Labor Substituion after 140 approval and ac-21

H

HaveToGetIt

Registered Users (C)
I have the following question..

CompanyA applied for Labor Certification for EmpA in 2001 and received approval in 2001. After that companyA filed for 140/485 back in 2001. The 140 application for EmpA got approved and then EmpA used the AC-21 and left the CompanyA. CompanyA back in 2002 sent a letter to USCIS saying employee has left the CompanyA and wants to withdraw 140 application.

Now in 2005 CompanyA is willing to use that labor for another employee. Is this possible and what are the risks with pursuing this path?

Is it possible that EmpA who originally used that labor and his 140 was withdrawn by employer, still got 485 approved and now the labor certification can not be used?

Thanks for all the help you can provide.
 
HaveToGetIt said:
I have the following question..

CompanyA applied for Labor Certification for EmpA in 2001 and received approval in 2001. After that companyA filed for 140/485 back in 2001. The 140 application for EmpA got approved and then EmpA used the AC-21 and left the CompanyA. CompanyA back in 2002 sent a letter to USCIS saying employee has left the CompanyA and wants to withdraw 140 application.

Now in 2005 CompanyA is willing to use that labor for another employee. Is this possible and what are the risks with pursuing this path?

Is it possible that EmpA who originally used that labor and his 140 was withdrawn by employer, still got 485 approved and now the labor certification can not be used?

Thanks for all the help you can provide.
Click to expand...
Very good question.... I am not the right person to answer..

Hope some GURU will reply to your question and that will help others
 
Hey,

First of all, I assume that your I-140 and I-485 filed concurrently. In such case, if your I140 is approved and your I-485 is more than 180 days, EmployerA loses control over I-140. EmployerA can request but it is unlikely it will be rejected again.

Its the high time to file AC-21 if EmpA 485 gets approved. So even if the withdrawal letter received by USCIS, the benefit is given to EmpA and be approved after an NOID or RFE.

If EmpA's 485 gets approved, the underlying Labor cannot be used by EmployerA anymore.

This is my understanding as I'm currently swimming against the troubled waters.

Thanks
 
If EmpA left the EmmployerA after 6 months of 140 approval and more than 6 months of 485 pending, then the EmployerA can't withdraw the 140 approval even if he write a letter to USCIS

If the 140 approval is lessthan 6 months then the EmployerA can withdraw the 140 approval..
 
Hello jkvaisnavi, newkidhere,
Sorry for silly question.
I understood the AC21 usage based on 180 days in 485 part. But what if the
140 is not approved in 180 days? Who owns it? employee or employer?
Can AC21 be filed based on just 180 days with 140 not approved?

What does this mean "EmployerA can request but it is unlikely it will be rejected again".

"If the 140 approval is lessthan 6 months then the EmployerA can withdraw the 140 approval" - Is it not date of filing to 6 months or approval + 6 months?

Can you gurus please explain this? Thanks.
confusedesi.
 
Last edited by a moderator:
Here is my understanding :

If the 140 approved and 180 days passed, the employer does not have any control over 140 and your 485 will be approved based on AC-21.

If the 140 is not approved and 180 days passed, the employer can only request for withdrawal and this does not mean that you're at risk. It is better you file AC-21 at this stage and probably expect an RFE or NOID.

If it is less than 180 days and if your employer requests for withdrawal of I-140, then the possibility of getting I-140 rejected more and thereby I-485, I-765, AP would be summarily rejected.

If the company request for withdrawal say by 150th day and if USCIS takes action only after 180th day, the Employee can invoke AC-21 as 180 days passed.

I think you got some picture of it.
 
newkidhere said:
Here is my understanding
Click to expand...

Your understanding is incorrect.

If the 140 approved and 180 days passed, the employer does not have any control over 140 and your 485 will be approved based on AC-21.
Click to expand...

Wrong. The employer can request revocation of an approved I-140 at any time. At this point, USCIS will issue you an NOID and you have 30 days to prove eligibility under AC21.

If the 140 is not approved and 180 days passed, the employer can only request for withdrawal and this does not mean that you're at risk. It is better you file AC-21 at this stage and probably expect an RFE or NOID.
Click to expand...

