yes.. but the meaning of term *revoked* is what we (posts in this thread) differ. some say it includes "employer asking uscis to revoke" but all the information i have seen says it covers only the cases where i-140 is revoked, by uscis, because of "fraud or willful misrepresentation". again, these are fine distinctions and can only be answered by a good attorney.
- Home
- Forums
- Immigrant Visas (Green Cards)
- I-485 Issues
- I-485 Issues Common to All Services Centers
- Visa Bulletin and Priority Dates Retrogression Iss
You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an alternative browser.
You should upgrade or use an alternative browser.
Please help..Lay-off (I_140 approved but waiting for I-485 dates
- Thread starter ciril99
- Start date
Memos do NOT override law
Kinda surprising. Same thing is discussed over and over again.
Memos do NOT override law. Memo is silent regarding the aspect when it is revoked by the employer. law clearly mentions that once I-140 is revoked, PD is gone. Gone for good.
Ask any lawyer, if they have seen one case (yes, even one) when PD was ported from revoked I-140.
There was a memo from Aytes which gave guidance on this. Check the attached doc. Again, this is just for your information when you talk to a competent attorney.
4. Chapter 22.2 (b) (5) (A) revised to read:
...
A. Determining the Priority Date.
... 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certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation.
...
Kinda surprising. Same thing is discussed over and over again.
Memos do NOT override law. Memo is silent regarding the aspect when it is revoked by the employer. law clearly mentions that once I-140 is revoked, PD is gone. Gone for good.
Ask any lawyer, if they have seen one case (yes, even one) when PD was ported from revoked I-140.
gc_retrogress
Registered Users (C)
On a similar note the same person's memo is awarding us 7th year H1-B.
Techincally I should not get anymore H1 -b extension but the memo says so and I got 3 year extension.
Just another pov.
Techincally I should not get anymore H1 -b extension but the memo says so and I got 3 year extension.
Just another pov.
On a similar note the same person's memo is awarding us 7th year H1-B.
Techincally I should not get anymore H1 -b extension but the memo says so and I got 3 year extension.
Just another pov.
There is law that supports memo regarding H1-B extensions beyond 6 years.
Let me say it again. Memos do NOT override law. When there is a conflict between what is stated in law and memo, law will hold.
Memos are subject to change anytime. laws, on the other hand, can be changed only by Congress and Senate.
gc_retrogress
Registered Users (C)
I think it has been discussed again and again, we all know memos do not override laws.
However on a case by case basis, it will be interesting to see how INS/USCIS is going to take a stand on this issue.
Well many might have been turned down. It would be intriguing to know if there were any cases at all which received the PD even though a previous I-140 was revoked.
Some attorneys mention the PD can be claimed some do not. When that is the case it brings out lots of questions. One such question would be why in the world should someone bring out a memo that says contrary to what the law says.
However on a case by case basis, it will be interesting to see how INS/USCIS is going to take a stand on this issue.
Well many might have been turned down. It would be intriguing to know if there were any cases at all which received the PD even though a previous I-140 was revoked.
Some attorneys mention the PD can be claimed some do not. When that is the case it brings out lots of questions. One such question would be why in the world should someone bring out a memo that says contrary to what the law says.
Last edited by a moderator:
I think it has been discussed again and again, we all know memos do not override laws.
However on a case by case basis, it will be interesting to see how INS/USCIS is going to take a stand on this issue.
Well many might have been turned down. It would be intriguing to know if there were any cases at all which received the PD even though a previous I-140 was revoked.
Some attorneys mention the PD can be claimed some do not. When that is the case it brings out lots of questions. One such question would be why in the world should someone bring out a memo that says contrary to what the law says.
As per memo:
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 memo does not say anything contrary to the law. It is actually silent about case when I-140 is revoked by employer.
And law is very clear about case when I-140 is revoked by employer.
Jackolantern
Registered Users (C)
It's not necessarily contrary... it's a matter of ambiguity and interpretation. The memo is probably not referring to cases where the old I-140 is revoked before the new one is filed.Some attorneys mention the PD can be claimed some do not. When that is the case it brings out lots of questions. One such question would be why in the world should someone bring out a memo that says contrary to what the law says.
I was looking for Sec. 204.5 (e) (204.5): to interpret what it means and found this thread where someone already did it:
http://immigrationvoice.org/forum/showthread.php?t=912
Looks like those sections doesn't say anything about employer withdrawing the I-140. And thats where the memo explains the procedure. Also, from there another attorney agrees that PD can be ported.
BTW, only when you file I-485, you can use the old I-140 to port the PD. My take is, since only now we have retrogression, there is interest in using this provision (otherwise one would have filed 485 already and used the AC21). And those interested might not file I-485 yet due to retrogression, so we might not yet have a previous example to follow. Again this is just my opinion...
http://immigrationvoice.org/forum/showthread.php?t=912
Looks like those sections doesn't say anything about employer withdrawing the I-140. And thats where the memo explains the procedure. Also, from there another attorney agrees that PD can be ported.
