PD Not Current, I-485 Denied... please help.

A

akodyanoya

Registered Users (C)
My Priority date is not current according to December 2009 Visa Bulletin. But yesterday, December 9, I got an email from USCIS that they sent me a Notice of Denial Decision.

My details:

Working for Company A with H-1B from Feb 2006 (H-1b expires May 2008)
PD Jan 17, 2007
LCA approved January 2007.
I-140 filed May 2007 (Company A sponsor)
I-485/I-765/I-131 filed August 2007 (Based on July 2007 Visa Bulletin/Memo)
I-765/I-131 Approved October 2007
H-1B extension filed Feb 2008 and approved march 2008
New H-1B stamped on passport May 2008
I-140 Approved Dec. 2008
I-765 renewal filed march 2009, approved april 2009
Changed Employer (company B), June 15, 2009 (with AC21 in mind)
I-131 filed and approved July 2009.
H-1B of company B cancelled August 2009

I have not submitted my AC21 documents yet (but are ready) because I was thinking that they are not going to proceed with my I-485 process until PD is current.

Then December 9, 2009 got an email about notice of denial decision.

The earliest appointment I can from my lawyer is december 23. I am still waiting for the letter and findout what the reasons are.

Anyone have the same situation or is it possible for them to deny my application while my PD is NOT current?

Thanks in advance.

akodyanoya
 
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akodyanoya said:
My Priority date is not current according to December 2009 Visa Bulletin. But yesterday, December 9, I got an email from USCIS that they sent me a Notice of Denial Decision.

My details:

Working for Company A with H-1B from Feb 2006 (H-1b expires May 2008)
PD Jan 17, 2007
LCA approved January 2007.
I-140 filed May 2007 (Company A sponsor)
I-485/I-765/I-131 filed August 2007 (Based on July 2007 Visa Bulletin/Memo)
I-765/I-131 Approved October 2007
H-1B extension filed Feb 2008 and approved march 2008
New H-1B stamped on passport May 2009
I-140 Approved Dec. 2008
I-765 renewal filed march 2009, approved april 2009
Changed Employer (company B), June 15, 2009 (with AC21 in mind)
I-131 filed and approved July 2009.
H-1B of company B cancelled August 2009

I have not submitted my AC21 documents yet (but are ready) because I was thinking that they are not going to proceed with my I-485 process until PD is current.
-------------------------------- I would have sent AC21 documents.

Then December 9, 2009 got an email about notice of denial decision.

The earliest appointment I can from my lawyer is december 23. I am still waiting for the letter and findout what the reasons are.

Anyone have the same situation or is it possible for them to deny my application while my PD is NOT current?

Thanks in advance.

akodyanoya
Click to expand...

Need to wait for the letter to know the reason for Denial notice.
 
It is a mistake to think they don't proceed with the I-485 processing when the PD is not current. They can do anything required for your I-485 processing when your PD is not current, including RFE and interviews and denials. The only thing they can't do is the final official approval.
 
Jackolantern said:
It is a mistake to think they don't proceed with the I-485 processing when the PD is not current. They can do anything required for your I-485 processing when your PD is not current, including RFE and interviews and denials. The only thing they can't do is the final official approval.
Click to expand...

Thanks for all your replies.

I have not received an RFE or an NOID. They went straight to a decision. I could have sent my AC21 right away when I got an RFE or NOID. I can't think of any possible reason for denial since my documents were completely prepared by a good lawyer and I never been out of status or worked illegally.
 
akodyanoya said:
Thanks for all your replies.

I have not received an RFE or an NOID. They went straight to a decision. I could have sent my AC21 right away when I got an RFE or NOID. I can't think of any possible reason for denial since my documents were completely prepared by a good lawyer and I never been out of status or worked illegally.
Click to expand...

May be the company who filed I-140 revoked the I-140 and they sent RFE and your lawyer did not reply.

It can be USCIS error. Wait for the letter and then post what is reason for denial on the letter. Check with lawyer if he got Letter or RFE. You did not post if Company A lawyer still represent you or you revoked company A lawyer G28 or new company B lawyer is representing you and company B lawyer sent new G28 form?
 
ginnu said:
May be the company who filed I-140 revoked the I-140 and they sent RFE and your lawyer did not reply.

