AC-21 after I-485 Adjudication

[newkidhere]

Hi Gurus,

Could anyone of you let me know, if the AC-21 can be filed after I-485 approvals.

I got my I-140/I-485 filed by company A for future employment. I work for company B in a fairly stable job and I do not want to switch.

What should I do to preserve the approved I-485?

Appreciate your input.

Thanks

[bhayanak]

AC21 is used before and NOT after 485 approval.

You'll have to work with A once your 485 is approved or else it would be considered as fraud by CIS...

Hi Gurus,

Could anyone of you let me know, if the AC-21 can be filed after I-485 approvals.

I got my I-140/I-485 filed by company A for future employment. I work for company B in a fairly stable job and I do not want to switch.

What should I do to preserve the approved I-485?

Appreciate your input.

Thanks

[raaj97]

Suppose if the company A filed I140 and I485, I140 has been approved and I485 is pending more than 180 days and switched to company B, not informed USCIS through AC21 of change in employer. If I485 has been approved while working for company B (company A is I140 sponsoring company), does the law says the applicant need to go back to I140 sponsoring company and work for it for a specified period say 6-12 months?

In this case, AC21 is not used with successful I485 approval unlike the issue raised by newkidhere. Any comments or experiences, please share.
Thnx

[tammy2]

There are confusion about this issue. All this is because there is no final AC-21 draft. What draft says USCIS expects you to inform the USCIS. But it is not mandatory. So until final draft no one can tell any thing certain.

People who have used AC-21 in first batch are become eligible to get the citizenship this year. It would be interesting to watch.

[brucelee]

I really do not understand still how the AC-21 is handled by USCIS.
It is certainly not documented well enough for people like us having
complex issues.
My questions are:
1)How can somebody file for Greencard for future employment
and not have him join at all (as newkidhere stating)
2)Why should AC-21 be used at all if they approve for some employer filing
for some employee with no working? Seems interesting here.
3)How can they check to see if they really work? only on citizenship?

Gurus! show some light for me.
-Bruce

[muchadus]

Same situation

1. Company A filed 140-458 in 2004 and got denied.
2. Company A filed MTR/appeal which was moved to appeal department
3. I joined another company for preapproved and they filed my 140 and H1 transfer which is not approved yet.
4. Got approval for 140-485 both from company A.

Question :
1. Do I have to go back to company A? Originally 140-485 was filed in Feb-2004 and denied on Dec-2004
2. Is there any possible issue I would encounter to get my GC?
3. Honest opinion of which company should I stay with to avoid conflicts?

[lohith]

Hi Gurus,

Could anyone of you let me know, if the AC-21 can be filed after I-485 approvals.

I got my I-140/I-485 filed by company A for future employment. I work for company B in a fairly stable job and I do not want to switch.

What should I do to preserve the approved I-485?

Appreciate your input.

Thanks

Well, in practical situations, you will be in problem and facing issues IF "A" complains and sends revokation to your approved 140. In that situation, you may get NOID on 485 (notice of intention to deny) as your 140 was revoked, and you are required to prove you are working same/similar profession ( specified in LC) to save your 485.

check it out comments of 'unitednations' on AC-21 after 485 approval.

http://boards.immigration.com/showth...9&page=1&pp=15

one more thing;

ac21 doesn't require notification to uscis.

The advantage of letting uscis know of ac21 before the greencard got approved is that it is in their files and they have determined that it is a "same/similar" job.

If one doesn't invoke ac21, and there is an issue later on at citizenship time or someone complains on you; it wouldn't be in their files as them having assessed whether that job is same/similar. They could ask you to prove that it was same/similar job.

The key thing is that you meet the requirements of same/similar job whether or not you notified uscis. As worse thing could happen is if one didn't notify and they are asked later to prove that it was same/similar job.

