ras
10-16 05:47 PM
Added some missing in's and to's, etc. if it appears appropriate, you may keep the changes.
Issue/Background:
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 it to your attention the hardship faced by I 485 applicants because of inappropriate denials by USCIS with out adhering to 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 applicants 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 If the previous employer has withdrawn the previously approved I-140, AC21 guidelines state that if the applicant has not submitted evidence of a new qualifying offer of employment, the applicant be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 USCIS has started to deny I-485 applications where the underlying I-140 has been withdrawn by the previous employer without issuing a NOID or an RFE. Even those applicants who have notified USCIS the 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 and psychological stress, 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 adhered to when adjudicating an I-485 application. If the applicant notifies USCIS of a change in employment under AC21, this could be added to the applicant�s physical file and electronic records. If there is no such notification and the previous employer withdraws the I-140, the applicant could be issued a NOID/RFE instead of out rightly denying the I-485 application.
Should you have any 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
Issue/Background:
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 it to your attention the hardship faced by I 485 applicants because of inappropriate denials by USCIS with out adhering to 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 applicants 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-485 applications where the underlying I-140 has been withdrawn by the previous employer without issuing a NOID or an RFE. Even those applicants who have notified USCIS the 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 and psychological stress, 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 adhered to when adjudicating an I-485 application. If the applicant notifies USCIS of a change in employment under AC21, this could be added to the applicant�s physical file and electronic records. If there is no such notification and the previous employer withdraws the I-140, the applicant could be issued a NOID/RFE instead of out rightly denying the I-485 application.
Should you have any 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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manderson
03-04 10:09 AM
There is an I-131 LUD today from NSC and it says document mailed and that it will be delivered within 30 days.
My RD is 8/15, ND is 10/12. I guess the Processing Times (@ 9/30 as of Feb 15, 08) caught up.
Hang in there guys.
My RD is 8/15, ND is 10/12. I guess the Processing Times (@ 9/30 as of Feb 15, 08) caught up.
Hang in there guys.
bigboy007
06-03 12:47 AM
I am not giving any benefit of doubt rather expressing my view. No doubt this bill is ringing alarm bells , no matter whether its staffer etc its senators who are bringing on to it , i agree , but the key thing as carefully drafted poison is this draft it cant be achieved by senators in days of negotiations they claim, its been definately on these tables for even months before its publicised. By saying this , i am very much surprised when i went through all the text of it , its shameful on all these ppl for trying to sink ppl like us for vote bank politics. Atleast i thought they would do some good but its becoming more harm day by day.
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Jaime
07-20 11:41 AM
Guys, don't be disappointed about the Cornyn amendment failing! Here's why:
There is a lot of noise already (thanks to IV generating it) about the injustices that we legals face, and the urgent need to reform the legal GC path. I am thinking that senators have heard our friend Zoe and are now realizing that such reform is needed and are now trying to determine how to best use or spin such a potential reform in their party's favor. Therefore, even people like Clinton voted no, because if the Cornyn amendment had passed it would have denied them the visibility and publicity that a well-organized and publicized bill would generate. Clinton has spoken in our favor before, and I think that she voted nay now in order to later be part of a more visible (and politically-rewarding) solution for us.
What we REALLY NEED TO DO right now is support IV as much as we can, and continue to create noise and get our VOICE be heard, but we need to act as a group, as a team. Work together, be heard everywhere. Enough already with us being quiet, keeping our heads down while paying taxes and taking all the abuse! We will continue to be great citizens, meet all our duties and obligations, but this time we will ALSO BE HEARD! Let's go! We're strong! We can do this!!!!!
There is a lot of noise already (thanks to IV generating it) about the injustices that we legals face, and the urgent need to reform the legal GC path. I am thinking that senators have heard our friend Zoe and are now realizing that such reform is needed and are now trying to determine how to best use or spin such a potential reform in their party's favor. Therefore, even people like Clinton voted no, because if the Cornyn amendment had passed it would have denied them the visibility and publicity that a well-organized and publicized bill would generate. Clinton has spoken in our favor before, and I think that she voted nay now in order to later be part of a more visible (and politically-rewarding) solution for us.
What we REALLY NEED TO DO right now is support IV as much as we can, and continue to create noise and get our VOICE be heard, but we need to act as a group, as a team. Work together, be heard everywhere. Enough already with us being quiet, keeping our heads down while paying taxes and taking all the abuse! We will continue to be great citizens, meet all our duties and obligations, but this time we will ALSO BE HEARD! Let's go! We're strong! We can do this!!!!!
more...
arnab221
06-25 12:01 PM
Got approved just now. Labor filed EB3 on 23rd Feb Govt job. Thinsg are moving ... Best of luck to all !!!
-M
Dude ,
You owe us all a plate of Panipuri each .:D CONGRATS once again . Enjoy your day .
