nk2006
10-16 04:29 PM
Issue/Background:
It seems USCIS is not following AC21 regulations in some cases – especially when underlying I140 is revoked by previous employer – and are incorrectly denying I485 applications. As we know, AC21 regulations and related guidelines, provide some relief and allow job changes without affecting the I485 application. As per these rules if the employee changes employment after 180 days of submitting I485 application, there is no need to redo I140 even-if old employer revokes the old I140.
In recent days USCIS seems to be denying lot of I485 applications – ignoring their own AC21 regulations. A few of IV volunteers (pd_recapturing, gc4me, chanduv et al) have started an effort to address this. You can get more info on this, at this thread: http://immigrationvoice.org/forum/showthread.php?t=21716.
This issue can affect a lot of us and it negates all the flexibility/relief that we acquired by getting EAD’s and advantages we got thru recent admin reform.
What needs to be done:
After some initial discussions and planning (thanks to pd-capturing, chandu, et al) it is decided to write letters to Ombudsman and service center heads to point out this and request them to correct it ASAP. Please participate and send letters. To succeed we need to send it in thousands.
Pasting the letter and the addresses below.
More info: (thanks to gc4me for addresses and letter template):
======================
Everyone please send the letter/email to: Ombudsman
======================
Ombudsman:
cisombudsman@dhs.gov
Mailing Address:
Citizenship and Immigration Services Ombudsman
ATTN: Recommendations
United States Department of Homeland Security
Mail Stop 1225
Washington, D.C. 20528-1225
=======================
============================
Letter
============================
Date: Today()
To
Mr. Michael Timothy Dougherty
The Ombudsman
Citizenship and Immigration Services Ombudsman
United States Department of Homeland Security
Mail Stop 1225
Washington, D.C. 20528-1225
Re: Issues caused by USCIS not following AC21 guidelines
Dear Sir,
This is to bring your attention to the issues caused by USCIS not following AC21 guidelines.
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows for a change of employer on any I-485 Adjustment of Status Application that has been pending for 180 days or more, without the need to file a new I-140 petition, provided the applicant’s new employment is in a similar/same occupation.
According to the Memo released by William R Yates on August 4th 2003, the original I-140 is valid if it is approvable and form I-485 has been pending for more than 180 days. (Attached for your reference is the memo dated August 4th 2003 from William R Yates and the follow-up memo dated May 12th 2005 with relevant sections highlighted).
Due to unreasonable delays caused by retrogression, many candidates have lawfully changed employers in accordance with the AC21 statute. Even though there is no requirement that USCIS be notified after a job change, some applicants have done so to prove that they are in compliance with this regulation. If the previous employer has withdrawn the previously approved I-140, AC21 guidelines state that if the applicant has not submitted evidence of a new qualifying offer of employment, the applicant be sent an NOID (Notice of Intent to Deny) to deny the I-485 application or a RFE (Request for Evidence) . If the response to the NOID/RFE is timely and indicates that the alien has a new offer of employment in the same or similar occupation, USCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485.
Over the past few months, a disturbing pattern has emerged with cases where the applicant has changed employers. USCIS has started to deny I-485applications where the underlying I-140 has been withdrawn by the previous employer without issuing an NOID or RFE. Even those applicants who have notified USCIS of change in employers have had their I-485 denied.
After the denial of I-485, the applicant has to file a MTR (Motion to reconsider) with USCIS to re-open the case. In addition to the financial burden of filing and legal fees, the applicant has to stop working because of the denial of the I-485 until the case is re-opened. This could be anywhere from a month to a few months. Needless to say, employers are unwilling to keep the job position open for such a long period and the applicant in most cases is looking at potential loss of employment. The applicant who has followed the law to the fullest extent is unfairly punished on account of USCIS not following the AC21 provisions.
This is a request for you to intervene to ensure that the AC21 regulations are followed when adjudicating an I-485 application. If the applicant notifies USCIS of a change in employment under AC21, this should be added the applicant’s physical file and electronic records. If there is no such notification and the previous employer withdraws the I-140, the applicant should be issued a NOID/RFE instead of denying the I-485 application.
