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URGENT: Changing job after I-485 approval

Discussion in 'Life After The Green Card' started by RTN27, Oct 20, 2004.

  1. RTN27

    RTN27 Registered Users (C)

    I know many of us are in the situation of changing jobs after I-485 approval.
    An expert advise would be appreciated.

    My I-485 is approved recently and I am joining new employer after one month from the date of approval.

    My parent company(GC Sponsored) has given a written letter waiving me off from contractual obligations, to join new company.

    Here is my problem.


    Prior to approval, I have decided to join new
    company using AC21 and initiated H1-B process.
    Before filing my H1-B, I got my I-485 approval.

    I anticipate problems at the time of Naturalization because of change of employment.

    Does AC21 apply to me or NOT?
    What are my BEST OPTIONS now?

    Please advise.
  2. RTN27

    RTN27 Registered Users (C)

    Thank You.

    RTN
  3. herenow

    herenow Registered Users (C)

    Joe,

    I've read the other (long and painful) thread on this topic. Just wanted to post something else I came across on Murthy's site from one of her older chat sessions in 2000:

    ----------------Clipping 1: Murthy.com ----------------------------------
    arunak: Hi Atty. Murthy, I got my Green Card in July and had my stamping in August. With the new law change, is it safe for me to change employers immediately? Please advise. Thanks.

    SPEAKER_Attorney_Murthy: It seems safe but to the extent that we do not have any INS regulations regarding their interpretation and restrictions on the nature of the job, it is best to stay in the same job classification as the Labor cert. that was filed.
    -------------------------------------------------------------------

    ---------------------Clipping 2: Murthy.com ------------------------
    Sudhakrishna: Hello, Ms. Murthy. I really appreciate your effort in taking time to help us. Our Green Card got approved end of August. I have got a great offer & would like to know if it is wise to leave the employer within 3 months of Green Card stamp. Can they ever revoke my Green Card? Please advice with the new law if it is legal for me change employer within 3 months. If not, what is the safe period? Our priority date goes way back to Dec 1995.

    SPEAKER_Attorney_Murthy: After our meeting here in Baltimore with INS officials on Oct. 25, 2000, it seems safer to leave the employer, as long as the work is the same as that processed for the GC.
    -------------------------------------------------------------------

    It seems as if her position was more towards being able to change employers right away if desired, as long as the job classification was the same as in the LC. So one would be inclined to think that this applies to all those that are (hopefully) not in dire-enough straits to go sweep for McDonald's as yet (unless that's how you got your employment based GC - stranger things have happened).

    It does seem like her stance has changed since then (not sure what date her FAQs on 485 are from which you have referenced here, but I'm guessing its after the chat session in Oct 2000). It could be that in the post 911 era that she is now advising being more cautious, but I don't think that laws regarding this have changed since Oct 2000 (at which point she says she actually met with the INS officials as above).

    Another thought is perhaps she got some crap from employers for whom she does GC work and decided to change her recommendation?

    At the risk of causing another flame infested thread on this topic (not my intent at all), Thoughts?
  4. herenow

    herenow Registered Users (C)

    UN:

    1. That is indeed interesting. Check out below what 8 CFR says on the same issue of rescission. Not sure between CFR and INA which takes precedence in terms of actual application. Seems like INA is the law while CFR is the code of regulations that "apply the law to daily situations".

    Some differences:

    * In the CFR, it seems like they would have to give you a chance (30 days) to appeal the rescission, which in the INA it does not seem necessary for the Attorney General to do so. In fact the INA 246 seems to state that you can be deported even before they actually rescind your LPR status.
    * Also, interestingly, the 8 CFR 246 does not mention any time limit of 5 years, although it could have been mentioned in one of the cross-referenced sections. I have not yet managed to traverse the entire bowl of spaghetti laws.
    * The CFR refers to the district director while the INA to the Attorney General. Perhaps its a question of jurisdiction - the Attorney General can deport you without serving notice, while the district director cannot? I would hope this isn't the case and the same laws protect us regardless of which "big brother" takes "offense".

    What do you make of this?

    -----------------------Clipping: USCIS.com (8 CFR Sec 246)----------------

    INSERTS/SERVICE LAW BOOKS/SERVICE LAW BOOKS MENU /TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)/8 CFR PART 246 -- RESCISSION OF ADJUSTMENT OF STATUS /Sec. 246.1 Notice.
    Sec. 246.1 Notice.



