GC expected anytime - Forced to change employer- Help needed

[librau]

Hi Gurus,

My I-485 filed at NSC (EB2-India) on Jan 2007. PD is Aug 2000. Name checkcleared. Got an RFE on Birth Cert. and filed response in Feb2008.

NSC processing times are out of times and visa is availablefor EB2 India from April 1st 2008. In all probability my file should get adjudicated in April / May.

I have a very seroius situation. Due to economic down turn, my GC sponsor is not getting projects for me and I can not go on without salary for a long time, as I have to support college going son's out-of-state fee and mortagage. Now I have got a full time permanent job offer.

I am worried about the timimg of changing employer. At the time of GC approval, if AC21 is filed, the case may get delayed,I donot know how much delay it could be.

Scenario 1 :

join new employer, do not submit my AC21, just submit G-28 for change of new Attorney, and wait for GC to get approved (Presumed that no I-140 revokation)? No delays forced because of AC21 filing!

My Questions now:

1) Is new employer would replace my original GC sponsor? If I work with this new employer for 1 year, am I not going to get any trouble at the time of Citizenship?

2) Is it that I have not intimated change of employer before GC approval, I am supposedto work with Original GC sponsor?

3) One is only EXPECTED (and not a must) to inform change of employer if you qualify for AC21. By this law, even though I do not inform USCIS, change of employer before GC approval, I am at the right side of AC21 law. And my new employer should become my GC sponsor and if I work for new employer for 1 year, I should not get any problem at Citizenship filing. Am I correct in my approach?

Appreciate your inputs.

[Jackolantern]

AC21 does not apply post-GC. If you change before the GC approval, you are covered under AC21.

It would only look bad if the GC gets approved right before you change jobs, thus making you leave right after approval. If that happens, just defend your position with these points:

- You worked for the sponsor more than a year post-I485.
- You didn't know the GC approval was coming at that time, and you already had the other offer before the GC approval and were going to use AC21.
- The other job is "same or similar".

[txh1b]

It could also look better if you don't resign but have the employer "layoff" you and then it would not look bad at all to USCIS during naturalization.

[nelsona]

There is no reason to actually file anything for AC21, so, in this case, why complicate matters.

I would be changing jobs now (notice is never required) and be firmly in place in your new job if/when GC is approved. I would be keeping strict eye on my case, to make sure that an employment RFE is not sent and answered by the old employer. If RFE is sent, that would be the time to document AC21 job change. Most GCs are beiung approved these days without Employment RFE.

The fact that you worked at the old employer for any length of time is immaterial. You EITHER need to invoke AC21 (simply by changing jobs, not necesarily sending AC21 paperwork) before GC approval, OR you need to stay at old job 6 months after GC approval or until lay-off, which ever is shorter.

[librau]

Originally Posted by Jackolantern

AC21 does not apply post-GC. If you change before the GC approval, you are covered under AC21.

It would only look bad if the GC gets approved right before you change jobs, thus making you leave right after approval. If that happens, just defend your position with these points:

- You worked for the sponsor more than a year post-I485.
- You didn't know the GC approval was coming at that time, and you already had the other offer before the GC approval and were going to use AC21.
- The other job is "same or similar".

Thanks Jackolantern for your quick response.

I change employer before GC APPROVAL and DO NOT file AC21 papers ( Because submiting AC21 would delay case for ever!!), as I know my case would soon get approved in less than 4-5 weeks.

In this situation, I am under AC21 protection and my new employer should presumably replacing original GC sponsor and hence I need not work for Original GC sponsor. Does it make sense??

[Jackolantern]

Originally Posted by nelsona

The fact that you worked at the old employer for any length of time is immaterial.

Although it is not required that you work for them for any length of time, the fact that you worked for them is not immaterial. Your intent is an important consideration, and having worked for them for a substantial period of time post-I485 is strong supporting evidence for your intent to work for them.

[librau]

Originally Posted by nelsona

There is no reason to actually file anything for AC21, so, in this case, why complicate matters.

