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  • go_guy123
    08-24 04:52 PM
    ILW.COM - immigration news: Ninth Circuit In Herrera v. USCIS Rules That Revocation Of I-140 Petition Trumps Portability (http://www.ilw.com/articles/2009,0825-mehta.shtm)

    Ninth Circuit In Herrera v. USCIS Rules That Revocation Of I-140 Petition Trumps Portability
    by Cyrus D. Mehta

    As the Employment-based categories remain hopeless backlogged,1 especially for those born in India and China in the Employment-based Second Preference (EB-2) and for the entire world in the Employment-Based Third Preference (EB-3),2 the only silver lining is the ability of the applicant to exercise portability under INA � 204(j).

    Under INA � 204(j), an I-140 petition3 remains valid even if the alien has changed employers or jobs so long as an application for adjustment of status has been filed and remains unadjudicated for 180 days or more and that the applicant has changed jobs or employers in the same or similar occupational classification as the job for which the petition was filed.

    Stated simply, an applicant for adjustment of status (Form I-485) can move to a new employer or change positions with the same employer who filed the I-140 petition as long as the new position is in a same or similar occupation as the original position.4 This individual who has changed jobs can still continue to enjoy the benefits of the I-485 application and the ability to obtain permanent residency. � 204(j), thus, allows one not to be imprisoned with an employer or in one position if an adjustment application is pending for more than 180 days. A delay of more than 180 days may be caused either due to inefficiency with United States Immigration and Citizenship Services (�USCIS�), or more recently, due the retrogression in visa numbers in the EB-2 and EB-3 categories.

    A recent decision from the Ninth Circuit, Herrera v. USCIS, No. 08-55493, 2009 WL 1911596 (C.A. 9 (Cal.)), 2009 U.S. App. LEXIS 14592,5 unfortunately, may render adjustment applicants who have exercised portability under INA � 204(j) more vulnerable.

    In Herrera v. USCIS, the petitioner in this case, Herrera, was the beneficiary of an approved I-140 petition, which was filed under INA � 203(b)(1)(C) as an alien who seeks to work for a company �in the capacity that is managerial or executive.�6 At Herrera�s adjustment of status interview, the examining officer discovered that she was not truly employed in a managerial or executive capacity for the petitioning employer. The employer who filed the I-140 petition, Jugendstil, did not manufacture furniture, as it stated in the I-140 petition, but rather, engaged in interior designing services. Following the adjustment interview, and long after the adjustment application was pending for more than 180 days, Herrera exercised portability to a new employer. Unfortunately, a few months after she had exercised portability, the California Service Center (�CSC�) issued a notice of intent to revoke Herrera�s previously approved I-140 petition. This notice, which was sent to the prior employer that filed the I-140 petition, alleged that Herrera did not work in a managerial or executive capacity due to the size of the petitioning entity ( which had only 7 employees) and also because of her lack of managerial or executive job duties, which included visits to client sites. The CSC ultimately revoked the I-140 petition after giving Jugendstil an opportunity to respond. This indeed is anomalous, since the original I-140 petitioner, after the alien has exercised portability, may not have an incentive to respond. However, in this case, Jugendstil did appear to have an incentive to respond (and litigate the matter) as Herrera had �ported� to Bay Area Bumpers, an affiliate of Jugendstil. The Administrative Appeals Office (AAO) affirmed the denial, and so did the federal district court.

    At issue in Herrera v. USCIS was whether the government�s authority to revoke an I-140 petition under INA � 205 survived portability under INA � 204(j). INA � 205 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.�

    The Ninth Circuit agreed with the government that it continued to have the power to revoke a petition under INA � 205 even though the alien may have successfully exercised portability under INA � 204(j). The Ninth Circuit reasoned that in order to �remain valid� under INA � 204(j), the I-140 petition must have been valid from the start. If a petition should never have been approved, the petitioner was not and had never been valid. The Ninth Circuit also cited with approval an AAO decision, which previously held in 2005 that a petition that is deniable, or not approvable, will not be considered valid for purposes under INA � 204(j).7 Finally, the Ninth Circuit reasoned that if Herrera�s argument prevailed, it would have unintended practical consequences, which Congress never intended. For instance, an alien who exercised portability, such as Herrera, would be immune to revocation, but an alien who remained with the petitioning employer would not be able to be so immune. If the opposite were true, according to the Ninth Circuit, an applicant would have a huge incentive to change jobs in order to escape the revocation of an I-140 petition. Finally, the Ninth Circuit also examined the merits of the revocation, and held that the AAO�s decision was supported by substantial evidence.8

    Based on the holding in Herrera v. USCIS, adjustment applicants who have exercised portability better beware in the event that the USCIS later decides to revoke your I-140 petition. 8 CFR � 205.2 (a), which implements INA � 205, gives authority to any Service officer to revoke a petition �when the necessity of revocation comes to the attention of the Service.� Also, under 8 CFR � 205.2(b), the Service needs to only give notice to the petitioner of the revocation and an opportunity to rebut. An adjustment applicant who has exercised portability may not be so fortunate to have a petitioner who may be interested in responding to the notice of revocation, leave alone informing this individual who may no longer be within his or her prior employer�s orbit.

