"your type of work" matters NOT the company u stay

T

TheEnquirer

Registered Users (C)
Headnote/Disclaimer: If u have a choice to stay with a company for a few months after getting ur GC, pls do so. because the regulations are not explicit in this case- in case if it turns out to be aproblem later that u quit too soon - u have erred in side of caution.
if u r a risk taker - know ur risk before taking them. - iam sure after reading the posts you can evaluate THIS risk urself.

how i feel: zero/low risk if you have a straight forward case. risk level increases if u have some other complications in ur case

something to think about:
US govt deals with employment based GC/ H1 as a means to support companies - rather than individuals.
as for the H-1 is concerned - its crystal clear - u have to specify what kind of work u will be doing - when applying. The company actually has to prove that none of the applicants in US having GC/citizenship are elgible (common thing is to post in the newspaper) before hiring you.

but for GC (thru employment)
- the company after sponsoring H1/etc tells the govt i would like to have this individual permanently - so accept his appln for GC.
what this means to US govt. is:
Iam going to give GC (to an individual) for a type of work - which none of the US citizn/GC can do -but this alien can.

(in earlier days they had the restriction of 2 years to stay with the company to prevent anybody misusing this type of GC.)

- then came along AC21 - which basically translates to -
US govt still considers GC to a type of work (that none of the US citizn/GC can do -but this alien can) - as a demand from companies - but instead of equating the type of work with an actual company - decided that as long as u stay in the same type of work its fine.
(Again - no difference with respect to US govt:
one GC - for one type of work that none of the US citizn/GC can do -but this alien can).
u get that GC and if u change to the same type of work - with respect to US govt- their calculations are still correct.

since GC can be had thru any number of means (marriage,etc..) they may have NOT explicitly told that:
a GC holder who got his GC thru employment - can change his job to an equivalent one. (for 2 yrs)!!!
ofcourse they cant restrict you for life - so they (used to) have 2 years.

What they DEFINTELY dont want is to give u a GC for one type of work - only to see that u quit this type of work immediately and take an another type of work - which if u had specified before, they may NOT have given you a GC in the first place as there may have been other people in US who could do that.
 
this brings to another point I want to discuss:

can USCIS actually take away ur GC if within 6 months of u getting a GC - u change ur type of work and still stay with the same company.

lets say u switch to a completely managerial position within ur company immediately after getting GC? ( there are a lot of americans who could do that job- they dont need to give an alien a GC and bring him in to do that)

in this case USCIS can still prove that you did not intent to stay in "a type of work" in which u applied for GC.


will both employer and employee taken to task. the employer questioned/blackmarked and the employee losing his greencard.????
tehcnically yes - if USCIS can prove.
but who keeps track????
 
I had a chat with a lawyer:

He says:

Given two people that USCIS revokes the GC.
1. Person1 who changed companies immediately after GC with the same type of work
2. Person2 who changed his type of work immediately after GC within the same company.


Person1 has much higher chance in explaining to the judge (quoting AC21) than person2.


so people who have already changed the job to a same/similar position :
the message is DONT WORRYfolks.

first it takes special cirumstances for USCIS to even take away ur GC , second even if they did you can explain it to the judge.

This is what i call following the spirit of the law - rather than the letter of the law.
 
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TheEnquirer said:
so people who have already changed the job to a same/similar position :
the message is DONT WORRYfolks.

i had mentioned specifically for the people who have already changed - as per quote.

for people who haven't changed still- as an adult I guess they can evaluate the risks - as per my headnote

Headnote/Disclaimer: If u have a choice to stay with a company for a few months after getting ur GC, pls do so. because the regulations are not explicit in this case- in case if it turns out to be aproblem later that u quit too soon - u have erred in side of caution.
if u r a risk taker - know ur risk before taking them. - iam sure after reading the posts you can evaluate THIS risk urself.
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and for the people who leave before this 30-60-90 day period. its not the end of the world as long as they dont change the type of work.

In rare cases- when USCIS takes away their GC - they might be in a situation wherein they have to convince an immigration judge that eventhough they changed the company - they did not change the type of work ( and if their 485 was NOT approved inthe time frame they would have used AC21.. and so and so)
 
JoeF said:
Yeah, but then the thread title is misleading...
The type of work matters and the company matters.
The GC is for a specific job description, as specified in the LC, and for a specific company, the original one, or, if using AC21, the new one.
It has long been known that if you get a promotion with a completely different job description while the GC is pending, for example, the GC application may have to start from scratch, since nobody would believe that you would accept a demotion once the GC is approved... There is the intent again... Intent is the cornerstone of an employment-based GC.
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so it becomes important that after gettting ur GC - you cannot accept a promotion either for atleast 6 months (going by the "thumb" rule) or more conservatively - u cannot accept promotion for 2 years ( going by the old rule)????????
 
