i-140/485 difficult problem, help!!

[JulieC]

Does anyone know if you cancel an existing appeal to the AAO on 1-140 denial if you re-file amending the things they found wrong ( basically a question of the definition of affiliate.) Our attorney says there is nothing wrong with the affiliate relationship and wishes us to go through with the appeal. It is taking 5 months and my son turns 21 in 5 months. He is unprotected at the moment at they denied the underlying i-1485. My attorney says this is illegal and wishes to issue a writ of mandamus to compel USCIS to reinstate this. Does anyone know of an instance of this succeeding as I cannot find one?? All websites seem to say re-filing is the more pragmatic solution.

[Grumpy]

Hi Julie

Can you explain, in laymans terms what happened and reason they denied your I 140?

It may help to have some more information

[Sharon]

Hi

I though a writ of Mandamus was just a letter of intent to sue if the uscis do not take action and give decision within a certain amount of time

I do not think this can compell them to reinstate, just to get you an answer sooner

[JulieC]

They said the UK and US companies were not affiliates because the sharegholding was not identical, even though we got L1A that way.

Basically UK company
A 25%
B 25%
C 25%
D 25%

US company
A 20%
B 20%
C 20%
D 20%
E 20% E being the L1A manager

Both the visa consultant who did our L1 and the attorney who did the I-140 thought this was ok and as I said so did Texas in granting an L1, the 1-140 section disagrees. My husband wanted to relinquish his shareholding and refile but our attorney disagreed and went for motion to reopen but Texas have sent it to the AAO in Washington, it will be months, and we have no 1-485 to protect my son under the CPA. He turns 21 in Sept and the appeal could be heard after that.

[Susie]

Hi

It has always been my understanding that the two companies must have the exact same share ratio. This is how my husband came to the USA on an L1 inter co transfer

What I cannot understand is how they approved the L1 visa in the first place, this does contradict matters some how

I have suggested to Julie that she may want to get the two companies to alter the share ratio and re-file ASAP, certainly before her son is 21years of age.

Since the I 140 has been denied then this would cancel the I 485's so if the appeal takes too much longer or in fact DENIED, the child would age out and not have any protection at all.

Julie, now you have filed I 140/I485 does this cancel you E visas? What does attorney say?

I will do some research for you and post back as soon as able but in the meantime I would strongly advise a second opinion from a trusted immigration attorney as it appears your attorney does not want you to re-file.

Have you asked her if you could keep appeal going and refile nowalso if you did this would it cancel the appeal?

[JulieC]

L visa is pending renewal, Susie. The E went when we changed status.
My attorney wont contenance re-filing as she says she is right but I did find someone on the net who said that the appeal still continues though one service center they knew of kicked the new 1-140 back until you withdrew the appeal, that one it said was Nebraska service center so I dont know how Texas react,

[katya]

Dear Julie,

I know you probably have many other immigration attourney's to ask for help, although I must say that we used James LaVigne ( whom is also affiliated with the British American Chamber- Orlando) for our visa requirments. We filed our own Green Cards but he done a great job with our L visa's.
His number incase you may want it is 407 316 9988
Im sure he would know exactly what you can do , although I am not sure wether he would charge you a consultation fee ?

Good Luck
Katya

[Susie]

Hi Julie

With your L 1 renewal did you pay an extra $1500 to expedite? Does L visa cancel when you apply for I 140/I 485?

I know you can do this for a 1st application but not sure if this is possible with a renewal of L visa


In principal if the VSC does not canel the appeal, it is my guess this would apply to all service centres

Still reading up and will post as soon as able

[JulieC]

No we didnt expedite, we filed in November and it took months to come back and our further information went back in two weeks ago so I reckon we wont hear for six weeks, Attorney said no need to expedite as we were filing for green cards at the same time.
Thanks for the info Katya, I think we may well need a second opinion.

[JulieC]

First bit of good luck if it is correct is that they have updated the Appeals Office website which is only done quarterly and it says there is now no wait on i-140 appeals. Cant quite believe they have caught up five months baclkog in three months, so really hoping it isnt a mistake, but if it is right, we dont have the decision of whether the appeal will continue if we refile to make as we can just wait a few weeks and see what happens. This would be an immense help to us.

[Susie]

Hi Julie

I asked a friend about your case , see below his reply (not an attorney)




Help I 40 denied
Hi

My friends Mum, Dad and child concurrently filed I 140 and I 1485's

The I 140 has been denied and so the I 485's have been cancelled.

