Advisory for AC 21 Change of Employment

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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 When the original employer had withdrawn the approved I-140 petition, sometimes these applicants received a Notice of Intent to Deny I-485 application giving an opportunity for the I-485 applicants to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.