Procedure to switch companies with EAD

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waavman

Registered Users (C)
Hi,

I got my I-140 approved in Feb 2007. I applied for mine and my wife's EAD/Advanced Parole/485 in June 2007.We both got our EAD and Advance Parole approved in Sep 2007. My 485 is still pending. My Labor application and all the above were applied through company A with whom I am still working as a software consultant for a financial company end client. There is another layer inbetween Company A and the financial company end client which is Company B. B is is a bigger software consulting company and a preferred vendor for the financial client. I would like to switch from Company A to B so that I could cut one layer and consequently save a % of my pay from going to company A since I work on a % basis.
Can I do this switch from A to B while still working for the same financial end client ? Are there any risks involved ?
If so what is the procedure ? Please elaborate.

Kindly help.

thanks
waavman
 
If Company B has the non-solicitation clause on the agreement with Company A then you would need a letter form Company A stating that they are releasing you and you are free to join any Company. I don't think it should be a problem provided Company B is willing to provide you with Emp Verification Letter and they hire you as a Permanent employee on W2.
 
You can do the H-1B transfer, as this is transparent to the end client. However, the direct vendor (future employer) may require a letter of consent from your current employer.
 
Thanks for the information. I have a few more questions
related to this issue

1) When switching from employer A to B, is there any notification I need to send to USCIS about the A - B switch, so that USCIS knows that I now belong to B not to A, or is it not necessary to let them know at all ?

2) After the switch from employer A to B, is there any responsibility on part of my original employer A so that my I-485/Greencard process doesnot get jeopardized ?

3) While my 485 process is going on, am I allowed to switch companies only once or any number of times ? For eg: If I now switch from A to company B, a few months down the road, if I am not happy with company B, can I switch to some other software consulting company C which has a different end client ?

4) As mentioned earlier, my EAD, Advanced Parole, I-485 were simultaneously filed in Jun 2007 and I got the first 2 in Sep 2007. Does anybody have an estimate how much time it could take for my I-485 yo get processed or what they are currently processing ?


thanks
waavman
 
waavman said:
When switching from employer A to B, is there any notification I need to send to USCIS about the A - B switch, so that USCIS knows that I now belong to B not to A, or is it not necessary to let them know at all ?
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You are "expected but not required" to notify USCIS. I know there are people who have notified proactively, and others have waited for an RFE. I don't think it makes much of a difference.

After the switch from employer A to B, is there any responsibility on part of my original employer A so that my I-485/Greencard process doesnot get jeopardized ?
Click to expand...

Your old employer is not required to do anything further.

If I now switch from A to company B, a few months down the road, if I am not happy with company B, can I switch to some other software consulting company C which has a different end client ?
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You can switch employers multiple times, but too much switching might lead USCIS to question the permanence of your offer. With that said, I switched twice and others have as well, and I haven't heard of an issue.

Does anybody have an estimate how much time it could take for my I-485 yo get processed or what they are currently processing ?
Click to expand...

It depends. Is your PD current?
 
Can I open my own company with pending I485 using AC21

Thanks for your detailed response.
Now I would like to inquire about an additional possibility other than switching from my current company A to company B.
Can I start my own software consulting company which would have just me as the owner and employee ( I donot plan to employ anyone) and then do independent consulting through my own company, directly for the same client that I am currently working for, through layers A & B. The advantage of this is that I would be able to eliminate both layers A & B and thereby also eliminate the % these guys take from my salary.
(1) Since my I485, EAD application was done over 8 months ago and I have my I-140 approved but my 485 is still pending, can I do this ? Can I open my own company ?
(2) If so are there any additional risks involved or is it just as simple as switching from A to B ?
(3) Other than the usual steps associated with opening a company are there any additional USCIS related steps involved or is it just filing of AC-21.

Kindly clarify.

thanks
waavman
 
Self-employment for AC21 is allowed, but it raises a red flag and USCIS is likely to want more proof of it being a real company ... what are your revenues or do you have investor funding, your business plan, etc.
 
So does it mean that I would not be able to open a company of my own specifically for independent contracting ?