    If it appears to a district director that a person residing in his or her district was not in fact eligible for the adjustment of status made in his or her case, or it appears to an asylum office director that a person granted adjustment of status by an asylum officer pursuant to 8 CFR 240.70 was not in fact eligible for adjustment of status, a proceeding shall be commenced by the personal service upon such person of a notice of intent to rescind, which shall inform him or her of the allegations upon which it is intended to rescind the adjustment of his or her status. In such a proceeding the person shall be known as the respondent. The notice shall also inform the respondent that he or she may submit, within thirty days from the date of service of the notice, an answer in writing under oath setting forth reasons why such rescission shall not be made, and that he or she may, within such period, request a hearing before an immigration judge in support of, or in lieu of, his or her written answer. The respondent shall further be informed that he or she may have the assistance of or be represented by counsel or representative of his or her choice qualified under part 292 of this chapter, at no expense to the Government, in the preparation of his or her answer or in connection with his or her hearing, and that he or she may present such evidence in his or her behalf as may be relevant to the rescission. (Amended effective 6/21/99; 64 FR 27856)

    --------------------------End Clipping------------------------------------

    2. In one interpretation of the application of "Crimes Involving Moral Turpitude" with reference to deportment, it was stated that although the law says the person must be convicted within 5 years from the date of admission, it can be interpreted as date of LAST entry in the US rather than the date of approval of LPR status. Thus, each time you leave the country, your clock for getting deported from a CIMT gets reset.
    I can't seem to locate where I had read this (it was some lawyer's website), but will post the reference if I come across it again.
    Reason why I thought of this was that although the INA 246 states very clearly that the rescission must be within 5 years of AOS, can one be sure that in application that is going to be the case, or is there room for an interpretation that this clock gets reset too each time one leaves the country? It does seem like a stretch, but...

    ---
    On an aside, its a sad commentary on the immigration process and politics that we, legal immigrants, professionals, diligent tax payers with no intent to fraud think about all these pros and cons, when both Bush and Kerry talk about legalizing illegal immigrants and pass amnesties left and right just to get votes. I guess its the price one pays for higher standards of thought and integrity. It must be late, I'm getting philosophical.... sorry folks. :D
    Last edited by a moderator: Oct 25, 2004
  5. herenow

    herenow Registered Users (C)

    UN,

    I found the link I refering to with regards to CIMT. Here's what it states:

    -------------------- Clipping: USDOJ.gov -------------------

    Crime of Moral Turpitude, 8 U.S.C. § 1251(a)(2)(A)(i)

    The alien must be convicted of a crime involving moral turpitude committed within five years after the date of entry, and sentenced to confinement or confined therefor for one year or longer. Although the conviction must occur within five years of entry, any entry into the United States may be used to support the charge of deportability (Note: Emphasis added by clipper).

    -------------------- End Clipping ---------------------------

    Also, from the same website:

    -------------------- Clipping2: USDOJ.gov ------------------------------
    Multiple Criminal Convictions, 8 U.S.C. § 1251(a)(2)(A)(ii)

    A conviction for two or more crimes involving moral turpitude at any time after entry would render an alien deportable, so long as the offenses did not arise out of a single scheme, and regardless of whether the alien was confined therefor. Conceivably, two misdemeanor convictions, not arising out of a single scheme, for crimes involving moral turpitude would make an alien deportable under this provision.

    --------------------- End Clipping ------------------------------------

    So, (with reference to the second clipping) if you are convicted more than once of a CIMT, regardless of how many years after entry (or how many years between the two incidents I presume), and regardless of whether you actually spent any time in jail for the convictions, you are deportable.

    As you see, the plot thickens...

    Although the definition of CIMT is vague and subject to interpretation, there are several places where one can find a list of offenses that qualify. Noteably among these are Domestic violence, DUI and aggravated assault. Some scenarios with regards to these that could potentially lead to complications:

    * If someone picks a fight with you in a bar, you better not fight back. (In a bar fight both parties go to jail regardless of fault). There are of course, other good reasons why you shouldn't fight back a drunk guy, but one might figure "its not my fault, everyone saw him take the first swing, why should I back down". Doesn't always help.
    * If your wife or girl-friend calls you in twice over some perceived domestic threat (whether real or imagined), you could be toast.
    * If you have a couple of beers and think you're OK to drive, think again.

    Basically, if you thought you had your freedom after your GC... you do, but you have to lose your balls to keep it. :) Maybe I'm exaggerating a little, but you get the drift...
  6. jat

    jat Registered Users (C)

    USCIS's position

    IANAL. Couple of days back a user from Rupnet.com called up USCIS’s 1-800 # and posed this question after telling that he got his EB green card and when earliest can he change the job. The answer was “Once you get a green card you can work anywhere in the US”. The phone was then connected with the Immigration officer and he was read his rights once more.

    Few days later I also called up the number and had exactly same experience. In fact, I was asked “Where did you hear that you cannot change job after the green card?” I was told there is no such law. However, I was told that as a courtesy I should stay with sponsoring employer but I mentioned that I have stayed with the employer for very long and there are jobs available that would pay me substantially higher. What’s important is that there should not be any fraud. Other than that it is OK for USCIS. But to be sure 3-6 months, in my opinion, would not be a bad idea.
  7. kandy17

    kandy17 Registered Users (C)

    Hi jat

    Question Jat: After GC Approval, When you leave a sponsored employer?. If he reports to INS, will it be considered as FRAUD?.
  8. jat

    jat Registered Users (C)

    I do not know the answer

    Question Jat: After GC Approval, When you leave a sponsored employer?. If he reports to INS, will it be considered as FRAUD?.

