140 Horror Stories & Cautions to be taken

[qesehmk]

Guys .... here is a horror story ongoing with a friend of mine (lets call him Ajay). Posting so that you can avoid some of the things in this story and safeguard your interest.

Ajay is an SAP expert of high calibre. Working in US for over 4-5 years and prior internationally in singapore and other places. Came to US on L1-A and at some point of time filed GC in EB1.

Last month went to India to see a sick relative and while coming back into US the IO tells him that he is out of status because his I-140 is rejected and 485 is cancelled and so is his EAD AP etc. He is completely baffled and says he has no clue about it and that he has house in US and so needs some time to figure things out and appeal etc. He gets a 1.5 months entry into US to sort things out but his passport is retained by the IO and forwarded to the USCIS office in the city he lives.

The formal reason for rejection given is that the managerial experience shown for green card is spread 6 months in India and 6 months in another country and hence is not valid. As per USCIS he needs to have experience in the same country.

The company assigns the company lawyer who initially says Ajay has a strong case and that 140 can be appealed favorably. But later lawyer changes mind and says swallow the bitter pill - go back to India and then come back again after certain period on a fresh visa and then we can restart GC process.

Ajay has an appointment with USCIS and is confused what to do.

---------------------------------
Here are a few lessons that a lot of us can learn:
1. Try to avoid travel when dates are current.
2. Enter your case into USCIS portal and assign to alert so that you don't learn status from IO while entering country.
3. Always have a backup status like H1 just in case somethings go wrong. (if spouse has one -- great)
4. Don't panick if things go wrong - explain things to IO - they are reasonable people.
5. In case of rejection - Appeal immediately. Do not wait till last moment. Have your management understand the acuteness of situation. Many times management will leave it to lawyer and the lawyer will take his sweet time.

All the best. My heart goes out for this guy. If there is anybody on forum who went through similar experience please reach out to me or post your experience right here.

[gtyagi]

Hello Q and everyone,

I am posting this question as it is very important and there are a lot of visitors on this thread. Please move it to the appropriate thread, when applicable.

My H1B is valid till 2016 with current company. This was extended for 3 years based on approved i140 from previous company. I am in the process of joining a new company and they filed for H1B transfer and extension. I got an RFE stating that I am not entitled for extension as my I 140 has been revoked. My attnys are working on the response but I wanted to throw this out here.

How difficult is this case to be approved? I don't even need an extension if they can just transfer and approve it till 2016.

Is it possible that I get approval? Experts please advise. I will really appreciate it.

[qesehmk]

tyagi - I will provide my thoughts but lets see what others too also have to say.

It looks like the action of your previous employer to cancel 140 is having cascading effect on your 485 as well as on H1.
I think there are 2 things that are kind of separate from each other that you and your new company/lawyer need to figure answers to.
1. Are you AC21 eligible. If so cancelling 140 is not allowed. To answer this you don't need your lawyer. Just find out AC21 criteria and see if you fit them.
2. I am not sure if you already have an approved H1 till 2016 then why your new company is asking for another extension and on what basis?

As far as I can see your current H1 should be transferable to new company as long as your prior employer doesn't revoke H1 (which sometimes employers do). So if I were you I would worry more about whether my current employer that for whatever reason spent some money to got my 140 revoked - has also taken steps to revoke the H1.

Sorry for this rather bleak commentary. But just wanted to lay out my thoughts. Perhaps you can talk with lawyer and see if these thoughts are sensible at all !! Good luck.

Hello Q and everyone,

I am posting this question as it is very important and there are a lot of visitors on this thread. Please move it to the appropriate thread, when applicable.

My H1B is valid till 2016 with current company. This was extended for 3 years based on approved i140 from previous company. I am in the process of joining a new company and they filed for H1B transfer and extension. I got an RFE stating that I am not entitled for extension as my I 140 has been revoked. My attnys are working on the response but I wanted to throw this out here.