    Finally, of most concern, is whether every revocation dooms the adjustment applicant who has �ported� under INA � 204(j). Not all revocations are caused by the fact that the petition may have not been valid from the very outset. For instance, under the automatic revocation provisions in 8 CFR � 205.1(a)(3)(iii), an I-140 petition may be automatically revoked �[u]pon 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.� An employer may routinely, out of abundant caution, decide to inform the USCIS if its employee leaves, even though he or she may legitimately assert portability as a pending adjustment applicant. Such a revocation of the I-140 ought to be distinguished from Herrera v. USCIS as the I-140 was valid from its inception but for the fact that the employer initiated the withdrawal. Similarly, another ground for automatic termination is upon the termination of the employer�s business.9 It would not make sense to deny someone portability if the petitioning entity, which previously sponsored him or her, went out of business, but was viable at the time it had sponsored the alien. Indeed, one Q&A in the Aytes Memo, supra, at least addresses the issue of an employer�s withdrawal:10

    �Question 11. When is an I-140 no longer valid for porting purposes?�

    Answer: An I-140 petition is no longer valid for porting purposes when:

    1. an I-140 is withdrawn before the alien�s I-485 has been pending 180 days, or
    2. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.�

    It is hoped that Herrera v. USCIS, a classic instance of bad facts making bad law, does not affect those whose petitions have been revoked after the original employer submitted a withdrawal after an I-485 application was pending for more than 180 days. The Aytes Memo makes clear that this should not be the case. Less clear is whether a revocation caused by the termination of the employer�s business should have an impact on an adjustment applicant�s ability to exercise portability.11 The Aytes Memo seems to suggest that such a person who has exercised portability may be jeopardized if the I-140 petition is revoked. It is one thing to deny portability to someone whose I-140 petition was never valid, although hopefully the individual who has ported ought to be given the ability to challenge the revocation in addition to the original petitioner.12 On the other hand, there is absolutely no justification to deny portability when revocation of an I-140 petition occurs upon the business terminating, after it had been viable when the I-140 was filed and approved, or when the employer submits a notice of withdrawal of the I-140 petition after the I-485 has been pending for more than 180 days.




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  • nashim
    09-04 09:36 AM
    USCIS has all information but they might not have resource/time to collect information about old cases that�s why they might be seeking help from other body.




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  • valatharv
    07-15 02:39 PM
    I filed I-485 in Nov. 2007 and waiting.... :(

    Problem is I noticed that name of my father in my passport is reversed example it shows then .

    But in my birth certificate it is vice versa then ....

    I got the RFE in July 2009 for my date of birth certificate which I have provided to USCIS mentioning father name as in my birth certificate i.e. then .

    I renewed my passport in April 2010 and corrected father name, but in all the old forms before RFE, my father name shows as then .

    Will it be issue, I am frustrated and worried on what to do, is it going to have major impact on my GC processing as all the forms I have submitted to USCIS and my passport have my father name as then

    .

    Please suggest I am very worried...

    Thanks




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  • Michael chertoff
    12-17 10:13 AM
    What is the reason, Did u use AC21



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  • vikki76
    06-17 01:13 PM
    Hello,
    While I understand that there is legal limit on number of times AC21 can be invoked assuming it for similar job transfer, but I was wondering if some one on this forum has changed job multiple times after 180 days of 485 filing.
    My husband recently changed companies for same job profile after 180 days of filing 485 and having I140 approved, but now job is not what he initially expected (in fact lot different in terms of work and responsibility) , so he is now on lookout for another change in same profile.
    His title in both jobs is Sr Software Engineer.

    He is the primary applicant, and has 3 three years of H1-B extension. Is there any chances for RFE? His lawyer at current company did send AC21 letter to USCIS.




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  • uma001
    04-22 03:40 PM
    Thanks a lot for the response.

    Fortunately my extension got approved for 3 years without any RFE in 3 business days.
    Here are the details...

    Processing Type: Premium Processing
    Receipt Number: EAC-XX-XXX-XXXXX
    Processing Center : VSC
    Applied for : 3 years(Based on Approved I-140)
    Approved for : 3 years
    Fedex date: 04/08/2010
    Receipt Notice Date: 04/12/2010
    RFE Date: N/A(No RFE)
    RFE Responded Date: N/A
    Status: Approved
    Approved Date: 04/15/2010

    Model :Employer(Desi Consulting)--> Vendor--> Client
    Submitted all docs which I have mentioned in the beginning of this thread/topic.

    Again submitted client & vendor letter without end dates. Also just submitted
    contract papers between employer & vendor, had not submitted any purchase/work order.

    Regards.


    How long you been working at this client?



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  • chil3
    08-24 12:40 PM
    yes my date is eb3 jan 2007...I think this is part of the whole pre approval thing

    I work for University since 2002 with very straightforward case hence suprised

    ok..here is part 2.

