New Yates Memo - Pirority Date Question

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GreenCardVirus

Registered Users (C)
Guys what does it mean by the highlighted part. Anyone changing jobs using AC21 should file for labor again to retain PD ?????????

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(5) Priority Dates. The priority date is used in conjunction with the Visa Bulletin issued by the Department of State (DOS) to determine when the beneficiary can apply for adjustment of status or for an immigrant visa abroad. Determining the correct priority date for an immigrant visa petition is very important. Of equal importance is making sure that the Form I-140 approval notice carries the correct date. Another USCIS office or DOS may use the information on the approval notice to make a determination on the beneficiary's eligibility to file an application for adjustment or for a visa. Issuance of an incorrect approval notice can cause multiple problems for USCIS, other DHS entities, consular posts, petitioners, and alien beneficiaries. (A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successorship of interest).
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GreenCardVirus said:
Guys what does it mean by the highlighted part. Anyone changing jobs using AC21 should file for labor again to retain PD ?????????

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(5) Priority Dates. The priority date is used in conjunction with the Visa Bulletin issued by the Department of State (DOS) to determine when the beneficiary can apply for adjustment of status or for an immigrant visa abroad. Determining the correct priority date for an immigrant visa petition is very important. Of equal importance is making sure that the Form I-140 approval notice carries the correct date. Another USCIS office or DOS may use the information on the approval notice to make a determination on the beneficiary's eligibility to file an application for adjustment or for a visa. Issuance of an incorrect approval notice can cause multiple problems for USCIS, other DHS entities, consular posts, petitioners, and alien beneficiaries. (A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successorship of interest).
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From what I understand it means that the PD stated on approved I140 remains valid for beneficiary until that I140 is valid.
 
What the memo says is:
If you are with Emp A (Say PD 01\01\2004) and your I140 is approved, now if you decide to move to a diff employer and file Labor again say on 3\1\2005, you can retain your old PD of 01\01\2004 since you I140 was approved earlier.

The exception being I140 from earlier employer gets revoked by USCIS due to fraud.

The memo does not explicitly say anything about what happens if the employer revokes the I140.
 
I don't think you have to file for another labor certificate if you use AC21. All you do is have the new employer write a letter to USCIS explaning the job describition.
 
GreenCardVirus said:
So, if one changes jobs using AC21, and the old employer revokes I140, then the person is priority-date-less?
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absolutely. once a I140 is revoked then pending 485 and PD all of these are toast.
 
fast_gc_seeker said:
absolutely. once a I140 is revoked then pending 485 and PD all of these are toast.
Click to expand...

The AC21 guidance explicitly states that this does NOT happen.

What is interesting about this latest guidance is that it suggests that once an alien has an I-140 approved, he or she retains that priority date even if the I-140 is later revoked by the employer.
 
see this is the issue i have with some of the posters of this board. some of them are called gurus and what not here and they really start thinking that they are immigration lawyers and start giving out opinion without really understanding what those cases are.

just because you read car driving and death in a same sentence does not mean car driving equals to death.

i have already posted in that discussion what the yates memo says and i also found a recent memo which explained clearly in detail regarding AC21.

why people cannot believe what is said by some authority in USCIS and believe some tom, dick and harry who (granted he/she maybe an old member of this board) posts some case which might have gotten cancelled because it might have other issues apart from using AC21.
come to think of it. if you lose priority date when use AC21 and by that you lose your whole GC process, then what is the point of that law?
it's called American competitiveness act for 21st century, what is so competitive about it.

oh one more thing, there is a rumor going around that says "an employer can use your labor once you use AC21 and move to another company" this is totally baseless.. if there is a proof i am yet to see a document like yates memo where its specified.
 
michael_holding said:
see this is the issue i have with some of the posters of this board. some of them are called gurus and what not here and they really start thinking that they are immigration lawyers and start giving out opinion without really understanding what those cases are.

just because you read car driving and death in a same sentence does not mean car driving equals to death.

i have already posted in that discussion what the yates memo says and i also found a recent memo which explained clearly in detail regarding AC21.

why people cannot believe what is said by some authority in USCIS and believe some tom, dick and harry who (granted he/she maybe an old member of this board) posts some case which might have gotten cancelled because it might have other issues apart from using AC21.
come to think of it. if you lose priority date when use AC21 and by that you lose your whole GC process, then what is the point of that law?
it's called American competitiveness act for 21st century, what is so competitive about it.

oh one more thing, there is a rumor going around that says "an employer can use your labor once you use AC21 and move to another company" this is totally baseless.. if there is a proof i am yet to see a document like yates memo where its specified.
Click to expand...

