Hi

I would appreciate it if someone could confirm normal USCIS procedure for me.

I originally filed an I140 with I485 concurrent processing.

I received an I140 denial and immediately filed an I-290B motion to re-open.

The I485's sat pending for two months but have now been denied.

The I-290B MTR the I140 is shown as Case received and pending.

Should the I485's have been held pending a decision on the MTR or is standard procedure to deny them?

Thanks

Steve

No, the denial of the I485 properly followed the denial of the I140. The I290B filing has no impact on the two denials.

Your answer on the I290B should come within one month.

Thank you for your reply, federale86, which confirmed my thought process.

I was wondering if you, or another member, might be able to satisfy my curiosity on another point. I am keen to understand just how much ‘new evidence’ can be submitted with the I290B MTR and more importantly how it will be viewed by the adjudicating officer.

My (new) attorney simultaneously filed the I290B to appeal the I140 denial and also a new L1/L2 extension application via premium processing. The L1/L2 extension was approved within 24 hours.

For the appeal he submitted a duplicate of the exact same paperwork submitted for the L1/L2 extension accompanied by a covering letter citing poor legal representation when the original I140 and response to RFE was submitted as well as highlighting significantly stronger evidence of my executive duties which was the primary reason for the initial denial.

My (new) attorney has said that he believes the appeal to be tainted by investigations into my original attorney, who it appears was involved in a ponzi scheme involving E and EB5 investors money. He suggested that the denial of the I485’s was an indication that the appeal had or would fail.

My (new) attorney is urging me to submit a new I140 application using the same paperwork submitted with the L1/L2 extension, in addition to up to date bank statements etc., and withdraw the MTR.

I am struggling with the decision.

It would be useful to know if it is acceptable to have submitted all new paperwork with the I290B and if that will be of merit to the appeal. The original I140 application was submitted in Nov 2008, and the new paperwork submitted as evidence with the MTR was for June 2009 with significantly increased turnover and additional members of staff etc. Is this of any additional merit, or will the MTR still be judged on the facts submitted with the original application?

Sorry to be so long winded, but I would appreciate your thoughts and advice.

Thanks

Steve

If your new attorney is competent and seems to be doing a good job, then re-filing an I-140 may be a better option than going through with MTR. MTRs are much harder to overcome than RFEs.

MTRs can be submitted with new evidence (as much as you want as long as it is relevant and probative). However, it is hard to tell which "new" evidence the service will actually take into account. Sometimes, the service will say that the new evidence is actually primary evidence that should've been submitted in the first place so that the denial is technically not wrong.

The only real benefit of the MTR is that if the I-140 is approved, then your I-485 will be re-opened and adjudicated (and the fact that it was denied doesn't mean that I-140 will be denied- many USCIS officers do it as a matter of procedure).

If you re-file the I-140, you will most likely have to file a new adjustment.

Hi
Thank you Mrs. Mani for your response.

It would be useful to know how long a MTR an I-140 is taking at the moment at the Texas Service Centre. Federale86 suggested that I should have an answer within one month, indicating an approximate overall processing time of 3 months.

If it is a relatively short period of time, say two months from now, then I may be better waiting on the MTR, but if it’s any longer I think I would prefer to file a new I-140.

Can anyone confirm this approximate 3 month time-line?

Thanks

Steve

3 months seems too short a timeline for me. I've seen I-140s re-opened in as little as 4 months but have seen others pending for over 1 year. No way to tell exactly.

You can submit as much evidence as you want. It should be concise and direct evidence. Affidavits are usually ignored.