[brucelee]

Thanks Mr.muchadus for posting your details.
If I were given option, I would stay with emp. 'A'.
I asked filing previous employer (the boss who signed the paper
to send a letter to USCIS to open the case again. Not sure if they will be doing it.
In the mean time I filed for MTR for denied 485 and they have reced it.
Not sure again how long will it take for them process the case.
I confirmed calling the 800# as the status did not change.
Hope hope hope.. pray for hope!
-Lee

[cala]

Well, in practical situations, you will be in problem and facing issues IF "A" complains and sends revokation to your approved 140. In that situation, you may get NOID on 485 (notice of intention to deny) as your 140 was revoked, and you are required to prove you are working same/similar profession ( specified in LC) to save your 485.

check it out comments of 'unitednations' on AC-21 after 485 approval.

http://boards.immigration.com/showth...9&page=1&pp=15

Correct me if I'm wrong. Basically what you are saying is AC-21 will work even after I-485 approval for the pervious employment?

[lohith]

Correct me if I'm wrong. Basically what you are saying is AC-21 will work even after I-485 approval for the pervious employment?

To be clear, originally, AC-21 (cahnge of 'intent') comes into scene only 140 approved and 485 has been pending more than 180 days or approved after 180 days of 485 filing. Obviously, does not work with 140/485 concurrent approval in less than 180 days.

AC-21 requires permanent job offer from US employer in same/similar profession specified in underlying LC.

Again, USCIS should not be suspicious of your orginal/GC's "Good-Faith Intent" and underlying 485's future job offer letter of GC sponsor(if uscis thinks it is questionable)

[GC_GoneCase]

So this implies that if 485 is approved after 180 days of filing, one can show the change of intent and may not work for the sponsoring employer any more.

In other words, one can join any employer for similar job if 485 is approved after 180 days of filing.

As 485 is approved, I presume, there is no sense in AC21 letter.

Does the job title or salary with a new employer would make any difference in that case.

Thanks

To be clear, originally, AC-21 (cahnge of 'intent') comes into scene only 140 approved and 485 has been pending more than 180 days or approved after 180 days of 485 filing. Obviously, does not work with 140/485 concurrent approval in less than 180 days.

AC-21 requires permanent job offer from US employer in same/similar profession specified in underlying LC.

Again, USCIS should not be suspicious of your orginal/GC's "Good-Faith Intent" and underlying 485's future job offer letter of GC sponsor(if uscis thinks it is questionable)

[lohith]

So this implies that if 485 is approved after 180 days of filing, one can show the change of intent and may not work for the sponsoring employer any more.

In other words, one can join any employer for similar job if 485 is approved after 180 days of filing.

As 485 is approved, I presume, there is no sense in AC21 letter.

Does the job title or salary with a new employer would make any difference in that case.

Thanks

If GC sponsor complains to USCIS on your 140/485 that your intention was fradulent and not working for his company even after approval , then all trouble is yours, to send AC21 letter justifying job duties and why you changed your intent after approval.

[GC_GoneCase]

Thanks Lohith.

A. So, this would mean that if the GC sponsor does not complain, no issue. I am also assuming there must be a time window to join or complain.

B. If some one does not join for 6 months but still has intent to join later, what would that mean from intent prospective.

C. If sponsor complains, one can give reason like due to delay in 485 approval, got better job or the job contents should be similar in new job as well.

D. Can someone give a reason that the sponsor is no longer an attractive option due to losing business in market etc?

Here is my scenario -

1. I am working with company A since Jan 2004 at a good position and salary.

2. GC sponsored by Company B in Sept 2004 in EB2 using substitute labor for a relative junior position and lower salary ( Min salary per labor around 90K)

3. My 140 got cleared and now it is more than 6 months. 485 is awaited.

4. I would like to continue with my existing company due to my relative higher position, stake and salary. Do I have to use AC21 or say can I use AC21 if I want to continue with existing company?

5. If yes, Should I use AC21 now or wait for some more time or wait for GC and take no action?

6. Am I under any obligations to join sponsor at this time when 140 has got approved?

7. The sponsoring company is not likely to complain or withdraw anything but I would like to be safe at my end, you never know when the things can change. Our own power is what we own.

Any suggestions would be highly appreciated.

I have suffered for last 4 years and lost my peace of mind due to this hopeless situation of GC pending with unapproved 140 and 485.

