Did not apply/use/invoke AC21 after changing Company.

[gr8_2008]

Hi,
I did not use AC21 after changing Company. My old company laid me off before completing 180 days after applying I485. New company that I have joined did my H1b transfer and H1 is valid till 2010(H1b stamp expired), no gap between the termination date and new company join date.

I am visiting home country soon. Any risk if I use AP? My attorney said it is not required to use AC 21 in my case. What questions POE officer might ask me while returning to US?

Thanks in advance.

EB3
PD:Mar 2004
I-485 Pending
I-140 Approved
1 st EAD/AP expiring Sep8 th 2008
2 nd EAD valid till 2010
2 nd AP valid till Oct 2009

[ginnu]

Originally Posted by gr8_2008

Hi,
I did not use AC21 after changing Company.
-----------------------you need to read the latest AC21 info posted below

My old company laid me off before completing 180 days after applying I485. New company that I have joined did my H1b transfer and H1 is valid till 2010(H1b stamp expired), no gap between the termination date and new company join date.

I am visiting home country soon. Any risk if I use AP?
------------------------------you can use valid AP to enter US
My attorney said it is not required to use AC 21 in my case.
------------------Let the attorney comment on latest AC21 posted below and it is info from good attorney
What questions POE officer might ask me while returning to US?
--------------normal questions and sometime who enter with AP are sent for secondary Inspections
Thanks in advance.

EB3
PD:Mar 2004
I-485 Pending
I-140 Approved
1 st EAD/AP expiring Sep8 th 2008
2 nd EAD valid till 2010
2 nd AP valid till Oct 2009

Matthew Oh Attorney Reporting

08/19/2008: Advisory for AC 21 Change of Employment EB-485 Filers

AC 21 portability of approved I-140 after 180 days of I-485 filing growingly faces challenges at two different levels. Currently most of the ported EB-485 waiters have reserved their proactive report of porting since the Yates AC 21 Memorandum did not mandate proactive report of the change of employment. Until recently, these 485 applicants rarely received RFE before EB-485 was approved, and even when they received a RFE, the agency just requested to provide the evicence of continuous existence of proffered employment. When the original employer had withdrawn the approved I-140 petition, sometimes these applicants received a Notice of Intent to Deny I-485 application giving an opportunity for the I-485 applicants to submit the AC 21 portability evidence. Usually submission of basic threshold evidence in response to such RFE resulted in approval of the I-485 applications. However, lately we see increasing RFEs demanding a whole list of evidence in the event the applicant ported and changed employment. The request for evidence far exceeds their traditional practice. They even demand new updated G-325A, all the W-2s, paycheck copies, details of the new job including specific job title, description of duties, educational/experience requirement, wages, and much more. This is a sort of new challenge for the AC 21 ported EB-485 waiters who have reserved reporting of change of employment.

The second potential challenge involves potential revisitation of approvability of I-485 applications when they apply for naturalization application after five years in permanent residence. As part of the naturalization application, the agency requires the applicants to disclose the employment and addresses for the past five years immediately preceding filing of naturalization application. For EB-485 applicants, the adjudicator of the naturalization applications can notice the name of different employer at the time the applicant's I-485 was approved and may need to explore potential error in the approval of the I-485 applications. The issue of revocability of the approved I-485 applications include the question of whether the adjudicator would have approved I-485 applications, had the adjudicators learned that the alien was not working for the sponsoring employer. The adjudicators may explore this issue through the interviews at the local field offices.

Because of the changing environment, it may be prudent or even imperative for the EB-485 applicants who failed to report AC 21 change of employment to preserve the evidence of eligibility of AC 21 portability before AND after the green card approval not to face any serious consequences years after approval of the green card approvals. They should not destroy such evidence at least until after they file the naturalization applications.