How difficult is this case to be approved? I don't even need an extension if they can just transfer and approve it till 2016.

Is it possible that I get approval? Experts please advise. I will really appreciate it.

[gtyagi]

Hi Q,

Thanks for your response. The situation is little different. I have no i485 filed so no AC21. Here are details:

I left company A in 2010 and joined B. This was my 4th year of H1B and I got transfer to B. Company B filed extension in 2012 and again in 2013 and I got visa approved till 2016. Company B also applied for I-140 which got denied recently. So, I thought I would transfer my visa to company C. Company C filed for transfer and got RFE. It says, Company A revoked I-140 in 2010 itself. This is still a mystery as how they gave me extension twice based on revoked I-140. But the question is, can I have transfer approved till the current expiry date of 2016? I am hoping I am eligible for transfer NOT extension as I-140 is revoked.

Now, some people may argue that the current extension is not valid as the I-140 was revoked before the extension but I have the extension and nothing can change it. The question is is it transferable.

The other option is to file for I-140 and PERM again with he current employer but I really don't want to do that based on the history of filing process etc.

Your input is greatly appreciated. 2013 has been very bad year with I-140 denial when PD from old one current.(PD EB2 April 2009). And now 2014 comes with bad news. I am puzzled.

Thanks

tyagi - I will provide my thoughts but lets see what others too also have to say.

It looks like the action of your previous employer to cancel 140 is having cascading effect on your 485 as well as on H1.
I think there are 2 things that are kind of separate from each other that you and your new company/lawyer need to figure answers to.
1. Are you AC21 eligible. If so cancelling 140 is not allowed. To answer this you don't need your lawyer. Just find out AC21 criteria and see if you fit them.
2. I am not sure if you already have an approved H1 till 2016 then why your new company is asking for another extension and on what basis?

As far as I can see your current H1 should be transferable to new company as long as your prior employer doesn't revoke H1 (which sometimes employers do). So if I were you I would worry more about whether my current employer that for whatever reason spent some money to got my 140 revoked - has also taken steps to revoke the H1.

Sorry for this rather bleak commentary. But just wanted to lay out my thoughts. Perhaps you can talk with lawyer and see if these thoughts are sensible at all !! Good luck.

[qesehmk]

gtyagi - really sorry to hear the whole story. USCIS's act has some logic but is also illogical and definitely contestable in a court of law. The reason I think it is logical is because indeed if the very basis of prior extension was an I-140 which turned out revoked then logically it doesn't make sense to extend H1.

However since the act is already committed and USCIS could've chosen to do a better job; you are affected personally and are bearing the consequences. It is illogical to go back and nullify what has already happened. Trying to do so shows disregard towards your situation. So I would imagine that you can sue USCIS for failing to do a good job in the first place that has led you into a problematic situation. That will be a costly but difficult path with uncertain future.

Any future extension is completely out of question. The biggest question is can you even retain the existing H1. In my opinion - it is possible - either by appealing (if there is an appeal process) or by suing USCIS (which as I said is not going to be an easy path).

Hi Q,

Thanks for your response. The situation is little different. I have no i485 filed so no AC21. Here are details:

I left company A in 2010 and joined B. This was my 4th year of H1B and I got transfer to B. Company B filed extension in 2012 and again in 2013 and I got visa approved till 2016. Company B also applied for I-140 which got denied recently. So, I thought I would transfer my visa to company C. Company C filed for transfer and got RFE. It says, Company A revoked I-140 in 2010 itself. This is still a mystery as how they gave me extension twice based on revoked I-140. But the question is, can I have transfer approved till the current expiry date of 2016? I am hoping I am eligible for transfer NOT extension as I-140 is revoked.

Now, some people may argue that the current extension is not valid as the I-140 was revoked before the extension but I have the extension and nothing can change it. The question is is it transferable.

The other option is to file for I-140 and PERM again with he current employer but I really don't want to do that based on the history of filing process etc.