I would be changing jobs now (notice is never required) and be firmly in place in your new job if/when GC is approved. I would be keeping strict eye on my case, to make sure that an employment RFE is not sent and answered by the old employer. If RFE is sent, that would be the time to document AC21 job change. Most GCs are beiung approved these days without Employment RFE.

The fact that you worked at the old employer for any length of time is immaterial. You EITHER need to invoke AC21 (simply by changing jobs, not necesarily sending AC21 paperwork) before GC approval, OR you need to stay at old job 6 months after GC approval or until lay-off, which ever is shorter.

Thanks Nelsona for your reply.

I do not understand the point that invoking AC21 by NOT sending any paper work? How do I do? Just sending a letter to USCIS saying that I have changed employer?

[nelsona]

There is no requirement to advise any agency that you are invoking AC21. You would only need to do this at the time an RFE for current employment/sponsor would be issued, if at all.

Some have proactively done this to pre-empt such an RFE, but this would be at a time when it is unlikley that GC would be approved for several months, since it would take some time for this info to filter into the AOS application.

You are not in that situation, you are expecting imminent approval. Any AC21 paperwork you would optionally send would either (a) not make it into the application anyways, thus not avoiding RFE or (b) delaying approval while they review this AC21 material.

So, use AC21, document it for yourself, but don't submit any paperwork until asked for.

[Jackolantern]

Originally Posted by librau

Thanks Nelsona for your reply.

I do not understand the point that invoking AC21 by NOT sending any paper work? How do I do? Just sending a letter to USCIS saying that I have changed employer?

By simply changing jobs, you would have used AC21 (provided the 180 days+same/similar criteria are met).

[librau]

Originally Posted by nelsona

There is no requirement to advise any agency that you are invoking AC21. You would only need to do this at the time an RFE for current employment/sponsor would be issued, if at all.

Some have proactively done this to pre-empt such an RFE, but this would be at a time when it is unlikley that GC would be approved for several months, since it would take some time for this info to filter into the AOS application.

You are not in that situation, you are expecting imminent approval. Any AC21 paperwork you would optionally send would either (a) not make it into the application anyways, thus not avoiding RFE or (b) delaying approval while they review this AC21 material.

So, use AC21, document it for yourself, but don't submit any paperwork until asked for.

My question is, when GC is approved after I joined new employer, I should keep working for atleast 6months with new employer and can forget the original GC sponsor employer? Will I not get into problem at Citizenship filing? How do I have to justify my stand?

[nelsona]

Your new employer IS your new sponsor. so, you and he would have the same responsibilities toward each other and the govt that existed with your original sponsor.

You would be wise to stay six months with the new one, post GC.

[librau]

Originally Posted by nelsona

Your new employer IS your new sponsor. so, you and he would have the same responsibilities toward each other and the govt that existed with your original sponsor.

You would be wise to stay six months with the new one, post GC.

Many Thanks Nelsona.

Please confirm me if I understood correctly about my case and what is the best option:

I would join new employer before GC is approved. Do not send any AC21 documents to USCIS. (in order to avoid any delays of GC processing that would incur,hadI submitted AC21). Wait till I get GC.

Then though I have not intimated USCIS about my change of employer, the fact that I have changed employer before GC is approved, new employer would become my new GC sponser.

Stick with new employer for GC obligation of atleast 6 months,in oreder to avoid future citizenship filing.

I need not worry for my Original employer who sponsered my GC.

Kindly confirm about my understanding was correct.

You have to excuse me for my dumb way ofunderstanding this issue.

Appreciate your confirmation on above.

[armie]

These are strictly in my opionion:

Since your case is so close to possible approval, join the new employer ASAP, do not file AC21 till you have few paystubs in hand. Doing will ensure that your is not case further retrogressed due to possible AC21 complications. This situation is preferable in the event of employment RFE too since you will be without paystubs if you stick with your current employer.

I would rather have GC today than being upaid now, even if I have to put up possibly minor (even this is a grey area) complications with naturalization five years down the line. At the worst, I would not expect this to be anything more than a good attorney can't solve.

Good luck.