What if I-140 is denied ?

B

bmt74

Registered Users (C)
I am confused after talking to my lawyer today. If anyone has been in this situation before (or) you have any thoughts, please post. I posted my question in this thread because the root cause of all these questions is my pending I-140 application.

My current GC status:

Original labor
EB3 NSC Concurrent
I-140 RD Sep 26, 2003 still wiating for approval
My EAD,AP approved
Added my wife as "follow to join" and she got her EAD,AP approved

1) I am still working on H1B. It is going to expire in Dec of this year. I want to switch employers using my EAD. But I can not as my I-140 is not approved (atleast to be safe). As my wife's EAD is approved, I asked my lawyer if she can work. She said yes, eventhough my I-140 is pending. She also said I will not lose my H1 status. Again I asked her what if my I-140 is denied. She said if I-140 is denied, both of our I-485's will be denied and also my 7th year H1 extension. Is this statement true ?.
My other question is - what does it mean ?. Should both of us leave the country in that situation ?

2) Let's say I travel outside the U.S in Jan of next year and when I re-neter the U.S I have to have the new visa stamping in my passport. The lawyer said no need to get visa stamping. I can show the advance parole. By doing that, I will not lose my H1 status. Is that true ???
 
United Nations,
A friend of mine applied for I-140/485/EAD/AP in Jul. 2003. But his I-140 was denied based on the educational issues. And his attorney told him re-apply for I-140/485 on same approved LC. Is it possible? Can a same approved LC be used if I-140/485 is denied?
 
I am in the same Path....

My I-140 denied because of company’s ability payEB2
Here is the brief info about case:

LC applied: Sep/01
LC priority date: Oct/01
LC approved: Jul/03
I-140/I-485/EAD/AP filing: Sep/03
EAD received Dec/03
AP received April/04

RFE on I-140: May/04
H1 valid until Jul/04
Suspected denial and applied for H1-7th year Jun/04 (just a week before expiring)
I-140 Denied Jul/04
MTR on I-140 Aug/04

H1-7th Approved Aug/04
Waiting for MTR???

Do not try to change employer until I-140 approval. It's too risky.....
Its' only my suggestion..... Final decision is yours...
 
hopeofgc,

can you provide some details of your friend's situation? I may face the same problem... Thanks a lot.
 
allaboutgc, he applied I140 in July 2003. Responsed RFE for educational issues but his I-140 was denied. And his attorney claims that he can re-apply for I-140/485 based on the same LC. I wonder if it is feasible? Any idea guys?
 
Yes, Same LC can be used to re-apply. But if the same mistake is repeated the next time, chances of denail are more again. If he wants to file again using the same LC, better file this time through an experienced lawyer and make the case strong.

hopeofgc said:
United Nations,
A friend of mine applied for I-140/485/EAD/AP in Jul. 2003. But his I-140 was denied based on the educational issues. And his attorney told him re-apply for I-140/485 on same approved LC. Is it possible? Can a same approved LC be used if I-140/485 is denied?
Click to expand...
 
bmt74 said:
2) Let's say I travel outside the U.S in Jan of next year and when I re-neter the U.S I have to have the new visa stamping in my passport. The lawyer said no need to get visa stamping. I can show the advance parole. By doing that, I will not lose my H1 status. Is that true ???
Click to expand...

This is same as using EAD. The moment EAD or AP is used, one will loose the H1 status. But what I learnt is, worst case 140 gets denied, take your valid H1 paper to a border consulate and get visa stamped, re-enter with a new i-94. Bottom line is, always have your H1 valid (not necessarly visa) though you use EAD or AP.
 
ABT, who told you that ? "the moment I use AP or EAD, I will loose H1 status" ?. It contradicts my lawyer's statement. Please clarify
 
ABT said:
This is same as using EAD. The moment EAD or AP is used, one will loose the H1 status. But what I learnt is, worst case 140 gets denied, take your valid H1 paper to a border consulate and get visa stamped, re-enter with a new i-94. Bottom line is, always have your H1 valid (not necessarly visa) though you use EAD or AP.
Click to expand...


Say if one uses EAD before the approval of I-140 and loses H-1B status. But that person still has valid H-1B and visa as well. In case, if that person's I-140 denied than does he need to leave the country immediately and re-enter on valid H1B and visa (no need to go to consulate) and new I-94 ?
Is it possible case?
 
May be ABT could be right. A friend of mine got his I-140 approved but was still working on H-1B and has valid visa, but his wife didn't had the valid visa, so she decided to re-enter on AP and he wanted to re-enter on H-1B. But at Port of entry, officer has asked y u both has different status's. So, he had no option but to show his AP also and the officer said his H-1B will be void. He can no longer use his H-1B but use his EAD.
 
UN,
You are saying that we can make an appeal for the I-140 denial and at the same time re-apply new I-140/485 all over again on the same lc?
 
UN, if it's the case, when both I140/485 are pending, can I file new I140/485? Wouldn't it be the same as filing new set while I140 in MTR.
 
EB2 to EB3

Can someone confirm if this is possible ? Let us say a person filed 140 on EB2 and gets ead/ap. Then 140 gets into trouble, can he apply I-140 on EB3 without any effects on the ead/ap , because my attorney says your ead/ap stays intact and VAlid. No problem if you apply for EB3-140 with the same LC

Confirm this Please
 
whorl1quote said:
UN, if it's the case, when both I140/485 are pending, can I file new I140/485? Wouldn't it be the same as filing new set while I140 in MTR.
Click to expand...

I guess you could do that. I don't know why you would want to.

The reason for filing on the same labor when your application goes to MTR is to save time. Since the MTR goes to the same adjudicator he/she may not want to approve and will then send to appeals which could take a year. The new 140/485 with same labor would take less time then the appeal.
 
nelabor said:
Can someone confirm if this is possible ? Let us say a person filed 140 on EB2 and gets ead/ap. Then 140 gets into trouble, can he apply I-140 on EB3 without any effects on the ead/ap , because my attorney says your ead/ap stays intact and VAlid. No problem if you apply for EB3-140 with the same LC

Confirm this Please
Click to expand...

Yes and no. If the 140 gets DENIED then 485 will also get denied and any applications associated with 485 will also get denied (EAD/AP). They would get reinstated if you appealed the 140 denial. You could continue to use EAD/AP in this scenario. However, it would be very difficult to renew EAD/AP as uscis has been putting these applications on hold whenever there is an RFE on 140 (in cases of EAD/AP still unadjudicated).

You could then easily file a new 140 in eb3. If you attach this new 140 with the denied 485 then I believe you will be fine.
 
The reason of filing a new set is because the pilot program. They are adjudicating cases that were newly-filed while the olders ones ar sitting there! However, I heard there can be only one 485 running at a time. Would that be a problem to have 2 sets of I140 and I485 with the same LC?
 
when the program came out; uscis was aware that people may withdraw an earlier 140/485 and re-file so that they come under the pilot program. USCIS stated they would not allow this type of scenario.
 
UnitedNations:
You Said: One thing she didn't tell you is that if the 140 gets denied but you appeal you are still eligible for the 7th year extension on h-1b. If you already have an approved 7th year extension and 140 gets denied you can continue to work on the h-1 until it runs out.

In my case the Seventh Year was denied based on my 140 Denial. Now that we are going to file the MTR, does this mean that I have a chance of getting my H1? Do I have to do anything specific to get the USCIS attention towards my H1?
 
You must log in or register to reply here.
Top