It can be USCIS error. Wait for the letter and then post what is reason for denial on the letter. Check with lawyer if he got Letter or RFE. You did not post if Company A lawyer still represent you or you revoked company A lawyer G28 or new company B lawyer is representing you and company B lawyer sent new G28 form?
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Company A lawyer still represents me. I hired them personally for my GC application. Also, company A is forwarding to my mailbox any letter they received that are addressed to me inlcuding those EAD and AP of my wife. Also, if there is an RFE, is it not suppossed to be shown on the online status and an email will be sent to me that they have sent an RFE? If I received that email from USCIS online update, I could have checked with lawyer, company A and my mailbox to make sure I get it. But I did not see an RFE on the online status.
 
I have a follow-up question for my situation above.

1. Can I work with my EAD from the day my I-485 was denied until we file for an MTR?
2.Do I need to leave the US right away as soon as my I-485 was denied or am I still allowed to stay in order to work on an MTR with my lawyer? If I am allowed to stay, how long will it be?

Thanks for all your replies.

akodyanoya
 
By the way,

I just talked to my lawyer and she said that any communications regarding my I-485 will be sent to me and a copy to them. So, it was confirmed that we have not received any RFE or NOID prior to their "denial decision notice"

If this is the case, do we a chance on MTR stating that we could have provided any document required should we received an RFE?

Thanks again.

akodyanoya
 
you can stay for some time, if they accept the MTR then you can stay until they decide on MTR.

Collect your reference letters, tax returns, pay stubs, bank statements etc, so that you can file MTR without much delay.

I think you can work until you receive the letter from uscis, now days many emails are not genuine. Did you check online status?
 
akodyanoya said:
I have a follow-up question for my situation above.

1. Can I work with my EAD from the day my I-485 was denied until we file for an MTR?
2.Do I need to leave the US right away as soon as my I-485 was denied or am I still allowed to stay in order to work on an MTR with my lawyer? If I am allowed to stay, how long will it be?
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Yes to both, but with some cautions. If they reopen the I-485, your status and authorization is reinstated retroactively. So the end result would be as if you were legally authorized all along. But you need to stay in the US until the MTR is accepted and the case reopened, otherwise you may not be let back into the US.

Also, there is some regulation or precedent that AILA pointed out to USCIS, which indicates the EAD is not automatically invalidated upon I-485 denial, but that that USCIS is supposed to provide notice of intent to revoke it (see page 13-14 of this document http://www.uscis.gov/USCIS/Office of Communications/Community Relations/AILA_Q&A_27OCT09.pdf).
 
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guys,

here's the reason for my I-485 denial. I-140 was revoked in Sept 27, 2009. NOID sent to my lawyer on October 21, 2009. My lawyer who is also represents my former company (A), did not inform me about the NOID so we were not able to respond to the NOID on time. Hence, my I-485 was denied with no appeal. My lawyer says that there's nothing that we can do anymore. Is it true?

Now, I informed the owner/president(based in australia) of my former Employer (A) about what happened and he did not like it. Now, he is asking the company's immigration lawyer which is also my lawyer to do everything to resurrect my applications. The owner/presdent of my former employer is working together with my new employer and the lawyer about which option is best for me.

My former big boss told our lawyer that he is willing to re-hire me again if my cancelled H-1B for Company A (supposed be expired on April 30, 2011) can be re-instated. But the lawyer is not available yet until January so we don't know if it is possible.

While waiting for the lawyer's advice, is there anyone who have experienced or knows if a cancelled H-1B can still be re-instated when requested by my former employer who cancelled it? If it is, do I have to have it stamped again even though the H-1B visa is still stamped in my passoport?

Apparently, all the cancellation and revokation were initiated by the personnel of my previous employer that the owner/president was not aware of.

I hope to hear from anyone. Thanks.
 
akodyanoya said:
I just talked to my lawyer and she said that any communications regarding my I-485 will be sent to me and a copy to them.
Click to expand...
If you signed G-28 to allow a lawyer to represent your case, the RFE's for the I-485 are usually sent only to the lawyer and not the applicant.
 
As far as I know, an H1B that was cancelled at the request of the employer cannot be reinstated. However, check with the lawyers to see if it is possible. But I believe they would have to file a fresh new H1B.

Why was the I-140 revoked? Did the former employer ask USCIS to revoke it?

H-1B of company B cancelled August 2009
Click to expand...
Did you mean company A?