I appreciate your comments but another point. There is this law, and there is this way how it is implemented. Laws are created with nobel intensions, but unfortunately there will be lot of unseen loopholes. Until these holes are plugged, there will be people who slip thru them and people who stumble upon them. AC21 is one such law which is clear in definition, but its implementation is messy. There is no formal procedure that to indicate that a 485 applicant has changed jobs. People sending AC21 documentation after they change jobs is purely based on assumption, that USCIS will make note of the job change and will protect them from any employer retaliation.

There are a few truths related to AC21. An employer CAN revoke I-140. An employer CAN reuse the labor. There is no such procedure that prevents the employer from doing it. If in such a case the new employee who uses the substituted labor, he or she might get approval before the original employee. But, again if the original employee is up for approval, then there is a risk of the GC of the beneficiary of substituted labor being revoked. The AC21 law will eventually win, but not without a lot of hurt and pain to the real beneficiary.

Coming to priority date, it is very likely that a 485 application does not get picked up because it is missing the link to 140. (no law is broken here).
Who said everything is sane at USCIS? Just 2 days back a co-worker of mine got approval from CSC (eb3, PD in 2001) with the case was clearly not approvable theoritically.

Lot of members are very helpful on this board except for the likes of few who spread the wrong message.
 
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michael_holding said:
see this is the issue i have with some of the posters of this board. some of them are called gurus and what not here and they really start thinking that they are immigration lawyers and start giving out opinion without really understanding what those cases are.

just because you read car driving and death in a same sentence does not mean car driving equals to death.

i have already posted in that discussion what the yates memo says and i also found a recent memo which explained clearly in detail regarding AC21.

why people cannot believe what is said by some authority in USCIS and believe some tom, dick and harry who (granted he/she maybe an old member of this board) posts some case which might have gotten cancelled because it might have other issues apart from using AC21.
come to think of it. if you lose priority date when use AC21 and by that you lose your whole GC process, then what is the point of that law?
it's called American competitiveness act for 21st century, what is so competitive about it.

oh one more thing, there is a rumor going around that says "an employer can use your labor once you use AC21 and move to another company" this is totally baseless.. if there is a proof i am yet to see a document like yates memo where its specified.
Click to expand...


Hey man! I don't want to go into personal but I have seen your post in some other threads which were very impolite though it's your stand on this public forum. Obviously, you are much less knowledgeable in immigration matters compare to others gurus in this forum. IMO, many of them provide much more precise info than many immigration attorneys. I have to say I haven't seen any conclusion drawn from discussion here turns out incorrect. I appreciate gurus voluntarily answer some difficult questions even though some of them have already got green card. So be polite, have some respect, please!
 
"Hey man! I don't want to go into personal but I have seen your post in some other threads which were very impolite though it's your stand on this public forum. Obviously, you are much less knowledgeable in immigration matters compare to others gurus in this forum. IMO, many of them provide much more precise info than many immigration attorneys. I have to say I haven't seen any conclusion drawn from discussion here turns out incorrect. I appreciate gurus voluntarily answer some difficult questions even though some of them have already got green card. So be polite, have some respect, please!"

GCTortoise...what did i do to you? show me a post where i am impolite? look i am here like you are. if someone is going to say some stupid things to me i am going to respond back. it might be impolite. but i start all discussions in a respectful way. so i would appreciate if you keep your opinions about me to yourself. i am not going here and reading all your posts and claiming your are impolite or disrespectful. can you read my post and say where i was impolite.
i was merely mentioning a point. i never said anything personal about you.
WHY WOULD YOU WANT TO GET PERSONAL WITH ME?
if you wanna fight...thatt is your problem. i am not one who is shying away from it.

i maybe much less knowledgeble..in immigration matters. i will tell you first. its not my profession. but i do not need you tell me that. how do you know who is knowledgeble and who is not? why don't you concentrate on your problem before telling me how much knowledgeble i am. do not assume things about others.

