Hey guys, I am sorry I forgot the exact words I used in my letter. But it is a very short and simple one. I prepared it based on the info (as I attached below) I had got from internet. You guys may check the attached info and generate your letters with your tact. Please don’t forget checking your 485 receipts so that the letter is addressed to the very office. Good luck to you all and hope you get your GC soon!
______________________
I-485 switch
Apparently there has been an (unpublished) change in policy and procedures. According to the (now extinct) VSC walkup window as well as information from the AILA liasion meeting, you can have two concurrent I485 pending but you will only be able to receive one GC.
If the I140 on the first one is approved, you can carry the notice date over to the second one.
If the first I140 is denied you can't carry the benefits from the initial filing over.
All this doesn't make too much sense, but that is the information I received in a similar case.
(blablabla, not a lawyer, talk to one, this is just information given to me blabalab)
Swapping of I-140 is always allowed. Even the denial notice for I-485 contains the clause 'Since you do not have any pending immigrant petition this I-485 is denied'
So if you show any other pending I-140 you should be fine. Actually filing second I-485 is never encouraged by the some famous attorneys. Usually second I-140 is filed with CP option.
Believe me. I am passed through that situation and had big consultations regarding this issue. They are of the opinion that this may raise the issue of intent if audited. You cannot have the multiple intent at a time. Filing I-485 needs the intent of joining that company. hence it might lead to lying under oath.
You can get more info if you search Sheela Murthy's chats.
The correct procedure in such a situation is to file a Motion to Reconsider pointing out the approved I-140 and requesting amendment of your I-485 based on that approved petition. The EAD/AP and priority dates will all be retained.
You have only 30 days after the date of denial to file an MTR. After that point you'll need to file a new I-485.
Quote:
Originally Posted by rdip
However, the INS never linked the 485 to approved eb1ea and denied it at the time of denying niw 140. I have the 485 denial notice which reads exactly what you said.
The correct procedure in such a situation is to file a Motion to Reconsider pointing out the approved I-140 and requesting amendment of your I-485 based on that approved petition. The EAD/AP and priority dates will all be retained.
You have only 30 days after the date of denial to file an MTR. After that point you'll need to file a new I-485.
BCIS Memo on I-485 Portability After I-140 Revocation
Posted Aug 12, 2003
New Job Must Be "Same or Similar"
The Memo states that if the I-140 petition has been approved and the I-485 applicant takes a new job in a "same or similar" position after the I-485 application has been pending 180 days or longer, then the underlying I-140 petition remains valid under AC21. In a footnote, BCIS mentions that the underlying Labor Certification also remains valid if the same conditions are satisfied.
If the I-485 has been pending fewer than 180 days, then the approved I-140 petition shall not remain valid and shall not entitle the foreign national to work with a new employer or in a new job under AC21.
Revocation or Withdrawal of the I-140 Petition
The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal.
Evidence of New Job Must Be Submitted to BCIS
In cases where the I-140 is revoked, the Memo states that it is "expected" that the foreign national will have submitted evidence of qualifying new employment which is the "same or similar" to the position as with the original sponsoring employer. If that evidence has been submitted, the adjudicating officer may simply adjudicate the case as though the approved I-140 petition had never been withdrawn.
If the I-485 applicant has not yet submitted evidence of a new job offer when the I-140 petition is revoked or withdrawn, the adjudicating officer is directed to issue a Notice of Intent to Deny (NOID). The disadvantages of a NOID have been discussed under, "Analysis and Conclusion," below.
If the applicant responds to the NOID with proof of a new "same or similar" job within the time allotted on the NOID, the case may be favorably adjudicated, notwithstanding the revocation of the I-140 petition. If, however, the applicant is unable to provide evidence of a qualifying new AC21 employer showing that the new position is indeed a "same or similar" job, the I-485 application may be immediately denied.
Employer's Revocation of I-140 before 180 Days
If the I-140 is revoked prior to the 180-day point or prior to approval of the I-140 petition, then the I-140 petition is no longer valid and the I-485 will have no basis for approval under AC21.
No Need to Work for Sponsoring Employer to Use AC21
the BCIS Memo uses the incorrect term "withdrawal" instead of revocation in various sections of this Memo, which causes some confusion. The term "withdrawal" is used in the context where a petition is pending with the BCIS and not yet approved. An employer or an applicant may request a withdrawal in cases where there is no final decision on the petition or application. After the approval of a petition, the employer may only request that the I-140 petition be revoked.
Finally, by requiring the BCIS to issue a NOID instead of an RFE regarding evidence of the new employment being the "same or similar", the I-485 adjustment applicant enjoys lesser rights and privileges. A NOID is not a denial, nor is it merely a Request for Evidence (RFE). It is a notice advising that the BCIS intends to deny the case, unless they receive information to overcome their intention. Generally, NOIDs have a shorter response of only 30 days time, compared to an RFE, which generally enjoys 12 weeks time to respond.
This would be problematic for applicants that are between jobs when the NOID arrives and are unable to find the required qualifying employment for AC21 portability before the NOID deadline. Also, with a NOID, the foreign national is not allowed to merely request a withdrawal of the I-485 application as with an RFE. By filing a withdrawal request, a person is deemed not to have filed the petition or application under law and, therefore, the person does not have a final adverse decision on the case. The term "withdrawal" has been explained above in this section. By failing to respond to the NOID, the BCIS will deny the case at the end of the 30 days.
