Employer shutdown <180 days after 485 - good news from USCIS itself

[jamborees]

My employer shutdown less than 180 days after 485 application.
I have been always worried - regarding whether AC21 is applicable for me - especially so because now I am applying N400.
Now I found this: it is highly re-assuring.
Could you comment that this means there is **absolutely** no need to worry?
This thread would be immensely useful to all people under similar circumstances.

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

 

[Jackolantern]

You do have a little bit to worry about ... because the employer shutting down within 180 days of filing the I-485 casts doubt on whether it was a bona fide job offer. If USCIS knew about the shutdown immediately as it happened, they would have canceled your I-140 and denied your I-485.

 

[ginnu]

My employer shutdown less than 180 days after 485 application.
I have been always worried - regarding whether AC21 is applicable for me - especially so because now I am applying N400.
Now I found this: it is highly re-assuring.
Could you comment that this means there is **absolutely** no need to worry?
This thread would be immensely useful to all people under similar circumstances.

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

I know about a case: X was working on H1 with A. employer A filed LC and later I-1140 for X. X left the employer A and joined employer B on H1(employer was not paying) . Employer A I-140 got approved and X filed I-485 based on employer A I-140 filing reciept(no job offer letter from A was attached with I-485). Employer A company got closed after I-140 approval and I-485 was not pending more than 180 days and A was also not aware that X filed I-485 based on his I-140 filing reciept. Employer B also filed LC and I-140 for X. B I-140 also got approved. I-485 was transferred to local office for interview and X provided employer B letter to invoke AC21 and got I-485 approved.

X was also ready with copy of B I-140 approval to interfile with I-485 but officer did not ask any question and just asked employer B job offer letter.
**** The advice to file I-485 with I-140 filing receipt of A was given by reputed Lawyer and X filed I-485 through that lawyer.

 

[Bobsmyth]

You do have a little bit to worry about ... because the employer shutting down within 180 days of filing the I-485 casts doubt on whether it was a bona fide job offer. If USCIS knew about the shutdown immediately as it happened, they would have canceled your I-140 and denied your I-485.

Since the employer has to submit it's financial papers with the I-140, USCIS should be able to conclude if an immanent shutdown was foreseeable and the job offer bona fide. However, if the shutdown occurred due to the recent difficult economic times and the company's financial papers otherwise looked ok, I'm sure USCIS would give some leeway in such cases.

 

[n400_applicnt]

Thanks for the good news, does this apply only for concurrent filers ( 1-140 & I-485) Or for non-concurrent filers as well - can someone pl clarify

I'm also in the same boat, but I'm a non-concurrent filer, I filed my I485 upon getting I140 approval, I was not with sponsoring company while filing 485

got my gc without rfe, now getting ready for n400

Thanks

 

[ginnu]

Thanks for the good news, does this apply only for concurrent filers ( 1-140 & I-485) Or for non-concurrent filers as well - can someone pl clarify
-------------------------This is not new Memo this is 2005 AC21 Memo. It does not matter one file concurrent Or non-concurrent.
I'm also in the same boat, but I'm a non-concurrent filer, I filed my I485 upon getting I140 approval, I was not with sponsoring company while filing 485
------------------------That is OK. GC is for future job. one may be working with A and B can file LC then I-140 and then you file I-485 with I-140 or after I-140 approval.
got my gc without rfe, now getting ready for n400

Thanks

-------------------

 

[Jackolantern]

Since the employer has to submit it's financial papers with the I-140, USCIS should be able to conclude if an immanent shutdown was foreseeable and the job offer bona fide. However, if the shutdown occurred due to the recent difficult economic times and the company's financial papers otherwise looked ok, I'm sure USCIS would give some leeway in such cases.

Depending on the time and context of when it shut down, the shut down raises a red flag of the possibility that the financial papers were fraudulent and may need further investigating. Especially if the financials appeared to be super-healthy when submitted to USCIS.

But that wasn't my real point. The point was that if the company that filed the I-140 goes under, the I-140 is no longer valid unless AC21 portability to a "same or similar" job is used. But AC21 does not protect the I-140 if the I-485 is pending for less than 180 days, so if the employer requests an I-140 revocation or goes kaput within that 180 days and USCIS knows about it, USCIS will, or at least they can, legitimately revoke the I-140 and deny the I-485.

 

[jamborees]

In that case, may be this will help:

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

Doesn't that mean that USCIS is OK if the alien has a 'same or similar' job when I485 is adjudicated and does not worry that the original petitioning employer shutdown.

 

[ginnu]

In that case, may be this will help:

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

Doesn't that mean that USCIS is OK if the alien has a 'same or similar' job when I485 is adjudicated and does not worry that the original petitioning employer shutdown.
---------------------USCIS has been ok for this situation and many Companies got closed after I-140 approval or before I-485 pending more than 180 days. Many invoked AC21 and got approved.

----------------

 

[jamborees]

jackolantern, question for you

Jackolantern, you said this:

But AC21 does not protect the I-140 if the I-485 is pending for less than 180 days, so if the employer requests an I-140 revocation or goes kaput within that 180 days and USCIS knows about it, USCIS will, or at least they can, legitimately revoke the I-140 and deny the I-485.

Why do you say that "

if the employer goes kaput within that 180 days and USCIS knows about it, USCIS will, or at least they can, legitimately revoke the I-140 and deny the I-485."?

Isn't this the very point that I pasted from USCIS memo: please read below again:

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No.

You said before:

You do have a little bit to worry about ... because the employer shutting down within 180 days of filing the I-485 casts doubt on whether it was a bona fide job offer.

But the memo clearly says:

However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment.

I agree, USCIS can always doubt whether the offer made was sincere, but if I did work for them already for 2.5 years while the LC, I140, 485 was going on, wouldn't that be possible proof in itself that the offer was sincere? Also, please note, it clearly says "as of the time the I140 was filed", which hints at liniency.

Thanks.

 

[hattrick]

Hi N400_applicant,

I am in the same boat as you, I got laid off, 3 weeks after filing I485 (Non-concurrent), employer said he will not revoke I-140, I got another job within couple of weeks (H-1 transfer) in the same field. My GC got approved without RFE and I did not file AC21 at all. I delayed my N400 upon lawyer advice until 7th year of GC, now those companies dont come up in employment history on N400. I just filed N400 yesterday, with fingers crossed. I am also from NOVA area, so thought we can keep in touch and share our research.
Thanks
Hattrick

PS: Also other Gurus out there please let me know the best defence I can have for my case.