JoeF said:
As you said yourself, the type of work is important... A promotion changes the type of work... I think you can derive your own conclusions from that...
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so folks : not only do u have to stay with the same type of work ( and argumentatively the same company) - u cannot accept promotion for considerable amount of time.
now - 6 months - is a non-proven fact. the only thing you have so far to sneak at- what USCIS thinks is the 2 year rule - which they used to have.

so this considerable time could be 2 years.

pls do ur share and run this theory - reminding you that its just a theroy- with the lawyers - knowledgable people you know.
 
TheEnquirer said:
- then came along AC21 - which basically translates to -
US govt still considers GC to a type of work (that none of the US citizn/GC can do -but this alien can) - as a demand from companies - but instead of equating the type of work with an actual company - decided that as long as u stay in the same type of work its fine.
(Again - no difference with respect to US govt:
one GC - for one type of work that none of the US citizn/GC can do -but this alien can).
u get that GC and if u change to the same type of work - with respect to US govt- their calculations are still correct.
Click to expand...

But you have to understand why AC21 law was introduced in first place. The reasons were:
- H1 approvals were taking too long time (3+ months). Sometimes it become impractical for employers to wait for that long when person is in USA and available.
- I-485s were in backlog for years. Meanwhile if someone changes his mind and wants to be sponsored by a different company, the company has to go through same process from the beginning - labor market test (LC; even though substitute LC can provide relief), eligibility test (I-140; requirement, qualification, ability-to-pay etc). In addition, possibly one more I-485 (that makes two different I-485s pending for a single person). That would going to cause additional backlogs at USCIS.

These are the two main reasons congress was forced to address the issue and hence introduced AC21. Basically it enables petitioners and beneficiaries to skip some labor and immigration procedural steps. In case of H1, beneficiary can join after filing I-129, without waiting for approval. For GC, an employer can skip labor test (LC) and eligibility test (I-140) and employ a person whose I-485 is pending for more than 180 days. As the new employer is skipping LC + I-140, that's why there a string attached "same or similar job" in AC21 law.

Bottomline, AC21 addresses issues in H1, GC procedures (while applications are pending) and that is very reason it was introduced. In my opinion it does not provide any leeway for not having good faith (good faith for working either GC sponsor or AC21 employer) while GC is granted (i.e. I-485 approval).

What is called "relaxation" introduced by AC21 is nothing but "procedural relaxation". There is no relaxation for "good faith" or "intent".

This procedural relaxation can (no surety) provide relief for some employees who are affected by long delay I-140 or I-485 (the reason AC21 is introduced). For example, a person who had I-485 pending for pretty long time and he was employed by his GC sponsoring employer for long time before getting GC (and then changed job after getting GC). But it may not cover every case of person leaving GC sponsor immediately after getting GC.
 
Headnote/Disclaimer: If u have a choice to stay with a company for a few months after getting ur GC, pls do so. because the regulations are not explicit in this case- in case if it turns out to be aproblem later that u quit too soon - u have erred in side of caution.
if u r a risk taker - know ur risk before taking them. - iam sure after reading the posts you can evaluate THIS risk urself.
how i feel: zero/low risk if you have a straight forward case. risk level increases if u have some other complications in ur case


In ur own words you say that for whatever reason - USCIS does NOT care about the employer you are with but the type of work you are with.

This is explicitly clear before I-485 approved (AC21). but not clear after getting ur GC - because doing so would mean - separate GC rules for people taking this route.

yeah right. u think USCIS is going to discriminate - telling - oh since you have been with the employer too many years before getting I-485 approved - i will be fine with u leaving the company soon - and you since you have been less years with the company before ur 485 got approved - i am going to take away ur GC ????

as long as you have a good faith/intent in the type of work you do, that is suffice. (anything addition to it is adding additional safety barriers as specified in my headnote )

pralay said:
But you have to understand why AC21 law was introduced in first place. The reasons were:
- H1 approvals were taking too long time (3+ months). Sometimes it become impractical for employers to wait for that long when person is in USA and available.
- I-485s were in backlog for years. Meanwhile if someone changes his mind and wants to be sponsored by a different company, the company has to go through same process from the beginning - labor market test (LC; even though substitute LC can provide relief), eligibility test (I-140; requirement, qualification, ability-to-pay etc). In addition, possibly one more I-485 (that makes two different I-485s pending for a single person). That would going to cause additional backlogs at USCIS.