-M
Dude ,
You owe us all a plate of Panipuri each .:D CONGRATS once again . Enjoy your day .
subba
02-27 07:07 AM
Nov 2004...MA/EB2/Non-RIR
Have another PERM labor approved but am hoping this one gets approved so I can get the earlie PD.
Going by the recent trend (per spreadsheets generated by someone at immigrationportal) I am actually thinking there might be a chance all the BEC backlogs get cleared by December, if not by the stated goal of September.
Have another PERM labor approved but am hoping this one gets approved so I can get the earlie PD.
Going by the recent trend (per spreadsheets generated by someone at immigrationportal) I am actually thinking there might be a chance all the BEC backlogs get cleared by December, if not by the stated goal of September.
more...
r_mistry
01-07 11:27 AM
Friends,
Anybody received any updates on their APs for late July and early August,07 filers.
My AP was filed on July 24th at NSC and still no news????
Thanks in advance for your input!!
Anybody received any updates on their APs for late July and early August,07 filers.
My AP was filed on July 24th at NSC and still no news????
Thanks in advance for your input!!
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AabTuAgaGC
01-21 10:08 AM
I finally got a LUD on 1/18/2007. Today, I got my second LUD, 1/21/2008. Hopefully the approval will be mailed soon.
more...
jonty_11
01-21 12:01 PM
AabTuAgaGC and hopefullegalimmigrant Could you advise what date USCIS received your application for Advance Parole? Thanks
Guys, I dont see how it matters....every case is treated differently as we all know..so why bother wasting time on such questions... Instead please concentrate on the IV led efforts.. LETTERS CAMPAIGN.....
Please look at the bigger picture, with this being an election year, plus a recession looming large on our heads, we need to get our act together and push for reform.
Guys, I dont see how it matters....every case is treated differently as we all know..so why bother wasting time on such questions... Instead please concentrate on the IV led efforts.. LETTERS CAMPAIGN.....
Please look at the bigger picture, with this being an election year, plus a recession looming large on our heads, we need to get our act together and push for reform.
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missourian
06-01 05:04 PM
My PD EB3 01/15/2005
Applied I140 PP 05/18/2007
Approved I140 05/23/2007
Man I am screwed
Applied I140 PP 05/18/2007
Approved I140 05/23/2007
Man I am screwed
more...
vpadman
01-14 10:49 AM
How can we find out the current processing date for AP ?
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venkygct
07-14 02:49 PM
$10 07/18/2008 Boa 7yb62-jgbgk
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DSJ
07-06 11:01 AM
we (those who already filed + those will be filing) can never be united, may be it is our birth right to dispute each other. What a pathetic scene, guyz one thing to remember is unless old cases get cleared there is no way new one gets benefited in the long run.
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a1b2c3
08-17 12:34 AM
Looking at the recent approvals looks like USCIS does the following:
1. Pick up x number of files using a random algorithm.
2. Arrange these files in a random order using the same random algorithm
followed in step 1.
3. Randomly pick any file arranged in step 2.
4. Toss a coin.
5. On odd dates if it is heads,approve the file. On even dates if it is tails
approve it.
6. If file is not approved in step 5 put it on the shelf to be picked up
in step 1 in next cycle.
I can only hope you are wrong :). I hope they sort first by PD and then by RP.
1. Pick up x number of files using a random algorithm.
2. Arrange these files in a random order using the same random algorithm
followed in step 1.
3. Randomly pick any file arranged in step 2.
4. Toss a coin.
5. On odd dates if it is heads,approve the file. On even dates if it is tails
approve it.
6. If file is not approved in step 5 put it on the shelf to be picked up
in step 1 in next cycle.
I can only hope you are wrong :). I hope they sort first by PD and then by RP.
more...
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hindu_king
03-04 11:56 AM
Thats ridiculous. I recently bought a home and got FHA loan from Chevy Chase Bank. To my surprise, they did not ask me a single immigration related document or any proof of legal presence. All they ever asked was a valid ID during closing, and I showed them my drivers license.
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balakot
02-18 02:43 PM
Look's like the DOS is trying to maintain a year difference in the priority dates for EB2-I and EB2-C.
My guess for the April 2009 Visa Bulliten is April 1st 2004 for EB2-I and April 1st 2005 for EB2-China.
My guess for the April 2009 Visa Bulliten is April 1st 2004 for EB2-I and April 1st 2005 for EB2-China.
more...
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sunny1000
02-27 12:04 AM
still waiting...july 2002...NY
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gc28262
03-06 05:44 PM
.................................................. ....................
.................................................. .................................................. .......
Also, current Economy may force them to use larger number of FB visas for EBs for next few years.
.................................................. .....
Could you explain this point. Why would lesser number of FB visas be issued in a bad economy ?