You need to file an MTR to get the I-140 and I-485 reinstated based on the fact that you were eligible for AC21 at the time it was revoked (assuming it was revoked at the request of the employer, and not because of some other issue discovered by USCIS).

Don't quit your job. As I stated before, the EAD (according to AILA) remains valid until USCIS issues a specific denial for it or it expires, and if the MTR is accepted your EAD and I-485 validity will be reinstated retroactively. If the EAD indeed remains valid like AILA said in that discussion with USCIS, you could use it to go back to company A right away, without bothering with the H1B. But check with the company's lawyers before making such a move (show them the memo I linked above).
 
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Jackolantern said:
As far as I know, an H1B that was cancelled at the request of the employer cannot be reinstated. However, check with the lawyers to see if it is possible. But I believe they would have to file a fresh new H1B.

Why was the I-140 revoked? Did the former employer ask USCIS to revoke it? (yes, the former employer asked USCIS to revoke it


Did you mean company A? yes, i meant company A

You need to file an MTR to get the I-140 and I-485 reinstated based on the fact that you were eligible for AC21 at the time it was revoked (assuming it was revoked at the request of the employer, and not because of some other issue discovered by USCIS). Is it possible to file an MTR even though the denial notice says that the denial decision has no appeal option? Is there a possibility that they will open it again even though I was not able to respond to the NOID where I could have provided my AC21 documents?

Don't quit your job. As I stated before, the EAD (according to AILA) remains valid until USCIS issues a specific denial for it or it expires, and if the MTR is accepted your EAD and I-485 validity will be reinstated retroactively. If the EAD indeed remains valid like AILA said in that discussion with USCIS, you could use it to go back to company A right away, without bothering with the H1B. But check with the company's lawyers before making such a move (show them the memo I linked above).
Click to expand...

We will discuss it further with the lawyer as soon as he gets back in January.
 
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Is it possible to file an MTR even though the denial notice says that the denial decision has no appeal option?
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Yes. MTR is not the same as an appeal. An appeal is more formal and would involve a judge(s) and court. Normally you first try MTR, and then go for an appeal if the MTR fails. The MTR is usually accepted or rejected within 1-2 months, whereas an appeal often takes over a year (note that MTR acceptance generally means just putting the I-485 back into pending status, not approval of the green card).
 
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Jackolantern said:
Yes. MTR is not the same as an appeal. An appeal is more formal and would involve a judge(s) and court. Normally you first try MTR, and then go for an appeal if the MTR fails. The MTR is usually accepted or rejected within 1-2 months, whereas an appeal often takes over a year (note that MTR acceptance generally means just putting the I-485 back into pending status, not approval of the green card).
Click to expand...

Okay. Now my another problem is that my lawyer won't be back till January. I have read the instructions for I-290B which says that when the denial is due to the revocation of a visa petition, MTR should be filed 15 days (18 when notice was mailed) from the date of "service" which is normally the notice date. My notice date is December 8 but we received the notice on december 22.

1. Do you think it is acceptable that 18 days shall be after December 22?
2. Once we filed the MTR, my EAD and AP would still be good (according AILA) until we receive a decision for the MTR?

Once again, thank you very much for your replies.
 
1. All you can do is file it when you can and see what happens, pointing out that it was received on December 22 (do you know when it was postmarked?). They sometimes accept many MTRs that have been filed several weeks late, as the MTR allows them to correct their own mistake and accepting the MTR would avoid costly appeals.

2. The AILA document only said the EAD remains valid, not the AP. Don't leave the US while the MTR is pending, as they might not let you back into the US while your I-485 remains in denied status. However, if the MTR is accepted*, your AP and I-485 will be retroactively reinstated to the day it was denied.


*MTR accepted = USCIS agrees with the MTR and makes the decision to put the I-485 back into pending status or approves the I-485. USCIS receiving the MTR does not indicate acceptance. They will issue a notice to indicate their decision.
 
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Jackolantern said:
2. The AILA document only said the EAD remains valid, not the AP. Don't leave the US while the MTR is pending, as they might not let you back into the US while your I-485 remains in denied status. However, if the MTR is accepted*, your AP and I-485 will be retroactively reinstated to the day it was denied.
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1. My I-94 says Parolee "valid until October 5, 2010". Does it mean that I can stay here without a 3-year bar in future up to October 5, 2010 or I should leave 180 days from the denial notice?

Thanks,
akodyanoya
 
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