Withdraw 140/485 possible?

T

tough_decision

Registered Users (C)
Gurus please comment:

I read in different posts that after a employee leaves the sponsoring company using AC21 (after 180 days) the employer can withdraw I140. Can the employer also withdraw I485/EAD/AP??

The employer is paying for all the attorney fees and for the entire application (485/140/EAD/AP)!!. The attorney is hired by the employer and not the employee whose application is being processed.

Comment!
 
This is my understanding: only the applicant can withdraw
I-485. However, in the case of concurrent filing, if an I-140 is withdrawn before its approval, I-485 may be denied.
What happens, if an employer withdraw I-140 after 180 days of (concurrent) filing I-485? As much as I know, this remains a grey area. Although law seems to be favorable, its interpretation by BCIS may not be. That's what I think. Anyone has any other suggestions?

just 'n fair
 
more comments please

just_n_fiar...thanx for your comments.

It is clear that if I140 is approved and 485 is not adjudicated for more than 180 days AC21 can be used. But the real question is can the employer withdraw the 485 after it is has been pending for 180 days and I140 is approved?

Gurus please comment, i am sure you guys know the answer!
 
Employer cannot withdraw I485 because the employer is not the one that filed it. I think even if the employer asks the attorney to withdraw it, the attorney will have to get your permission first. IMHO, the best way would be to hire another lawyer so that s/he requested all docs from the old lawyer and notified USCIS about this. As far as I understand, the old lawyer must release all necessary documents relevant to the case by law.
 
Good info..

I was looking for this discussion.

I am in a situation, my 485 applied in 06/2003 and 140 approved in 11/2003. This 485 filed for future employment.

Is it neccessary to work with the employer before switching to another one ? Please clarify.

I have not worked with the one who applied for my 485. They are trying to get a job, but nothing worked out so far.


Am I ok to use AC21 ?
 
if I-485 has been pending for more than 180 days, it should suffice to show the proof of same or similar employment.
just 'n fair
 
Re: more comments please

Originally posted by tough_decision
just_n_fiar...thanx for your comments.

It is clear that if I140 is approved and 485 is not adjudicated for more than 180 days AC21 can be used. But the real question is can the employer withdraw the 485 after it is has been pending for 180 days and I140 is approved?

Gurus please comment, i am sure you guys know the answer!
Click to expand...

An approved I-140 permits an organization to permanently hire an alien for a position (except in EB-1 extraordinary ability cases). I dont believe there is anything like withdrawl of an I-140. Even if there is such a thing, it would be the INS that would have to withdraw it with due regard to procedures. I believe you are talking about the employer, in whose name the I-140 was approved, withdrawing sponsorship for your I-485. The employer can indeed cease to support your application with a job offer at any point in time of their choosing before your I-485 is adjudicated. In fact if they change their mind about the job offer that was cited as the basis for your employment-based AOS, they are required to notify the INS promptly of such a decision. Further, the employer is at liberty to offer the approved I-140 to sponsor another applicant's I-485 if they so intend. This is precisely why INS feels necessary to ask, rather routinely these days given their elongated processing time frames, for a letter from your sponsoring employer that they continue to sponsor you.

The real question is whether such a communication to the INS from your sponsoring employer can halt the processing of your I-485. I believe the answer is that it can, unless you switch jobs under AC-21 and thus carry the approved I-140 with your I-485 irrespective of your original sponsoring employer's wishes. This is the only way (that I am aware of) that can effectively take an approved I-140 away from your employer's control.

It is a separate issue if the I-140 is 'revoked' by the INS for some reason, in which case they will proceed to deny the I-485 as well.
 
Last edited by a moderator:
The interesting question is, what will happen to I-485, if employer withdraw the I-140 petition after 180 days of filing them concurrently assuming that I-140 is still pending approval (I am not sure if I-140 can be withdrawn after adjudication by the USCIS.).
just 'n fair
 
Originally posted by just_n_fair
The interesting question is, what will happen to I-485, if employer withdraw the I-140 petition after 180 days of filing them concurrently assuming that I-140 is still pending approval (I am not sure if I-140 can be withdrawn after adjudication by the USCIS.).
just 'n fair
Click to expand...

It is called employment-based immigration for a reason. Immigration cannot occur legally without the support of an approved I-140 which means a sponsoring employer (except in certain self-sponsored EB-1 categories). No I-140 = No immigration, irrespective of whether it is AOS or CP.
 
Although it might look like an apparent contradiction to AC21, I think you are right. When an application or petition is withdrawn, the effect is as if it was never filed. That makes I-485 filed without proper grounds at the time of its filing, and can result in its denial.
just 'n fair
 
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