" appreciate gurus voluntarily answer some difficult questions even though some of them have already got green card. So be polite, have some respect, please"


see there is a thin line about respecting people who give their opinion here and hero-worshipping them. you wanna follow the latter that is your prerogative. just cause you wanna hero-worship someone here does not mean others have to.
and do not teach others manners...that is definitely not polite.
maybe you should practice what you preach. your statement applies to you too....
 
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GreenCardVirus said:
I appreciate your comments but another point. There is this law, and there is this way how it is implemented. Laws are created with nobel intensions, but unfortunately there will be lot of unseen loopholes. Until these holes are plugged, there will be people who slip thru them and people who stumble upon them. AC21 is one such law which is clear in definition, but its implementation is messy. There is no formal procedure that to indicate that a 485 applicant has changed jobs. People sending AC21 documentation after they change jobs is purely based on assumption, that USCIS will make note of the job change and will protect them from any employer retaliation.

There are a few truths related to AC21. An employer CAN revoke I-140. An employer CAN reuse the labor. There is no such procedure that prevents the employer from doing it. If in such a case the new employee who uses the substituted labor, he or she might get approval before the original employee. But, again if the original employee is up for approval, then there is a risk of the GC of the beneficiary of substituted labor being revoked. The AC21 law will eventually win, but not without a lot of hurt and pain to the real beneficiary.

Coming to priority date, it is very likely that a 485 application does not get picked up because it is missing the link to 140. (no law is broken here).
Who said everything is sane at USCIS? Just 2 days back a co-worker of mine got approval from CSC (eb3, PD in 2001) with the case was clearly not approvable theoritically.

Lot of members are very helpful on this board except for the likes of few who spread the wrong message.
Click to expand...


now this is a polite discussion. isn't it. like you said GCvirus. there are loopholes. see i am readin the yates memo. that is the only document that talks about these types of cases. the general opinion that it gives is this

"an I-140 is denied or revoked at any time except when its is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days"
so most of the general cases ,not the ones with many complexities, i would assume, will fall under the above category.
this is what i want to emphasise. look 99% of the folks who come here are no
legal experts. and when they read sometimes they think using AC21 will result in your GC getting revoked. what they might not realise is that its only those certain cases where there were complexities involved got rejected. again i am not giving my personal opinion on anything. i am merely pointing out from a USCIS document. if any one wants to disagree that is fine. whether one wishes to take a stand one way or another on AC21 that is their right.

you said this
"There is no formal procedure that to indicate that a 485 applicant has changed jobs."
i would disagree. if your employer withdraws 140. you should get a NOID. whether you receive it or not and are prepared for it or not is a different mattter. there is a procedure in place. lawmakers are always trying to tighten the loopholes as much as they can. that is why you see so many memos coming in succession.

coming back to your first post in this thread. you highlighted the red part of the law. my personal feeling is that they are mentioning the 140 revoked cases (because of fraud or misrep) where the person move from one job to another. then the new employer has to get a labor certification and the PD is not retained.
well again i am no lawyer. i am a layman. here is what i read from yates memo.

"there is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions 106(c) are satisfied. the beneficiary of approved labor certification may benefit from it although the aliedn seeks to adjust on the basis of different employment"

if you are comfortable with this memo then the AC21 is the way to go. if you still believe otherwise...well. everyone has to do what is good for them.
my 2 cents.
 
I got a good chuckle out of reading this posting. sometimes people want to read what they want to read.
-- me too..isn't it funny...well i guess in my case its glass half full in your case its glass half empty. you are correct about what ppl want to read.
--- i guess my post touched a nerve.didn't it? i guess you really do think yourself as a guru isn't it.

Answer these questions:

-- do i have to? what are you, FBI? anyway i will try to.