If so, can I switch to some other company C which is another 1 man company owned and run by a single person (my colleague) through which that person does independent consulting for the same end client as my current end client. The company C was opened by that person after he got his greencard for an identical reason of independent consulting and elimination of middle layers.
So if I switch from company A to his company C, and consult through his company for the same end client, does that raise any red flags with the INS, about my switching from employer A to employer C which is a 1 man show with no investor fuding or business plans ?

Any clarification would be greatly appreciated.

thanks
waavman
 
Another person's company would not raise that automatic suspicion, but how comfortable would you be if they called you in for an interview to ask about the company and the job and/or sent an RFE inquiring about its financials, employees, history, etc.? Is it worth the risk of I-485 denial?
 
waavman said:
So does it mean that I would not be able to open a company of my own specifically for independent contracting ?
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Why not? This is what the AC21 memo says:

http://shusterman.com/pdf/ac21-51205.pdf
Interim Guidance for Processing Form I-140 EB Immigrant Petitions and Form I-485 and H-1B Petitions under AC-21 (5-12-05)

Question8. Can an alien port to self-employment under INA 204(j)

Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a “same or similar” occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 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.
 
Last edited by a moderator:
Hi,


As mentioned earlier I am currently working for end Client X through preferred vendor B and my employer A. If I am planning to leave my current employer A and join employer B which is the preferred vendor for the end Client I could eliminate the paycute that layer A takes entirely. But how important is a release letter from my current employer A. If it refuses to give a release letter, can I still quit A and join B ? Are there any risks involved ? I already have my I140, EAD, Adv Parole approved. I am just waiting for my 485 and Greencard.

thanks
waavman
 
waavman said:
Hi,


As mentioned earlier I am currently working for end Client X through preferred vendor B and my employer A. If I am planning to leave my current employer A and join employer B which is the preferred vendor for the end Client I could eliminate the paycute that layer A takes entirely. But how important is a release letter from my current employer A. If it refuses to give a release letter, can I still quit A and join B ? Are there any risks involved ? I already have my I140, EAD, Adv Parole approved. I am just waiting for my 485 and Greencard.

thanks
waavman
Click to expand...
The answer to your question depends on what type of non-compete agreement you have signed with your employer A and whether employer A will sue you to enforce the conditions of non-compete agreement.
 
waavman said:
Hi,


As mentioned earlier I am currently working for end Client X through preferred vendor B and my employer A. If I am planning to leave my current employer A and join employer B which is the preferred vendor for the end Client I could eliminate the paycute that layer A takes entirely. But how important is a release letter from my current employer A. If it refuses to give a release letter, can I still quit A and join B ? Are there any risks involved ? I already have my I140, EAD, Adv Parole approved. I am just waiting for my 485 and Greencard.

thanks
waavman
Click to expand...

The letter depends on the employer B's requirement (basically on the relationship between A and B). On the other hand, if you want to join employer C (another direct vendor to the present client) then you have to check the employment agreement with employer B. Usually an employee is not allowed to switch the vendor while continue to work with the same client.
 
(1) So based on what you are saying, if I have NO non-compete agreement with employer A then company A cannot sue me right .

(2) Can they jeopardize in any way my on-going Greencard process instead ? I currently have my I-140 approved, EAD approved and Adv. Parole approved. I am waiting for my 485 approval which is about a year behind the current priority date.
Can they jeopardize my 485 / Greencard in any way.

(3) Is existence of employer A important for my 485 / Greencard ?

thanks
 
1) So based on what you are saying, if I have NO non-compete agreement with employer A then company A cannot sue me right .

They cannot if you have not signed a non-compete agreement. Check if A and B have something in their contract. But is is not an issue to you personally as the companies have to deal with any lawsuits between them if they have something between them.


(2) Can they jeopardize in any way my on-going Greencard process instead ? I currently have my I-140 approved, EAD approved and Adv. Parole approved. I am waiting for my 485 approval which is about a year behind the current priority date. Can they jeopardize my 485 / Greencard in any way.

They cannot do anything. They don't have any incentive to revoke the I140 like earlier days as substitution of labor is no longer allowed. Just out of pure malice, they could inform USCIS that they are no longer your sponsor which can be taken care of by you by filing a well drafted AC21 request to USCIS. This is not needed but strongly recommended to avoid RFEs and NOID at a later stage.


(3) Is existence of employer A important for my 485 / Greencard ?

No.
 
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