Your input is greatly appreciated. 2013 has been very bad year with I-140 denial when PD from old one current.(PD EB2 April 2009). And now 2014 comes with bad news. I am puzzled.

Thanks

[gtyagi]

Thanks Q.

I think at this time they are not questioning the validity of the current H1B. I was wondering, in my case, the extension is impossible. However, can it be transferred to another company. Just transfer till 2016 no extension.

Please advise.

gtyagi - really sorry to hear the whole story. USCIS's act has some logic but is also illogical and definitely contestable in a court of law. The reason I think it is logical is because indeed if the very basis of prior extension was an I-140 which turned out revoked then logically it doesn't make sense to extend H1.

However since the act is already committed and USCIS could've chosen to do a better job; you are affected personally and are bearing the consequences. It is illogical to go back and nullify what has already happened. Trying to do so shows disregard towards your situation. So I would imagine that you can sue USCIS for failing to do a good job in the first place that has led you into a problematic situation. That will be a costly but difficult path with uncertain future.

Any future extension is completely out of question. The biggest question is can you even retain the existing H1. In my opinion - it is possible - either by appealing (if there is an appeal process) or by suing USCIS (which as I said is not going to be an easy path).

[qesehmk]

gtyagi - I am clearly a poor listener! Sorry.

I think there is a risk in even transferring because that creates an opportunity to review the H1 again. And even if you can argue as I described in my earlier post - the potential that USCIS may actually void the entire H1 can't be ruled out.

But I understand that you may have a compelling reason to switch to C - So perhaps this is a thing where talking to a lawyer is sorely needed. Best wishes to you. I hope it sorts out favorably for you.

Thanks Q.

I think at this time they are not questioning the validity of the current H1B. I was wondering, in my case, the extension is impossible. However, can it be transferred to another company. Just transfer till 2016 no extension.

Please advise.

[gtyagi]

Thanks for the best wishes Q.

gtyagi - I am clearly a poor listener! Sorry.

I think there is a risk in even transferring because that creates an opportunity to review the H1 again. And even if you can argue as I described in my earlier post - the potential that USCIS may actually void the entire H1 can't be ruled out.

But I understand that you may have a compelling reason to switch to C - So perhaps this is a thing where talking to a lawyer is sorely needed. Best wishes to you. I hope it sorts out favorably for you.

[incredible]

Hi gtyagi
I believe there is nothing called Transfer of H1. When we change jobs, the new company has to file H1 and it is a new H1 and not a transfer. I slightly differ with Q on the suggestion that you can contest the earlier current non-approval of H1 on earlier wrong doings (in approving H1 based on revoked I140). Two wrongs probably can not make it one right. Since H1 is never technically transferred, USCIS should have found out the I140 denial as part of first H1 (with new company) itself but they probably found little late. The only Transfer in whole of H1 is related to Transfer Memorandum when the location is changed from one to another ( I believe USCIS is stressing on the need for fresh H1 even in those cases these days).

My 2 cents.

Thanks for the best wishes Q.

gtyagi - I am clearly a poor listener! Sorry.

I think there is a risk in even transferring because that creates an opportunity to review the H1 again. And even if you can argue as I described in my earlier post - the potential that USCIS may actually void the entire H1 can't be ruled out.

But I understand that you may have a compelling reason to switch to C - So perhaps this is a thing where talking to a lawyer is sorely needed. Best wishes to you. I hope it sorts out favorably for you.

[incredible]

Q
This is really scary story to go through. How can this person (Ajay) utilize other approaches like AC-21 in these cases and can escape the problems related to I140. I understand for EB1 it is rare to hear about AC-21 etc, but is there any possibility to utilize that route and avoid getting penalized for I-140 rejections etc?

Can the same condition be true for EB2 as well, since I-140 rejection can happen for various reasons?

Guys .... here is a horror story ongoing with a friend of mine (lets call him Ajay). Posting so that you can avoid some of the things in this story and safeguard your interest.

