New development regarding AC21, from USCIS
To read the link visit: immigration-law.com and go to BREAKING News
11/28/2003: AC 21 Change of Employer and Issue of Pending I-140 in Concurrent Filing
As people know, the USCIS released a memorandum on August 4, 2003 concerning the validity of I-140 under the AC 21 180-day rule. Among others, the memorandum stipulated that under the AC 21, the I-140 would remain valid if the I-485 applicant changes employment after 180 days of filing of I-485, no matter whether the employer withdraws the original I-140 petition.
Caveat: Where the I-140 is still pending in the I-140/I-485 concurrent filing after 180 days of filing of I-485, USCIS opined that the so-called Yates' memo of August 4, 2003 does not apply. This leaves a number of questions wide open in the concurrent filing where I-140 adjudication drags on. Obviously, the first question should be whether the I-485 applicant will be allowed to change employment after 180 days of filing when I-140 is still pending. The other question is whether the I-140 petition would remain valid, should the original employer withdraw the I-140 petition for the purpose of substitution of the employee. Conservative view dictates that the answer could be "negative." The USCIS said that it would release a separate memorandum on this issue. Until such separate memorandum is released, it may be prudent for the I-485 filers to take a extra precaution before they decide to jump to a new employer.
11/28/2003: AC 21 Change of Employer and Narrow Definition of New "Employer"
Under the AC 21, the I-485 applicant is permitted to take a new "employment" of similar or same occupation classification after 180 days of filing of I-485. What is the definition and scope of "employment?" Recently, USCIS HQ opined that "self-employment" is not considered within the parameter of the terms "employment" in the AC 21. This interpretation opens a host of related questions such as what happens if the new employer is a corporation where the I-485 applicant holds controlling shares or 100% of shares?
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.
To read the link visit: immigration-law.com and go to BREAKING News
11/28/2003: AC 21 Change of Employer and Issue of Pending I-140 in Concurrent Filing
As people know, the USCIS released a memorandum on August 4, 2003 concerning the validity of I-140 under the AC 21 180-day rule. Among others, the memorandum stipulated that under the AC 21, the I-140 would remain valid if the I-485 applicant changes employment after 180 days of filing of I-485, no matter whether the employer withdraws the original I-140 petition.
Caveat: Where the I-140 is still pending in the I-140/I-485 concurrent filing after 180 days of filing of I-485, USCIS opined that the so-called Yates' memo of August 4, 2003 does not apply. This leaves a number of questions wide open in the concurrent filing where I-140 adjudication drags on. Obviously, the first question should be whether the I-485 applicant will be allowed to change employment after 180 days of filing when I-140 is still pending. The other question is whether the I-140 petition would remain valid, should the original employer withdraw the I-140 petition for the purpose of substitution of the employee. Conservative view dictates that the answer could be "negative." The USCIS said that it would release a separate memorandum on this issue. Until such separate memorandum is released, it may be prudent for the I-485 filers to take a extra precaution before they decide to jump to a new employer.
11/28/2003: AC 21 Change of Employer and Narrow Definition of New "Employer"
Under the AC 21, the I-485 applicant is permitted to take a new "employment" of similar or same occupation classification after 180 days of filing of I-485. What is the definition and scope of "employment?" Recently, USCIS HQ opined that "self-employment" is not considered within the parameter of the terms "employment" in the AC 21. This interpretation opens a host of related questions such as what happens if the new employer is a corporation where the I-485 applicant holds controlling shares or 100% of shares?
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.