    Employer was able to speak to USICIS officer. He asked

    whethere

    1) I was contractor
    2) from when I was employed
    3) Work timings
    4) exact office Location

    my supervisor asked why all these questions about location and timing they said they will do a site visit

    I feel if my app can trigger this than any other app could...

    The USICs is just getting crazy with all the bueracacy crap

    USCIS is not getting crazy ....It's preplanned well defined strategy to kick out immigrants ...first they choked the system so that everyone is stuck and now picking more & more people in the name of verification




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  • memyselfandus
    11-19 07:03 PM
    Seewa helps people who have undergone similar experiences as you did. Call them for advice and help. If they can't directly help you atleast they can refer to a proper organization that would.

    SEWAA - Service and Education for Women Against Abuse (http://www.sewaa.net)

    All the best.



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  • lord_labaku
    11-19 03:38 PM
    I think this is a good idea. Most people here, coming from a computerized world, assume that everything in USCIS is automated. Its only partly true. Due to security reasons, preventing vulnerability, they still deal with mostly paper.




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  • tikka
    07-08 10:17 PM
    approached the consulate

    In DC or wherever



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  • akhilmahajan
    04-23 11:21 AM
    Wow..........

    Thats something really interesting.....

    So based on this, if this holds up, once DOL approves the labor, i dont think USCIS can switch a case from EB-3 to EB-3...........

    If my interpertation is wrong, can you please let me know.......




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  • h1bmajdoor
    07-08 10:14 PM
    India govt will not involve in USA internal matters.Idea was floated long back by few members and core team responded to it.

    this is BS.

    The interests of indian citizens resident in the USA (all decent taxpayers) are not being taken care of by the US political system. There is a clear pattern of exploitation by employers and neglect by CIS, FBI and others.

    In this situation, the interests of Indian citizens should be taken up by the Indian parliament. If they want to shy away from their duty, it should be taken up by the UN.



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  • nonimmi
    06-25 11:36 AM
    It is free. I just got 8 photos done from AAA.... But I am plus member..
    But even for regular member you should get 6 photos.

    I called AAA. They said its free for Premium members only. I'm Plus member and price is $25 for 6 photos.




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  • go_guy123
    10-23 02:02 PM
    Glad to see this law. Also this law gives me hope for recapture. No one knew about this law was in transit and without any hitches this one passed all the way. So for those who feel that recapture cannot pass can rethink their position based on this new fact.

    Yes very true....actually thanks to organizations like IV a lot of lawmakers now understand the EB backlog. There is not a major opposition to EB reform.
    It is the CIR that is holding this back.



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  • rajuram
    11-04 09:19 PM
    I don't think that is possible......unless you filed it and it got returned...



    Situation - During the month of July, I filed my 485 when all categories were current. Got my receipt too. Missed wife's application because her papers were not ready. Now priority dates have retrogressed again.

    Saving grace - Our H1/H4 are in order with many long years left on them.

    Question - Can I file my wife 485 now as a dependent, even though "my" PD is not current yet. The core point is that, does the concept of PD applies to the dependent 485 applications too?




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  • jthomas
    10-12 11:19 AM
    i filed for i-485, i-765 on July 11th. no receipt yet



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  • cox
    February 5th, 2008, 12:21 AM
    ...[look for big scratches, scrapes and worn off paint on the corners], it should be fine to buy a used one...

    Hey, I didn't know you've seen my cameras, Mats! ;) GEEVER, Mats advice is right on. Both Canon and Nikon have excellent reliability, and there are only a couple of moving parts on a digital SLR. If it takes a picture when you look at it, it will probably be just fine.

    In both Canon and Nikon, you have a fine selection of great lenses for the future. If you buy an old camera body now, like a Canon 300D, D60, 10D, etc. or the Nikon equivalents, you can spend more money on good lenses, and then upgrade camera bodies later. You don't get your money back reselling these cameras (though you save a lot compared to developing film!), and the older 6 mega-pixel cameras are just fine for printing 8x10s for your wall. It's not a bad strategy to get "into photography" if you're on a budget.




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  • gccube
    08-30 05:05 PM
    EB2 or EB3?




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  • Bpositive
    12-06 04:41 PM
    Thanks guys...

    btw my "card production ordered" email of December 4th was followed by another email on December 5th which says - .

    "On December 4, 2009, we mailed you a notice that we had registered this customer's new permanent resident status. Please follow any instructions on the notice. Your new permanent resident card should be mailed within 60 days following this registration or after you complete any ADIT processing referred to in the welcome notice, whichever is later."

    Trust the USCIS to make everything complicated!

    Any thoughts? Is this just a redundant email? I am going out of the country for a few weeks starting December 12th.




    cool_cat
    09-28 09:13 PM
    My I-485 application has been received by TSC on July 2nd. I have not received anything yet. My check is also not cashed. Is there anyone who applied on the same date and did not get his RN yet.
    Thanks,




    jay1ram2
    11-23 02:19 PM
    Well Said.



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