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the_jaguar
03-25-2011, 02:48 PM
Folks,

I would like to share my success story of getting my I-485 application approved with a revoked/withdrawn I-140. We received our Green Cards and Welcome Letters in the mail yesterday. If you go through my profile, you should be able to get most of the information, but here it is anyway:

1] Company A applied for my LC followed by the I-140 application. We never got a chance to file I-485.
2] After I quite company A, they withdrew my I-140 application.
3] Company B started the process again with my labor application, followed by my new I-140 application. We didn't capture the older PD at this stage, but the A# was the same as the old one.
4] When we sent in our I-485 application, we included a letter describing that we would like to retain the older PD (we sent them a snippet of page 27 of the Field Adjudicator's Manual - Yates memo). In the interest of being transparent, we mentioned that the earlier I-140 was withdrawn by the previous employer. After an unrelated RFE, our case was finally approved last Friday (03/18).

I am sharing this information so that others who are stuck in a similar situation can use this as a datapoint in their struggle against the USCIS. I wish you all the very best in your Green Card journey.

injrav
03-25-2011, 02:51 PM
gap between your company A exit date and the date they withdrew your I140?
As per law,, they should not do it for 6 months old approved I140 ?

gc_on_demand
03-25-2011, 03:16 PM
Folks,

I would like to share my success story of getting my I-485 application approved with a revoked/withdrawn I-140. We received our Green Cards and Welcome Letters in the mail yesterday. If you go through my profile, you should be able to get most of the information, but here it is anyway:

1] Company A applied for my LC followed by the I-140 application. We never got a chance to file I-485.
2] After I quite company A, they withdrew my I-140 application.
3] Company B started the process again with my labor application, followed by my new I-140 application. We didn't capture the older PD at this stage, but the A# was the same as the old one.
4] When we sent in our I-485 application, we included a letter describing that we would like to retain the older PD (we sent them a snippet of page 27 of the Field Adjudicator's Manual - Yates memo). In the interest of being transparent, we mentioned that the earlier I-140 was withdrawn by the previous employer. After an unrelated RFE, our case was finally approved last Friday (03/18).

I am sharing this information so that others who are stuck in a similar situation can use this as a datapoint in their struggle against the USCIS. I wish you all the very best in your Green Card journey.


You said you didn't get a chance to file for I 485 with company A , means you did transfer H1b. Did company A withdraw before you transfered H1b ? Did you do transfer with in initial 6 year of H1b ?

SGP
03-25-2011, 04:02 PM
Congratulations on your freedom.

Folks,

I would like to share my success story of getting my I-485 application approved with a revoked/withdrawn I-140. We received our Green Cards and Welcome Letters in the mail yesterday. If you go through my profile, you should be able to get most of the information, but here it is anyway:

1] Company A applied for my LC followed by the I-140 application. We never got a chance to file I-485.
2] After I quite company A, they withdrew my I-140 application.
3] Company B started the process again with my labor application, followed by my new I-140 application. We didn't capture the older PD at this stage, but the A# was the same as the old one.
4] When we sent in our I-485 application, we included a letter describing that we would like to retain the older PD (we sent them a snippet of page 27 of the Field Adjudicator's Manual - Yates memo). In the interest of being transparent, we mentioned that the earlier I-140 was withdrawn by the previous employer. After an unrelated RFE, our case was finally approved last Friday (03/18).

I am sharing this information so that others who are stuck in a similar situation can use this as a datapoint in their struggle against the USCIS. I wish you all the very best in your Green Card journey.

Edison99
03-25-2011, 04:11 PM
Congrats the_jaguar and enjoy!
Folks,

I would like to share my success story of getting my I-485 application approved with a revoked/withdrawn I-140. We received our Green Cards and Welcome Letters in the mail yesterday. If you go through my profile, you should be able to get most of the information, but here it is anyway:

1] Company A applied for my LC followed by the I-140 application. We never got a chance to file I-485.
2] After I quite company A, they withdrew my I-140 application.
3] Company B started the process again with my labor application, followed by my new I-140 application. We didn't capture the older PD at this stage, but the A# was the same as the old one.
4] When we sent in our I-485 application, we included a letter describing that we would like to retain the older PD (we sent them a snippet of page 27 of the Field Adjudicator's Manual - Yates memo). In the interest of being transparent, we mentioned that the earlier I-140 was withdrawn by the previous employer. After an unrelated RFE, our case was finally approved last Friday (03/18).