    One never knows how USCIS would treat such report from the ex-employer. I did not ask that question from officer and one may try to do that. However, before USCIS would launch fraud inquiry they would weigh if the allegation has any validity.

    And staying in the same job 6 months or more would be one evidence that would go in GC holder's favor. Another such evidence could be if you are getting a better job.
  9. sadiq

    sadiq Registered Users (C)

    It depens. CIS can choose to investigate if they want. They can also toss the complain in the trash bin. Circumstances will influence the outcome. Leave 24 hours after the AP may cause scrutiny if a complaint is filed. Leave 6 months later may be ok. There's no fixed guideline. Only rules of thumbs. And as you'll notice, virtually no conensus on this forum.

    rgds,
    sadiq


  10. vishy71

    vishy71 Registered Users (C)

    Record Time

    I Filed for my I 485 with the Texas Service Center on Feb 10 2004,August 11 filed for AC21, and resigned from my current position(I am a physician),and signed a contract with another group,hoping to use the Ac21 provision,in Texas theres no way a 485 is going to be approved in 7 months and 17 days right???Wrong!!!!My 485 was approved on Oct 28 2004.

    But this puts me in a horrible situation,if I am supposed to work for the petitioning employer for ay length of time ,I'm out of luck because a new man has been hired and all my patients have transferred therre Medical records to another doctor....help me out people....
  11. herenow

    herenow Registered Users (C)

    I don't believe you are required to work for the petitioning employer if you have availed of AC21 before the approval. From your post it seems like you started working for the new group in August and even notified the USCIS of the same. Your approval came in October, more than 2 months after you availed of AC21 and USCIS was apparently aware of the switch and yet approved your case. You should therefore be OK just continuing to work for the new group, as far as my understanding goes.
  12. jat

    jat Registered Users (C)

    But they are USCIS’s employees

    JoeF, they are certainly not lawyers especially the first line of customer service agents. They are contractor’s employees at this point of time though USCIS employees would soon man the lines as per a bill passed by the congress.

    However, I would tend to believe the second line of agents known as immigration information officer (IIO) and especially when they give their names too. As far as I understand these officers are not contractor employees and are on USCIS’s payroll.

    This information (from IIO) coupled with a stay of 6 months would be enough to prove to any doubting government agency that there was a good faith intention to work for the sponsoring employer after the GC. And it would be an icing on the cake if the changed job is a substantial upgrade in title and/or responsibilities and/or salary.
  13. Immg-Jock

    Immg-Jock Banned


    Absolutely right. Thanks for clarifying. :)
  14. jat

    jat Registered Users (C)

    Agreed but .....

    JoeF, you are right, they are not lawyers. They might also not know the finer points of law but the question is which law. We all agree on one point that there is no law in B & W that requires one to stay in the same job after EB green card is approved. And that is the precise reason for the phone call. Even if someone makes a phone call and pose the same question, I am pretty sure they would get the same answer as I and other person got. Of course, the written opinion is the absolute proof but if not one but many competent USCIS officials were giving the same answer to many people, I would say the indications are that USCIS truly believes in that opinion. Restricting movement of people is also against public policy and has been supported in many cases even against non-compete agreements.

    All that is needed form a GC holder is good faith intent to stay with same employer at the tiem of approval. Forever? Absolutely not. Now the question is how do we prove that there was good faith intent at the time of GC approval. Certainly, if one leaves within weeks, USCIS cannot be convinced that the job change process started few hours back (though theoretically possible if a mom and pop shop makes me a job offer) and the offer was too good to turn down. The typical job change process takes two month upwards (first, second interview, haggling over salary, notice period, move etc. etc.). So I believe that if one gives one more month (above on to two months for job change process), the USCIS’s argument would start weakening. This is the most liberal interpretation. I read it somewhere (but I am not too sure) that if the job change happens within three months the burden of proof is on the GC holder to prove that there was no fraud.

    On the conservative side, the USCIS might claim that the intent changed a month after approval. Remaining two months were used start and finish the job change process. So to be on safe side I would go with, at least, 6 months period rather than three.

    Another question here is what is termed as intent, how can this be proved, and could someone really be penalized for intent w/o action. Many people come to the US on H1B non-immigrant visa w/o any immigrant intent. However, almost all EB green card holders initially express non-immigrant intent by accepting H1B and then change to dual intent by kicking the green card process. The USCIS considers this absolutely OK as even if the H1B visa holder knows that the green card is the target but USCIS cannot prove something based on what’s is in someone’s mind unless backed by action. In fact, I have seen many B1 visa holders change to H1B and then green card. There must be a reason why USCIS feels it is OK and same reason might be applicable to change on intent of the GC holder to switch job.

    Can a court penalize someone for an intent for which no action was taken? At least I do not know. Could someone cite any such case law?

    In the light of above I believe that a period of six months with same employer would keep one out of trouble. And better it would be if the GC holder substantially upgrades the title, salary and / or responsibilities in the job switch.

    I am not a lawyer and would encourage you to contact a competent immigration attorney to discuss your specific case.

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