Ajay is an SAP expert of high calibre. Working in US for over 4-5 years and prior internationally in singapore and other places. Came to US on L1-A and at some point of time filed GC in EB1.

Last month went to India to see a sick relative and while coming back into US the IO tells him that he is out of status because his I-140 is rejected and 485 is cancelled and so is his EAD AP etc. He is completely baffled and says he has no clue about it and that he has house in US and so needs some time to figure things out and appeal etc. He gets a 1.5 months entry into US to sort things out but his passport is retained by the IO and forwarded to the USCIS office in the city he lives.

The formal reason for rejection given is that the managerial experience shown for green card is spread 6 months in India and 6 months in another country and hence is not valid. As per USCIS he needs to have experience in the same country.

The company assigns the company lawyer who initially says Ajay has a strong case and that 140 can be appealed favorably. But later lawyer changes mind and says swallow the bitter pill - go back to India and then come back again after certain period on a fresh visa and then we can restart GC process.

Ajay has an appointment with USCIS and is confused what to do.

---------------------------------
Here are a few lessons that a lot of us can learn:
1. Try to avoid travel when dates are current.
2. Enter your case into USCIS portal and assign to alert so that you don't learn status from IO while entering country.
3. Always have a backup status like H1 just in case somethings go wrong. (if spouse has one -- great)
4. Don't panick if things go wrong - explain things to IO - they are reasonable people.
5. In case of rejection - Appeal immediately. Do not wait till last moment. Have your management understand the acuteness of situation. Many times management will leave it to lawyer and the lawyer will take his sweet time.

All the best. My heart goes out for this guy. If there is anybody on forum who went through similar experience please reach out to me or post your experience right here.

[qesehmk]

Incredible, if the underlying 140 is rejected by USCIS then AC21 is not an option.

If an employer tries to revoke an approved I-140 then under AC21 - the beneficiary is protected if 180 days have passed since filing of 485. But denial of I-140 by USCIS can only be appealed or of course be litigated (which is again not a very feasible way for most immigrants).

One of the unfortunate thing with I-140 is that I-140 is an application with USCIS by the employer. And so the beneficiary has no say in appeal or litigation. The company has to decide what it wants to do.

Q
This is really scary story to go through. How can this person (Ajay) utilize other approaches like AC-21 in these cases and can escape the problems related to I140. I understand for EB1 it is rare to hear about AC-21 etc, but is there any possibility to utilize that route and avoid getting penalized for I-140 rejections etc?

Can the same condition be true for EB2 as well, since I-140 rejection can happen for various reasons?

[zztopfan]

Hi gtyagi,

Your situation is bit strange. Did you not track your I140 through USCIS website? I am at a loss to understand how did your I140 was revoked and it could only be found so late, causing so much trouble to you.

I think talking to your lawyers would be best bet at this point. I do not want to muddy the waters with half baked advice. My advice would be to hire a top notch one.

[incredible]

Q
Thanks. Couple of quick questions though. In the case EB1 in certain categories isn't the I-140 is also filed by an individual (for advanced degree like Phd etc). Also my note on AC-21 comes from the understanding of concurrent filing. Since there would be concurrent filing in the case of EB-1 (both I-140 and I-485), what happens if I-140 is rejected after 6 months ?
Wouldn't that qualify for AC-21 as I485 has been filed 6 months back? Is't this almost similar to having I-140 approved and then filing I-485 and 6 months later I-140 is withdrawn ?

Incredible, if the underlying 140 is rejected by USCIS then AC21 is not an option.

If an employer tries to revoke an approved I-140 then under AC21 - the beneficiary is protected if 180 days have passed since filing of 485. But denial of I-140 by USCIS can only be appealed or of course be litigated (which is again not a very feasible way for most immigrants).

One of the unfortunate thing with I-140 is that I-140 is an application with USCIS by the employer. And so the beneficiary has no say in appeal or litigation. The company has to decide what it wants to do.