Should you have any further questions, please do not hesitate to contact.
Thank you in advance for your kind attention and cooperation in this matter.
Thanks,
Your Name
Your Address
Your Phone Number
It seems USCIS is not following AC21 regulations in some cases – especially when underlying I140 is revoked by previous employer – and are incorrectly denying I485 applications. As we know, AC21 regulations and related guidelines, provide some relief and allow job changes without affecting the I485 application. As per these rules if the employee changes employment after 180 days of submitting I485 application, there is no need to redo I140 even-if old employer revokes the old I140.
In recent days USCIS seems to be denying lot of I485 applications – ignoring their own AC21 regulations. A few of IV volunteers (pd_recapturing, gc4me, chanduv et al) have started an effort to address this. You can get more info on this, at this thread: http://immigrationvoice.org/forum/showthread.php?t=21716.
This issue can affect a lot of us and it negates all the flexibility/relief that we acquired by getting EAD’s and advantages we got thru recent admin reform.
What needs to be done:
After some initial discussions and planning (thanks to pd-capturing, chandu, et al) it is decided to write letters to Ombudsman and service center heads to point out this and request them to correct it ASAP. Please participate and send letters. To succeed we need to send it in thousands.
Pasting the letter and the addresses below.
More info: (thanks to gc4me for addresses and letter template):
======================
Everyone please send the letter/email to: Ombudsman
======================
Ombudsman:
cisombudsman@dhs.gov
Mailing Address:
Citizenship and Immigration Services Ombudsman
ATTN: Recommendations
United States Department of Homeland Security
Mail Stop 1225
Washington, D.C. 20528-1225
=======================
============================
Letter
============================
Date: Today()
To
Mr. Michael Timothy Dougherty
The Ombudsman
Citizenship and Immigration Services Ombudsman
United States Department of Homeland Security
Mail Stop 1225
Washington, D.C. 20528-1225
Re: Issues caused by USCIS not following AC21 guidelines
Dear Sir,
This is to bring your attention to the issues caused by USCIS not following AC21 guidelines.
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows for a change of employer on any I-485 Adjustment of Status Application that has been pending for 180 days or more, without the need to file a new I-140 petition, provided the applicant’s new employment is in a similar/same occupation.
According to the Memo released by William R Yates on August 4th 2003, the original I-140 is valid if it is approvable and form I-485 has been pending for more than 180 days. (Attached for your reference is the memo dated August 4th 2003 from William R Yates and the follow-up memo dated May 12th 2005 with relevant sections highlighted).
Due to unreasonable delays caused by retrogression, many candidates have lawfully changed employers in accordance with the AC21 statute. Even though there is no requirement that USCIS be notified after a job change, some applicants have done so to prove that they are in compliance with this regulation. If the previous employer has withdrawn the previously approved I-140, AC21 guidelines state that if the applicant has not submitted evidence of a new qualifying offer of employment, the applicant be sent an NOID (Notice of Intent to Deny) to deny the I-485 application or a RFE (Request for Evidence) . If the response to the NOID/RFE is timely and indicates that the alien has a new offer of employment in the same or similar occupation, USCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485.
Over the past few months, a disturbing pattern has emerged with cases where the applicant has changed employers. USCIS has started to deny I-485applications where the underlying I-140 has been withdrawn by the previous employer without issuing an NOID or RFE. Even those applicants who have notified USCIS of change in employers have had their I-485 denied.
After the denial of I-485, the applicant has to file a MTR (Motion to reconsider) with USCIS to re-open the case. In addition to the financial burden of filing and legal fees, the applicant has to stop working because of the denial of the I-485 until the case is re-opened. This could be anywhere from a month to a few months. Needless to say, employers are unwilling to keep the job position open for such a long period and the applicant in most cases is looking at potential loss of employment. The applicant who has followed the law to the fullest extent is unfairly punished on account of USCIS not following the AC21 provisions.
This is a request for you to intervene to ensure that the AC21 regulations are followed when adjudicating an I-485 application. If the applicant notifies USCIS of a change in employment under AC21, this should be added the applicant’s physical file and electronic records. If there is no such notification and the previous employer withdraws the I-140, the applicant should be issued a NOID/RFE instead of denying the I-485 application.