If the I-140 is not approved and the employer requests withdrawal, then your I-485 will be denied and you cannot claim AC-21.

If the company request for withdrawal say by 150th day and if USCIS takes action only after 180th day, the Employee can invoke AC-21 as 180 days passed.
Click to expand...

No. The operative date for calculating 180 days is the date that USCIS received the revocation notice, not the date they processed it.
 
RealCanadian, NewKid
You both clearly differ on views. But I feel Realcanadian sounds confident
with his experience in board and posts.
newkid?? where did you get these info? from attorney/board/USCIS or assumptions?
Sorry .. I did not mean to probe you.
yetmoreconfusedesi
 
Hi,
My question is " what's the difference between Denied notice and Revoked notice for 140"? :confused: i think if we get denied notice for 140, then we will received denied letter for 485 at the same time. But, how about the Revoked notice issued on 140, and how about our 485?

If we got revoked notice of 140, do you still have chance to us AC 21?

My situation is: I knew my ex-employer withdrawed my case in last June ( because he sent me a copy of this withdrawn letter), it's just about 160-170 days after i filed 485 ( not reached 180 days yet,). Recently, i got an approved 140 email notice on Jan 20, 2005, but a week later, I called CSC and a lady told me that they made a new decision, and they sent out revoked notice of 140 on Jan 31.
I don't think i can both approval notice and revoked notice ( my ex-employer is pretty mean to me). I just have no idea how can CSC count my days for 485? Will they count it from Jan 31, 2005 or the date they received their withdrawn letter ( maybe say in the end of June, 2004)?
If they counts from jan 31, then i think for sure that I can use AC 21, but if they counts from the receiving date, then I don't know if i can use AC 21 ( didn't pass 180 dateline)?

MY current I485 is still pending and i didn't get denied letter so far and the online status is still showing revecing finger print......., i don't know if they will issue denied letter or NOID to my I485??

I asked a couple of lawyers, and they told me that i need to wait until the revoked notice to see what the CSC issue. But, my problem is i don't think my ex-employer will send me that notice after they get it.....

Please commend if you have any thoughts.
 
gcdesi, newkid:
RealCanadian is 100 % correct; it's not a question of confidence but of the facts - if you carefully study the famous Yates memo on AC21 Portability (which is, to date, the only "OFFICIAL" clarification on this gray law), you will find answers to most of the points raised by newkid. As RealCanadian says, if the employer sends a 140 revocation request after the 180 days period, USCIS would expect the beneficiary to send the evidence to avoid denial (see the Yates memo)....also, a request to withdraw the 140 before the 180 days period would result in a straight denial of the 485 too....

========================================
Disclaimer: I'm NOT an attorney, just a smart alec ;)
 
Hi Here you go, the info from Murthy's website:
-----------------------------------------------------------------------
I-140 Revocations

The hottest news item from the meeting came from Efren Hernandez, INS Director of Business and Trade Services. Mr. Hernandez confirmed an earlier indication that an Adjustment of Status (I-485) application could be approved based on AC21 portability, even if the initial sponsoring employer withdraws the I-140 after the I-485 has been pending for 180 days. Moreover, in such instances the 180 days is measured as of the time the INS acts on the request for I-140 withdrawal. That is, if the employer files a request for I-140 withdrawal on day 150, but the INS does not process the request until day 200, the I-485 is still "alive" and approvable.
------------------------------------------------------------------------

Hope this helps. Thanks
 
I-140 withdrawal by the Employer, is like cutting u'r thumb to spite your face

Hi,

Here is my 2 cents of understanding the complex immi laws....

First of all if an Employer withdraws a pending I-140..it means that they are subscribing to the fact that they do not have a requirement for the skill set as ascribed in the LC. Inwhich case they may not be able to use the LC also....

Hence it is a general thumb rule to apply for I-140 the moment one gets the Labor cleared so that nobody else can use it....

This has been my understanding...Unless someone else can add to the fact that I-140 can be withdrawn by the Employer for various other reasons, where the LC and position and skill set remain intact...

