LC Denied.......245(i)

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A_Bhai

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LC Denied.......245(i)...Urgent

List of Events

1) Applied for LC in NY SESA office, back in April 30 2001 under 245(i).
2) Received NOF in Nov. 2002 to justify the position and need for that position in the firm. It was for software consulting company as an accountant with a year of experience and 4 years of education.
3) Sent reply in Dec. 2002 and received notice from DOL (Jan 2003) to rerun the advertisement and recruiting effort.
4) Received 30 resume and submitted report back to DOL.
5) Mar 2003 - Application denied by DOL stating there is no shortage of worker in specified field (Accounting).

Above event happened to one of my friends and details are listed above based on his explanation. His lawyer is suggesting to file another LC from some other PA based company and he is telling my friend that newly filled LC (if approved), will allow him to adjust his status in future based of "245(i) Grand fathering Rule."

Does anyone know anything about "Grand fathering Rule"? My understanding regarding Section 245(i) and LC was different then what his attorney is suggesting. I thought if the LC is not filled before April 30 2001, one couldn’t use section 245(i) of immigration Law.

Any thoughts....
 
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A petition that is denied, withdrawn, or revoked may still preserve 245(i) eligibility, depending upon the reason for the outcome. The basic issue is whether the petition met the "approvable when filed" standard.

For instance, if the petition was withdrawn, denied, or revoked because of situations arising after the petition was filed, the petition will still qualify the person for 245(i). Examples INS gives of a change in circumstances are a child "aging out" (reaching 21 so no longer being eligible for certain categories), an employer going out of business, or a termination of a valid marriage.

If a petition is without merit and is denied because the beneficiary was not eligible at the time of filing, for example did not have the required family relationship at the time, then it cannot serve as a basis for 245(i) eligibility

Source: http://www.murthy.com/UD245reg.html
 
I would argue that the LC was approvable when filed even though subsequent events proved availability of US workers prevented approval, the LC was still approvable at the time it was filed. As long as BCIS agrees when they process the I-485 you should be fine.
 
A_Bhai

Agree with your assumption and Jim Mills comment.

But it's not what I agree or your friends attorney is saying, as Jim said; it is BCIS who needs to have same understanding.

As you said before your friend tried under 245(i) and based on that I don't think he has any other option but to continue and try to convince BCIS.

Good Luck........
 
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