180 days for concurrent file I-485 and I-140

C

casttree

Registered Users (C)
I searched this question from website and asked lawyer, but I got two different replies.

Some (include my corporation lawyer) say that It is OK if I-485 is pending 180 days and I -140 was approved before that. Some people say that I need to wait until 180 days of I-140 approve.

My case is:
I-485 and I-140 concurrently file at 03/03/2003
I -140 was approved at 05/27/2003.
Our department will be closed before 12/20/2003 and we will be layoffed at that time.

Now we have an opportunities with exact same job on Sep. 2003. Should I pursue it with (small or big ??) risk with AC21?

anybody has more official news for 180 days of concurrently file?

Thanks a lot
 
Even by the conservative interpretation of Murthy's web site, if your 485 has been pending for 180 days together with an approved 140, you would be safe to use AC21.

The major milestone of AC21 is to allow a 485 filer to change employment/employer.

Although at the time when AC21 ruling was made concurrent filing was not applicable, one would have to gauge the seriousness of BCIS on AC21 ruling after concurrent filing was announced.

If BCIS was so seriously concerned about the non-approval of I140 before one uses AC21, you would expect BCIS to have made some announcement if not an amendment to AC21 specific to concurrent filing. This has not been the case.

Therefore, I would tend to still go by the fact that key element is that 180 days should have passed after filing I485 (not sure if this is RD or ND).
You can be even more scrupulous by using a conservative approach that within the 180 days you would have got your I140 approved. But I would not fall into a pessimistic approach that the 180 counts from the day the I140 was approved.

I hope this helps.
 
AC-21, 180 day count in concurrent filing

Hi,

I have a question about AC 21 portability when the filing is concurrent and the I-140 has been approved.

If the I-140 and the I-485 have been filed on the same date and I-140 has been approved subsequently, does the 180 day clock start from the date of I-485 filing or from the date of I-140 approval.

Thanks,
Sumili
 
“Date of 485 filing”


That is the Opinion of Only Sheela Murthy but AC21 has not addressed to concurrent filings as AC21 law was passed before concurrent started, we have to wait for the final rule in concurrent filing when Regulations are issued. I will not believe in Murthy interpretation as she has changed her statements many times in past and she always posts “It Seems” so that is her opinion at particular day and particular time, no final regulation. Sheela Murthy is not going to draft the final regulations we don’t know what will be in the final AC 21 regulations and how they publish rule for concurrent filings for AC21, as they have to be written by BCIS H.Q.
 
AC21 is a grey area. BCIS may issue definite regulations later on AC21. To be on the safe jump ship after 180 days of 140 approval so that there is no scope for any to be asked questions.
Though a lot of people have done it after 180 days of 485/140 filing- it is kind of risky. Why take a chance for just few more months? So to play it safe is my best advise.
 
Ginnu,

I don't recollect Sheila Murthy changing her opinion on the 180 day criteria (i.e. did she any time say the 180 days start after the I-140 approval ?) so please don't give people the wrong idea on her. If you really want to be safe just don't use the AC21 unless you have too (i.e. are layed off).

My opinion BTW is 180 days from receipt of the I-485, concurrent or no concurrent as long as you have an approved I-140 that is not revoked. Unfortunately my opinion IS NOT THE LAW.

Berrybird
 
Please go to Sheela Murthy chat and search her answers you will find conflicting answers, print all the chat for AC21 for the last 12 months and you will know.

FYI 4 days back my friend who is client of Murthy asked her that she said few weeks back in her bulletin that she talked to BCIS H.Q officials and they are going to issue new AC21 MEMO in few days but she informed him that she had spoken to officer but recently when she called up the officer again he said that it is not in his hands to issue new AC21 MEMO as many officers are involved it may take time and she clearly said that she is not sure of AC21 new MEMO or Regulations when they will be published . AC21cases may be approved or may be denied. If you want to confirm please call up her 410-356 –5440. She is doing a wonderful job for the immigration community like free chat and free bulletin. Nothing is in her hands and she has to change her statements looking at the AC21 trends in different service centers, when she gets any new info she posts answer in chat to a question or in her bulletin. She can’t do more than that. She is very good attorney and I respect her, she goes to BCIS H.Q or interacts with them many lawyers don’t do that.
 
The topic was if she has changed her stance on when the 180 day clock starts and not the memo !!! I looked at the chat transcripts and she has been consistent that the 180 days start from the RD of I-485. BCIS started the concurrent filing approx a year ago and did not address the AC21. It would just be too chaotic if they now issued a memo which says for concurrent filing the 180 days start from the day I-140 is approved. So any reasonable BCIS adjudicator should use the guidelines in the June 2001 memo which states the I-485 needs to be pending for 180 days or more with an approved I-140.

I would personally use AC21 only if I got layed off since its never a sure thing and why risk a sure thing if you have a secure job.

As to the memo since you are trying to use that as evidence that she has changed her tune, blame the BCIS and their bureaucracy. My line of thought is the longer they take to issue a final guideline the better it is for people using AC21 since till then the basis of any decision will be the June 2001 memo.

BB
 
“My line of thought is the longer they take to issue a final guideline the better it is for people using AC21 since till then the basis of any decision will be the June 2001 memo”

Many BCIS officials are not following AC21 June Memo, few cases filed by Murthy law office that had I-485 pending for 180 days and I-140 was revoked after 180 days have been denied, at this time nobody is sure of AC21.

http://www.murthy.com/ukac21.html
 
Listen dude, first of all these were not concurrent cases (it will only probably be later this year or early next year when concurrent cases will be getting adjudicated). Secondly obviously the mistake was made by a BCIS official who probably wasn't aware of the memo. Thousands of AC21 cases done by Murthy have been approved (including one in which the I-140 has been revoked) since end of 2000 and if you want to focus on the 5-10 which had problems thats your prerogative.

So unless you know of a BCIS AC21 memo specifically pertaining to concurrent filers please don't speculate especially on the negative side. I have seen people (even in this forum) abandon their GC process because they don't think they are AC21 candidates. So please act reponsibly and try to be helpful !

BB
 
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