______________________
I-485 switch
Apparently there has been an (unpublished) change in policy and procedures. According to the (now extinct) VSC walkup window as well as information from the AILA liasion meeting, you can have two concurrent I485 pending but you will only be able to receive one GC.
If the I140 on the first one is approved, you can carry the notice date over to the second one.
If the first I140 is denied you can't carry the benefits from the initial filing over.
All this doesn't make too much sense, but that is the information I received in a similar case.
(blablabla, not a lawyer, talk to one, this is just information given to me blabalab)
Swapping of I-140 is always allowed. Even the denial notice for I-485 contains the clause 'Since you do not have any pending immigrant petition this I-485 is denied'
So if you show any other pending I-140 you should be fine. Actually filing second I-485 is never encouraged by the some famous attorneys. Usually second I-140 is filed with CP option.
Believe me. I am passed through that situation and had big consultations regarding this issue. They are of the opinion that this may raise the issue of intent if audited. You cannot have the multiple intent at a time. Filing I-485 needs the intent of joining that company. hence it might lead to lying under oath.
You can get more info if you search Sheela Murthy's chats.
The correct procedure in such a situation is to file a Motion to Reconsider pointing out the approved I-140 and requesting amendment of your I-485 based on that approved petition. The EAD/AP and priority dates will all be retained.
You have only 30 days after the date of denial to file an MTR. After that point you'll need to file a new I-485.
Quote:
Originally Posted by rdip
However, the INS never linked the 485 to approved eb1ea and denied it at the time of denying niw 140. I have the 485 denial notice which reads exactly what you said.
The correct procedure in such a situation is to file a Motion to Reconsider pointing out the approved I-140 and requesting amendment of your I-485 based on that approved petition. The EAD/AP and priority dates will all be retained.
You have only 30 days after the date of denial to file an MTR. After that point you'll need to file a new I-485.
BCIS Memo on I-485 Portability After I-140 Revocation
Posted Aug 12, 2003
New Job Must Be "Same or Similar"
The Memo states that if the I-140 petition has been approved and the I-485 applicant takes a new job in a "same or similar" position after the I-485 application has been pending 180 days or longer, then the underlying I-140 petition remains valid under AC21. In a footnote, BCIS mentions that the underlying Labor Certification also remains valid if the same conditions are satisfied.
If the I-485 has been pending fewer than 180 days, then the approved I-140 petition shall not remain valid and shall not entitle the foreign national to work with a new employer or in a new job under AC21.
Revocation or Withdrawal of the I-140 Petition
The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal.
Evidence of New Job Must Be Submitted to BCIS
In cases where the I-140 is revoked, the Memo states that it is "expected" that the foreign national will have submitted evidence of qualifying new employment which is the "same or similar" to the position as with the original sponsoring employer. If that evidence has been submitted, the adjudicating officer may simply adjudicate the case as though the approved I-140 petition had never been withdrawn.
If the I-485 applicant has not yet submitted evidence of a new job offer when the I-140 petition is revoked or withdrawn, the adjudicating officer is directed to issue a Notice of Intent to Deny (NOID). The disadvantages of a NOID have been discussed under, "Analysis and Conclusion," below.
If the applicant responds to the NOID with proof of a new "same or similar" job within the time allotted on the NOID, the case may be favorably adjudicated, notwithstanding the revocation of the I-140 petition. If, however, the applicant is unable to provide evidence of a qualifying new AC21 employer showing that the new position is indeed a "same or similar" job, the I-485 application may be immediately denied.
Employer's Revocation of I-140 before 180 Days
If the I-140 is revoked prior to the 180-day point or prior to approval of the I-140 petition, then the I-140 petition is no longer valid and the I-485 will have no basis for approval under AC21.
No Need to Work for Sponsoring Employer to Use AC21
the BCIS Memo uses the incorrect term "withdrawal" instead of revocation in various sections of this Memo, which causes some confusion. The term "withdrawal" is used in the context where a petition is pending with the BCIS and not yet approved. An employer or an applicant may request a withdrawal in cases where there is no final decision on the petition or application. After the approval of a petition, the employer may only request that the I-140 petition be revoked.
Finally, by requiring the BCIS to issue a NOID instead of an RFE regarding evidence of the new employment being the "same or similar", the I-485 adjustment applicant enjoys lesser rights and privileges. A NOID is not a denial, nor is it merely a Request for Evidence (RFE). It is a notice advising that the BCIS intends to deny the case, unless they receive information to overcome their intention. Generally, NOIDs have a shorter response of only 30 days time, compared to an RFE, which generally enjoys 12 weeks time to respond.
This would be problematic for applicants that are between jobs when the NOID arrives and are unable to find the required qualifying employment for AC21 portability before the NOID deadline. Also, with a NOID, the foreign national is not allowed to merely request a withdrawal of the I-485 application as with an RFE. By filing a withdrawal request, a person is deemed not to have filed the petition or application under law and, therefore, the person does not have a final adverse decision on the case. The term "withdrawal" has been explained above in this section. By failing to respond to the NOID, the BCIS will deny the case at the end of the 30 days.
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