[qesehmk]

Incredible - indeed certain categories dont require employer. I think they are EB1A/B and EB5.

AC21 is applicable regardless. But we are not talking about withdrawal of 140 here. If 140 gets rejected then the only recourse is appeal or lawsuit. Right?

As you said 180 days after filing of 485 an approved 140 can't be withdrawn. But it can still get rejected if it was not approved yet. In fact UScIS can also reject an approved 140.

Q
Thanks. Couple of quick questions though. In the case EB1 in certain categories isn't the I-140 is also filed by an individual (for advanced degree like Phd etc). Also my note on AC-21 comes from the understanding of concurrent filing. Since there would be concurrent filing in the case of EB-1 (both I-140 and I-485), what happens if I-140 is rejected after 6 months ?
Wouldn't that qualify for AC-21 as I485 has been filed 6 months back? Is't this almost similar to having I-140 approved and then filing I-485 and 6 months later I-140 is withdrawn ?

[incredible]

Q
Thanks for clarifying it. I was thinking that once I-485 is filed and it is 6 months old, then we need not worry about I-140 (even if it is not yet approved). So there essentially a difference between an approved I-140 withdrawn and rejected I-140 (even in the case of pending I-485 for more than six months). Once again thanks a lot for clarifying.

Incredible - indeed certain categories dont require employer. I think they are EB1A/B and EB5.

AC21 is applicable regardless. But we are not talking about withdrawal of 140 here. If 140 gets rejected then the only recourse is appeal or lawsuit. Right?

As you said 180 days after filing of 485 an approved 140 can't be withdrawn. But it can still get rejected if it was not approved yet. In fact UScIS can also reject an approved 140.

[Kanmani]

As you said 180 days after filing of 485 an approved 140 can't be withdrawn. But it can still get rejected if it was not approved yet. In fact UScIS can also reject an approved 140.

Q, I just want to put forward one point. I-140 can be revoked at any time ! It is the right of the employer.

One thing that is ensured after 180 days of filing is that revocation has no effect over underlying I-485. AoS is protected by AC21 from the 181th day.

Whenever I-140 is rejected/disapproved after approval by the uscis , I-485 is dead.

[qesehmk]

Kanmani - I think we are saying the same thing. Revoking an approved I-140 after 180 days is meaningless because of AC21. It is a stupid act by employer and one that only benefits lawyers who get paid for something that is bound to result into nothing!!

Q, I just want to put forward one point. I-140 can be revoked at any time ! It is the right of the employer.

One thing that is ensured after 180 days of filing is that revocation has no effect over underlying I-485. AoS is protected by AC21 from the 181th day.

Whenever I-140 is rejected/disapproved after approval by the uscis , I-485 is dead.

[srimurthy]

Hi gtyagi,

If I read it correctly from the earlier post "I left company A in 2010 and joined B. This was my 4th year of H1B and I got transfer to B. ".
The 4th year of H1 use was in 2010. So right now the H1 usage is already beyond the 6 years of usage. And since there is no approved 140 on the basis of which a H1 extension can be granted, USCIS may be rejecting it.
So when you apply for Company C for the H1, they may see the total H1 validity that is beyond 6 years and may reject that as there is no approved I-140.
But if you do not apply for a Company change and continue working with Compnay B, on the current H1, you can work until 2016 as its an approved H1.

Gurus - correct me if my line of thought is wrong.

Hi gtyagi
I believe there is nothing called Transfer of H1. When we change jobs, the new company has to file H1 and it is a new H1 and not a transfer. I slightly differ with Q on the suggestion that you can contest the earlier current non-approval of H1 on earlier wrong doings (in approving H1 based on revoked I140). Two wrongs probably can not make it one right. Since H1 is never technically transferred, USCIS should have found out the I140 denial as part of first H1 (with new company) itself but they probably found little late. The only Transfer in whole of H1 is related to Transfer Memorandum when the location is changed from one to another ( I believe USCIS is stressing on the need for fresh H1 even in those cases these days).