Now, the good thing of 140 approval happened unexpectedly, thanks to God Almighty, and I think it is better to be get more informed before taking any action.

This forum provides better Insight than many attorneys put together as this forum is by choice and without any financial motives whereas going to attorneys is by compulsion and financialy motivated.

Thanks a lot in advance.

If GC sponsor complains to USCIS on your 140/485 that your intention was fradulent and not working for his company even after approval , then all trouble is yours, to send AC21 letter justifying job duties and why you changed your intent after approval.

[lohith]

A. So, this would mean that if the GC sponsor does not complain, no issue. I am also assuming there must be a time window to join or complain.

Yes, GC sponsor is the trouble maker. No time window. You have to join GC sponsor immediately or depends on understanding between you and sponsor.

B. If some one does not join for 6 months but still has intent to join later, what would that mean from intent prospective.

See, my friend, you have to read between lines. It's all about the relationship between you and sponsor. Bottom line is, you have to get GC sponsor not to complain to USCIS that your 'intention' was fradulent.

C. If sponsor complains, one can give reason like due to delay in 485 approval, got better job or the job contents should be similar in new job as well.

USCIS doesnot buy all that bulls**t of 485 delay since you made your 'intention' is in Good -Faith that you will work for GC sponsor upon approval unless you already invoked AC-21 (change of intent) before 485 or at the time of approval.
your GC approval is employment based on LC duties. You MUST have new job in same/similar profession of LC. It's safe to have EXACTLY same job title.
it's same as AC-21 requirement. check further on AC-21 thread.

See my friend, This whole trauma pops up when GC sponsor complains. Other wise, USCIS does not bother whether you are seeling groceries or running the company as a CEO.

D. Can someone give a reason that the sponsor is no longer an attractive option due to losing business in market etc?

USCIS again does not buy that bulls**t by questioning your intent, why in the first place you wanted GC thru that ' UNATTRACTIVE / LOSING 'business.

By virtue of obtaining PR/GC status thru employment based petition, again, GC is for future employment for LC duties, you are REQUIRED to join GC sponsor upon approval (otherwise your 'intention' is FRADULENT) unless you invoke AC-21 and work under same/similar profession

Here is my scenario -

1. I am working with company A since Jan 2004 at a good position and salary.

2. GC sponsored by Company B in Sept 2004 in EB2 using substitute labor for a relative junior position and lower salary ( Min salary per labor around 90K)

3. My 140 got cleared and now it is more than 6 months. 485 is awaited.

4. I would like to continue with my existing company due to my relative higher position, stake and salary. Do I have to use AC21 or say can I use AC21 if I want to continue with existing company?

5. If yes, Should I use AC21 now or wait for some more time or wait for GC and take no action?

6. Am I under any obligations to join sponsor at this time when 140 has got approved?

7. The sponsoring company is not likely to complain or withdraw anything but I would like to be safe at my end, you never know when the things can change. Our own power is what we own.

Any suggestions would be highly appreciated.

I have suffered for last 4 years and lost my peace of mind due to this hopeless situation of GC pending with unapproved 140 and 485.

Now, the good thing of 140 approval happened unexpectedly, thanks to God Almighty, and I think it is better to be get more informed before taking any action.

This forum provides better Insight than many attorneys put together as this forum is by choice and without any financial motives whereas going to attorneys is by compulsion and financialy motivated.

Thanks a lot in advance.

If I were you, I feel very in-debted to GC sponsor since 140 got approved without hassles , so, I don't mind loosing little $$ for a while to have a peace of mind. And, I just jump /join GC sponsor and work for atleast 6 months with 'realxed attitude' to keep GC sponsor reasonbly happy.

Again, this is my personal preference to keep myself out-of-the-trouble. One can not read your GC Sponsor's mind, though

Again, UN may have good insight on this.

[GC_GoneCase]

Thanks a lot Lohith and unitednations.

I am amazed at the speed you people have replied. There is no doubt, this is the best place to be in for immigration matters, more important, the co-operaion of the members on this thread.

unitednations -

How do you know that an request has been made to you to help? You are true immigrationhelp911.

