RFE on old employer's revoked I140


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I am in strange situation of my green card process...If anybody had faced this kind of issue or has expertise in this matter, please respond.


I have filed my greencard with employer A in Sept 2003.

I140 was approved in early 2007. Then, applied for I485 in Aug 2007.

By the way, greencard was in EB3 category.


In 2010, I changed my employer and applied for greencard in 2011.

Ported my priority date to new I140 which was filed in EB2 category.


Since Oct 2012, my case has been current. After repeating inquiries, finally in Jul 2013, there was some movement on my case. I was excited for few days that I am going to get my greencard after 10 years. It turned out differently.


USCIS has RFEd my old employer's I140 which that company revoked in Oct 2010.

RFE talks about two things 

1) Somehow treats the address mentioned on the file has a virtual office.

2) States that employer-employee relation is not established. As a consultant, I was working at client site and USCIS needs proof that employer has control on me.


Here are several questions/doubts

1) Is it necessary to respond to the RFE? Because, I am not with the old employer since 2010. 

I have stayed with old employer for more than 180 days after filing 485.

2) My priority date has been ported to new I140. If we do not respond to RFE, would my new I140 priority date change to Oct 2011?

3) Is there any other ways to approach and get my greencard approved?


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Generally speaking just because a priority date has been transferred to a subsequent I-140 does not mean that the priority date is kept forever. If the originating I-140 is revoked, USCIS may / might invalidate the priority date transfer.


Notably, if the petitioner withdrew the I-140, USCIS may be acting outside the law to issue a Notice of Intent to Revoke on that withdrawn I-140. However, responding to such a NOIR pointing out this fact to USCIS might be necessary to try and protect the petition from revocation-for-cause. Revocation-for-cause will generally result in the loss of AC21 portability benefits. It is important to note though that in trying to shield a withdrawn I-140 from a potentially unlawful revocation-for-cause by USCIS, one may also be losing the transferred priority date. In at least one instance USCIS has been seen to deny an I-485 filed based on such a transferred priority date.


Given the complexities of cases that present such issues and the risks posed to an individual involved in such a case, it is generally a good idea to consult with an experienced immigration lawyer for specific legal advice.

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