I-140 Issues After Labor Certification Expiration

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OUTCOME: I-140 and I-485s Approved-Green Cards Issued

A foreign national contacted our firm after a previous attorney's errors had placed her non-immigrant H-1B status and green card paperwork in serious jeopardy. The foreign national had been maint ... aining H-1B status as an Engineer and had an approved labor certification through her employer. The previous attorney delayed the I-140 filing and when it was finally initially filed, filing fees had recently changed. The I-140 was filed with old and incorrect filing fees. The I-140 was correctly rejected by the Service Center. The previous attorney stubbornly again filed the I-140 paperwork with the old and incorrect filing fee along with an inapplicable argument as to why the incorrect filing fee was appropriate. The I-140 was again correctly rejected by the Service Center with an explanation citing the incorrect filing fee. The previous attorney filed the I-140 for a third time with the correct filing fee and language in the cover letter that the prior rejections by the Service Center were correct because of the wrong filing fee. Unfortunately, under a change in the law, the labor certification had expired and the I-140 was rejected for being filed with an invalid and expired labor certification. The foreign national was now in a difficult situation because her labor certification had expired prior to an I-140 being properly filed. In addition, the previous attorney had filed for the individual's H-1B extension late and her eligibility for an extension beyond six years ended when the labor certification had expired without an I-140 being properly filed. The foreign national's non-immigrant status and green card process were in serious jeopardy. We reviewed the regulations regarding proper filings and it was clear that the I-140 could not be viewed as properly filed if an incorrect filing fee was included. It would therefore be difficult to argue that an I-140 had been properly "filed" within the validity of the labor certification. First, we processed H-4 paperwork for the foreign national so that she again would be in lawful non-immigrant status. Second, we filed I-140 paperwork again conceding that the prior labor certification had expired, but that under equitable tolling provisions it should still be accepted and adjudicated on its merits. I argued that the individual's reasonable reliance on prior counsel's actions resulted in serious adverse consequences to her immigration status. The individual had relied on prior counsel to understand the recent changes at that time regarding filing fees and labor certification expiration rules. The Service Center initially rejected the I-140 filing and the equitable tolling argument. They were sympathetic to the foreign national's predicament, but unsure how to apply equitable tolling provisions in her case. After several conversations with a supervisor at the Service Center, they agreed to accept the late I-140 filing. We concurrently filed I-140 and 485 paperwork so that the individual could again obtain work authorization for the U.S. As part of the I-485 filing, we included the legal basis and documentation as to why previous periods of stay should not prevent her eligibility to adjust status. The I-140 was approved and eventually the 485 filings for the foreign national and her husband were approved. As is usually the case with difficult cases, the Service Center deserves recognition for taking the time to review our equitable tolling position and for exercising discretion in a deserving case. AILA liaison also deserves credit for helping the case be placed in the proper hands at the Service Center. It was very gratifying to receive this e-mail from the client after the green cards were issued: "I just received my permanent resident card. The only reason ________ & I are still in the USA and still have our home is because of all the hard work you did. Not any immigration lawyer could have made this happen. I should know as I contacted so many before we found you. We are so grateful, it is hard to put into words."