Should you have any further questions, please do not hesitate to contact.
Thank you in advance for your kind attention and cooperation in this matter.
Thanks,
Your Name
Your Address
Your Phone Number
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addsf345
11-19 01:26 PM
One more update: Found another thread on RG's forum. This one is very specific.
http://immigration-information.com/forums/showpost.php?p=25447&postcount=7
Re: EAD & wrongful denial of 485 due to I-140 revoked by employer after 180 days AC21
--------------------------------------------------------------------------------
Let my try to clarify my answer, since I didn't do that good a job previously.
An EAD remains valid until it expires, unless it is explicitly revoked. Sometimes, but not always, when the CIS denies an I-485, they also revoke the EAD.
For argument's sake, let's assume that an employer has attempted to revoke an approved I-140 in a case where the applicant's I-485 has been pending for more than 180 days. Let's further assume that the CIS denies the I-485 on this basis and also revokes the EAD.
In my opinion, since there is no legal authority for such a denial, and the denial violates the law, it is invalid. Now, I want to make it clear that this is a very unusual situation. It is extremely rare that you find a situation where a CIS adjustment of status denial is clearly and unequivocally illegal, but this is one of those situations.
Because a denial of this type is illegal, the revocation of the applicant's employment authorization is also improper. If an applicant, in this highly unusual and extremely limited situation, works without authorization, then in my opinion that falls into the "beyond his control" exception and no penalty can be imposed.
desi, thank you for sharing above. Can some one clarify what RG means by "beyond his control exception"???
is this a standard CIS term? Have anyone heard this term before? If it is a common term used while appeals or MTRs, I would say, RG is correct. However I haven't come across this before.
http://immigration-information.com/forums/showpost.php?p=25447&postcount=7
Re: EAD & wrongful denial of 485 due to I-140 revoked by employer after 180 days AC21
--------------------------------------------------------------------------------
Let my try to clarify my answer, since I didn't do that good a job previously.
An EAD remains valid until it expires, unless it is explicitly revoked. Sometimes, but not always, when the CIS denies an I-485, they also revoke the EAD.
For argument's sake, let's assume that an employer has attempted to revoke an approved I-140 in a case where the applicant's I-485 has been pending for more than 180 days. Let's further assume that the CIS denies the I-485 on this basis and also revokes the EAD.
In my opinion, since there is no legal authority for such a denial, and the denial violates the law, it is invalid. Now, I want to make it clear that this is a very unusual situation. It is extremely rare that you find a situation where a CIS adjustment of status denial is clearly and unequivocally illegal, but this is one of those situations.
Because a denial of this type is illegal, the revocation of the applicant's employment authorization is also improper. If an applicant, in this highly unusual and extremely limited situation, works without authorization, then in my opinion that falls into the "beyond his control" exception and no penalty can be imposed.
desi, thank you for sharing above. Can some one clarify what RG means by "beyond his control exception"???
is this a standard CIS term? Have anyone heard this term before? If it is a common term used while appeals or MTRs, I would say, RG is correct. However I haven't come across this before.
vin13
02-23 01:55 PM
Processing dates for 485 seems to have greatly improved at NSC. Hopefully now they start issueing based on the priority date.
2011 The Periodic Table
kumar1
08-13 05:22 PM
Thank you for this thread. This news has given me fresh energy to start my case one more time under EB-2 category. I just finished filing a long document for my attorney. This news has given me enough strngth to do that. My advise, I do not see any hope in EB3-I category, unless someone makes a change in existing laws. I can't complain about EB-3 either because we could file I-485 during July-07, my wife got EAD and we do not have to go to consulate every time we visit home country. When there is a will there is a way. It is hard to just sit and watch this so called BS or DOS visa bulls.
more...
h1b_professional
07-20 10:19 AM
Should we send emails to our Senators requesting them to vote for SKIL bill
Email campaign may be
Email campaign may be
suavesandeep
05-29 01:48 PM
I don't want to argue either.