What is higher authority in immigration law:

--- i dunno...neither do i pretend to know. to me if i read a authentic document then its an opinion with which i can base my opinion. even if an atorney mentions it without any proper documentation it does not become authentic. if there is document like AC21 where it says what happens when employer revokes 140..i urge you to post. its one thing to make a cautious statment and its totally another to create panic. i think you are doing the latter. i does not matter to me what you do. just my thought. there are obviously lot of souls who get panic attacks after reading some of these posts. i am sure you might have helped a lot of people with genuine problems too with your opinion. i am not here to fight with you.

Immigration and nationality act
code of federal regulations
public laws
USCIS memos

If someone wins a legal case, is it binding on USCIS for other cases to use the same principle?

-- like i said...i do not pretend to be an attorney. my question to you is, are you an attorney? if your answer is yes then i understand where you are coming from. if you are not...then your opinion is as good as anybody else' in this forum. so you can come down from your pedestal.

What does the law say about priority date retention?
What is USCIS position regarding priority date retention?
If there is a conflict what over rules?

What does INA and Ac21 (remember the law) say about when you can switch jobs (or do you have to switch at all, do you ever have to work with the employer?).

What does the law say about what happens to the priority date if the I-140 gets revoked either by employer or USCIS?

Where in the law does it say that a labor can't be re-used if employer revokes it?

--- i said i do not see any real link where it says that labor can be reused after approved 140 is revoked. its mostly hear say. one of my friend checked with attorney murhty. i trust his statement. so i am coming from that angle. can you tell me from where you are getting your opinion. like i said you wanna believe whatever you wanna believe. i am forming my opinion from a credible source.

How many RFE's, denials, notice of intent to deny have you seen?
--- none.how many have you seen? so just because you saw a lot of RFEs what does that make you? an expert in immigration matters. hey i do not have a problem with that man. you are free to express your opinion. just like i am free to do. its upto the person reading to take it or leave it. i will read what you post. but that does not mean i should abide by what you say.

How many lawyers have you discussed these issues with?
-- i don't have to. i never claimed that i discussed it with lawyers. no lawyer is going to discuss these issues without $$$ and when i am in a situation i will most certainly hire a lawyer and get his / her opinion.

How many posters have you talked to and seen their RFE's, denials?
--- none

What happens if USCIS changes the memo on how they interpret things? What process do they have to go to? That is can they change on a whim and start interpreting the law in a different way? If they do then what is your recourse?

--- it did not change much from 2002. the latest one clarifies lot of issues. you know what...life itself is not guaranteed. what happens if you die in an accident tomorrow? who cares. if the law changes that AC21 interpretation is more restrictive. screw the GC and i go back home. then again its a matter of personal preference.

If you talked to Bill Yates and he told you that in his interpretation your case should get approved which counters against the law, could you use this discussion in court or with the appeals office to get your case approved?

--- why would he say that? i mean seriously, who you think you are fooling with verbal jugglery. the interpretation of yates is a guideline based on the existing immigration laws. the memo cautions the law may become more restrictive in the future. even if assuming what you said happens. since law is not black or white as you said...there is always a way to petition and see if there is way the GC can be salvaged. look in real life i can tell you this much. most of the folks here who want to use AC21 and desperate to do so including me are folks who cannot work with their current employer for another 3-4 yrs when the GC comes. so its much better option to roll the dice and use AC21 (i know i would do) if the issue becomes complicated in future..i will see about that. then again there is nothing concrete that says if you change companies you can kiss your GC goodbye.

Don't know which profession you are in. If you are a I.T. professional then I imagine the work you do is black and white, no gray. All laws have gray because they cannot make them black and white because there may be situations that don't fit exactly into the law and if they were black and white then there would be unintended consequences and they would have to be constantly revising laws/rules

--- i agree. exactly my point. the case that you said in another posts that a persons 140 is revoked. seems like one particular situation.
in law every case is unique as you said. that is why i said no one knows what was the real issues on that case that got revoked 140 and rejected. unless you happened to be petitioner or an attorney for that case. how do you happen to know anything more than any other observer?

if anybody in this forum really knows a case or a personal victim of an i-140 revoke after they used AC21 (when they satisfied all the clauses of AC21 usage, please no complicated cases). i would request them to post their experience. that is the only way we know for sure the real story, or else its always "he said, she said" story.
 
here is a link i found in another website . its an old link. for the folks who have not read this here it is.

