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I-485 Discussion Forum
I485 DENIED after meeting AC21 conditions |
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Refer discussion: Topic: I140 revoked and Underlying Labor Subsituted- AC21
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Here is what happened. Green card applied in Oct 2001. Labor certification was completed and then I140 and I485 were applied concurrently. Finally, I140 was approved in Feb 2005. My I485 has been pending after that since visa dates were not current (got retrogressed". I changed jobs in June 2006 invoking AC21.
While I thought all was progressing well, my earlier employer revoked my approved I140 and substitutes another applicant to approved labor certification underlying the I140. This practice was a loophole and since June 2007 is not allowed any more. Now when my I485 was up for adjudication, the office did not get the supporting Labor/I140 for reason explained above.
What do I do? You are absolutely right about the illogicality of one 2 applicants seeking benefit from 1 labor certification.
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to mohican:
This is no different from the current wave of 485 denials due to 140 revocations.
As the 140 was approved in 2005 and you were with the sponsor for 180 days after approval, you are safe. File an MTR and you are good to go. The only problem I see is if your 140 was approved incorrectly - based on a Labor that was invalid. Other than that, there should be no problems.
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to kaisersose:
How do I find out that my I140 that was approved was not based on "Invalid Labor"?
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to mohican:
If you used Labor substitution in a company which has been known to cut "ethical" corners, then there is always the possibility. But unless, CIS explicitly denies a 140 for this reason, you can never know.
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to kaisersose:
I am not a RECIPIENT of labor substitution (sometimes I wish I was though), but a VICTIM of labor substitution. Labor was approved in my name, I140 was approved in my name, but when I left my "unethical" employer exploited the loophole--withdrew approved I140 (how stupid a law is that)...and used the approved labor so that the new applicant gets a head starts. Actually, companies use that to negotiate salary (low ball) by offering pre-approved labor and that was one of the reasons why it has been made illegal. Sick!
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I'm sorry about your situation, I think you should file MTR. I think USCIS should not allow your former employer to substitute you, because your I-485 is pending. I don't understand why they did not deny your I-485 earlier, since your employer could file for substitution only before June 2007, which is 1.5 year ago. I think AC21 protects you, and the recent memo clearly states that I-485 should not be denied even if I-140 is revoked.
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to mohican:
Mohican,
I guess now I understood what you were trying to say in the IV forum.
Its really sad story on how those greedy Desi consultants can screw someone's career.
I dont think u have any chances of winning MTR, bcos in your case the underlying labor has already been used for someone else and he was probably approved before your I-485 approval/ or his I-485 pp under processing phase (we dont know the status) and thats the reason USCIS not able to find any underlying Labor application for you.
If you think the priginal labor was filed for you, you could port that priority date, since your I-140 was approved for that labor, its just die to some bad relationship with old employer you are suffering this loss. USCIS will allow you to port that date with your new I-140. But you need to start the new PERM process ASAP and then file new I-140 with the prrof that at one point you had PD of OCt 2001. If you were also using the short cut route of substitute labor than I dont think u will be able to port the date from OCt 2001.
Remember the rule, original filing date of labor is yours and you cna port that in case your labor and I-140 approved, regardless of change in employment.
Since you have H1B for a while, you can start the new PERM and start all over. Its just a bad luck for you due to your employer situation, many folks in this forum and IV has suffered due to various reasons and had to start all over again.
I am not an attorney, but I would spend some $$$ and consult a good attorney like Murthy or Rajeev Khanna. Its worth spending those consulting fees.
Wish you all the best, but at this time this is the only option in your unfortunate circumstances.
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I think you should also get in touch with the ombudsman. This is exactly the kind of case they are looking for. The ombudsman will follow up regarding your case with the USCIS directly cant get better than that.
Here are the details:
http://www.dhs.gov/xabout/structure/gc_1221837...
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to mohican:
Mohican,
If you still have the proof of correspondence with USCIS when you invoke the AC-21 in June 2006, I strongly feel you should hire a attorney like sheela Murthy or Rajeev khanna to fight your case.
