One letter to Mr. Yates and here comes the new AC21 memo!

A

aws

Registered Users (C)
Folks,

I don't know where to start, but I thought it is the right time to re-surface on the board after being quite for 9+ months.
Until late last year, I was an active member of this forum, but circumstances forced me to dis-appear.

Below are my brief details:

1) Filed I140/I485 eb-2 in Oct. 2003, PD June 2002 with comp. A
2) In Aug. 2004, when both 140/485 were pending with NSC for 10+ months, showed the guts to move to a new employer B to take "dream job" usinG AC21 portability with identical job description as in LCA. At that time, President of A agreed to support me and not to withdraw my I140. :)
3) comp A showed true colors and back stabbed me -- withdrew my I140 in Feb 2005 and as a result, NSC denied my 485 :(
4) Filed MTR on 485 explaining NSC that as per original law, I am fully eligible for AC21 as the law itself does not require I140 approval
5) MTR still pending at NSC for 60+ days.

Action: --In mid April '05, I wrote a letter to Mr. Yates explaining my situation and urging him to eliminate all the "grey areas" in AC21 interpretation. I claimed to be fully eligible for AC21 and asked him to issue more crsytal clear guidance on his previous memo of Aug. 2003. I knew I have nothing to loose at that time, but didn't want to spare any efforts in fighting for my case.

Reaction: Within 3 weeks of receipt of my letter, here comes the new AC21 memo from him which I hope is now a life saver for me. Though I don't claim that he issued the memo on my request, but looking at some of the wording in his memo (similar to what I used in my letter to him) I trust that my letter does have some impact on his memo :)

In the mean time, comp A kept asking me to re-join them and then, they will re-file 140/485 for me using my own LCA.... :rolleyes:

Next step: I am going to write to NSC to approve my 485 based on the light of this new memo which clears most things as "black and white" with little left to any one's discretion or interpretation.

Finally, I wish if my contemporaries like (naanshi, iknowitall, gcbandwagon, bigbadwolf, elnegro, etc) were still around, they would exactly know what I went through so far....

Nevertheless, I hope this memo will help many of us who were being exploited by their employers.

-aws
 
Hi AWS,

It is really awesome for what positive difference you could make to this ambiguous memo. I certainly presume that your letter has played its role and thank Mr.Yates for respoding favorably. Although, wish it was more crystal clear in the first place. However, that is how the USCIS wants to move, keeping grey matters more in the dark so that everyone benefits at our cost.

I'm sure there are many other members in the forum who understand the ordeal you are going through. I wish that your 140 approval stands and 485 is approved soon. Your company A certainly deserves the boot.

Good luck.

DIGS
EB3, India
RD Apr.04
140 ??
 
Hi AWS,
Thanks for the help you did for us. I truly believe that your letter had an impact on this new memo. But I have a question to use AC21 "140 should be or should not be approved?".

My situation is July 1st is my last day with the company an It will be 187 days as of July 1st. Now 140 & 485 are pending.. Do you think I can use the AC21 rule without 140 approval? What if my company does not support RFE's and What if my 140 is revoked?

If you can answer that will be great.
Thanks
KK
 
i am on same boat. change the comapny withour 140 approval

with this new rule we can change the comapny without 140 approval?

Thanks
 
kriskish said:
Hi AWS,
Thanks for the help you did for us. I truly believe that your letter had an impact on this new memo. But I have a question to use AC21 "140 should be or should not be approved?".

My situation is July 1st is my last day with the company an It will be 187 days as of July 1st. Now 140 & 485 are pending.. Do you think I can use the AC21 rule without 140 approval? What if my company does not support RFE's and What if my 140 is revoked?

If you can answer that will be great.
Thanks
KK
Click to expand...

friend,

as it is said in the memo, responding to the rfe still lies with the original sponsorer. if are sure not to get any rfe, then u can take the dive.
it is illogical to held that company responsible for rfe when u no longer work with them.
 
aws said:
friend,

as it is said in the memo, responding to the rfe still lies with the original sponsorer. if are sure not to get any rfe, then u can take the dive.
it is illogical to held that company responsible for rfe when u no longer work with them.
Click to expand...
Yeah.. I came to know that.. That sucks.. For me frankly this memo is not doing any favor. But I wish atleast for some people it makes a huge difference. The memo is better than what was earlier. Not much a difference to me.
Thanks
KK
 
just wanted to add some more reasons for me being excited and optimistic with this memo:

1) i met all the conditions of LCA --- so no education issues.
2) comp A has 125+ employees, many folks got their GC through them in last 10 yrs -- so no ability to pay issues.
3) i never had a rfe of any kind so far ---
4) my new job is 100% identical to the one described in ETA.

having said all of the above, i'll continue to pray the almighty to let it work for me...

-aws
 
I changed my employers when my I-485 is more than 180 days and my I-140 is not approved late last years. I was doing that since my lawyer said 90% of chance I will fine.

I need to do something not let this bother my life, but truly I can do nothing but wait and pray. My I-140 was approved early this year and still waiting for my 485.
 
fenglpku said:
I changed my employers when my I-485 is more than 180 days and my I-140 is not approved late last years. I was doing that since my lawyer said 90% of chance I will fine.

I need to do something not let this bother my life, but truly I can do nothing but wait and pray. My I-140 was approved early this year and still waiting for my 485.
Click to expand...
Hi FENGLPKU,
Nice to know your 140 has been approved. But the thing is what is a RFE is thrown on even for some simple question which is related to the company. Good luck on your 485.
Thanks
Kk
 
Good job aws

Hi aws,

I was wondering where were you all these days !!. You did an awesome job of writing a letter to Mr.Yates..I appreciate your efforts.