Lohith, what you say is correct that I should join this new employer. But, if the employer is unable to absorb me and if I can get a letter from him saying that due to change in their business needs, they would not be able to absorb me, will that work. This may actually be true situation, do not know at this time. I would keep the letter so that they cannot say in future that I refused to join.

As my 140 was approved after 180 days of concurrent 140/485 filing, the employer cannot say that I was waiting for 180 days of 485 to pass so that I can sue AC21. The 140 approval happened after 180 days.

My concern is what would be a good strategy to use AC 21.

1. Should I use it before GC is approved? or
2. Should I use it now?
3. In case I use it now, can I use it for my existing employment as that would mean change in intent of joing 140 sponsor but not change in job.
4. Any precautions to take so that all these efforts do not go futile.

Thanks a lot for your help, I appreciate it a lot.

[CUSTODY1234]

to
the gurus

approved i 140 with employer # 1 under eb-2 and 485 pending > 180 days.
got a new job in same /similar position with # 2 with a higher salary.
attorney reccomends not to notify uscis untill get noid or rfe.

q1) what will/might happen if 140 by # 1 not revoked and continues, anf the 485 gets approved . will there be a problem at naturilaztion/citizenship process s changed employers.

q2) what if the employe #1 complains at a later date to the bcis and by then 485 if already approved and they have no new job offer same or similar on file will they cancel the approved 485 from employer #1.

thanks

[lohith]

It's amazing that unitednations is the savior of many people lives in the forum. UN spends his crucial personal time in searching through posts if someone is stuck with 'burning issue' and struggling to make both ends meet.

Mine is the classic example when UN by himself contacted me when I had been stuggling to salvage my second 140 and pushing h1 exts to the extreme. I could n't dare to imagine my life at this moment if he were n't helped me. My salute to UN !!

Well, GC_GoneCase, here is my 2 cents ...
Since you said, you have good rapport with GC sponsor, then act passively and keep the 'good intent' till you get 485 approval thru interview. And think about leisurely (not impulsively) that your well $$ paying current job's title/duties CAN be justified for AC21 based on your LC requirements.

Plz read UN's prior posts again and try to capture words/meaning between the lines, answer is right there.

[lohith]

to
the gurus

approved i 140 with employer # 1 under eb-2 and 485 pending > 180 days.
got a new job in same /similar position with # 2 with a higher salary.
attorney reccomends not to notify uscis untill get noid or rfe.
Your Attorney is absolutely Right !

q1) what will/might happen if 140 by # 1 not revoked and continues, anf the 485 gets approved . will there be a problem at naturilaztion/citizenship process s changed employers.
USCIS may ask by looking at your work history. Read UN's earlier posts on this thread.

q2) what if the employe #1 complains at a later date to the bcis and by then 485 if already approved and they have no new job offer same or similar on file will they cancel the approved 485 from employer #1.
NO. USCIS can not cancel approved 485 on job change issues unless initial decision was based on fradulent documents /evidence. Like UN's mentioned in his earlier post, uscis may ask new Job offer ltr of same/similar profession/duties of LC.

thanks

UN, Plz correct me if I am wrong in interpreting your prior posts.

[cala]

UN, I emailed you my special case and asked for your opinion. Could you check your email please? Thanks

lohith, you are correct. I've seen your postings, you've been very thorough in your advice.

Most lawyers have slammed uscis in that they have not come out with regulations regarding ac21 provision 106, ie., job change after 180 days of 485 outstanding.

However, in the aila conference in march 2005, uscis said they are working on the regulations and they will be issuing them soon.

As an fyi for everyone, how it works is that you have the immigration and nationality act (ina). Then there is a code of federal regulations which is basically how uscis puts in practice the INA. Third thing is then USCIS memos on how they are interpreting the code of federal regulations and/or the INA. Currently, AC21 is a public law but there has been no CFR's written. the only thing that has been out there is uscis memo's, specifically yates memo that I attached earlier. Once, uscis works on the CFR's and publishes them it will give more guidance.

