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To invoke AC21 or not???? Please share your thoughts/experience

Discussion in 'I-485 Portability (AC21)' started by pks2010, Aug 30, 2010.

  1. pks2010

    pks2010 Registered Users (C)

    To file AC21 or not???? Please share your thoughts/experience

    I hope my PD to become current within next six months and I am in a dilemma about filing AC21 letter+documents. My sponsor company (A) is a Fortune 500 company and the new company (B) is much bigger/reputable than sponsor company. I was laid-off by sponsor company for which I had worked for 180+ days after I-140 approval. My case details below;

    Category: EB2 (India)
    I-140 RD: mid-Oct 2006
    I-140 Approval Date: March 7, 2007
    PD: mid-Sept, 2006
    I-485 RD: July 2007 (originally filed at CSC and later transferred to TSC)
    Date of leaving company A: mid-May 2009.
    Date of starting with company B: end-Oct. 2009

    I used EAD while joining company B (I-9). My third EAD (H1 expired) was just renewed and valid till Oct. 2012.

    After reading several USCIS and other documents and postings on the forums:

    1. Invoking AC-21 is not mandatory. USCIS may send RFE for this when your case comes up and this will delay GC by approximately two/three weeks.
    2. One forum-friend described AC21 as sleeping giant. They may send more queries and your case may get delayed even for more than a year.

    My job profile is exactly the same; however the title is different. This is one concern I have for sending AC-21 letter. Also it is already eight months, I joined new company (and did not invoke AC21 earlier). Will the delay matter?

    I will highly appreciate you sharing your experience and valuable comments.
    Last edited by a moderator: Aug 31, 2010
  2. ginnu

    ginnu Registered Users (C)

  3. pks2010

    pks2010 Registered Users (C)

    Very good answers. Thanks ginnu.
  4. ashu4gc

    ashu4gc Registered Users (C)

    Thank you @Ginnu for your detailed response.

    I'm on the same boat and haven't officially filed AC21 and it's been year and a half since I moved out from my sponsoring employer. Do you think it's a bit too late? Can you please point us on how to file this properly? Are there set procedures/forms to follow?

    You said USCIS only cares about same/similar job responsibilities and not about the salary. In my case, the title moved from Software Engineer/Programmer to Senior Software Architect. The job responsibilities are pretty much the same except that as a Programmer you need to be guided to do the programming job and as an Architect you architect and program the solutions. It's just some extra responsibilities but the basic job profile is the same.

    In terms of salary the pay has doubled. One reason being that I was salaried with benefits with my sponsoring employer and with the new employer I'm working on hourly basis with NO benefits at all. After you account for everything by yourself the bottomline $$$ remains more or less the same but if we are talking numbers to numbers it looks doubled. Will this cause any issues if I send in AC21 notification to USCIS?

    Your/anyone comments and thoughts would be much appreciated.


  5. ginnu

    ginnu Registered Users (C)

    Talk to your lawyer and invoke AC21
  6. Zhixu2011

    Zhixu2011 Registered Users (C)

    I have a similar case except for after leaving company A, I right away went out of country and RFEs were not responded to. Finally USCIS sent a "Denied due to abandonment" letter which also said "However you can file a new application with a new fee".

    Right now I have received a new job offer with similar work (job description) and salary after being out of country for more than a year.

    The I-140 still shows as approved (and was never used up). I-485 was pending for more than 500 days.

    Now my question:- Can I use that I-140 and file a New I-485 application?

  7. ginnu

    ginnu Registered Users (C)

    what is your status now?
    did you talk to any good lawyer about your past I-485 case?
  8. Zhixu2011

    Zhixu2011 Registered Users (C)

  9. Jackolantern

    Jackolantern Registered Users (C)

    Your I-485 is dead, but your I-140 may still be alive if the employer didn't revoke it, so you might be able to file a new I-485 based on the old I-140 if/when your PD is current. If the I-140 is alive you'll retain the same priority date.

    However, because this is a fresh I-485, the "same or similar" criteria doesn't apply; you must file it based on the intent to work for the original I-140 sponsoring employer and their intent to hire you.

    Another option is to get the new employer to file a new labor cert. and new I-140. Then if the original I-140 has not been revoked, you can port the priority date from the old I-140 to the new I-140.
    Last edited by a moderator: Jun 12, 2011
  10. Zhixu2011

    Zhixu2011 Registered Users (C)

    Well - There is no IF in that. i.e. even if the originial I-140 is revoked one can port the priority date if I-140 was approved (moreso remained approved for so much time after I485 filing

    That is one reason I want to hear only from experts who can quote rules (justify clearly) rather than just a statement. I was concerned that it might confuse someone else who might be able to use a I-140 PD - hence the clarification. Please feel free to point out if that is incorrect.
    Thanks in any case.

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