In my case, I saved $400 per month as I got mine on 4.5% interest rate. If I got mine on 6% interest rate, I would have paid $144,000 more in the entire duration of my loan. I can't say enough on the value of my house because it is the lowest compared to all my neighbors with same model. The location has the best school district in the city and the elementary school is 3 blocks away.
Refinancing is a tricky part of this game. Refinancing is not always good because most of the time, you will start at month 1 again where the interest part is higher than the principal. It also has closing cost. One should only refinance if the difference is greater than 1%. 1% is only break even.
I am not saying all others should buy now. What I am saying is that we cannot say it's not a good time to buy either. It depends on where you're buying.
Agree with you. Was just offering some more perspective. Personally i dont see mortgage interest rates going north of 6% for a long time (say next 3 years at the minimum).
Reason being the dynamics are really different this time around.Fed has bought tons of treasury bonds this time to keep the interest rates low over a long period of time. Why is treasury bonds important because they have long term implications and mortgage companies use this as a important tool to decide interest rates.
Odd of a L shaped recovery are also high. This is an old article but good reading
http://online.wsj.com/article/SB124044454676445637.html
In my case, I saved $400 per month as I got mine on 4.5% interest rate. If I got mine on 6% interest rate, I would have paid $144,000 more in the entire duration of my loan. I can't say enough on the value of my house because it is the lowest compared to all my neighbors with same model. The location has the best school district in the city and the elementary school is 3 blocks away.
Refinancing is a tricky part of this game. Refinancing is not always good because most of the time, you will start at month 1 again where the interest part is higher than the principal. It also has closing cost. One should only refinance if the difference is greater than 1%. 1% is only break even.
I am not saying all others should buy now. What I am saying is that we cannot say it's not a good time to buy either. It depends on where you're buying.
Agree with you. Was just offering some more perspective. Personally i dont see mortgage interest rates going north of 6% for a long time (say next 3 years at the minimum).
Reason being the dynamics are really different this time around.Fed has bought tons of treasury bonds this time to keep the interest rates low over a long period of time. Why is treasury bonds important because they have long term implications and mortgage companies use this as a important tool to decide interest rates.
Odd of a L shaped recovery are also high. This is an old article but good reading
http://online.wsj.com/article/SB124044454676445637.html
more...
santb1975
06-10 11:54 AM
^^^
2010 Periodic Table of Visual
marwan234
08-10 02:10 PM
Sing it: "No checks no receipt...whatcha gonna do...whatcha gonna do when they come for you (Border control)"....Hey!! I'm legal!!!:D
5 weeks and nothing.....But i did get my H1/H4 8th yr receipts in a week.
5 weeks and nothing.....But i did get my H1/H4 8th yr receipts in a week.
more...
JAYASURESH
05-02 01:12 PM
it is shame on IRS!! listen, everyone is paying tax. if we are able to file tax as couple with itin for the spouse, why are they not using the same approach for the stimulus package. Do they not aware of this section of h1b visa holders who are paying taxes and are not benefited. folks, some of you are in h1b and got your ead and ssn for your sponse are better off, there are folks who are still on h1b and spouse on h4 filed with itin is not eligible because i am not within in the <70k limit. this is ridiculus and shame for everyone who came up with the great idea of stimulating the economy and share our tax money to others and not with this disadvantage section of the people. it is absolutely shame for IRS or whoever came up with the super idea of not considering the folks who filed with ITIN. IRS listen, if anyone who is citizen, illegal or legal, if they pay tax, they are entitled to get this stimulus package.. it is really a shame on you whoever not recognized this affected section of people.
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coopheal
05-04 06:31 AM
call a few senator offices yesterday. they are saying since bill is not yet introduced, they do not have any position on the bill.
more...
skv
06-22 03:13 PM
so it is tied to the applied applications can you not check someones elses application
-M
The employer can establish an account for an attorney or other agent at http://www.plc.doleta.gov. It's unique PERM cases filed by that employer.