These are the two main reasons congress was forced to address the issue and hence introduced AC21. Basically it enables petitioners and beneficiaries to skip some labor and immigration procedural steps. In case of H1, beneficiary can join after filing I-129, without waiting for approval. For GC, an employer can skip labor test (LC) and eligibility test (I-140) and employ a person whose I-485 is pending for more than 180 days. As the new employer is skipping LC + I-140, that's why there a string attached "same or similar job" in AC21 law.

Bottomline, AC21 addresses issues in H1, GC procedures (while applications are pending) and that is very reason it was introduced. In my opinion it does not provide any leeway for not having good faith (good faith for working either GC sponsor or AC21 employer) while GC is granted (i.e. I-485 approval).

What is called "relaxation" introduced by AC21 is nothing but "procedural relaxation". There is no relaxation for "good faith" or "intent".

This procedural relaxation can (no surety) provide relief for some employees who are affected by long delay I-140 or I-485 (the reason AC21 is introduced). For example, a person who had I-485 pending for pretty long time and he was employed by his GC sponsoring employer for long time before getting GC (and then changed job after getting GC). But it may not cover every case of person leaving GC sponsor immediately after getting GC.
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And pralay i assume you have the answer why they chose to name ur "procedural relaxation " as --->

... the American Competitiveness in the 21st Century Act (AC21), allowing a person to change employers if certain conditions are satisfied....


pralay said:
But you have to understand why AC21 law was introduced in first place. The reasons were:
- H1 approvals were taking too long time (3+ months). Sometimes it become impractical for employers to wait for that long when person is in USA and available.
- I-485s were in backlog for years. Meanwhile if someone changes his mind and wants to be sponsored by a different company, the company has to go through same process from the beginning - labor market test (LC; even though substitute LC can provide relief), eligibility test (I-140; requirement, qualification, ability-to-pay etc). In addition, possibly one more I-485 (that makes two different I-485s pending for a single person). That would going to cause additional backlogs at USCIS.

These are the two main reasons congress was forced to address the issue and hence introduced AC21. Basically it enables petitioners and beneficiaries to skip some labor and immigration procedural steps. In case of H1, beneficiary can join after filing I-129, without waiting for approval. For GC, an employer can skip labor test (LC) and eligibility test (I-140) and employ a person whose I-485 is pending for more than 180 days. As the new employer is skipping LC + I-140, that's why there a string attached "same or similar job" in AC21 law.

Bottomline, AC21 addresses issues in H1, GC procedures (while applications are pending) and that is very reason it was introduced. In my opinion it does not provide any leeway for not having good faith (good faith for working either GC sponsor or AC21 employer) while GC is granted (i.e. I-485 approval).

What is called "relaxation" introduced by AC21 is nothing but "procedural relaxation". There is no relaxation for "good faith" or "intent".

This procedural relaxation can (no surety) provide relief for some employees who are affected by long delay I-140 or I-485 (the reason AC21 is introduced). For example, a person who had I-485 pending for pretty long time and he was employed by his GC sponsoring employer for long time before getting GC (and then changed job after getting GC). But it may not cover every case of person leaving GC sponsor immediately after getting GC.
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one big mitake by some lawyers

(side not: you guys start new war again? ok, I join in. I wrote a long argument minutes ago, but my computer or the website messed things up, sorry I cannot retype those stuff, just give one point here)

I found that Mr. Khanna used an improper method to interpret "permanent" and made the suggestion for you guys to continue working for the employer. It is true that for granting LPR, INS does requre you to take a permanent job from your employer. But the time to classify the job as permanent should be the time you were filing your application, not the time after you get your green card. "permanent" means that the position has a indefinite term in the future, standing at the time you filed I-485. it cannot be read that you are required to work for some time after GC. You cannot take a hindsight to evaluate the permanency of the position and make a determination that the person did not (or did not intend to) take the permanent position by the fact that he left the employer shortly after GC. Using hindsight, no matter how long you work for the employer, it still cannot be said that you did take a permanent job if you leave the job.

welcome JoeF and Pralay to dissect my words and........attack me :D
 
TheEnquirer said:
yeah right. u think USCIS is going to discriminate - telling - oh since you have been with the employer too many years before getting I-485 approved - i will be fine with u leaving the company soon - and you since you have been less years with the company before ur 485 got approved - i am going to take away ur GC ????
Click to expand...

It's not a question of discrimination. There is no perfect filter here to determine who abused the EB GC system and who filed GC in good faith. So, if USCIS wants to go after people, probably they will go by probability and find out people who are most likely did not obtained GC in good faith. Think about two example,

1. Person A working for company M. After working for three years on H1, his company M decided to file LC + I-140 for him. It took 1 years to get them approved. He filed I-485 through this company. His I-485 was pending for 2 years (not very uncommon in 2001/2002). Then after getting GC, he changed his employer (after working total 6 years).