I am sharing this information so that others who are stuck in a similar situation can use this as a datapoint in their struggle against the USCIS. I wish you all the very best in your Green Card journey.

SGP
03-25-2011, 04:48 PM
Once your I-140 is approved and even if the employer files to revoke the I-140 it will not affect your status. It is at the discretion of the USCIS to revoke the approved I-140. USCIS will revoke the approved I-140 if it detects that it was fraudulently obtained.

Now to answer your question : Even if company A files to revoke I-140 before the individual files for H1 transfer, it does not make a difference to the individual.
________________________________
Deadline = April 30th, 2011
Goal = 5000 votes on survey (see I-485 filing w/o current PD thread) and momentum to continue with this campaign.The survey is a platform to gather and push for launching action items. Based on response by 04/30/2011 - IV will decide whether to even proceed with initiative or not.
Actions - 1) Vote on survey.
2)Email ivcoordinator@gmail.com with PD, ph#,email & subject "I485 filing impacted”,
3)Print/Circulate Fliers and spread FB, wiki link (see "support thread")

You said you didn't get a chance to file for I 485 with company A , means you did transfer H1b. Did company A withdraw before you transfered H1b ? Did you do transfer with in initial 6 year of H1b ?

the_jaguar
03-25-2011, 11:46 PM
Thanks for the wishes, folks. I wish you all the very best too. Here are some answers:

You said you didn't get a chance to file for I 485 with company A , means you did transfer H1b. Did company A withdraw before you transfered H1b ? Did you do transfer with in initial 6 year of H1b ?

Actually, my first I-140 was approved after I left the company. For some strange reason, Company A didn't withdraw the application immediately, but waited until it got approved - they were probably hoping that I would go back to them, which I might still do. We parted on good terms.
Yes, I did transfer my H-1B and I was within my initial 6 year period.

Once your I-140 is approved and even if the employer files to revoke the I-140 it will not affect your status. It is at the discretion of the USCIS to revoke the approved I-140. USCIS will revoke the approved I-140 if it detects that it was fraudulently obtained.

Now to answer your question : Even if company A files to revoke I-140 before the individual files for H1 transfer, it does not make a difference to the individual.


In my case, I know that company A filed to withdraw my I-140 for sure. This will be hard to believe, but it's true: both company A and company B use the same law firm, so my lawyer knew that company A had withdrawn my I-140. Yes, the approval is at USCIS's discretion, but this is a grey area - Yates memo says that the priority date can be retained as long as the application has not been revoked by USCIS due to fraud, but the law seems to be a bit ambiguous (I am not a lawyer though). This ends up making each of these cases unique. I am just happy that I didn't have to go through a lengthy MTR process...

the_jaguar
03-25-2011, 11:49 PM
gap between your company A exit date and the date they withdrew your I140?
As per law,, they should not do it for 6 months old approved I140 ?

As I posted earlier, I had left Company A before the I-140 approval, so I don't really know how long they waited before withdrawing the approved I-140.

Are you sure that there is a law regarding the 6 month period? AFAIK, this only applies when you have filed you I-1485. If it's prior to that, AC-21 doesn't apply...

avpal
09-28-2011, 05:45 PM
I am in similiar situation like you. I am planning to apply for I140 next month. I have heard that USCIS has stopped porting PD from revoked I 140. Can you please give me your your lawyer's details?

nsureshn
10-06-2011, 07:26 PM
My previous EB3 I-140 was revoked by my previous employer about 6 months back. Applied new PERM and labor thru new employer in EB2. I-140 applied on Sep 29 (premium). Got approval today with old PD

coolkay
10-06-2011, 10:05 PM
Could you please provide your lawer's info.