-M
The employer can establish an account for an attorney or other agent at http://www.plc.doleta.gov. It's unique PERM cases filed by that employer.
hot The table has found many
gclabor07
07-11 10:52 AM
Folks,
Congrats to all those who are current. I'm keeping my fingers crossed for my chance to file I-485. It would really benefit the rest of us who missed the last July 07 boat.
Congrats to all those who are current. I'm keeping my fingers crossed for my chance to file I-485. It would really benefit the rest of us who missed the last July 07 boat.
more...
house Trends - Periodic Table
wellwisher02
04-01 08:46 AM
Wow, so you're telling me be happy as somebody else is in pain now ???
Their problems doesn't make me smile here. I want solutions to my problems.
If you need solutions to your problems, you need to act professionallly as all other IV members do. Please stop throwing tantrums and also mind your P's and Q's when you utter expletives against USCIS. Will you be brave enough (if not foolhardy enough) to reproduce whatever you said here in a letter and send it out to the USCIS? Trust me, you'll not since you'd act politely and professionally to make out your case. We expect you to act with decorum when you discuss pertinent issues in IV forum.
Their problems doesn't make me smile here. I want solutions to my problems.
If you need solutions to your problems, you need to act professionallly as all other IV members do. Please stop throwing tantrums and also mind your P's and Q's when you utter expletives against USCIS. Will you be brave enough (if not foolhardy enough) to reproduce whatever you said here in a letter and send it out to the USCIS? Trust me, you'll not since you'd act politely and professionally to make out your case. We expect you to act with decorum when you discuss pertinent issues in IV forum.
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arc
07-15 07:48 PM
10$ - Good work guys BABY STEPS...:)
....IV EB3 NEEDS HELP....
....IV EB3 NEEDS HELP....
more...
pictures Other Periodic Table Trends
makemygc
07-06 01:01 PM
My lawyer told me that they are working on something to accept all applications which reached on july ... lets hope he is right.
Dude enough of your and your lawyer's crap. I just checked your last post. This is what you claim your lawyer said and this was posted couple of days back.
--------------------------------------------------------------------------------
I called my lawyer he said the are accepting applications which reached there before 12:15. does anybody have news like that or he just lying....
Dude enough of your and your lawyer's crap. I just checked your last post. This is what you claim your lawyer said and this was posted couple of days back.
--------------------------------------------------------------------------------
I called my lawyer he said the are accepting applications which reached there before 12:15. does anybody have news like that or he just lying....
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pcs
07-05 10:17 AM
I will email it you. Send me a PM
Actual copy of WSJ & Congresswoman made all the difference in the reaction of the office staff
Actual copy of WSJ & Congresswoman made all the difference in the reaction of the office staff
more...
makeup Periodic trends
yestogc
06-11 08:16 PM
Who is this guy selling mangoes ?
Admin, can we have any control on such posts.
Admin, can we have any control on such posts.
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mirage
08-18 08:15 AM
Yesterday I filled up the appointment form of my local congressman. I will try if I can meet him and he could probably write to the public officials or could talk to rep. Zo Lofgren. In my opinion if we can somehow inform Rep. Lofgren, she will certainly do something. She seems really(genuinely) concerned for the plight of Green Card seekers...
I would request everybody to find out ways and channels to get this information to her....
grupak/mirage/pani6
i support your efforts and have printed out and sent letters to the people mentioned. Momentum for release of information should build up even if we have 50-100 letters from affected people...otherwise people won't know of EB-3 IND's plight.
I suppose we should followup with phone calls in 15 days to cement our request. We should have a poll on who all has sent the letter and made the call.
I would request everybody to find out ways and channels to get this information to her....
grupak/mirage/pani6
i support your efforts and have printed out and sent letters to the people mentioned. Momentum for release of information should build up even if we have 50-100 letters from affected people...otherwise people won't know of EB-3 IND's plight.
I suppose we should followup with phone calls in 15 days to cement our request. We should have a poll on who all has sent the letter and made the call.
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jthomas
01-05 11:17 PM
I don't agree with you Gayatri.