2. Company M filed GC for person B who is not an employee. After filing I-485, he joined company M as an employee. Within 3 months, person B got GC (lucky). After getting GC he left company M. Basically he totally worked for 3 months for his GC sponsor.

Now, put yourself in the shoes of USCIS. If you are asked to find people who did not file GC is good faith, who would you go after? Person A or person B?
Probably your answer will be - both. However, if I am person A, my argument will be:
1. I had good faith when I filed I-485 through company M. My long history of employment with company M shows that.
2. After waiting for 1 years for my I-485 approval, due to specific reason XXX, I decided to change my employment, because I am eligible for AC21. It's just a coincidence that I got approved my Gc when I was "about to change my employment".


TheEnquirer said:
as long as you have a good faith/intent in the type of work you do, that is suffice. (anything addition to it is adding additional safety barriers as specified in my headnote )
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In that case, any EB GC (EB2, EB3) would be just like self-petitioned EB1 GC - where there is no requirement of sticking with specific employer. All you have to do is keep working in the very same field.
 
Do you all really think USCIS has no other job to do? After reading all this it looks to me that they have 27000 agents sitting in the office with no work and they will start investigating all the cases since 1914 to see who all did not have good faith...
 
TheEnquirer said:
And pralay i assume you have the answer why they chose to name ur "procedural relaxation " as --->

... the American Competitiveness in the 21st Century Act (AC21), allowing a person to change employers if certain conditions are satisfied....
Click to expand...

I assume you read my first sentence "you have to understand why AC21 law was introduced in first place.". This "American Competitiveness of 21st Century" is nothing but a relaxation of procedure where congress recognized that long delay of application processing (I-129, I-140 or I-485) does not fit into dynamic economy of 21st century (for employer and employees). Hence, employer can bypass certain procedures and steps to get their resources (employees). In case of H1, empoyer does not need to wait 3 months to get an H1 employee. In case of GC, employer can get a resource (employee for permant position) skipping LC and I-140, provided the job profile is "same or similar". This is nothing but a fix for the shortcoming of USCIS to process applications on time (with meeting the expectation of dynamics in 21st century economy).
Also, in 2001 people were loosing jobs - some of them had I-485 pending for awhile. If a person lost his job (from GC sponsor) and found another job, that means he had to go through same cycle from the beginning with new company - I-140 and then again I-485. AC21 allows him to "port" his already approved (or approvable) I-140 to new employer - provided new job is "same or similar". That why it's also known as "I-140 portability law".

That's why I called it "procedural relaxation". It's just a short-circuit - skipping long route of process.
 
vitalsigns said:
The funny thing is Pralay himself used the argument of "rapid course of events". Now, the lawyer I quoted from says that it can or will be applied by the USCIS to changing jobs after green card. I cannot say for sure, but Pralay is probably going to contradict himself now by saying that 90 days is not enough to prove the intent. JoeF has done it already. Both of them say: "We do not care how long you stay with the employer after the green card, the main thing is your intent!"
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Actually I never prescribed any timeframe. My opinion is that it should be judged case by case basis considering various factors. There should not be any artificial timeframe to prove intent or good faith. Most of the lawyers prescribe some thumb rule to pacify people leaving immediately after getting GC. Because as you yourself can see in this forum - people love to get an definitive answer with a fixed number. Check this posts:
http://boards.immigration.com/showpost.php?p=1291144&postcount=390
"I just asked for your advice whether it is OK to change the employer after 3 months rather 6 months."
http://boards.immigration.com/showpost.php?p=1290558&postcount=382
"why not lawyers or people who deal with immigration get a standard answer from USCIS to avoid so much of confusion."
Probably it's due to the fact that most of us are IT people and prefer to see everything in this world in numbers. :)
Most of the lawyers are doing exactly that - definitive answer with a fixed number. And that number varies because every attorney has his own estimate about the timeframe that can be considered safe (i.e. most like won't fall into USCIS radar).

Again, I paste from the allexpert link, Jim Mills answer:

http://experts.about.com/q/344/4131708.htm

Expert: James D. Mills, Esq.
Date: 9/30/2005
Subject: Change of Employer

Question
Organisation "A" has sponsored my green card as future employment while I was working with Organisation "B". After approval of green card I joined my sponsorer Organisation "A".
What is safe time limit, I should work with Organisation "A" in order to avoid future complication in "re entry Permit" or "Citizenship".
Is 5 months safe enough?
Your advice is appreciated.