Do you have the copy of original labor and I-140 approval with your name on it? If you have that then under AC-21 provision you do have some chance of wining MTR.
In that case you would be able to prove to USCIS that you had intent of workign with this greedy employer but due to circumstances or bad practices at this employer you quit and you informed USCIS officially about your intent to invoke AC-21.
On this ground you have some chance of winning MTR.
And the other option is to start all over new PERM for the new job position after PERM approval, file new I-140 and port the OCt 2001 PD.
USCIS should have denied your case long ago, so that you could have filed PERM in the booming economy and enough time before you H!B expires in June 2009. I hope you the best, but this is another example on how a bad employee-employer relationship can screw up one's GC process.
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to caguy:
Contact sheela murthy. I know a case which is similar to yours and she won it.
I know she charges higher, but do not take risk at this moment.
And finally both the guys got 140 approved and both guys got GC.
So good luck...
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to lacrossegc:
lacrosegc,
this is very good information.
I think Mohican can fight his cause, bcos the porr guy didnt even know about the revoking of his approved I-140 until his I-485 was looked upon by USCIS in year 2008. He filed his application way back in 2004 or so.
Its really unfortunate circumstances andhe is suffering for no fault. ( except that he quit his greedy employer).
Mohican: You can try the USCIS ombdusman route as well, but i feel it will be appropriate to have some kind of legal reprentation as well.
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to caguy:
I am waiting for my attorney to file the issue to the ombudsman. Thanks anyways. I am aware of them tracking these denials.
Can you please elaborate "If you were also using the short cut route of substitute labor than I dont think u will be able to port the date from OCt 2001. " I liked your explanation and I think that's why I am nervous that in my case MTR might not be the solution. But isn't MTR meant to address any issue?
I have looked into the PERM option, but what I have been told that it will take more time and I have only unitil June 2009 on my H1b.
BTW, my previous employer is not a desi body shop--it is a FORTUNE 200 company, but certain individuals who have the power behave like nasty pigs. I had no issues with them--my work was exemplary and the only reason I can think of that they did --is greed.
Anyways, what is past cannot come back. So simply filing MTR is not the solution, it needs to be addressed with PERM labor and new I140--is that right?
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to mohican:
my current attorney used to be the president of AILA 4 years ago and so I am assuming I am in good hands
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to caguy:
Mohican,
Since your I-140 was approved before you left your ex-employer, and therefore also approved before anybody else that used your LC, your I-140 was approved correctly and anybody else would be approved incorrectly.
I don't see that you have done anything wrong, and the only thing that I see done wrong in your case is USCIS denial of your I-485. That should be easy to fix with an MTR, but it should be done by a lawyer. (Whether they should deny the other person or not is totally unrelated).
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to caguy:
Yeah, I have the copy of the notice in my name stating the approval of I140 and I think I have the signed copy of the labor application that was submitted--I dont think I have the copy of LC approval. Will check. I am on the road currently. Not to sound vindictive, has any one sued ex-employers big time on such a practice--honestly, based on my skillsets I know I can get a job anyplace in the world--and would love to go back to India---the only thing is that i would like it to be planned and not rush to sell all assets esepecially in these depressed time. Apologies to have digressed.
So I think in summary I have 2 options:
1. MTR
2. Non-MTR ( File PERM, I140)
I will let u know what my lawyer acts on. For now I have scheduled a $250 for 20 min appt with the goddess of immigration law on Tuesday -yeah--did any one guess--LOSM...if not, and I won't believe any one on this forum does not know what LOSM stands for.
If she won the case--won't that establish a precedence (wearing my legal hat now)...and in that case shouldn't that be accessible to other lawyers too. Curious? Any more details on that law suite.
Mohican
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File MTR first you already have good attorney he should have all the paper work to prove that your LC and 140 was valid before you file AC21. LC letter should go along 485 and I140 application look in your file.
This all is happening because your employer withdraw I-140 do you know why they did that? Were you in good terms with them.
Also report you case here:
http://www.dhs.gov/xabout/structure/gc_1221837...
Good Luck.