Also, was your company A owned by an Indian ?. I don't know why they behave like that. IDIOTS !!..what else I can say about these greedy employers.

I pray and wish you good luck for a smooth journey from this point onwards.
Hang in there my friend. Be encouraged.

Thanks again.
 
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I don't hate them, but I do wish I won't become one of them if I ever become an employer. I hope you guys too. But based on my experience, most blood sucker are also immigrants. Hard to understand ...
 
thanks for the encouragement

bmt74 said:
Hi aws,

I was wondering where were you all these days !!. You did an awesome job of writing a letter to Mr.Yates..I appreciate your efforts.

Also, was your company A owned by an Indian ?. I don't know why they behave like that. IDIOTS !!..what else I can say about these greedy employers.

I pray and wish you good luck for a smooth journey from this point onwards.
Hang in there my friend. Be encouraged.

Thanks again.
Click to expand...

You got it right..my original company is fully owned and operated by an Indian..
 
Hi all,
Like Aws, I was also an active member of this forum, but circumstances forced me to dis-appear.

First of all, aws has done a great job by calling USCIS about AC21 and now by writing to Mr.Yates. Aws, after reading the memo yesterday, I was thinking that this memo has been issued mainly for you. Congrats Buddy. You made it finally.

After seeing this AC21 new memo, I just want to say few things here. I did a lot of research in AC21 subject in the past years. According to me, this memo will help some people, but not all.

For example, an employee works for company A and after 180 days, he changes his job to B, WITHOUT I-140 approval. If he does not get RFE, then he is fine. Suppose, he is unlucky and got RFE for Company Financial after 180 days. Company financial is an important thing, most of the employers do not want to disclose to anybody. And do you think those employers will respond to those query for an employee who had left already? This memo requires I-140 must be approved at some point and also RFE must be replied properly. So still your sponsor has control over your Greencard even after 180 days. And your sponsor wants your greencard to get denied, he or she can play very well, like what happened to me.

How many people in the consulting company know their company's financial strength, even after applying I-140? So there is no way of knowing that you will get RFE or you won't get RFE for your company financial, when you apply or when you change your employer after 180 days. So my point here is that if you change company after 180 days without I-140 approval, still you are taking big chance with your greencard processing.

AC21 law was passed in 2000 only to get rid the employer control after 180 days and still USCIS requires I-140 approval even if you change employer. That means till you get your I-140 approval, your sponsor has the upper hand and they may harm your greencard at any time.

I thought that USCIS will come up with a memo that says that after 180 days, you may change your employer without I-140 approval. But the new employer must support your Green card processing from that point and they must prove that they are financially sound to pay you from that time onwards. Only RFE for education qualification must be properly replied and the case may be denied, if the employee's education and experience are not proper.

I don't think many people (mainly those who are working in small consulting companies) will change their job without I-140 approval after seeing this memo.


Naanshi.
 
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Welcome back Naanshi
Did you get your 140 approved
Nice to see you hear again
 
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Hi naanshi,

First & foremost, welcome back to the forum and thanks for your participation.

Based on what I read in the revised Yates Memo, I understand that the Memo clarifies that prior to 140 approval, if the beneficiary changes employment to similar occupation, chances of getting RFE for payment of wages by the original employer is almost nil as GC approval is based on future employment. The obligation to pay the proferred wages lies with current employer and show consistent/improved financial strength. Other RFEs including education, experience, etc. however needs to be routed thru the orginal employer being the 140 petitioner.

Pls clarify and/or add further inputs.

Thanks.

DIGS
EB3, India
 
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DIGS said:
Hi naanshi,

First & foremost, welcome back to the forum and thanks for your participation.

Based on what I read in the revised Yates Memo, I understand that the Memo clarifies that prior to 140 approval, if the beneficiary changes employment to similar occupation, chances of getting RFE for payment of wages by the original employer is almost nil as GC approval is based on future employment. The obligation to pay the proferred wages lies with current employer and show consistent/improved financial strength. Other RFEs including education, experience, etc. however needs to be routed thru the orginal employer being the 140 petitioner.

Pls clarify and/or add further inputs.

Thanks.

DIGS
EB3, India
Click to expand...
source: www.immigration-law.com

"In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.

In the context of RFE, if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that the beneficiary no longer works for the petitioner, the petition is considered unapprovable and consequently the I-140 will be denied and at the same time, I-485 will also be denied".
 
Hi naanshi,

Using AC21 with pending 140 is certainly a dicey decision and need original employer's support in good faith.

Below is the text copied from the original memo, where I think the payment of wages issue with the old employer can be challenged.

"Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above."

Thanks and look forward to any inputs.

DIGS
EB3, India
 
i am overwhelmed.....

toraboraus said:
Hi aws,

Thank you very much for what you have done. All the best.
Click to expand...

***folks thank you for your feedback/comments...i am overwhelmed with those.

right from childhood, i have an attitude that if your goal is genuine -- path is genuine--- you are not harming anyone -- then you will reach your destination. In some cases, you may have to fight for your cause -- this is what exactly I am trying to do.

With a Master's degree and 10+ yrs of relevant experience, don't I qualify for the GC? Ain't I eligible in the US (- the country of immigrants -- for the immgrants --- by the immigrants) :D ?
 
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