PorkChop I-140 amendment, please advise

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Hello PorkChop and others,

Could anyone of you who know some info about this scenario??

My 485 Employment based is pending since Oct 2001. My original 140 was approved on Aug 2001. My company was taken over as a Successor-in-interest on Aug 2002. Hence my Atty filed for 140 amendment on Feb 03. Till date no response on any of the above! My fingerprint expires next week.

My question is:

Hopefully by God's grace, everything will go through just fine..but

1) If the amended 140 was not approved or denied or if I lose my job, can I use my EAD and apply AC21 with someother firm? Due to the fact that the 140 is amended, does that mean the old approved 140 is invalid? If something goes wrong, what are my options?? I know it sounds pessimistic...but Murphy has struck me few times in the past..Is there anything I can do proactively to be safe???

Really frustrated....
:confused:
 
answer

i came across your question rather late, as i just had not been visiting these forums too much lately... any way, here goes:

AC-21 requires an approved i140. you can conceivably use AC-21 even before i140 approval, but in case an i140 is denied, so is its associated i485, and anything else that went with it (including AC-21).

in case you have utilized AC-21 portability while an i140 amendment is pending, then that amendment must be approved for the AC-21 to be retroactively validated. the effect of an i140 amendment denial is pretty much the same as an i140 denial: your original i140 is not valid any more, and so are the AOS/AC-21 etc. that it underlies.

the most important thing you can do proactively to mitigate the damage from an i140/i140 amendment denial is to maintain your nonimmigrant H1 status. in case you need to change jobs, use an H1 transfer for it, rather than EAD. by doing that, in the unfortunate event of an i140 amendment denial, you still have your H1 to fall back on. true, you will have to restart the whole EB immigration process again right from LC, but at least you won't be out of status.

i hope that it never comes to this for you, though. i wish you the best of luck!
 
PorkChop,

Thank you for the reply! I am on my 7th year H1B and haven't used my EAD yet. Keeping my fingers crossed and hoping for the best! All hope vanishing day by day....
 
PORK CHOP,

I am currently working on EAD, is it possible to go back to H1B with the same employer ?

Last year my H1B expired and I choose to go with EAD instead of H1B extension. The reason I am asking this is, in case of I-485 denial, I will have something to fall back on.

Appreciate any input !!
Thanks
HTS

RD - Jan 02
ND - Jan 02
 
HTS

it is possible, but it will have to be a fresh new H1B. it cannot be an extension of your old H1B as now stands cancelled, since you used EAD. also keep in mind that the new H1B will not have a validity of more than the remaining portion of the 6-year limit that was not consumed by your old H1. however, this will not be issue if you have an i485 pending based on an LC which is over a year old, as it will allow H1 extensions for the 7th year and beyond.
 
Do you have to file the I-140 amendment in case of merge/acquisition? Does AC21 cover it if your case pending
more than 180 days? If you can change jobs, why can't
you change to the new company!
 
http://www.greencardapply.com/news/news01/0907.htm

CSC generally follows the INS HQ memorandum of 12/10/1993, except when I-485 has been pending more than 180 days. In other words, when I-485 is pending less than 180 days or I-485 has yet to be filed, the following rules apply:

Simple Name Change and Change of EIN Number: Employer still needs to file I-140 amendment.

Merger of Two Companies: Employer still needs I-140 amendment for employees of the two merged companies.

Acquisition of a Company Taking over All the Interests/Liabilities of the Acquired Company related to Labor Certification and I-140 Petition: The acquiring company still needs to file I-140 amendment.

All in all, it appears that CSC is applying a very rigid rule, requiring I-140 amendment in most cases of corporate restructure unless I-485 has been pending more than 180 days.

This rigid standard does not necessarily apply in other Service Centers. For other Service Centers, people should check with the Service Center of their jurisdiction.
 
Thanks..What if the 485 is pending for more than 180 days? My 485 was filed on Oct 01 based on 140 approved on Aug 01. But company name changed on Aug 02 which is well over 180 days...all the stupid rules and fed up......
 
Actually, I think you should not file amendment. Few ppl on this board filed amendment got their case denied because old 140 revoked sth like that.