Her attorney says the reason is because the holding company and USA company have not been set up properly with the same share ratio

This is going to the BIA as attorney thinks the USCIS is wrong

The appeal will take 5 months by which time the child will be over 21 years

She has asked me what I think! She knows I am not an attorney but still wanted my opinion

I suggested she asked the holding company to correct the share issue and re-file I140 and the I 485's so that if the appeal is denied they will still has a case pending when the child becomes 21years!!!


I am not sure if she re-files new application will this cancel the appeal?

Also advised her to seek second opinion, her attorney does not want to re-file but will not give her the answer to this or the above question

Any comments would be appreciated

Thanks Sue
www.expatsvoice.org


REPLY

In this case ofcourse the I485 is automatically cancelled.

But as its L visa ..... they can correct the error immidiately with the help of a good lawer and refile concurrently the both petitions ... I would recomend good lawer as he/she will know all aspects of approval before filing wrong petition .....looks like they had a lousy lawer .... no point keeping him ......

why waste time on appeal when they can refile papers.
by the way refiling does not cancel the apeal ....... as there can be more than one application pending ... but I am not that good with L visa so ask them to have opinion from a good lawer.

good luck .

[JulieC]

Thanks Susie. Because they now seem to be current with appeals at the mo and have got rid of the backlog, we can wait a couple of weeks and see if we get through. though I have my doubts on that one. If we get denied we will be following the advice above!!

[Ron]

Hi Julie

If you get denied, how long do they give you to get out of the country?
and


Does that cancel work autho? travel permit?

[JulieC]

Yes it does. But there is nothing to stop you just refiling especially as it would be fairly easy to change what they said was wrong.. At the moment we are also waiting to see if we get the L1 extension as well, so we arnt going anywhere just yet.

[Susie]

Hi Julie

I really do have concerns about your case and if I were you I would re-file NOW and not wait for a decision

Here is another reply I received about your case

THANK YOU ....
Thanks for your reply , good sound advise ,
thanks....

If it were me I would do another application so that if the appeal is denied there is still a case in motion
thats right....

She seems to think that as the service centre has (is is) catching up with the appeal process she could hear soon and wants to wait
wrong choice...uscis will just deny it again as its tech. error they made (her lawer and co.) not the uscis ... so she will get denial again than she cant do anything .

IMHO if she does not re-file and sort share issue out, if denied then she and her family would be out of status
yes they will have to leave in 10 days ow but after apeal gets denied you leave the country immidiately ... no more filing allowed .. you are out f status immidiately.
If out of status, could they then file, new application??
nop they cannot.
also next time they want to come in they have lesser chance to evan get visa .

[JulieC]

Susie I only just saw this, after you posted had I seen this on the other thread, no I had clicked on new posts and missed it somehow.
Can I ask who gave this advice, pm if necessary, is it an attorny or an authoratitive source??

The out of status issue only comes into force if we are denied the L1 as well, still waiting to hear on that one, about two weeks according to the website.

[Susie]

Hi Julie

When does your L visa expire?

I am not certain, but sure if you apply for AOS this cancels your L visa!

What a mess, I will try and give you a call later


They reply is from a friend who has more knowledge than me on E visa's. Still feel it best to change share ratio and either write to appeals office with new info or re-file now, but this is just IMHO and have concerns for your son.

You really do not need the same problems as I am facing

[JulieC]

It has expired, my renewal is in, taking about six weeks, still waiting to hear. No as far as I am aware, L visa is one where you can have dual intent, ie have both the AOS processing and L visa at the same time. many other visas you cant. I know someone who never applied for parole throughout AOS and continued to travel extensively back to the UK throughout AOS just using their L1 with no problems.

[katya]

Hi Julie,

Yes, whilst we were AOS- awaiting Green Card approval, we travelled on our L visa's. They do say that your L visa becomes null and void whilst you are in AOS, although they still grilled us with our L visa's, so I wouldnt have wanted to travel without it. They did say that if our L visa's expired before we received our Green Card then we would be OK, although I wouldnt trust that as they even pulled us into a seperate room- once through immigration, where we had to wait 2 hours to be seen by an officer. Not much fun after a 10 hour flight, with 2 young kids !!

Katya

[Grumpy]

Hi

I applied for AOS whilst mu L1 was still valid.

My L 1 expired but I did not have approval for my green card so was in no mans land.

I had to apply for AP (advanced parole) twice, as the approval was only valid for one year.

So if your visa has expired and you are in the process of AOS then you must not leave the US without AP

[JulieC]

Yes I know that, and they granted us AP initially as well but have now invalidated it, we are now well and truly stuck here.
If we get the L1 and still dont have the green card approval, I guess we can go back and get the visa stamp?