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to lacrossegc:
lacrosegc,
this is very good information.
I think Mohican can fight his cause, bcos the porr guy didnt even know about the revoking of his approved I-140 until his I-485 was looked upon by USCIS in year 2008. He filed his application way back in 2004 or so.
Its really unfortunate circumstances andhe is suffering for no fault. ( except that he quit his greedy employer).
Mohican: You can try the USCIS ombdusman route as well, but i feel it will be appropriate to have some kind of legal reprentation as well.
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to FSLMV:
here is the official reason from my ex-employer--polite and sweet
I had spoken to XX at YY about your green card application and questions as well as to ABC. Although we are sympathetic to your situation, Ex-Employer needed your priority date for another employee, which is the reason your I-140 was withdrawn. As you were aware, once you left Ex-Employer employment, we had no obligation to continue supporting your application. Ex-Employer invests a significant amount of resources in obtaining green cards for its employees and does so with the expectation and hope that they will continue in our employ. We understand you may have had good reason for your choice to go elsewhere, however, our business needs required the withdrawal of this application to help us with our employment needs.
I understand from XX that in this case, there is no practical difference between a withdrawal and a revocation of the I-140 so to the extent that helps your attorneys with your case, please feel free to pass on that information. XX would know if any notice was provided and it appears that they have already answered your question on that matter.
I hope that your immigration situation is resolved in the near future and wish you luck in your future endeavors.
Sincerely
Ex-Employer Counsel
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to mohican:
Mohan
It's to bad to get this kind of answer from ex-employer. Did you have good relationship before leaving your ex-employer. At this point you can hire good lawyer and fight for it..
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to trackeb3:
Didn't they change the rules in which PD cannot be ported to another person?
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Didn't they change the rules in which PD cannot be ported to another person?
to my1234:
Yes, but that wasn't until June 16, 2007. |
to MrVulcan:
I had a good relationship with my employer...it is some of the individuals whom you never work with but are responsible for liaison between attorney and company that are &^%$#@ and hold one's future---simply sick fellows
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to mohican:
Mohican,
AC21 Intrime memo clearly stated that
When is an I-140 no longer valid for porting purposes?
USCIS Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal
that was submitted after an I-485 has been pending for 180 days.
if 140 is withdram before 180 day then only issue.
Your deniail is Uscis ERROR, MTR will fixes your issue. Just it is matter of time. Talk to atorney clearly. if you have any questions please let us know.
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to EmilyIdea:
please note that it is not just revoking or withdrawal of I140 issue--straight forward MTR could help. Thanks for pulling up this rule. Also, refer post made by R....123--he/she does a good job of explaining the uniquness of my situation since it involves the underlying labor that supports I140.
My ex-employer's attorney's comments state the difference between just I140 and I140 + labor substitution. Hope this explains. I know its complicated.
"This is exactly what I previously explained and what XX verified for you. The I-140 was revoked/withdrawn and the labor certification was substituted. If only the I-140 had been revoked/withdrawn then you would still be portable. However, as XX confirmed, the company used the case to substitute another employee."
See the remark "If only the I-140 had been revoked/withdrawn then you would still be portable". So its not just that and hence my nervousness on how an MTR could fix my issue. But I will try since non-MTR (PERM, new I140) route does not seem favourable coz I dont have time on my H1b (June 2009)
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to mohican:
From your timeline,
Labor approved - ? (but not important)
I-140 approved - Feb 2005
I-485 pending - Receipt date ?
Ex-employer revoked I-140 - ?
Two things, 1) If Ex-employer revoked the I-140 before September 2005 (assuming you filed I-485 in Feb 2005), then the denial is correct.
2) If revokation was done after Sept 2005, then the denial is in error.
In case 1), though your I-485 was pending all this while, the adjudication on it might have happened recently. i.e Ex-employer revoked I-140 within 6 month period of pending I-485. Ex-employer gave labor to another employee. Now though, the revokation should've triggered the denial of your I-485 (atleast RFE/NOID), it did not because at that time the IO revoking the I-140 did not check if any associated I-485 was filed. Now after 4 years, when an IO started to look at your I-485, the underlying I-140 was missing.
