS is not going to approve it in 180 days normally they take more than that and he knows the delay tactics, when INS can delay many cases more than 2 years he can……

Dear Jaxen My friend needs your help or I should say that I need your help to help my friend.

Should he file I-1485 and take the risk? Is there anything illegal? Or lawyer is correct and my friend can/should take the risk

Regards
 
Well there's fair bit of risk but there's no harm appling. IF u have copy of approved 140 or even WAC number too u can file 485. Problem will be the emploment verification letter of employer A cause your not and donot intent to work for A from the begining of filing 485. Its little tricky but worth a try. IF INS send u receipt of 485 filing then he's in cause there's noway he's gona get approved before 180 days.
Take a good lawyer who knows how to twist things.
This is what i think ....My 2 cents
Legally i think that's wrong filing but i hv seen ppl do that.
 
First bridge to cross...

When you file I485 the application can be summarily rejected for the following 2 reasons
1. Non submittal of original I140 approval
2. Non submittal of employer letter.

Once you get the I485 receipt then you have crossed the very important bridge and will be eligible to exercise portability after 6 months.
 
with new rules of 140 and 485 filing togather u might be able to do with 140 receipt but the second one's lil tricky . If u get a receipt then u r through.
 
It appears as if the attorney is absolutely certain that the I-485 will
take
more than 180 days, and the risk of problems is lower if the I-485 takes
more than 180 days.

If you file the I-485, your attitude must be as follows: at the time of
filing the I-485 you had an expectation of returning to the I-140 employer,
even though you were working for another employer.

The question of whether or not the I-485 filing is illegal depends on your
state of mind. The attorney's attitude is -- how can INS prove your state
of mind at a certain point in time?

The attorney is probably correct that the INS would accept the I-485 based
on the I-140 receipt number. INS can check its own computers.

The employer letter is actually required to be filed with the I-485, but no
one will check to see that it is missing until more than 180 days have
passed after filing, and at that point you would provide the
"employer-switching" letter.

The attorney would have to take some responsibility if something went
wrong.

But I hope you will be through.
Good Luck!!
 
Forget to add

For ghost-rider
FYI GC is for future JOB

According to law one can be working with X and can start his GC process with both Y and Z with out working with them, if both Y and Z get I-140 approved and both Y and Z apply for I-485, how you will decide the intent? according to law one can file more than one I-485, so how the INS is going to check the INTENT at the time of filing I-485 in that case? do they have any Psychological test that they administer before filing I-485. it is very difficult to know the Intent, human mind changes every second and I have not seen any recent post that Mr XYZ was denied the GC due to Intent.
 
Update of my Friend case

Jaxen , ghost-rider,Avtaar and other friends,

My friend submitted the I-485 and his Application has been Accepted ( without Employer letter and with I-140 reciept)

He recieved I-1485 reciept, AP reciept, Ead approved Reciept

1 He filed I-485 based on past employer approved I-140, he did not have copy of I-140 but had the Reciept of Filing and that was attached.
2. Lawyer has not attached Employer letter from the Past employer , lawyer told him , no need of it as INS will only check the full file when they approve the case and once the case hits 180 days now employer letter and change in intent will be sent. Lawyer also told that these kind of cases are mostly sent to Local INS for Interview

He told the RISK is that I-485 should not be approved before 180 days, once 180 days are over Risk is very low according to the present INS AC21 memo but nobody knows what changes will be in final regulation. Lawyer told to maintain H1B status if anything goes wrong with I-485 then the status will be preserved

I know that still every body is waiting for the final rulesand no body is clear do you see any problems in this case any precations to be taken, my friend is going to maintain H1B status he is not going to use EAD.


Thanks to all!!
 
Last edited by a moderator:
how can you get the employment verification letter?

faked by yourself or fraud together with the old employer?
it's a BIG problem. Who will sign on it?
My suggestion is to apply with C company from the begining.
 
