11/28/2003: AC 21 Change of Employer and Issue of New Employer’s Employment
Intent Upon Approval of I-485
· In the employment-based I-485 proceeding, the I-140 petitioning employer is required to maintain its “intent to employ the petitioned employee” upon approval of I-485. Where the I-485 applicant fails to prove that the employer no longer retains such intent, the immigration services can deny the I-485 application unless it was a self-petition I-140. The theory is that there no longer exists the proffered employment. Additionally, should the I-140 petitioner abandon its intent to employ the sponsored I-485 applicant upon I-485 approval and the immigration services approved I-485 without the knowledge of such change of intent, the immigration services can initiate the legal proceeding of revocation of the approved I-485 for the reasons that had they known such facts, they would not have approved I-485.
· What happens if the I-485 applicant changes employment after 180 days of filing of I-485? Obviously, the original I-140 petitioner abandoned such intent in this situation. However, pending I-485 should survive because of the AC 21 180-day rule. Question remains, though, whether the new employer should take over the intent to employ the alien once I-485 is granted. It appears that the USCIS view is that throughout the I-485 proceedings, an employer should retain such intent. Accordingly, it opines that the new employer should retain such intent to employ the I-485 applicant for indefinite duration once I-485 is granted. Implicitly, this view also requires that the alien should retain his/her intent to work for the new employer at the time he/she takes the new employment and throughout the period of employment with the new employer. Should the alien abandon such intent, the USCIS may be able to argue that there was a misrepresentation, and should the USCIS learn such abandonment, it can deny the I-485 and once granted, theoretically, USCIS might be able to revisit the adjudication of I-485 and initiate revocation proceeding.
· The USCIS view thus makes one thing clear: Under the AC 21 180-day rule, the I-485 applicant should not take a “temporary” employment. The terms of employment should be for a period of “indefinite” duration. Should the USCIS establish that either the new employer or the I-485 applicant did not retain an intent to employ or work for the new employer “upon approval of I-485,” the consequences can be deadly.
· It is unclear at this point whether such view and interpretation of AC 21 180-day rule of USCIS is sustainable when it is challenged in the court considering the legislative intent of the 180-day rule, but until it is settled in the court, I-485 applicants should be aware of the USCIS views on this issue and potential risk of ignoring this view.
Intent Upon Approval of I-485
· In the employment-based I-485 proceeding, the I-140 petitioning employer is required to maintain its “intent to employ the petitioned employee” upon approval of I-485. Where the I-485 applicant fails to prove that the employer no longer retains such intent, the immigration services can deny the I-485 application unless it was a self-petition I-140. The theory is that there no longer exists the proffered employment. Additionally, should the I-140 petitioner abandon its intent to employ the sponsored I-485 applicant upon I-485 approval and the immigration services approved I-485 without the knowledge of such change of intent, the immigration services can initiate the legal proceeding of revocation of the approved I-485 for the reasons that had they known such facts, they would not have approved I-485.
· What happens if the I-485 applicant changes employment after 180 days of filing of I-485? Obviously, the original I-140 petitioner abandoned such intent in this situation. However, pending I-485 should survive because of the AC 21 180-day rule. Question remains, though, whether the new employer should take over the intent to employ the alien once I-485 is granted. It appears that the USCIS view is that throughout the I-485 proceedings, an employer should retain such intent. Accordingly, it opines that the new employer should retain such intent to employ the I-485 applicant for indefinite duration once I-485 is granted. Implicitly, this view also requires that the alien should retain his/her intent to work for the new employer at the time he/she takes the new employment and throughout the period of employment with the new employer. Should the alien abandon such intent, the USCIS may be able to argue that there was a misrepresentation, and should the USCIS learn such abandonment, it can deny the I-485 and once granted, theoretically, USCIS might be able to revisit the adjudication of I-485 and initiate revocation proceeding.
· The USCIS view thus makes one thing clear: Under the AC 21 180-day rule, the I-485 applicant should not take a “temporary” employment. The terms of employment should be for a period of “indefinite” duration. Should the USCIS establish that either the new employer or the I-485 applicant did not retain an intent to employ or work for the new employer “upon approval of I-485,” the consequences can be deadly.
· It is unclear at this point whether such view and interpretation of AC 21 180-day rule of USCIS is sustainable when it is challenged in the court considering the legislative intent of the 180-day rule, but until it is settled in the court, I-485 applicants should be aware of the USCIS views on this issue and potential risk of ignoring this view.