i-140 RFE :( [because of 32 days out of status): Help please

[dream16]

Guys,

 

I did:

 

1. BS in Comp Science from USA 2008

2. MBA from USA 2013

3. Work experience: 4+ years (reality = 5 years but excluding current employer obviously)

 

My Position requires this experience or combination of education = either ways i am the best fit for this

 

I was "Out of Status" for 32 days (thanks to the american employer) this year before i changed employers.

 

Question 1: What are the chances of getting RFE considering this 32 day out of status scenario ?

 

NOTE: I have "EXPERIENCE LETTERS" from all my previous employers :)

 

The 1st challenge is to get the labor approved because last year in Eb3: my $1 billion turn-over american employer got an AUDIT for my labor application despite running my advertisement for full 4 months :(, so anyways since i have left him ==> I was wondering if i can make them (old employer) to still continue with filing I-140 as Audit gets cleared in another 2 months? they clearly said NO and asked me to JOIN them BACK on their h1 to proceed

 

Question 2: Is it a must to be on the pay-roll of GC filing employer?  (note: my friends successfully abused this practice and obtained I-140 approvals back in 2008 from consulting firms showing them as future employers while they were working on full-time jobs through other company - the Excuses i get from those consulting firms now is that they DO NOT have the ability to show REVENUE to be able to do that ==> appears false as they are making millions --> its just that due to scrutiny they don't want the risk and hassle i think).

 

I told OLD Employer to be a vendor and EAT as MUCH as they want but atleast let me file the I-140 so that all my hard-work for last year Eb3 can be saved to secure a Priority Date. How to convince them? As they clearly told me that i need to JOIN them back and be on their h1 to be able to file i-140 (Note: the labor approval expires in 179 days and i MUST join before that to file as per them)

 

Question 3: What convincing argument can i make to Old Employer (Eb-3) to do my I-140 filing where they can ACT as a VENDOR and i can continue to remain with my current employer (Filing Eb-2) and don't go through EXTREME PAIN and DANGER of changing employers and RISKING another chance of OUT OF STATUS as PRojects in consulting ends anytime and hence since they are american --> they don't pay on bench.

 

I want to be in win-win situation and i am sorry if some of you do not like my thinking here but i am just another indian fighting this battle to grab atleast a I-140.

 

Thanks all !

 

 

 

 

 

[Belle]

1. Very small. Only if you have some documents missing.

2. No, it's not required. However, if they don't want (!) to file I-140 unless you join them, then they don't have to. If they are lying through their teeth, do you really want to deal with them?

3. Give it up. Seriously. Why do you need a green card? So you don't have to do stuff like that. Well, how about you just stop doing it. It will set you free.

[pontevecchio]

1. Is this a hypothetical question ? You may not get a RFE for the said scenario. Presumably you changed employers and got a new I94 or left and returned on the visa.

You cannot force the said company to do anything.

 

2. It is NOT AT ALL a must to be on the payroll of the company filing the GC. No question of abuse as this is perfectly legal.

 

3. The previous employer cannot be coerced in to doing anything. I suspect they will not file. A blanket statement like this is plain wrong. The DOL has powerful weapons at its disposal and you needed to complain if not paid as per H1 protocol. On the contrary it is the DCC"s which have consistently been found guilty of H1 abuse.

 

 If any company is filing PERM etc. for you now, then let them file and wait and watch. Get your own Lawyer to watch out for your interests.

[dream16]

1. Is this a hypothetical question ? You may not get a RFE for the said scenario. Presumably you changed employers and got a new I94 or left and returned on the visa.

You cannot force the said company to do anything.

 

2. It is NOT AT ALL a must to be on the payroll of the company filing the GC. No question of abuse as this is perfectly legal.

 

3. The previous employer cannot be coerced in to doing anything. I suspect they will not file. A blanket statement like this is plain wrong. The DOL has powerful weapons at its disposal and you needed to complain if not paid as per H1 protocol. On the contrary it is the DCC"s which have consistently been found guilty of H1 abuse.

 

 If any company is filing PERM etc. for you now, then let them file and wait and watch. Get your own Lawyer to watch out for your interests.

 

1. I never got a new i-94 as i did not have to leave the country as i filed 2 new h1b's with 2 different firms (1 month difference) out of which i got approved.

[pontevecchio]

If you did not get an I94 with the new H1 approval you are in trouble. I think you must have got the I94 attached for the new company to let you start. In that case the 32 days OOS is immaterial as it is considered legal.

[futureeb2]

The I-140 looks at the employer's ability to pay, the employee's qualifications for the job, and if the job fits the category sought. Usually, issues about being out of status arise in the I-485 stage, and only if more than 180 days out of status. See INA 245 (k).

[Belle]

The I-140 looks at the employer's ability to pay, the employee's qualifications for the job, and if the job fits the category sought. Usually, issues about being out of status arise in the I-485 stage, and only if more than 180 days out of status. See INA 245 (k).

Like.

 

For I-140 is it irrelevant whether you ever were in the US, legally, illegally, or out of status.

[dream16]

Oh thank you guys :)