Dear aqaqaqaq,
My friend has not faked anything, nor cheated old employer,

My friend was hesitant to ask employer A for I-140 copy and Employer letter, the Lawyer filed papers with out the letter and just with I-140 receipt ( I-140 was approved and was checked with WAC#), later my friend met Employer A and got the job verification letter from employer A and also got copy of I-140 approval and copy of approved LC, He provided it to lawyer but Lawyer sent papers to service center before my friend got the letter from A and approved I-140 copy, and A is ready to give any letter for his GC process any time and every thing has been shared with A, so no fraud or cheating is involved in this case, do you think Lawyer has no responsibility? Do they file fraud cases if they know it is a fraud? Will they do any case just for the fees and would risk loosing bar license? I don’t think we came here to lie or commit frauds, the lawyer suggested the option and Risk of 180 days and my friend took the risk. If you need all the papers, my friend can mail you, so that you can check if he did anything wrong, I will provide you the Telephone# of the lawyer and you can speak to him for more clarifications.

If INS asks for the letter from A or sends RFE it can be provided any time and my friend is going to speak with the lawyer after your message and lawyer still can send the letter of A and can be attached to file if he feels, after 180 days new employer C letter will be provided and will use AC21 and A has no objection to it and A is not going to withdraw I-140.
If rejection, then my friend is only going to loose Lawyer Fees and INS fees, He is maintaining H1 status and, if this case based on A’s I-140 is not approved he will file based on company C as per your suggestion. I hope I tried to clear my point for your satisfaction.
Thanks!
 
See this What i got from one attorney

Hello all,

I asked one of the attorney regarding this case Employer letter and I 140.

1.A copy of I140 is required,meaning a zerox copy or receipt of I 140 is required.
2.Employer letter , this will not be checked before the final stage of green card.

3.What they will check in mail room are.
1. Proper fees.
2.Proper applications(I485,EAD(IF REQUIRED),AP,FP applications and required documents(In this required documents they will see for I 140).

Our attorney's will take care not to get a RFE that is the reason they will ask for so many documents.Some of the attorney's ask Paystubs, W2's ,Some do not bother about these.

I hope I gave my 2 cents.

Thanks
Coolcat5
 
What about INTENT at the time of filing I-485? How INS going to check the Intent at the time of approval? any problems at final stage?
or INS just care you should have job in Similar field and should be working and just new employer letter to use AC21

Do you mean that INS will just accept new Employer letter and Lawyer using AC21 if one gets RFE and no question about Intent when I-1485 filed with out employment verification letter?

Or at the time of filing for I-140 the old employer attached letter and filed I-40 and Employee also signed the form to work with the old employer, do mean that it will count the Intent?
I hope you need to show Intent at the time of filing I-485, if at final stage they discover that Employer letter was not attached when I-485 was filed, INS may create problem regarding Intent

I dont know how INS checks the Intent, Lawyers may be knowing better
 
Last edited by a moderator:
How can you prove that the intent was otherwise?
I dont think intent is a factor at all when exercising portability.
As long as there are man made laws, there will be cracks thru which some get through.
My judgement is against INS which does not practice what it preaches.
 
"How can you prove that the intent was otherwise? "

By not submiting a letter from old employer he /she lacks the Intent to work with the old employer whose I-140 is the base of I-485, this may haunt him/her till the final stage comes

I hope the burden of proof of Intent is on applicant. In this scenario the applicant has to prove his Intent If INS asks at the time of final interview because such cases are normally sent to Local INS for final approval (reference Murthy Chat answers)

How the person is going to prove his intent? Because he/she never attached employer letter for future job from the original sponsor of I-140, if he/she should have attached the letter from employer whose I-140 is the base of I-1485 then no problem of Intent will arise at final stage.
If INS does not care about Intent then the case may be approved
 
Last edited by a moderator:
Once again, intent is not a factor (murthy chat or not).

Local transfers are random 5% based on factors like EAD usage etc.. (The pattern is not self evident) If there is doubt about employment, INS will generate a RFE.

Post AC21 and 911, "are you with your sponsoring employer " has become a standard question for all local transfer cases.

My opinion.
 
You must log in or register to reply here.
Top