Urgent advice needed:interview scheduled right on job change date

[I485applicant05]

Dear Gurus,

I have a very urgent and unique situation. I need your advice ASAP and also believe this is a very unique situation for great discussions.

My I-485 has been pending since Oct 2004 (see case info at the end) and I decided to change job recently and accepted an offer. I am supposed to start the new job on mid April (pending H-1B transfer) and then invoke AC21 later on.

The situation suddently got very tricky: I just received the interview notice for my AOS, and the interview date is right on the same date I plan to start the new job! Initially I thought this is perfect because I can just delay my new job for a few days and go for the interview while I am with my current employer. However, my brief research seemed to suggest that it's bad to change job immediately after getting GC (assuming my interview goes well and I get my GC).

So, what should I do? I guess the options are:
1) I can try to start the new job BEFORE the interview. But what if my H-1B transfer receipt has not arrived yet by then (not filed yet as of now)? I have EAD so can start with my EAD, but I do not want the risk (of potential AOS denial). Also is there risk changing job days before the interview?
2) If I stay with my current employer, is it really bad to then leave the next day or two after the interview?
3) what if I don't get my GC at the interview (like name check delay etc)? should I stay with current employer or start the new job?

The fact is, I decided to change the job BEFORE the interview notice arrived. The interview notice arrived one week after I accepted the job offer... I intended to use AC21, but never imagined the interview would come right at this moment...

Your comments and advices are greatly appreciated.

--------------
140 RD: March 2003 (EB1, outstanding researcher)
140 AD: August 2004
485 RD: Oct 2004
485 transferred to local office: May 2005
first 485 interview scheduled: Sep 2005 (postponed)
New 485 interview:mid April 2006

[rpranesh]

Usually Employment based AOS do not get called in for interview. As per USCIS memo, they are supposed to transfer exception cases to local office (for interview). What do you think is different in your case/application that triggered the case to local office? I would analyze that first.

[rpranesh]

I missed to see your signature, which said "EB1, outstanding researcher". It is my understanding that EB1-OR, if self-applied they need to keep the job in the same area of research and not to the same company.

[I485applicant05]

Originally Posted by rpranesh

Usually Employment based AOS do not get called in for interview. As per USCIS memo, they are supposed to transfer exception cases to local office (for interview). What do you think is different in your case/application that triggered the case to local office? I would analyze that first.

Thanks Rpranesh for the response! The reason it's called for interview is likely due to some issues my wife had, but I am not sure...

My 140 is EB1-OR based, but it's also employer sponsored, so I am not sure how different it's than cases based on Labor Cert..

I'd appreciate other guru's comments on this.

[pralay]

Originally Posted by I485applicant05

Thanks Rpranesh for the response! The reason it's called for interview is likely due to some issues my wife had, but I am not sure...

If your wife had some issues, then your wife would have been called for interview, not you.

Originally Posted by I485applicant05

My 140 is EB1-OR based, but it's also employer sponsored, so I am not sure how different it's than cases based on Labor Cert..

In your case it's safe to use AC21, provided your new job is same or similar (outstanding researcher). However, in this scenario I would attend the interview with a good attroney (preferably with the attorney from your new employer). There are two main reasons for that:
1. To deal with this borderline AC21 case.
2. In many cases EB1 gets scrunity, if USCIS is doubtful about the job profile (i.e. whether the job profile requires an outstanding researcher at all). A good attorney will be able to articulate and address the issue better.

[I485applicant05]

Originally Posted by pralay

If your wife had some issues, then your wife would have been called for interview, not you.

In your case it's safe to use AC21, provided your new job is same or similar (outstanding researcher). However, in this scenario I would attend the interview with a good attroney (preferably with the attorney from your new employer). There are two main reasons for that:
1. To deal with this borderline AC21 case.
2. In many cases EB1 gets scrunity, if USCIS is doubtful about the job profile (i.e. whether the job profile requires an outstanding researcher at all). A good attorney will be able to articulate and address the issue better.

Pralay, thanks for the response. I do have an attorney to handle the interview, but would like to do my own research at the same time. I am not worry about the EB1-OR case as I feel I have a strong case there. My concern is on the potential fraud issue - if I stay with my current employer at the interview date.

The fact is, I accepted the new job offer BEFORE the interview notice came. So my intention was not to leave the current employer immediately after obtaining my GC. Rather, the intention was to use AC21 for my job change. Now, because the interview is scheduled same day as my new job starting date, I'd like to start my new job a few days later, so I don't need to use AC21. Why would this be considered a fraud?

If this is considered a fraud, why is it different to start the new job just days before the interview? That could supposedly be considered as fraud as well -- to avoid leaving current employer right after the interview...

I'd appreciate the comments from any experts on this.

[pralay]

Originally Posted by I485applicant05

My concern is on the potential fraud issue - if I stay with my current employer at the interview date.

I think you need to talk to your attorney about how to address the issue in interview. If I was you, I would surely present this case as AC21 case, by mentioning that I am going work for new company X from so-and-so date with same or similar job profile - by attaching new job description from new employer, offer letter etc. However, that is just my opinion without knowing any details of your case.

[I485applicant05]

Originally Posted by pralay

I think you need to talk to your attorney about how to address the issue in interview. If I was you, I would surely present this case as AC21 case, by mentioning that I am going work for new company X from so-and-so date with same or similar job profile - by attaching new job description from new employer, offer letter etc. However, that is just my opinion without knowing any details of your case.

Thanks pralay! I finally was able to talk to my attorney and her answer is exactly like yours -- to mention about the new job regardless of whether I am still with current company. This way, there is no intention of mis-representation and will basically be treated like AC21. I am impressed with your knowledge and rationale!

[I485applicant05]

I have another question for you parlay: if at the time of my interview, my name check is still pending, then I won't get my GC. In that case, can my wife get her GC at the interview -assuming her name check is cleared? I am the principle applicant. Would then even adjudicate my wife's case if my name check is pending? I don't know how exactly this is going to playout so would appreciate your (and other gurus') thoughts.

[rpranesh]

How are you sure that your name check is not complete. Most 2004 cases, the name check is completed within 2 weeks of 485 RD. Your email request for name check takes several months to get responded, so how are you sure that yours is still pending.

[I485applicant05]

Originally Posted by rpranesh

How are you sure that your name check is not complete. Most 2004 cases, the name check is completed within 2 weeks of 485 RD. Your email request for name check takes several months to get responded, so how are you sure that yours is still pending.

Hi Rpranesh, I did not email to ask for my name check status -- should have done so. I did ask the officer during several InfoPass appointments, and here is the amazing thing: I got back and forth answers everytime I asked! I think two times the answer was "no" and two time "yes". So I have no idea. But the last time when I was told "no", I was also asked to take a 2nd fingerprint. So I really don't know. Any thoughts on how to find it out before the interview?

[rpranesh]

Usually it takes several months to get an email response from FBI name check dept. Since your 485 RD is Oct 2004, i am pretty sure that it would have been done within the first few weeks, unless you have a common sounding name (like kumar, smith, etc) or if you do not have a clean records.