[gc_ssr]

Suppose if the company A filed I140 and I485, I worked for them about 3 years and got laid off before I140 has been approved and I485 is pending less than 180 days. Now my 140 has been approved and currently working with other company.

The options I am looking for

1. File for AC 21
2. Do not file for Ac 21 and wait for approval

If I do not file for AC 21, and 485 got approved, is there any problem in later stage. I have already worked for GC sponsering employer for so long, is it still neccessary to work for that company after approval?

The thing is I got laid off before the 6 months period, is that makes any problem, if I invoke AC 21 or doesn't invoke AC21. Any insights on this will be much apreciated.

[CUSTODY1234]

UN, Plz correct me if I am wrong in interpreting your prior posts.

thanks for the information.

[GC_GoneCase]

Thanks Lohith,

I would go by that. As 485 is not approved yet, I assume I have no reason to join sponsor at this time. I can wait tiill 485 approval. The sponsor is not asking me to join at this time and intentions are to wait till 485 is approved.

After that, I can decide on what to do.

Getting EVL for similar job duties is not an issue. The employment title also should be no issue. As the labor is for software engineer, I presume the duties could be of software engineering e.g. design, prototype etc. although the title may be different.

In my current employment, we follow 2 job titles, one on employment letter and second for the world outside. I think, USCIS cares for what is on the EVL, not what is for public facing.

If required, I can get EVL matching to what was on labor. Salary difference is more than 50% on positive side from the minimum mentiond on labor.

Do you see any pitfall in above approach?


Thanks again in advance.

And I fully agree to what you have said about unitednations. Everyone's time is very precious and unitednations manages to take the crucial time out of the schedule. Words are not enough to praise this selfless service.

It is like truly living to the expectations of the name, or more than that - United Nations.

It's amazing that unitednations is the savior of many people lives in the forum. UN spends his crucial personal time in searching through posts if someone is stuck with 'burning issue' and struggling to make both ends meet.

Mine is the classic example when UN by himself contacted me when I had been stuggling to salvage my second 140 and pushing h1 exts to the extreme. I could n't dare to imagine my life at this moment if he were n't helped me. My salute to UN !!

Well, GC_GoneCase, here is my 2 cents ...
Since you said, you have good rapport with GC sponsor, then act passively and keep the 'good intent' till you get 485 approval thru interview. And think about leisurely (not impulsively) that your well $$ paying current job's title/duties CAN be justified for AC21 based on your LC requirements.

Plz read UN's prior posts again and try to capture words/meaning between the lines, answer is right there.

[cala]

unitednations: Here is my case. Please help!

I worked for company A and they submitted LC and I-140. Since some business changes, I left the company in Jun 2001 and joined company B while I-140 was pending. In Aug, 2001, I found out I-140 was approved. I've been working in company B since then.

I'm thinking of using approved I-140 from company A and AC-21 to file I-485. I understand the problem was I left the company A about one month before I-140 approval. However, I asked my manager write a letter for me in Mar 2002. Of course he could not promise anything, but he did wrote "I want to re-employ him when oppurtunity arise".

My question:
1. How USCIS decide when I left the company A? I mean Jun and Aug will make things different.
2. Can I use the letter from my manager to be a proof that the company still intend to hire me while I-140 approved?
3. What's your suggestions for me to do

I'm on LC pending stage with company B and do not want to have any negative impact from what i'll do with company A's gc application. The reason I want to give it a try with the company A's gc application is for an additional option, just in case Company B's GC process has any problem.

[cala]

Thanks for your comments. UN.

Actually, I am able to get a letter from my previous manager with current date. The problem is he can not really promise the future job offer. Like I said, he may write something like "I will re-employ him, should oppurtunity arise". Do you think I should attach the letter with I-485 or not?

What if I do not submit medical result with I-485? Could you list anything could make the case be pending longer, and maket sure I would receive RFE after 3 month?

How does INS decide when I left the company A? What if INS questioning on my departure from company A before approval of I-140?

Thanks

Whenever, one is deciding what course of action to do, the main thing to keep in mind is; if something should go wrong, will it affect my greencard chances in another avenue.

To use ac21, the 485 has to be pending for more then 180 days. You haven't filed that yet based on the approved 140 from company a.