There is definitely an error on part of the USCIS but if that is what happened, then the case is tricky.
If its as per point 2), then your case should be resolved by an MTR.
All the best.
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to DesiVidesi:
Dude--number 1 does by apply since I was legit employee of the company until June 2006. Mine was concurrent filing of i140 and i485 since in 2004 oct we were current and not retrogressed. So again-- the problem is the ability of employer to take an approved lc and substitute--- that's why they made that practice illegal starting June 2007
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to mohican:
If that is the case then you should be good. Keep us posted about the outcoming of your case as it is quite unique.
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to DesiVidesi:
Mohican: Yours is probably going to be a defining case. Based on AC21 regulations you are in the clear, just talk to a good attorney (if you have not already). USCIS is going to have to explain why they allowed a LC to be substituted when it clearly had been consumed due to approval of i140 and expiry of 180 days. Now they will have to case of having to give 2 (sets) of GC for the same labor cert. Let us see how they dig themselves out of that hole.
You will need a good attorney though.
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to DesiVidesi:
Since your I-140 was revoked after 180 days and after it was approved, I don't see how they could use the LC for someone else ..... and hence I see no problem for you.
Now of course you need to trust YOUR lawyer, especially since no one here is a lawyer, but I wouldn't trust your ex-employers lawyer at all. If the USCIS start diggning into your case there is a risk that who ever got your labor could be denied, and they don't want that to happen if it is a current employe, especially if they have traded a lower salary for GC, or maybe even got paid for the LC.....
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to MrVulcan:
Very true Vulcan. In fact now I know why my ex-employer's lawyer was so pro-active in calling me back when I went asking on what happened since all was suppose to go well considering AC21....he definitely has helped a lot, but at times one does think, what did I do ( haven't paid anything) and still getting all this help. Not all though, it has been selective. Well, all of you have a nice weekend. I might not be updating that frequently since i gotta spend time with my 2.5 yr ol boy as I travel (within US) a lot.
Cheers....thanks again to all of you to take the time and help clear my brains. I will update more as I hear or clarify matters as members respond. "Good night and good luck"
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I'm sorry about your situation, I think you should file MTR. I think USCIS should not allow your former employer to substitute you, because your I-485 is pending. I don't understand why they did not deny your I-485 earlier, since your employer could file for substitution only before June 2007, which is 1.5 year ago. I think AC21 protects you, and the recent memo clearly states that I-485 should not be denied even if I-140 is revoked.
to hciniluk:
As long as the I-140 was approved for more than 180 days prior to your switching employers, then the law says that you are good. If USCIS mistakenly allowed a labor cert on an I-140 that had already passed the 180 expiration, that isn't your fault.
Get a lawyer... |
to mohican:
Your case is just CIS error.. They will fix this by MOTION. ...CIS associates are not trained well on AC21 guide lines...There are some gray areas in law.
when your case was dined? I noticed it was in Oct 2008....what happend these days..You have to respond quickly ....
Any way...it's a matter of time. Your attorney can easily deal this case to resolve. But don't take much time to proceed.
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Hi Mohan,
Doing some research on this; came across an interesting link
http://www.uscis.gov/files/nativedocuments/AC21...
go to page 5 read footnote;this can be used to manipulate what possibly your previous employer did;i m not a lawyer so cannot understand it in totality.
Also except for what i could find about the 180 days deadline on the Ombudsman link I could not find anything in this regard.Is it by law or just a internal guideline of USCIS?
Do let me know.
Also any idea when your I140 was substituted?
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to aaloknigam:
I am not a mohan...I am the MOHICAN
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to mohican:
Guys, after looking at all the discussions, I have a question. The answer could be pretty simple.
My question is:
Mine is EB3 category.
My perm was approved in July 2007.
My I 140 & I 485 were applied concurrently in Aug 2007.
My I 140 was approved in Sep 2008.
If I move to a different employer now, can my I 140 be revoked??
Can I safely port my priority date if I move to a different employer now??
Let me know.
Thanks in advance.