BTW, only when you file I-485, you can use the old I-140 to port the PD. My take is, since only now we have retrogression, there is interest in using this provision (otherwise one would have filed 485 already and used the AC21). And those interested might not file I-485 yet due to retrogression, so we might not yet have a previous example to follow. Again this is just my opinion...
Here you go
Here you go.
PART 205—REVOCATION OF APPROVAL OF PETITIONS
Sections
205.1 Automatic revocation.
205.2 Revocation on notice.
.....
......
......
(F) Upon the beneficiary’s marriage when the beneficiary has been accorded classification
under section 201(b) or section 203(a)(1) of the Act. Provided that all requirements of
section 204(f) of the Act continue to be met, however, the petition is to be considered
valid for purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(iii) Petitions under section 203(b), other than special immigrant juvenile petitions.
(A) Upon invalidation pursuant to 20 CFR Part 656 of the labor certification
in support of the petition.
(B) Upon the death of the petitioner or beneficiary.
(C) Upon written notice of withdrawal filed by the petitioner, in employment-
based preference cases, with any officer of the Service who is
authorized to grant or deny petitions.
(D) Upon termination of the employer’s business in an employment-based
preference case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
203(b)(3) of the Act.
...
...
I have changed the font to bold to for portions related
to employment based petition for Immigrant Worker (I-140). Some portions
of section 205 are omitted to save space.
I hope, this clears your doubts.
______________
desi3933@gmail.com
I was looking for Sec. 204.5 (e) (204.5): to interpret what it means and found this thread where someone already did it:
http://immigrationvoice.org/forum/showthread.php?t=912
Looks like those sections doesn't say anything about employer withdrawing the I-140. And thats where the memo explains the procedure. Also, from there another attorney agrees that PD can be ported.
BTW, only when you file I-485, you can use the old I-140 to port the PD. My take is, since only now we have retrogression, there is interest in using this provision (otherwise one would have filed 485 already and used the AC21). And those interested might not file I-485 yet due to retrogression, so we might not yet have a previous example to follow. Again this is just my opinion...
Here you go.
PART 205—REVOCATION OF APPROVAL OF PETITIONS
Sections
205.1 Automatic revocation.
205.2 Revocation on notice.
.....
......
......
(F) Upon the beneficiary’s marriage when the beneficiary has been accorded classification
under section 201(b) or section 203(a)(1) of the Act. Provided that all requirements of
section 204(f) of the Act continue to be met, however, the petition is to be considered
valid for purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(iii) Petitions under section 203(b), other than special immigrant juvenile petitions.
(A) Upon invalidation pursuant to 20 CFR Part 656 of the labor certification
in support of the petition.
(B) Upon the death of the petitioner or beneficiary.
(C) Upon written notice of withdrawal filed by the petitioner, in employment-
based preference cases, with any officer of the Service who is
authorized to grant or deny petitions.
(D) Upon termination of the employer’s business in an employment-based
preference case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
203(b)(3) of the Act.
...
...
I have changed the font to bold to for portions related
to employment based petition for Immigrant Worker (I-140). Some portions
of section 205 are omitted to save space.
I hope, this clears your doubts.
______________
desi3933@gmail.com
Last edited by a moderator:
gc_retrogress
Registered Users (C)
It is as good as being contrary to the law. Period.
If it does not say anything then it does not mean anything.
If it does not say anything then it does not mean anything.
It's not necessarily contrary... it's a matter of ambiguity and interpretation. The memo is probably not referring to cases where the old I-140 is revoked before the new one is filed.
backlogged1
Registered Users (C)
One day gap between OPTexpiry and then H1
Dear Gurus
My friend's wife is on OPT which will expire on July 31.Her attorney told her that she has a grace period of 60 days.Her H1 has been accepted by BCIS but will start from Oct1.What options does she have.Should she leave country for one day.
Thanks
Dear Gurus
My friend's wife is on OPT which will expire on July 31.Her attorney told her that she has a grace period of 60 days.Her H1 has been accepted by BCIS but will start from Oct1.What options does she have.Should she leave country for one day.
Thanks
Jackolantern
Registered Users (C)
There are different kinds of "revoked" ... revoked before applying for the next I-140 isn't necessarily the same as revoked after applying for the next I-140.Rajiv in his conference calls clearly mentioned that it is possible to port PD even if it is revoked.
The real question is whether anybody has actually ported an old PD from an I-140 that was revoked before the next I-140 was applied.
Last edited by a moderator:
Where did you see that info ?Surely the old priority date won't be maintained if the original I-140 is revoked before the next I-140 is applied for? (assuming I-485 has not been filed)