Answer
You must work there "permanently". However, "permanently" does not mean forever. There is no safe number. If you did not intend to work "permanently" when you got your green card then the job was not permanent and there could be problems. It is fact specific but, generally, 6 months to 1 year was considered a fairly safe call. There were considered to be some, minimal, risk of leaving after 6 months and leaving after 1 year was considered fairly safe.

I can imagine situations where the person could be able to explain a departure after a month satisfactorily.


Secondly, when it comes to the concept of "rapid course of events", it is not confined to 30-60-90 day guideline. But rather it's just a concept. In case of non-immigration visa status, an event after 90 days may not be considered "rapid course of event", but in case of immigrant visa it can. For example, for marriage based GC, a divorce before 2 years can be considered "rapid course of events".

Going beyond immigration issue, buying some ice-creams, keeping them in fridge and serving your guests after 1 month may not be considered "rapid course of events" to determine that you bought those ice-creams to serve guests. But if you get new paint for your car and sell it after 2 months, it may be considered "rapid course of event" to determine that you painted your car for the purpose of selling it. Different kind of matters require different time-frames to determine "rapid course of events".
 
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wurzbach said:
welcome JoeF and Pralay to dissect my words and........attack me :D
Click to expand...

You yourself trivialized your argument so much that it does not deserve an "attack". Go back to Westlaw/Lexis-Nexis and cut-and-paste another unrelated case to prove your argument (obviously without mentioning what you hidden agenda is).
 
just try to infer what you wrote:

it means that the competetiveness part comes in the way that you dont have to lock urself/ur type of work to a single company (and redo the same procedure- jsut because u changed ur company) but rather change the company as long as u have the same/similar job detail.
- so USCIS is interested in your type of work not the shell/company you are in.
the whole discussion is - do we have to stick witha company. ur portability law says different- thats were the competetiveness in 21st century comes- not some lame procedure to expedite giving ur GC.
with losing this advantage after getting GC- it technically goes into uncompetetiveness.

pralay said:
I assume you read my first sentence "you have to understand why AC21 law was introduced in first place.". This "American Competitiveness of 21st Century" is nothing but a relaxation of procedure where congress recognized that long delay of application processing (I-129, I-140 or I-485) does not fit into dynamic economy of 21st century (for employer and employees). Hence, employer can bypass certain procedures and steps to get their resources (employees). In case of H1, empoyer does not need to wait 3 months to get an H1 employee. In case of GC, employer can get a resource (employee for permant position) skipping LC and I-140, provided the job profile is "same or similar". This is nothing but a fix for the shortcoming of USCIS to process applications on time (with meeting the expectation of dynamics in 21st century economy).
Also, in 2001 people were loosing jobs - some of them had I-485 pending for awhile. If a person lost his job (from GC sponsor) and found another job, that means he had to go through same cycle from the beginning with new company - I-140 and then again I-485. AC21 allows him to "port" his already approved (or approvable) I-140 to new employer - provided new job is "same or similar". That why it's also known as "I-140 portability law".

That's why I called it "procedural relaxation". It's just a short-circuit - skipping long route of process.
Click to expand...
 
TheEnquirer said:
...... it technically goes into uncompetetiveness.
Click to expand...

That's one point I want to say last night. Everyone agrees that AC21 was intended by Congress to relieve the burden on both employers and employees due to the long time waiting of thGC processing. The burden that employers and employees need to carry is to maintain a bona fide employment relatiohship effectively from the time of filing of I-140 to the time of approval of I-485. In light of years of time for the whole process, this burden did undeniably hurt the American business. To solve this problem, congress nicely passed AC21 and give both employer and employee a green light. Contrary to someone's claim that AC21 does nothing more than a procedural relief, the core of AC21 is to protect American business and economy and that is the intention of Congress.

Turning to the situation of changing job after GC, if the GC grantee is still required to work for his employee after he receives GC, it means that both he and his employer are required to continue carrying the burden to maintain their bona fide employment relationship. By this way, the same kind of devil that congress was trying to get rid of by passing AC21 will continue hover around after the person gets LPR status. This will contradict to the intention of Congress to improve the competivetivity of American business and American economy.
 
pralay said:
You yourself trivialized your argument so much that it does not deserve an "attack". Go back to Westlaw/Lexis-Nexis and cut-and-paste another unrelated case to prove your argument (obviously without mentioning what you hidden agenda is).
Click to expand...

do not stay evil and belittle westlaw and lexisnexis just becasue you do not know about them or do not have accounts to access them. Even the respectful attorney of this website is relying on westlaw and lexisnexis.

No offense.
 
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