If you pass 180 days, then you can use AC21 if you get a RFE,
if no RFE, then don't bother.
 
dengdeng or porkchop, please help !

Dengdeng or Porkchop,

I have a question regarding my friend's situation :

He changed his employer (in year 2001) while he's in the middle of the I-140 processing with the old company. A few months after he moved to his current company his I-140 got approved and the attorney said it's ok to file 485 under the old company as long as he agreed to go back to the old company after the 485 is approved. So he went ahead and filed the 485.

However, he had some doubts/suspicions about this attorney because it is not AC-21 compliant.

What do you guys have to say about it ?
Is the attorney reliable ? Is my friend gonna get a problem if he gets employment RFE ?


Any response will be appreciated !

Thanks !
 
your friend's attorney is correct. EB GC is for future employment. once approved, your friend will have to go back and start working for the old employer.
 
Porkchop

Porkchop, thanks for your reply. I am sure my friend will be glad to hear that.

But, what about the AC-21 rule ? Remember, he changed job before his I-140 is approved.

Thanks !
 
by default, this would not be an AC-21 case. your friend could theoretically invoke AC-21 to "change" employers (and thereby stay with the new employer) after his i485 has remained pending for more than 180 days.

the reason i say "theoretically" is this: while the letter of AC-21 law does not state anywhere that the applicant must have worked for their original sponsoring employer at any time, adjudicators at the california service center started asking all those who were invoking AC-21 to change employers to prove that they had, in fact, worked for their original sponsor for at least 180 days, and are rejecting applications where the employee has changed employers before 180 days. now, it seems that NSC has also caught this CSC disease.

the ironic thing about this is, if the applicant has never worked for their sponsoring employer throughout the pendency of their i485, and can assure an adjudicator in responding to an RFE or interview with supporting documents from the original i140 sponsor that they will work for the sponsor upon GC approval (and never mention AC-21), then their case is adjudicated under the old classic law ("EB GC is for future employment"), and they can still get their green cards. of course, in this case, they absolutely have to work for their original sponsors for a reasonable length of time.
 
Thanks Pork Chop for answering my question,
Do you know if a new H1B is applied then one has to go out of country and come back in with the new stamp or can he send the passport to St. Louis for stamp without leaving the country.

Appreciate your help,
HTS
 
porkchop

Porkchop, thanks !
I don't know how else I am supposed to thank you.
Are you an immigration attorney ?

Thanks again.
 
HTS and sinting

you are both welcome... there is no need to thank me. i am not an immigration attorney; i am an EB GC applicant just like you, trying to endure this absurdly long-drawn process called "adjustment of status".

HTS, in reply to your question, H1 status is not the same as H1 visa: if you have been legally present in the u.s. in another status (student, visitor, adjustee etc.), and you are the beneficiary of an approved H1 petition by an employer, then you have been accorded an H1 nonimmigrant status, which allows you to live in the u.s. under that status. this status can be in parallel to another status, such as adjustee. the documentary proof of this status is the H1 Approval Notice you get on an I-797 Notice of Action form, which includes a new I-94 documenting your stay.

however, you cannot travel on that approval notice! for that, you need a H1 visa stamp in your passport, which can be only issued outside of the u.s. by a consular post on the basis of your H1 approval, if it is a new visa. if your existing H1 status has been extended in the approval notice, and you already have a valid H1 stamp in your passport from your previous H1 status that just has been extended, only then you can send your passport to st. louis for visa revalidation.

i hope this clears things up for you.
 
H1 visa stamping

Porkchop and HTS,

I heard a rumor that you can no longer get the 2nd visa stamping from the US ; you have to do it in your home country.

I am not sure if it only affects people from the countries which are subject to special registration or everyone.
 
i actually know somebody who was told by st. louis to go back to their home country for visa revalidation. another person i know got his revalidated from st. louis around the same timeframe. both are from pakistan, an SR country.

as far as i know, asking people to go back to their home countries for visa revalidation is not a stated policy, but i guess the state department (responsible for visa issuance) is run by same kind of good folks who run justice and homeland security departments. don't try to find a method in their madness.
 
Thanks porkchop !

I really appreciate you take time to answer questions and help everyone.

Thanks again,
HTS
 
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