//murthy.com/news/UDportis.html

if you want to read up further you can go and read this. whoever already read this link before, its an old link, so please do not post a snide remarks like "is this news to you" ...etc etc.
if you have read this before. you are free to browse other topics..

thanks
 
michael_holding said:
you are free to browse other topics..

thanks
Click to expand...

Michael Holding? as with Vivian Richards, Clive Llyod, Malcolm Marshal, Gordon Greenidge, Desmond Haynes, Garner ???? thats what I call a real dream team
 
yeah GCvirus. he was known as whispering death. he wrote a book by that name. his bowling style was fluid ..he used to glide without any herky jerky motion...yeah thats one bad ass team...with that pace quatret....(holding, croft,marshall, roberts)
 
ok here is what i found regarding the use of labor after 180 days...and in general use of AC21.

if you want to read i suggest you go to murthy.com and search for keyword 140 in the chat transcripts these questions are in the first few pages.
unfortunately i cannot post content here because of copyright.

so if you wanna read up you can go there search and read the chat transcripts. the opinion seems to be on the following lines.

". Arguably, the person who has the I-140 petition approval and the I-485 pending for over 180 days should be protected under AC21 and the USCIS seems to be taking this view in the MTRs and other RFE responses . "

so basically its a race against time. atleast we know what the legal angle is. so if the employer is a trickster they can basically use the labor after you leave and use it on some unsuspecting future employee, who in the end might find out that he is not going to get GC (unless he miraculously jumps in front you in the waiting list).

see this is what helps, insteading arguing how many rfes or noids one has seen or questioning someone's knowledge of law by making this like a sanbox fight. this will also address some of the panic created in here by some threads, atleast for the cases that are clear cut and not complicated.

so for ppl who work for some of the smaller body shops, they have to watch out. there is no guarantee what the employer can do.

so for folks who are in the same boat as i do. this is as good as it gets regarding free legal opinion. whenever we cross the bridge as the situation demands one has to decide upon the employer's scale "jerkiness" whether to hire a sound immigration lawyer to protect your case or not.
 
michael_holding said:
ok here is what i found regarding the use of labor after 180 days...and in general use of AC21.

if you want to read i suggest you go to murthy.com and search for keyword 140 in the chat transcripts these questions are in the first few pages.
unfortunately i cannot post content here because of copyright.

so if you wanna read up you can go there search and read the chat transcripts. the opinion seems to be on the following lines.

". Arguably, the person who has the I-140 petition approval and the I-485 pending for over 180 days should be protected under AC21 and the USCIS seems to be taking this view in the MTRs and other RFE responses . "

so basically its a race against time. atleast we know what the legal angle is. so if the employer is a trickster they can basically use the labor after you leave and use it on some unsuspecting future employee, who in the end might find out that he is not going to get GC (unless he miraculously jumps in front you in the waiting list).

see this is what helps, insteading arguing how many rfes or noids one has seen or questioning someone's knowledge of law by making this like a sanbox fight. this will also address some of the panic created in here by some threads, atleast for the cases that are clear cut and not complicated.

so for ppl who work for some of the smaller body shops, they have to watch out. there is no guarantee what the employer can do.

so for folks who are in the same boat as i do. this is as good as it gets regarding free legal opinion. whenever we cross the bridge as the situation demands one has to decide upon the employer's scale "jerkiness" whether to hire a sound immigration lawyer to protect your case or not.
Click to expand...


http://www.immigrationportal.com/showthread.php?t=192010&page=1&pp=15
 
Tammy,
Your response has really scared me.
"so basically its a race against time. atleast we know what the legal angle is. so if the employer is a trickster they can basically use the labor after you leave and use it on some unsuspecting future employee, who in the end might find out that he is not going to get GC (unless he miraculously jumps in front you in the waiting list)"

If what you said is true then using AC-21 is like a gamble , if you are ahead in the race in you get approved otherwise the guy who used your labor as substituted labor can get approval and finally after all the struggle and satisfying the AC-21 criterion you will not get approved.

Can anyone clarify this scenario? Ginnu, United Nations......???

Thanks
 
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