My 2 cents.

[Kanmani]

Kanmani - I think we are saying the same thing. Revoking an approved I-140 after 180 days is meaningless because of AC21. It is a stupid act by employer and one that only benefits lawyers who get paid for something that is bound to result into nothing!!

But still the employee/future employee cannot avail the H1b portability part of the AC21 . He cannot extend/transfer his H1b using a revoked I-140, in a situation where the applicant is intend to maintain both H1b and AOS.

[qesehmk]

But still the employee/future employee cannot avail the H1b portability part of the AC21 . He cannot extend/transfer his H1b using a revoked I-140, in a situation where the applicant is intend to maintain both H1b and AOS.

I do not know about this Kanmani. So I will take your word for it.

[gtyagi]

Thanks everyone for your great input. The attnys are preparing the response. However, not sure what can we do at this point. The question is whether they will be able to transfer without extension. Seemed like from the RFE, that they are saying that it cannot be extended as the I-140 has been revoked. If I already can work in US till 2016, I don't know why they make such a big deal in transfer.

Hi gtyagi,

If I read it correctly from the earlier post "I left company A in 2010 and joined B. This was my 4th year of H1B and I got transfer to B. ".
The 4th year of H1 use was in 2010. So right now the H1 usage is already beyond the 6 years of usage. And since there is no approved 140 on the basis of which a H1 extension can be granted, USCIS may be rejecting it.
So when you apply for Company C for the H1, they may see the total H1 validity that is beyond 6 years and may reject that as there is no approved I-140.
But if you do not apply for a Company change and continue working with Compnay B, on the current H1, you can work until 2016 as its an approved H1.

Gurus - correct me if my line of thought is wrong.

[TeddyKoochu]

Q, I believe that your friends appeal or motion to reconsider should be fairly strong. As far as I know the requirement is that in the last 3 years the individual should have performed managerial responsibilities under the same MNC umbrella. Most MNC's have different legal entities in different countries (Almost Always) but the law does state that is at the MNC and not at the entity level therefore I believe your friend does satisfy the criteria. Probably more documentation is required to show that entities in both countries belong to the same company. Regardless I believe he would probably be hiring the best attorney for his MTR. Normally MTR decision is made in 15 days while appeal would take a very long time. Maybe Spec or Kanmani can chime in if Iam correct about the legal part.

[qesehmk]

Thanks Teddy. Unfortunately the lawyer did not file an appeal although the company approved an appeal. This lawyer that many of us know - is in my opinion anti immigrant anti indian lawyer besides being plain greedy. They are advising this guy to go back to India and come back to US later!! Duh!!

So because the appeal window was missed - there really is no opportunity to make any argument. So I think this guy is going back ... unless some miracle happens and the USCIS reapproves his 140.

Q, I believe that your friends appeal or motion to reconsider should be fairly strong. As far as I know the requirement is that in the last 3 years the individual should have performed managerial responsibilities under the same MNC umbrella. Most MNC's have different legal entities in different countries (Almost Always) but the law does state that is at the MNC and not at the entity level therefore I believe your friend does satisfy the criteria. Probably more documentation is required to show that entities in both countries belong to the same company. Regardless I believe he would probably be hiring the best attorney for his MTR. Normally MTR decision is made in 15 days while appeal would take a very long time. Maybe Spec or Kanmani can chime in if Iam correct about the legal part.

[qriousjunta]

OMG!!! I think i get it, It looks like to me for whatever reason they missed to identify the revoked 140 back in 2012/2013. But i understand it as - they need an approved / not revoked 140 to extend your H1, they could not extend based on any other grounds, but the mystery is why they approved back in 2012 and again in 2013 first in-place.

I have had my enough share on this, still stuck with this $hitty process, but always bracing up myself and my family hoping for the freedom. I could not see myself stranded due to these issues and stopped in POE. Kids school, things and other ties...