[fatbrit]

Just a few notes for readers:

The name of the benefit is: advance parole

Even though USCIS will happily take your money and issue an advance parole benefit, this does not mean that you can use it! If you are out of status for more than 6 months and leave the country, then the ban on re-entering for overstay will override your advance parole, and you will be stuck outside for a long period of time. Be careful, now!

[DavidL]

Still feel it best to change share ratio

Hi Susie,

E & L Visas - Have you come accross anyone who has done this successfully and how did they do it and who did they notify?

[Susie]

Hi David

I am a bit confused by your question

Yes I do know lots of people who purchased an existing business or set up a new business on an E visa

I also know lots of people who work for a company abroad and company sponsored them for L 1 (inter company transfer)

I only know of one person that has managed to change status from E visa to green card. I have invited them to join our site as their story will be very interesting to most E visa holders

I do not know of anyone who has changed status from and E visa to L visa

In order to qualify for an L 1 there must be a trading company abroad with either an exisiting company in the USA (of SAME share ratio) or the company abroad must set up a new company from scratch. The company sponcors the employee

Does this make sense and answer your question? If not please let me know

[DavidL]

Hi David

I am a bit confused by your question

Yes I do know lots of people who purchased an existing business or set up a new business on an E visa

I also know lots of people who work for a company abroad and company sponsored them for L 1 (inter company transfer)

I only know of one person that has managed to change status from E visa to green card. I have invited them to join our site as their story will be very interesting to most E visa holders

I do not know of anyone who has changed status from and E visa to L visa

In order to qualify for an L 1 there must be a trading company abroad with either an exisiting company in the USA (of SAME share ratio) or the company abroad must set up a new company from scratch. The company sponcors the employee

Does this make sense and answer your question? If not please let me know

Hi Susie,

Sorry, I should have elaborated further with my quoting your text. I meant to say, do you know of anyone who has changed the share capital of their E business. For example, I own ours 50/50 with my wife, but am looking at changing this to either 51/49 or 100/0. I know that a simple stock transfer can achieve this, but how do you notify the embassy or indeed do you need to notify the embassy of the shareholding change?
Regards

[JulieC]

You do, Susie, I changed status from E to L, not the same company though, that is hard.

The guy who I think you are talking about changing status from E to green card did not change status actually, rather he submitted an immigrant petition as a skilled professional worker having first received labor certification from the DOL that the post he was filling is in an area where there is a skills shortage and no one else could fill the job. Not sure if the job was with his own company or someones elses. I do know when I heard about this I contacted my attorney who said it was all about qualifications. I worked in the law and my husband was in computing and we both have degrees commensurate. I was told even if we could show there was a shortage of people for a job as manager of a property management company, no way could we show by our qualifications that we were the only persons able to fill that job. Now if the company was big and one of us had a degree in hotels and tourism or some other form of hospitality qualification, we may have had a chance.

David, I can see the advantages of the change of shareholding as it would release one of you to be a dependant so you could get an EAD and a job. I would consult an attorney on this one. My gut instinct would be that the embassy would not address such a change unless it was say upon renewal when they look at the company again. Interestingly I do know of someone who was here on 50 percent E and her attorney fouled up the paperwork on renewal and she was issued a visa with dependant spouse on it, didnt even realise it either not for years.

[DavidL]

Hi David

I only know of one person that has managed to change status from E visa to green card. I have invited them to join our site as their story will be very interesting to most E visa holders



Hi Sue,

If you have the suitable experience and qualifications and there is shortage of abled & willing Americans to perform the task, then it should be no problem to change from an E visa to an Employment based visa i.e EB2 or EB3. Processing times are currently decent. The hard part is trying to find a sponsor who is prepared to commit to the exercise. The steps involved for Labor Certification do not look hard at all. Last Summer, I had a potential sponsor from Miami, but then he got his CPA involved who pulled the plug on the idea.

Did you know if your person found a sponsor or 'managed' to get his own compnay to sponsor him?

[JulieC]

I have asked him for details in the past, David, he is quite cagey on specifics,

I would agree the problem is finding someone to sponsor you, you really need to be in an area of shortage, eg a nurse who was an E2 dependant wouldnt have a problem finding a sponsor. We could sponsor each other but there has to be justification for the job offer, ie I am in property management and you are a nuclear scientist ( example only), how do I justify needing one?? Or show I am capable of paying the prevailing wage?

[DavidL]

Thanks for the info Julie,

I have always been led to believe, from my own investigations of talking to the Texas Service Center, that your own company cannot sponsor you or a 'close person' cannot sponsor you. 'Close' I understand to be either a spouse or a share holder with whom you are in business with. Paying the prevailing wage rate - I understand that it must be a 'genuine offer' to employ you........................