Because greencard is for a future job, you don't have to be working with A currently. If you file the 485 based on A's approved 140, you will have two issues:

1) you need to attach the 140 approval notice with your 485. If you don't have the approval notice then you should just state the receipt # of the 140 and the approval date. USCIS will be able to look it up in their system.

2) for EB 485 cases, a job offer letter is supposed to be attached with the 485. I don't think you will probably be able to get one with a current date. Therefore, you could file the 485 without the employment letter. USCIS will send you an RFE for it later.

1 & 2 you can overcome. The key part in 2 is if uscis sends you an RFE for the employment letter, you would be safe if you receive it after three months of filing. Reason I say that is that uscis will give you three months to reply to the RFE. Therefore, if you receive the RFE after three months then you can take the full three months to reply, which will take the 485 to be outstanding for more then 180 days and you can invoke ac21 and get an EVL from that employer.

Now what are the other issues that you could face. Technically within ac21 you're not supposed to do what I have mentioned above. Reason being that you are supposed to have the intention of joining employer until 485 has been outstanding for more then 180 days. Obviously you know that isn't the case. Would you get in trouble for this; my answer would be no. The main way you would get in trouble is if you "made up an employment verification letter from a" and attached it with the 485.

If some how uscis objects to this, you haven't committed fraud and the worst thing they could do is deny the 485 but it wouldn't impact any future cases you may file.

Also, keep in mind that if somehow uscis approves your 485 within six months, you would be obligated to go and work for A upon greencard approval.

Some other options would be that once your labor and 140 gets approved from B and the priority date has retrogressed from B, you are allowed to transfer the priority date from the earlier approved 140 to your second approved 140 and you will not be affected by retrogression on the second approved 140 since you will enjoy the earlier priority date.

[cala]

Thanks again UN.

I'm not familiar with the I-485 process. Please correct me if I'm wrong. Here is what I should do:
- File I-485 without EVL and medical
- Wait for finger print notice
- Delay finger print untill the last day
- Do finger print
- Wait for RFE for medical and EVL
(hopefully past 3 months)
- submit medical along with AC-21 on last day

delay the fingerprints and do not send in the medical.

a letter from an employer stating "...should the opportunity arise" would harm your case. better to not include it.

[maybesomeday]

However, in the aila conference in march 2005, uscis said they are working on the regulations and they will be issuing them soon.

UN,
Is there any insight on how they are going to change the wording? I talked to my attorney (AILA liason) yesterday and she is leaning more towards the requirement that the I-485 is pending > 180days after I-140 approval (since as you mentioned earlier this law preceded concurrent filing).

[maybesomeday]

I also saw that Congress slipped in the I-140 revokation ruling to override the firstland case. That really sucks. Now there's no real safety net.

[hope_2005]

I also saw that Congress slipped in the I-140 revokation ruling to override the firstland case. That really sucks. Now there's no real safety net.

Hi,

What does that mean?

Also, 485 appl should be pending for > 180 days AFTER 140 approval is bad news too.

Thanks.

[lohith]

UN,
Is there any insight on how they are going to change the wording? I talked to my attorney (AILA liason) yesterday and she is leaning more towards the requirement that the I-485 is pending > 180days after I-140 approval (since as you mentioned earlier this law preceded concurrent filing).

This would be self-conflicting oxymoron ruling while allowing concurrent filing and approvals of 140/485. If it becomes a ruling/policy, then effective aging of 485 counts from 140 approval which ZERO '0' in my case and any one had concurrent approval. Then PD of 485 to the adjudication is again Zero.

[maybesomeday]

This would be self-conflicting oxymoron ruling while allowing concurrent filing and approvals of 140/485. If it becomes a ruling/policy, then effective aging of 485 counts from 140 approval which ZERO '0' in my case and any one had concurrent approval. Then PD of 485 to the adjudication is again Zero.

It would make some sense since they have since got rid of concurrent filing for retrogressed countries. I hope they don't get rid of concurrent filing altogether and institute the post I-140 approval timeclock for AC21 portability or I may get screwed over.