Working on EAD / 140 Denied - 'Out of Status'?

N

nordkapp

Registered Users (C)
Heres the situation:
I was working with Company A on an H1B. They sponsored my GC in Aug 2002. Labor was cleared & we applied for 140 & 485(concurrent) in April 2003. We got an RFE on the company’s ability to pay in Aug 2003. We responded with company’s Tax Returns, Financial Statements, etc. in Sept 2003. In the mean time, my EAD was approved and is valid from June ’03 – ’04.
Oct ’03, I got an offer from Company B. I asked for my attorney’s advice to take up the offer based on AC-21 using my EAD even though my 140 was not approved. Based on his advice/approval, I took up the offer & started working with Company B.

Last week, my attorney called the USCIS to inquire on the status of my 140 appln. & they said it has been rejected (company’s ability to pay). We recd. a ‘Case Status Inquiry Response’ letter from INS stating that my 140 & 485 applns. have been denied but the letter states that my EAD & AP applns. are pending & the officer needs more time to adjudicate(I applied for EAD renewal & AP appln. In March ’04).
However, we have not recd. a formal denial notice on 140 or 485 from USCIS.

My attorney tells me now, that I am ‘Out of Status’; since my 140 appln. was denied, my EAD is invalid.
Is it accurate that I am ‘Out of Status’? If so, what are my options to get reinstated?
I am planning on contesting USCIS’s decision. Have you come across a similar situation?
Any pointers will be much appreciated.

Thank you.
 
unfortunate ....but

nordkapp,

It is disheartening to get this news. Your lawyer is right. If u started working on EAD it means you are no longer maintaining H1 status thus if 140 is denied, you have become out of status immediately. USCIS can consider you out of status from the day your 140 was denied.

You may appeal against the decision however pending appeal your status is not valid. What does your lawyer say about this ?

You will have to file for a new H1 which may be cap exempt since you already were a H1 holder in past. Talk to lawyer of you can file H1 quickly and start working based on receipt notice. I am not sure though.

will_get_there
 
How many years left on your h1 period?
the options will be:

1. you should be able to file a new h1 with the current employer

or

2. should able to do the h1 transfer to the new company.
since you used ead, I dont think that will be possible.

So only option will be to start file a new h1 with the current employer asap and maintain the
h1 status
 
love2002 said:
How many years left on your h1 period?
the options will be:

1. you should be able to file a new h1 with the current employer

or

2. should able to do the h1 transfer to the new company.
since you used ead, I dont think that will be possible.

So only option will be to start file a new h1 with the current employer asap and maintain the
h1 status
Click to expand...

:( My I140 denied too - May12, on basis of Company ability to pay
 
Is there any RFE before CIS deny your I-140 petition? What are your receipt date and adjudication date?
 
honeybee said:
qdotlu,

Please post your service center in which you applied I-140.

Thanks,
-Honeybee
Click to expand...

I had a RFE on September 4, 2003 that was responded to on October 23, 2003. My service center was Vermont
 
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