RocketFast
10-07-2011, 01:44 PM
I feel there is a lot of confusion in this particular scenario
* Employer A applies for your PERM and I-140. I-140 gets approved. I-485 is not filed
* You quit Employer A and join Employer B
* Employer A revokes your I-140 --> This is the main concern
* Employer B files your PERM and applies for I-140

In a few cases that I have tracked, your I-140 with company 'B' gets approved without the earlier priority date. Asking USCIS to correct this gets the following reply: "You can ask for this while filing I-1485". And a lot of denials when you file your I-1485s saying that your priority date is not current. Many guys have managed to get it approved after a lot of MTRs.

It is as if different case officers treat this case differently.

Murthy says the following: The same is references at the IV wiki

"There are some issues with respect to retention of the priority date if the I-140 has been revoked. Generally, however, it is the policy of the USCIS to allow the retention and transfer of the earlier priority date if the I-140 petition has not been revoked by the USCIS for fraud or misrepresentation."

Reference:
ht*p://www.murthy.com/news/ n_eb3to2.html

The dangerous word here is "Generally". Is there no clear USCIS rule on this?

A different law firm makes it very clear that USCIS will reject your priority date retention based on a law:

Refernce:
ht*p://www.peterli.us/Content/AOS/ PriorityDate.htm

Pasting the relevent USCIS law:

USCIS has posted an update to the Adjudicators Field Manual on September 12, 2006

Page 27 states:

"(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien's priority date is established by the filing of the labor certification, once the alien's Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest)."

8 CFR 204.5(e) states:

"A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien." (Emphasis added).

This regulation says a priority date will not be retained for a petition revoked under section 205 of the Act. Section 205 of the Act states:

“The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.”

This encompasses revocation for any reason, not just for fraud or willful misrepresentation. The regulations interpreting INA 205 further state, at 8 CFR 205.1(a)(iii)(C) that an I-140 petition shall be automatically revoked “Upon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions.”

Thus, under the law and regulations, when an employment-based I-140 petitioner withdraws an I-140 petition because the beneficiary no longer works for him or her, USCIS automatically revokes the petition which triggers 8 CFR 204.5(e), stating that the revoked petition does not confer a priority date.


This is scary and frustrating.

jungalee43
10-07-2011, 04:22 PM
I seldom vist this forum now and reading this post quite late. However it is nice to know that people have completed GC journey with revoked or withdrawn I-140 and I know more cases whose GC was immediately approved along with the approvals of MTRs. Congrants to jaguar and others.
I am also in the same boat, but with my EB3-I category my journey is still going on............ and on.

dmitri
12-07-2011, 02:22 PM
hello everyone
just FYI
USCIS has changed this rule.
PD is no longer portable if old employer revokes(withdraws old i 140).its the same thing.
when employer withdraws the I 140,it is considered as revoked and therefore USCIS closes that file as being a Fraudulently approved I 140 so it all means same.
the law was always like that - its just that USCIS was linent so far but since last 3 years
so many people have done this that they finally got rid of portability altogether.
just like the labor substitution was done away with in 2008...

prasad_2007
12-07-2011, 03:48 PM
hello everyone
just FYI
USCIS has changed this rule.
PD is no longer portable if old employer revokes(withdraws old i 140).its the same thing.
when employer withdraws the I 140,it is considered as revoked and therefore USCIS closes that file as being a Fraudulently approved I 140 so it all means same.
the law was always like that - its just that USCIS was linent so far but since last 3 years
so many people have done this that they finally got rid of portability altogether.
just like the labor substitution was done away with in 2008...

More number of I140's is a liability to company. That's the reason why a SMALL(financially) employer chose to revoke I140. There are people who just revoke because of bad parting between employe/employee's.

Employer who revokes i140 and states reason as fraud also has to prove reason and evidence of fraud.

Why will USCIS have no other reason than "fraudulently approved" for all revoked I140's

Cheer up guys. Have happy porting...
I am not lawyer but read the law.. Porting clause seems to be less than Java String api..

anu_t
12-07-2011, 06:05 PM
dmitri

Where did you get this information. Please don't spread false rumors.