As per my experience, America does not have more educated skilled engineers. I have couple of friends who are MS holders and cannot fit with BE level engineers in India. I am talking about those guys who were born and grew up in the US. Secondly, most of the engineering companies have asians as engineering managers and directors. He had mentioned that most of the industries in silicon valley were started by immigrants from China and India. Do u want to count them as engineers from US?? They are the top engineers from the asian countries. So i don't buy his comments.
So are you judging all of India's education by the IIT's? I didn't graduate from IIT and so didn't 99.9% of Indian IT people.
I can tell you for a fact that Universities in America are much better than those in India. This is why I came here and I went to an average university here which I could afford.
What Professor-ji said in the video was that Indians were successful DESPITE the poor education they received in India. India is becoming a world superpower in research and development DESPITE this. I believe this is true. Indians know how to compete and will be world leaders because they work hard and think smart.
Lets not fool ourselves at least!! We need to learn to accept the truth.
As per my experience, America does not have more educated skilled engineers. I have couple of friends who are MS holders and cannot fit with BE level engineers in India. I am talking about those guys who were born and grew up in the US. Secondly, most of the engineering companies have asians as engineering managers and directors. He had mentioned that most of the industries in silicon valley were started by immigrants from China and India. Do u want to count them as engineers from US?? They are the top engineers from the asian countries. So i don't buy his comments.
So are you judging all of India's education by the IIT's? I didn't graduate from IIT and so didn't 99.9% of Indian IT people.
I can tell you for a fact that Universities in America are much better than those in India. This is why I came here and I went to an average university here which I could afford.
What Professor-ji said in the video was that Indians were successful DESPITE the poor education they received in India. India is becoming a world superpower in research and development DESPITE this. I believe this is true. Indians know how to compete and will be world leaders because they work hard and think smart.
Lets not fool ourselves at least!! We need to learn to accept the truth.
mps
07-20 06:25 PM
You have to consider the scenario where both spouses have LC pending in PERM and BEC- and only one may have applied for 485. I'm just hoping people who have bought the LCs and tuned their work experience to suit available LC would be scrutinized strictly and would stay in I-140 stage longer.
Out of the 144k perm, FEW have 2 labors (1 in eb3 and another in eb2). Also many have labors in BEC as well as PERM (THIS IS QUITE A LOT). So the total real applicants combined from BEC and PERM could be around 200k. Not all the dependants (kids) need EAD. Not all the primary applicants apply for EAD. The total approximate EAD applicants could be 350K.
ALSO, ONE THING YOU HAVEN'T CONSIDERED...As the priority dates are unavailable until october and the expected slow movement of the 2008 bullettins(because they have the count of pending applicants now), there will be only very few EAD applicants in next few months. How ever, all these applicants will re-apply every year...they they can expect this same load until they provide a relief to issue visas to everybody.
Note: Next year..expect the same delay for renewal.
Out of the 144k perm, FEW have 2 labors (1 in eb3 and another in eb2). Also many have labors in BEC as well as PERM (THIS IS QUITE A LOT). So the total real applicants combined from BEC and PERM could be around 200k. Not all the dependants (kids) need EAD. Not all the primary applicants apply for EAD. The total approximate EAD applicants could be 350K.
ALSO, ONE THING YOU HAVEN'T CONSIDERED...As the priority dates are unavailable until october and the expected slow movement of the 2008 bullettins(because they have the count of pending applicants now), there will be only very few EAD applicants in next few months. How ever, all these applicants will re-apply every year...they they can expect this same load until they provide a relief to issue visas to everybody.
Note: Next year..expect the same delay for renewal.
satyasaich
07-15 01:10 PM
Here is my pledge.
If $2000 is reached today, i will send another $50 today.
(Fyi, i've already sent$50 yesterday)
Satya
Thanks SkilledWorker4GC !
Any one else would like to pledge just 5 $ when we reach 2000 $
Bestofall
PD March 2005 India
485 Applied Jul2 2007
If $2000 is reached today, i will send another $50 today.
(Fyi, i've already sent$50 yesterday)
Satya
Thanks SkilledWorker4GC !
Any one else would like to pledge just 5 $ when we reach 2000 $
Bestofall
PD March 2005 India
485 Applied Jul2 2007
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