The floor is now open for other contributors...
 
haradica said:
First of all if an Employer withdraws a pending I-140..it means that they are subscribing to the fact that they do not have a requirement for the skill set as ascribed in the LC. Inwhich case they may not be able to use the LC also.
Click to expand...

No, when an employer withdraws an I-140 it means that they do not have a need for that specific alien. The LC is for the job, the I-140 ties the alien to the job. They may or may not have a need for the skill set.

An LC does not become "used up" when it gets attached to an I-140. Before AC21, it was very simple - once permanent residency was granted, the LC was used up. If the I-140 was withdrawn or rejected, then the LC could probably be used again. With AC21, it's a huge grey area.
 
Need Advice , Plz Help me! :: I-140 / AC21 ::

Hi folks,
Iam I/T professional working as consultant for the most part of my career so far,
My Eb2 RIR I-140/485/AP/EAD were filed in 10/08/2004 to Vermont center by a
small 100 + employees Indian company. Got approved AP/EAD on 11/2004.
No finger print notice yet. though i got finger printed in 04/2004 when i
applied H-1B Visa stamping.

1. Is this normal NO FP notice yet, what do i need to do wrt to that?

2. I am working with a good client on 6 month to hire position,
and with a good american consulting company as a preferred vendor
which pays $$ on time, the client expects me to join them as an employee
after 07/2005 like i mentioned above my I-140 applied in 10/2004 and is
pending, the current processing date for EB2 I-140 is 02/2004,
Is there any good chance my I-140 gets approved by 07/2005 or
little after that?

3. I have another offer, this is a pure consulting assignment
the preferred vendor to this client is an indian company who likes to
pay atleast 45 days LATE and My company wants to charge me 4%
more on the billing rate and pay me 4% LESS $$ but ON TIME.
should i consider this assignment? instead of changing companies
while GC is in process and the risk of getting delayed and
put up with this desi indian companies till my GC approves?

Please help me decide, tell me what you would do in my situation ?
Please respond to me at the earliest as i need to decide soon,
I dont have much time at my disposal.

Thank you very much in advance,
it_pro77@yahoo.com
 
it_pro77 said:
Hi folks,
Iam I/T professional working as consultant for the most part of my career so far,
My Eb2 RIR I-140/485/AP/EAD were filed in 10/08/2004 to Vermont center by a
small 100 + employees Indian company. Got approved AP/EAD on 11/2004.
No finger print notice yet. though i got finger printed in 04/2004 when i
applied H-1B Visa stamping.

1. Is this normal NO FP notice yet, what do i need to do wrt to that?
Click to expand...
Yes, perfectly normal. In my opinion, you should try to contact USCIS when they start processing 485 applications with your ND.


2. I am working with a good client on 6 month to hire position,
and with a good american consulting company as a preferred vendor
which pays $$ on time, the client expects me to join them as an employee
after 07/2005 like i mentioned above my I-140 applied in 10/2004 and is
pending, the current processing date for EB2 I-140 is 02/2004,
Is there any good chance my I-140 gets approved by 07/2005 or
little after that?

3. I have another offer, this is a pure consulting assignment
the preferred vendor to this client is an indian company who likes to
pay atleast 45 days LATE and My company wants to charge me 4%
more on the billing rate and pay me 4% LESS $$ but ON TIME.
should i consider this assignment? instead of changing companies
while GC is in process and the risk of getting delayed and
put up with this desi indian companies till my GC approves?

Please help me decide, tell me what you would do in my situation ?
Please respond to me at the earliest as i need to decide soon,
I dont have much time at my disposal.

Thank you very much in advance,
it_pro77@yahoo.com
Click to expand...

Between the two options, the first one is good, but then there is a risk associated with using AC21 before 140 approval (although AC21 does not require 140 to be approved). So if your 140 gets approved before 7/2005, join the client otherwise go for the 2nd option.

So if I were you, I would stay with 100+ small (? I think it is fairly big) desi consulting company untill 140 is approved and 485>180 days. Join the other consulting project. Take pay 45 days late and not pay 4% additional on the billing rate. Once 140 is approved, then think next plan of action.
 
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