mikemleo Posted August 31, 2011 Report Share Posted August 31, 2011 Please find below timelines related to my case: # Initial EB3 LCA priority date - Oct 28, 2004 (Company A) # EB3 LCA approval date - Jan 08, 2007 # EB3 I-140 approval date - Oct 13, 2007 (filing date May 2007) # EB3 I-485 filing date - July 19, 2007 # Left Company A and became self employed (with Company B) - March 2009 (approx. > 500 days) # AC21 filing date (with Company B) - Jan 6, 2011 # EB3 I-140 withdrawn by Company A for ability to pay - Jan 25, 2011 # Rejoined Company A on March 2011. Didn't file AC21 again for the transfer from company B to company A. # New EB2 PERM priority date with Company A - May 20, 2011 (approved on July 25, 2011) # New EB2 I-140 filed with Company A on Aug 10, 2011 and approved on Aug 23, 2011 # I-485 denied on the same day, Aug 23, 2011 (probably while doing the EB3 to EB2 porting and finding an uncommon scenario where the underlying EB3 I-140 is withdrawn and porting is attempted with the same employer) # Working on MTR... Company A withdrew (in good faith) my approved EB3 I-140 to support other applications. I moved to company B (as self employed) after 500+ days of I-485 filing. Filed AC21 prior to I-140 withdrawal. But when I moved back to Company A in March 2011, I didn't file AC21. Recently, I got the I-485 denial notice in mail citing the below reason: "As Company A has previously withdrawn its support for this petition, their new job offer cannot preserve the approval of Form I-140." To me it looks like USCIS is looking for a similar or same job offer letter from Company A to preserve the approval of EB3 Form I-140 (under AC21). I didn't file AC21 twice. May be that was my mistake. Can the experts please advise. Thank you. Link to comment
mikemleo Posted September 1, 2011 Author Report Share Posted September 1, 2011 Belle/other experts, please reply to my post when you get some time. Thank you. Link to comment
redgreenbluee Posted September 1, 2011 Report Share Posted September 1, 2011 please consult a lawyer. there's no clear guideline in porting revoked I-140 PD (even in good faith), there lies the issue with your current petition. it is best to discuss your matter with an immigration lawyer like murthy. Originally posted by mikemleo: Please find below timelines related to my case: # Initial EB3 LCA priority date - Oct 28, 2004 (Company A) # EB3 LCA approval date - Jan 08, 2007 # EB3 I-140 approval date - Oct 13, 2007 (filing date May 2007) # EB3 I-485 filing date - July 19, 2007 # Left Company A and became self employed (with Company B) - March 2009 (approx. > 500 days) # AC21 filing date (with Company B) - Jan 6, 2011 # EB3 I-140 withdrawn by Company A for ability to pay - Jan 25, 2011 # Rejoined Company A on March 2011. Didn't file AC21 again for the transfer from company B to company A. # New EB2 PERM priority date with Company A - May 20, 2011 (approved on July 25, 2011) # New EB2 I-140 filed with Company A on Aug 10, 2011 and approved on Aug 23, 2011 # I-485 denied on the same day, Aug 23, 2011 (probably while doing the EB3 to EB2 porting and finding an uncommon scenario where the underlying EB3 I-140 is withdrawn and porting is attempted with the same employer) # Working on MTR... Company A withdrew (in good faith) my approved EB3 I-140 to support other applications. I moved to company B (as self employed) after 500+ days of I-485 filing. Filed AC21 prior to I-140 withdrawal. But when I moved back to Company A in March 2011, I didn't file AC21. Recently, I got the I-485 denial notice in mail citing the below reason: "As Company A has previously withdrawn its support for this petition, their new job offer cannot preserve the approval of Form I-140." To me it looks like USCIS is looking for a similar or same job offer letter from Company A to preserve the approval of EB3 Form I-140 (under AC21). I didn't file AC21 twice. May be that was my mistake. Can the experts please advise. Thank you. Link to comment
Belle Posted September 1, 2011 Report Share Posted September 1, 2011 File an MTR saying you have a new I-140 from the original sponsor. By the way, there is nothing in the language of the AC21 law that prevents preservation of I-140 after withdrawal based on the offer from the original employer. Link to comment
mikemleo Posted September 1, 2011 Author Report Share Posted September 1, 2011 Originally posted by Belle: File an MTR saying you have a new I-140 from the original sponsor. Thank you Belle. Yes, I am actively working on the MTR. By the way, there is nothing in the language of the AC21 law that prevents preservation of I-140 after withdrawal based on the offer from the original employer. Agreed. An I-140 withdrawal is open to interpretation either way by USCIS. If I have maintained another job with Company B, having similar job duties, the withdrawal of approved I-140 shouldn't effect the pending I-485 if the withdrawal happened after 180 days. My earlier EB3 PD should still be available whether I become self employed or start working back with the Company A. The ported EB3 (from Job1 to Job2) doesn't invalidate the pending AOS if I get another approved I-140 (EB2) from Company A. I may or may not have gone ahead with the interfiling and hoped to keep both my EB3 and EB2 I-140 (job offers) alive. Link to comment
mikemleo Posted September 14, 2011 Author Report Share Posted September 14, 2011 Update on my case. Filed MTR Sept 12, 2011. The package reached Phoenix lockbox today afternoon. Hoping to receive a receipt notice for the I290B by end of next week. Thank you all for the support. I couldn't have done without all the positive feedback. Link to comment
Belle Posted September 14, 2011 Report Share Posted September 14, 2011 So your options are to file an MTR to keep EB3 alive saying that you have a similar job (with the same employer and that should not matter) or file an MTR saying you have another I-140. Maybe there is a way to file both in one. Link to comment
mikemleo Posted September 14, 2011 Author Report Share Posted September 14, 2011 Belle, let me share what my attorney tried to achieve with this MTR. I am hopeful it will help me a lot when USCIS officials review it. - Suggested the USCIS adjudication officers that the withdrawal of the approved EB3 I140 (after more than 180 days of I-485 filing) was unjust under the AC21 legislation. - Told them that the AOS denial on the basis of a revoked I-140, after 180 days, was capricious and prohibited as per CIS policy (quoted the Adjudicator's field manual section# etc). - Emphasized that EB3 I-140 is still valid for porting purposes. - Noted in the MTR that I should be allowed to port to my earlier priority date since I have two EB I140s on file regardless if one of the EB I140 has been withdrawn by employer. - He concluded that the AOS denial was without legal or factual foundation and must be reversed. Also they should approve the applications while visa numbers remain available. In summary, he tried to make it a strong response with the help of this brief and receipt notices of earlier I140s and 485. Hoping to get a quick and positive response. Fingers crossed and praying... Thanks again. Link to comment
Belle Posted September 15, 2011 Report Share Posted September 15, 2011 Seems good to me. Link to comment
10451 Mill Run Circle, Suite 100
Recommended Posts
Archived
This topic is now archived and is closed to further replies.