Does economy state has any relation to FB visas ?
For pre-adjudication, visa availability or the chances of PD becoming current is not necessary. They can pre-adjudicate based on receipt date.
My guess:
Probably they are processing all employment based applications right away so that they can prepare for CIR 2009. I guess Obama will take CIR this year itself as he has a very high approval rating and lot of goodwill now.
.................................................. .................................................. .......
Also, current Economy may force them to use larger number of FB visas for EBs for next few years.
.................................................. .....
Could you explain this point. Why would lesser number of FB visas be issued in a bad economy ?
Does economy state has any relation to FB visas ?
For pre-adjudication, visa availability or the chances of PD becoming current is not necessary. They can pre-adjudicate based on receipt date.
My guess:
Probably they are processing all employment based applications right away so that they can prepare for CIR 2009. I guess Obama will take CIR this year itself as he has a very high approval rating and lot of goodwill now.
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vactorboy29
06-11 05:59 PM
I have been investing in Lottery every week 1$ .Hoping I may hit Jackpot and Donate some money to our community.
My optimism says I may win lottery before I get green card or US congress works in our favor. Till then keep my finger cross..................
My optimism says I may win lottery before I get green card or US congress works in our favor. Till then keep my finger cross..................
Green.Tech
06-11 03:00 PM
Here is a small contribution from me today.
$25 check made out to IV - 6/11/08
Placed in mail to IV - 6/12/08.
Thanks!
Come on people...looking for more HEROES!
$25 check made out to IV - 6/11/08
Placed in mail to IV - 6/12/08.
Thanks!
Come on people...looking for more HEROES!
yabadaba
12-21 08:39 PM
Nathan Muller on Dec 21, 2006 at 09:59:25 said:
Your statment: "They claim that persons on H1-B do not pay taxes, that they bring in millions of family members and produce thousands of 'anchor babies.' These are the same lies being touted by Tancredo and his breed. Under the H1-B visa we are not exempt from any taxes charged by the IRS."
I challenge you to produce a quote from Tom Tancredo or Lou Dobbs where they say this about H1-B workers. I follow this issue closely and I have never heard of such statements about H1-B workers coming from either of these men.
Before you accuse others of lying, please tell the truth yourself!
Ali on Dec 21, 2006 at 07:51:16 said:
The fact that the visas you came in on are "temporary" in nature and only allow you to switch IF you can get green card sponsorship for the proscribed number of slots already tells you that Americans are willing and able to accept a certain limited number of immigrants--and no more.
Those of you who imagine that a temporary visa such as a student visa or H1-B guarantees you a green card are kidding yourselves.
raj on Dec 20, 2006 at 13:49:50 said:
swesome artcle.i
Brian on Dec 20, 2006 at 12:34:03 said:
Currently I work with many H1b workers form Indian. These temporary workers are creating anchor babies all the time. Now we have to educate their children as well as give them our jobs.
Since these H1b workers have come to the United States our globlal corporations refuse to train or permote Americans. They are not great minds but cheap labor. The H1B visa is a temporary work visa. Please go home after your work is complete
bill gates on Dec 20, 2006 at 11:31:41 said:
Pribh Das, please go home. We have enough race baiters already.
Go on with your life somewhere else.
B.
Post Your Comments
Your statment: "They claim that persons on H1-B do not pay taxes, that they bring in millions of family members and produce thousands of 'anchor babies.' These are the same lies being touted by Tancredo and his breed. Under the H1-B visa we are not exempt from any taxes charged by the IRS."
I challenge you to produce a quote from Tom Tancredo or Lou Dobbs where they say this about H1-B workers. I follow this issue closely and I have never heard of such statements about H1-B workers coming from either of these men.
Before you accuse others of lying, please tell the truth yourself!
Ali on Dec 21, 2006 at 07:51:16 said:
The fact that the visas you came in on are "temporary" in nature and only allow you to switch IF you can get green card sponsorship for the proscribed number of slots already tells you that Americans are willing and able to accept a certain limited number of immigrants--and no more.
Those of you who imagine that a temporary visa such as a student visa or H1-B guarantees you a green card are kidding yourselves.
raj on Dec 20, 2006 at 13:49:50 said:
swesome artcle.i
Brian on Dec 20, 2006 at 12:34:03 said:
Currently I work with many H1b workers form Indian. These temporary workers are creating anchor babies all the time. Now we have to educate their children as well as give them our jobs.
Since these H1b workers have come to the United States our globlal corporations refuse to train or permote Americans. They are not great minds but cheap labor. The H1B visa is a temporary work visa. Please go home after your work is complete
bill gates on Dec 20, 2006 at 11:31:41 said:
Pribh Das, please go home. We have enough race baiters already.
Go on with your life somewhere else.
B.
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