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ras
02-03-2008, 02:43 PM
During July faisco I applied for my 140 and 485 as a future employer GC.
180 days finished after applying 140
170 finished after applying 485.

exactly weeks back recieved RFE on 140 for Ability to Pay. The employer also told USICS has also asked for a clear copy of my certificates. I am not sure what it is. It appears that about 12 weeks are given to answer this query. so from now still 8 weeks are there to answer this query. This future employer is very small and not sure would be able to provide the necessary documentation for RFE. Even if he provides not sure if that is going to be convincing.

Now my current employer who holds my H1 which is a pretty good fortune 100 company wants to file my GC.

My question is:

In this situation is it good to file a new GC and have a safer situation if something happens to the already filed 140 and 485

or instead

Use the exiting 485 filing (as in a 15 period 6 months gets finished) and use AC21 to change over to the current fortune 100 employer and answer the RFE through this one.

gc_chahiye
02-03-2008, 03:34 PM
During July faisco I applied for my 140 and 485 as a future employer GC.
180 days finished after applying 140
170 finished after applying 485.

exactly weeks back recieved RFE on 140 for Ability to Pay. The employer also told USICS has also asked for a clear copy of my certificates. I am not sure what it is. It appears that about 12 weeks are given to answer this query. so from now still 8 weeks are there to answer this query. This future employer is very small and not sure would be able to provide the necessary documentation for RFE. Even if he provides not sure if that is going to be convincing.

Now my current employer who holds my H1 which is a pretty good fortune 100 company wants to file my GC.

My question is:

In this situation is it good to file a new GC and have a safer situation if something happens to the already filed 140 and 485

or instead

Use the exiting 485 filing (as in a 15 period 6 months gets finished) and use AC21 to change over to the current fortune 100 employer and answer the RFE through this one.

you can use AC-21 if your I-140 is approved, or was approvable when filed. Since you got an RFE on the I-140, it was not 'approvable when filed'. In AC-21 can 'transfer' I-485 to new employer, not the I-140. Ability-to-pay has to be proven by hte original sponsorer. So I dont think you can use AC21 in any way here...

One option is to respond to the RFE hoping for the best, but go ahead with restarting your GC with your fortune-100 employer. Stay on H1 since if your 140 is denied, the 485/EAD also will go with it.
The downside now is your PD is going to be 2008, and if you are from one of the backlogged countries, it could be many many years before you can file 485 again and get the interim benefits (EAD/AP/AC-21)

ras
02-03-2008, 05:53 PM
yesterday, when I spoke an attorney near los angeles. He said that this is possible. Though I still doubt his credibility on this matter, because I get convinced with the logic you mentioned above. I want to make sure the attorny is wrong in what he said that I could get AC21 from the current employer and answer the RFE.

Can few more knowledged persons clarify this situation.

gc_chahiye
02-04-2008, 01:38 AM
yesterday, when I spoke an attorney near los angeles. He said that this is possible. Though I still doubt his credibility on this matter, because I get convinced with the logic you mentioned above. I want to make sure the attorny is wrong in what he said that I could get AC21 from the current employer and answer the RFE.

Can few more knowledged persons clarify this situation.

you mean the attorney says you can invoke AC-21 and have the new employer handle the ability-to-pay RFE? The ATP is specific to the employer, see Yates memo about how USCIS would deal with a case like yours:

http://www.shusterman.com/pdf/ac21-51205.pdf

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?


Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:
A. Deny the petition on the merits of the case; and
B. Deny the I-485 and the portability request since there was never an
approved petition from which to port.

ras
02-09-2008, 12:58 PM
I have got another I 140 applied thru some other company got approved yesterday. That one is too in EB2. can I use that replace this I 140 which got RFE. Is inevitable that I got to answer the RFE or is there some thing I could interfile or do something with the approved I 140?