RFE on unapproved I140 (EB3) Received by Previous Employer, Job Changed under AC 21


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Hello All,

I have my I140 approved in 2012 (EB2), previous employer filed I-140( Eb3) and 485 concurrent filling in Oct 2020, changed jobs after 180 days, new employer filed 485J.  Old employer receives RFE of on unapproved I-140 and is withdrawing the application. What happens in this case to my:

- 485 Application and 485J Applicaiton 

-I-140 Eb3 

-I-140 EB2 

- EAD and AP 

Please advise. 

Thanks in advnace. 

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In the described situation, unfortunately, the most likely result is that USCIS will deny the I-485 Application. Based on the 2005 Michael Aytes Memo on AC21 they should actually be adjudicating the I-140 petition on the merits. However, this is not typically what is done. Some beneficiaries will try and appeal the withdrawal to the Administrative Appeals Office or file a Motion challenging USCIS. In one instance, Murthy Law Firm took this issue to federal court and won for our client.

A copy of the federal court's decision in Khedkar v. U.S. Citizenship and Immigration Services is publicly available here https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv1510-23 and in this case Murthy Law Firm convinced the Court to order USCIS to reopen the denied I-140, and issue the RFE to the beneficiary. And USCIS did issue the RFE to the beneficiary to respond to it on his own behalf. The argument was based in part on the beneficiary having filed the Form I-485J when he ported to the new AC21 job.

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