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to rajeshraje:
this thread is not meant to answer this question.
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Hi Mohican,
Sorry about the name;i think my mind was somewhere else.
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Guys, after looking at all the discussions, I have a question. The answer could be pretty simple.
My question is:
Mine is EB3 category.
My perm was approved in July 2007.
My I 140 & I 485 were applied concurrently in Aug 2007.
My I 140 was approved in Sep 2008.
If I move to a different employer now, can my I 140 be revoked??
Can I safely port my priority date if I move to a different employer now??
Let me know.
Thanks in advance.
to rajeshraje:
Anything can happen. Your future will let you know. |
to mohican:
ok guys, I am back. About to file MTR shortly. I will update this with more information on what has happened since my last post. But before that, here is a "slumdog millionaire" questions to all you folks-
HOW LONG DOES AN MTR PROCESS TAKE AND WHAT ARE THE MEANS OF EXPEDITING IT, IF THERE ARE ANY?
More to follow later.
Mohican
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I do not think you can expedite MTR, you will get a receipt notice with a new number. Then another notice when they reopen or reconsider. . Time is different in each case any where from 2 weeks to one year depending on the case. Good luck with your MTR.
Here is old thread might help you
http://www.trackitt.com/discussion-forums/i140...
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to mohican:
7 Weeks for me.
No way to expidate.
All the best.
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Guys, after looking at all the discussions, I have a question. The answer could be pretty simple.
My question is:
Mine is EB3 category.
My perm was approved in July 2007.
My I 140 & I 485 were applied concurrently in Aug 2007.
My I 140 was approved in Sep 2008.
If I move to a different employer now, can my I 140 be revoked??
Can I safely port my priority date if I move to a different employer now??
Let me know.
Thanks in advance.
to rajeshraje:
Pretty simple easy answer is "dont hijack mohican's thread"....start your own thread and dont waste other's time on speculations. |
to rajeshalex:
Dear Rajeshalex and other forum members--this is an urgent request.
If any one has more details on this case that Rasjeshalex mentions to have been won by murthy, please post details on this thread. I am also going to contact Murthy via urgent appointment--she charges $300 for 15 min...its expensive, but this will help my attorney establish precedence which you all know on this forum is so crucial.
PLEASE HELP!
Also, members following this thread--please share experiences or point threads that discuss about MTR expediting. My MTR gets sent out on Tue night.
Some steps that I will be doing:
1. Contact senator
2. Contact congressman
3. Visit DC and meet officers at USCIS (comments/thoughts?)
4. What other unsual and innovative means have been tried--please post
Post made by Rajeshalex:
Contact sheela murthy. I know a case which is similar to yours and she won it.
I know she charges higher, but do not take risk at this moment.
And finally both the guys got 140 approved and both guys got GC.
So good luck...
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to mohican:
My MTR was reconsidered--what a relief. Here is the response:
"Service motion to reopen or reconsider:
In the case at hand, the I-485 was denied because the underlying I-140 was revoked. However, the applicant is eligible for portability consideration under Ac21. Therefore, the applicant should have been notified of this eligibility before any final adverse action was taken on his I485. Pursuant to Part 103.5, Title 8, Code of Federal Regulations, the denied I-140 petition referenced above has been reopened/reconsidered."
My attorney says that what this means is that only my I140 that was revoked is now open and they have yet to make a decision on I485.
My question to fellow members of this forum:
1. Has any of you recived similar response to your MTR filing against wrongful I485 denial
2. Please note that my case is slightly peculiar in that the I140 was revoked and aproved labor certification was substitued--if some one was in similar situation, please respond with specifics?
My MTR was recieved my TSC on Feb 9th, i received receipt notice on Feb 16th and final approval was made on March 10th and the letter arrived on March 16th. I am glad and thankful that they understood the urgency of my situation. Now the hunt starts for NEXT STEPS?
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Users watching this thread:
kaisersose, MrVulcan, EmilyIdea, trackeb3, mohican, camar2002, rennieallen, aaloknigam, rajeshraje, sep04, GC4GSK, Software7
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