[immi_mygc]

Originally Posted by ginnu

Matthew Oh Attorney Reporting

08/19/2008: Advisory for AC 21 Change of Employment EB-485 Filers

AC 21 portability of approved I-140 after 180 days of I-485 filing growingly faces challenges at two different levels. Currently most of the ported EB-485 waiters have reserved their proactive report of porting since the Yates AC 21 Memorandum did not mandate proactive report of the change of employment. Until recently, these 485 applicants rarely received RFE before EB-485 was approved, and even when they received a RFE, the agency just requested to provide the evicence of continuous existence of proffered employment. When the original employer had withdrawn the approved I-140 petition, sometimes these applicants received a Notice of Intent to Deny I-485 application giving an opportunity for the I-485 applicants to submit the AC 21 portability evidence. Usually submission of basic threshold evidence in response to such RFE resulted in approval of the I-485 applications. However, lately we see increasing RFEs demanding a whole list of evidence in the event the applicant ported and changed employment. The request for evidence far exceeds their traditional practice. They even demand new updated G-325A, all the W-2s, paycheck copies, details of the new job including specific job title, description of duties, educational/experience requirement, wages, and much more. This is a sort of new challenge for the AC 21 ported EB-485 waiters who have reserved reporting of change of employment.

The second potential challenge involves potential revisitation of approvability of I-485 applications when they apply for naturalization application after five years in permanent residence. As part of the naturalization application, the agency requires the applicants to disclose the employment and addresses for the past five years immediately preceding filing of naturalization application. For EB-485 applicants, the adjudicator of the naturalization applications can notice the name of different employer at the time the applicant's I-485 was approved and may need to explore potential error in the approval of the I-485 applications. The issue of revocability of the approved I-485 applications include the question of whether the adjudicator would have approved I-485 applications, had the adjudicators learned that the alien was not working for the sponsoring employer. The adjudicators may explore this issue through the interviews at the local field offices.

Because of the changing environment, it may be prudent or even imperative for the EB-485 applicants who failed to report AC 21 change of employment to preserve the evidence of eligibility of AC 21 portability before AND after the green card approval not to face any serious consequences years after approval of the green card approvals. They should not destroy such evidence at least until after they file the naturalization applications.

Question is even you report the act21 - there is no official confirmation like USCIS receipt or confirmation number that says it has received and made to your file. In this kind of situation, attorney will orally confirm you that he has sent the act21 and you will have to take that word.

[ginnu]

Originally Posted by immi_mygc

Question is even you report the act21 - there is no official confirmation like USCIS receipt or confirmation number that says it has received and made to your file. In this kind of situation, attorney will orally confirm you that he has sent the act21 and you will have to take that word.

Keep the copy of each document that you sent to USCIS. If sent by certified return receipts then keep the receipt with you. If lawyer filed he may have the copy of documents that he sent to USCIS to invoke AC21 or evidence that he sent. USCIS does not confirm or update the online status when you send AC21. FYI if one file form I-90 with option D(USCIS error on Green Card) the USCIS don’t update or send any receipt. they only send receipt if form is filed by Fees.

[jr_gc]

ginnu,

Need to your help. I am having H1-B with Company A, worked for Company A for 6 years and I have taken Subsitute Labor from Company B. my I-140(Company B) is cleared and i-485(Company B) is applied one year back. I have valid EAD from Company B.

I have used EAD of company B and joined Company C without working not even a single day for Company B. Will my GC denied or will i be facing any issues till I-485 get approved.

Should i request any documents from Company B. If Company B withdraw my I-140, what are the problems i will face.

Is it right decision to take offer from Company C?

Please Advice me.

[ginnu]

Originally Posted by jr_gc

ginnu,

Need to your help. I am having H1-B with Company A, worked for Company A for 6 years and I have taken Subsitute Labor from Company B. my I-140(Company B) is cleared and i-485(Company B) is applied one year back. I have valid EAD from Company B.

I have used EAD of company B and joined Company C without working not even a single day for Company B. Will my GC denied or will i be facing any issues till I-485 get approved.
-------------------you have I-140 approved filed by B and your I-485 is pending more than 180 days and that makes you eligible for AC21.

Should i request any documents from Company B. If Company B withdraw my I-140, what are the problems i will face.
------------------------you need only I-485 filing reciept+ Permanent job offer letter from C with same/similar job duties and then invoke AC21(better also send 2-3 paystub copy of C)
Is it right decision to take offer from Company C?
------------no problem
Please Advice me.

for filing AC21 you need: I-485 filing reciept+Cover letter to request for AC21+copy of C job offer letter.
** even if B revoke approved I-140 you will be OK. Better to invoke AC21 and keep copy of each document you send to USCIS. you can take help from company C lawyer