One I-140 approved, but another denied and killed I-485. Can I save it?

A

andreyp

Registered Users (C)
My attorney simultaneously submitted two I-140 petitions for me: one as "national interest" and another as "extraordinary ability". He later filed I-485. Petition 1 got approved July 2004. I just received note that second I-140 denied and that I-485 is also cancelled without appeal as it is based on denied I-140. Is it possible to switch I-485 to approved I-140? Also, does denied petition invalidate my H1b?
Thank you.
 
I am surprised that your attorney did not revoke the outstanding I-140 given that the other I-140 was already approved. Sorry I can not follow your lawyer's strategy here.

Well, i assume that you can re-file based on approved I-140.
 
andreyp said:

My attorney simultaneously submitted two I-140 petitions for me: one as "national interest" and another as "extraordinary ability".
He later filed I-485. Petition 1 got approved July 2004. I just received note that second I-140 denied and that I-485 is also cancelled without appeal as it is based on denied I-140.
---it seems that lawyer filed I-485 with "EB1" extraordinary ability I-140 and that EB1 I-140 got denied so I-485 also got denied. your lawyer did a mistake when your other I-140 was approved he was sopposed to send letter to USCIS with the copy of approved I-140 to INTERFILE with Pending I-485( Interfiling or substution of I-140 is allowed ONLY if I-485 is PENDING)
Is it possible to switch I-485 to approved I-140?
------ your I-485 is denied, now you need to file New I-485 with approved I-140 approval copy
Also, does denied petition invalidate my H1b?
---NO, H1 and I-485 are diffrent petitions
Thank you.
Click to expand...
 
ginnu, do you think it may work if I file MTR asking to reopen I-485 based on approved I-140?
 
Nor do I. An I-485 should remain alive so long as an individual has at least one pending or approved I-140. This one appears to have been denied in error.
 
http://www.murthy.com/news/UDinsigs.html

Substitution of Immigrant Petitions in Pending Adjustment Applications

On May 9, 2000, Michael Pearson, Executive Associate Commissioner, Office of Field Operations, issued a Memorandum (“Pearson Memo”) on transferring Section 245 adjustment of status applications to new or subsequent immigrant visa petitions.

The Pearson Memo discusses what happens if the I-485 is already pending when the subsequent petition is approved. The Memo pointed out that a person can substitute an approved I-130 or I-140 Petition with a newly approved petition while the adjustment application is pending, as long as the priority date is current at the time the substitution is effected. According to the Pearson Memo this I-485 substitution procedure is available only within the same preference category -- a policy that appears to contradict prior INS guidance on this issue.

Further INS clarifications are needed. If the two petitions are in different preference categories, the person must wait to file the I-485 after the second I-140 is approved, because substitution would apparently not be possible in that situation. The option of substituting the I-140 approval to a pending adjustment application is only available up to the point at which the I-485 is finally adjudicated. The Pearson Memo points out that allowing such substitutions benefits the INS and the applicant, saving time and work for both parties.

While many of us were aware of the possibility of substituting a newly approved I-140 with a new employer -- for example, in a pending adjustment application -- the Pearson Memo provides additional information on this issue. The Law Office of Sheela Murthy has been assisting clients with such substitutions ever since INS indicated towards the end of 1999 that such a procedure was allowed.






© The Law Office of Sheela Murthy, P.C.
 
Moreover it is the memo from pre-concurrent days when pending I-140 was not eligible for substitution.
 
unitednations said:
That's Murthy's interpretation of the memo. She is leaving the part out from the actual memo that you posted earlier.

At the bottom of the memo it says:

"Transferring a second approved 140 to a pending adjustment application is generally available to the beneficiary until the I-485 is finally adjudicated. The decision is final when approved or denied (Form I-291) unless a motion to reopen is granted by the service. If the 485 is denied, the benficiary may file a motion to reopen or reconsider...

As long as he files a MTR within 33 days, he can get it connected to his other approved 140.
----------------- you are correct he can file MTR
I'm not sure if you are interpreting that a person has to have two 140's approved to use this part of the memo. I don't believe that is the case.
Click to expand...
 
From Attorney Matthew Oh,

Updated 06/19/00: New Rule on Replacement of
Underlying I-130 or I-140 for Pending 485

The INS HQ revised its policy on this rule
liberalizing replacement of the underlying petition
without affecting the pending I-485. This new policy
was released in the legally binding Memorandum dated
05/09/00 and reflected in the Adjudication Manual for
the 485 adjudicators throughout the country and
overseas posts. The following is a summary of the
Memo:
Preconditions for Replacement: Two conditions must be
satisfied:

(1) The previous approved I-130 or I-140 should be
valid and not have been "revoked" or "denied" at the
time of request for replacement.
(2) The priority date for the replacement new or
subsequent petition must be "current." Accordingly,
people cannot request replacement when the priority
date is retrogressed and become "not current" for the
replacement petition. Very important to remember for
Chinese and Indians.
Replacement Request Deadline:
It can be filed until
I-485 is adjudicated (approved or denied). Besides,
should he/she merits, a motion to reopen or reconsider
can be filed within 30 days of 485 adjudication and
request such replacement.
Types of Immigrant Petitions Eligible for Replacement:
Existing and a new or subsequent immigrant petitions
do not have to be in the same categories or
preferences. I-130 can be replaced by I-140, and I-140
can be replaced by I-130, without affecting pending
I-485. I-360 for Religous Worker Special Immigrant
Petition can be replaced by either I-130 or I-140 or
vice versa. However, when the underlying petitions
cross between two different types or preferences, the
priority dates cannot be transferred between the two
different petitions. Very important to remember. As
people know, priority dates can be transferred between
different categories within the Employment-Based
Immigrant Petitions. The same is not true when people
cross over to or from other petitions.
Underlying Philosophy of the New Rule: The Memo
states: "While the intent to work for the petitioning
employer is a requirement for approval of the I-485,
there is no legal requirement that the beneficiary of
an approved employment-based visa petition work for
the sponsoring employer before receiving permanent
residence status. In addition, the transferring of the
I-485 adjustment case can be in both the Service's and
the alien's interest. If the transfer request is
credible and justified, the alien is not gaining a
benefit that he or she is not eligible for, especially
when no change in the visa category is involved. In
such cases, by allowing the transfer of adjustment
cases to an eligible family or employment-based
petition the Service is saving itself time and work."
This reporter cannot agree more!!! Back to Top
------------
http://www.murthy.com/chatlogs/chat0913.html
Chat User : Can one switch an I-485 (EB1/NIW based
I-140) to a labor certification based I-140 and vice
versa?

Attorney Murthy : Yes, a person may interfile or
request the USCIS to replace a previously-approved
I-140 with a previously-filed I-485 in another EB
category with a new I-140 filing from a different
employment-based category, and the I-485 should remain
valid and pending. This is one of the advantages of
the slow I-485 processing by the USCIS.
 
ginnu said:
----Tammy Memo is still valid
Click to expand...
If you see the denial letter for I-485 usually it contains line that goes some thing similar to
“Since there is no other immigrant petition is available/pending at this time this case is not approvable “
(I do not remember the exact sentence top of my head)
 
tammy2 said:
Moreover it is the memo from pre-concurrent days when pending I-140 was not eligible for substitution.
Click to expand...

-- I agree with you Tammy, I-140 need not have to be approved to substitute with. I have used this memo for replacing one pending I-140 at NSC as a supporting petition in my pending I-485 at NSC with another pending I-140 at CSC. Both I-140's are still pending as of today. I wrote a certified letter with return receipt to NSC 4 months ago requesting them to substitute and also requested them to transfer my 1-485 to CSC where I have my pending I-140. They did neither one, when I called the NSC today, the lady says, my I-485 is stil linked to I-140 at NSC which I have no intention to use and I have no relation any more with that petitioner.

Now I am afraid that same thing may happen to me which happened to "andeyp", if they deny I-140 at NSC that makes my I-485 denied too. The lady on the phone said I can't substitute pending I-140, which I don't agree with her, rather she suggested me to withdraw my I-485 at NSC and file again at CSC but that makes me loose my EAD,AP and fingerprints. Please suggest gurus.

NOTE: I filed I-485, EAD and AP myself with out lawyer with the help of you guys such as Ginnu and others. I am very thankful to you.

Krishna
I140(EB3) RD: 09/25/2003 at NSC pending (1st)
I485 RD : 02/10/2004 at NSC pending
I140(EB2) RD: 04/08/2004 at CSC pending(2nd)
 
To all experts in this thread :

Mine is a similar case...

I have an approved I-140 (Not sure what happened to my CP option as that is what I requested for..yet to see a copy of the approval notice). The attorney again filed I-140 (without a copy of LC as my other LC is still pending) and I-485 concurrently in May 2003. The service centre sent an RFE requesting a copy of original labor for the I-140 along with other 485 related RFEs (paystub etc). The attorney sent a copy of the approved I-140 in response to the I-140 RFE. Looking at this thread I think the attorney did the right thing for the first time (may be after reading this forum...don't know why waited this long as the approved one came almost 7-8 months back).

In this case, anybody knows what the USCIS does with the pending I-140 ? Do they reject it ?
=============================================
First LC Nov 2001 : Still pending
Second LC May 2002 : Approved sometime in Oct 2002

NSC:
First I-140 (based on second LC) : Approved in May/2004

TSC:
2nd I-140 (without any LC) : May 2003 (concurrently filed)
I-485 : May 2003 (concurrently filed)
RFE on I-140 : Issued on 10/10/2004 - Copy of original labor
RFE I-485 (Self) : Issued on 10/10/2004 - Medical & Copies of Paystub
RFE I-485 (Spouse) : Issued on 10/10/2004 - Medical & Affidavit of Support
RFE response sent 12/23/04, received by USCIS 12/30/04
I-140 LUD Changed to 01/07/2005, I-485 (both) to 01/04/2005
I-485 (both) LUD changed to 01/25/05 (after status inquiry)
=============================================
 
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