A trick to file I-485 without your I-140 sponsoring employer

the problem for C

the problem for C is how you make INS believe the whole petition is not a fraud one. Because usually INS will take over 180 days to adjudicate the case, then any small company can sponsor any guy's GC, but the petitionor change the IDEA to join the company, and work for another company .......

The interesting point is for the B case.

To the extream, laid off one Mon., got approved on Tuesday, find a job on Wen. How the INS handle this case in the future when apply for citizen?
 
the problem for C

If one has the intent to work for the sponsor AT THE TIME OF FILING THE I485 and changes the intent after 180 days - then it is o.k. This is my understanding of the AC21 law.

You logic also will apply to a usual case - an applicant files I485 and has intent to work for the current + sponsor employer [both same]. After 180 days, changes employer . How do you prove to the INS that fraud was not committed while filing the I485 - knowing very well that INS will take more than 180 days to adjudicate and you change your employer ...

One can always play fraud with a current employer - convince them that one will work for them ..... pl sonsor GC. However, the petitioner has an employer waiting and who hires only citizens or GC holders.... and there you go.

I think that is the whole point of the AC21 law ... As long as one has the intent to work for the sponsor at the time of filing the I485 till 180 days is over - one is o.k. AC21 allows an applicant to change intent after 180 days of pending I485
Folks - let me know if my understanding is o.k.
 
Notice that GC is for a future job. You need to prove an intent to work for your I-140 sponsor AFTER I-485 is approved AT the time you file I-485.

Therefore it is NOT mandatory for you to work for your sponsor at all (although 99% cases do) throughout the GC process. So case C can be ok if you join your new employer after 180 days. However, establishing the aforementioned intent is still a fuzzy business. It is solely based on the discretion of the officer who handles your case....

The truth is case C rarely happens. I personally never heard of a real case like this. Let's don't waste too much time on this until someone in that case get an RFE and post it here. Case B is a quite common case these days though. I know at least two people personally who doesn't have a job at the time of approval. They still don't have a job as of now....
 
Yee Man Chan,

You need to prove an intent to work for your I-140 sponsor AFTER I-485 is approved AT the time you file I-485
Click to expand...

How do you do that in a case where current employer not = sponsor at the time of filing 485? Acceptance letter ? .

After 180 days, is there a burden of proof on the applicant that s/he HAD intent to work for the 140 sponsor at the time of filing 485 till 180 days point ?


The truth is case C rarely happens. I personally never heard of a real case like this. Let's don't waste too much time on this until someone in that case get an RFE and post it here.
Click to expand...

My cousin is exactly in this situation. She is working for a consulting firm. The client sponsored GC and the agreement was she will join the client after GC is approved. After 485 filing , the client told her that the future job is no longer available. She is still with consulting firm though with a different client. She is waiting to see what happens. As per 485 SOP - interview waiver criteria, she will almost definitely get an interview. She is eager to know of any past experiences in a similar situation. Even the attorney is not sure ! - even advised her to find out from friends how such cases were handled and he will try to find out from the AILA. He did say AC21 applies but ....
 
ravan123,

Your cousin's case isn't exactly the same as in case C. Your cousin did work your sponsor even though she was not employed directly by her sponsor at any time. My suggestion is for her to go ahead with the procedure. If she does get RFE/interview, then try to get some sort of proof from the sponsor that word was performed at the sponsor site for such and such duration. I believe it will help her establish the intent.
 
Yee Man Chan,

A very good point. But the problem is she was told of the non-avaiability of the future job only after two months of filing the 485. If it had been after six months, the problem would have been much simpler - perhaps a straight forward case of AC21.

But if she tells INS that the future job was no longer available since 2 months of filing the 485 then she cannot have intent to work for the sponsor till the 180 point and AC21 will not apply.

.Another complication - she does not know if the sponsor has sent a letter of revocation for 140 - rumors are that they have. The company attorney will not tell anything.

But if she waits for the 180 point and thereafter invokes AC21, there is chance to save her GC.

She worked there for 3 years to build the software group but alas she is just an Indian - had to give way to some one else. The client even did want to wait for 4 more months. The GC was apparently a bait for her to stay on and help build the software group. She has only 9 months left on her H1 - the client wasted her most precious 3 years ...

Another point - I don't think it is necessary to prove intent at the time of filing 485 and till the 180 point. The filing of 485 is itself a show of intent. Then, there would not have been any provision of GC cases where current employer not = sponsor throughout the GC process.
Also how do we use AC21 with the key words "485 pending".... this => the 180 day point is counted from the RD to the date on which INS actually adjudicates the case. That is how "less than 180 days" 485 cases survive. If such cases had to prove intent during the 180 day period then no chance these cases will survive.

I am curious to know what happens in the general case where current employer not = sponsor at the time of filing of LC/140/485? Do you know of any posting / site/thread ?

Thanks for your continued participation even after you got your GC
 
ravan123,

The future job being unavailable after 2 months of I-485 has nothing to do with the intent. The intent was established AT the time of filing. She has been working for the client for quite a while before filing of I-485. I think that will be enough evidence to show the intent.

Of course the intent may be in question if she quited after I-485 was filed. In her case, she still has intent to work but she can't because no job is available. It is similar to my case in which I was laid-off (I was laid-off after 180 days, so I-140 revocation doesn't apply). Therefore I don't see why INS will treat it differently. (other than she didn't work directly for the client. )

Note that there is nothing to lose for her at this point to continue the process. The only possibility that she can be denied is if the I-140 was revoked by INS before 180 days (not the day the client requested it). Since you can't verify whether such an revocation was requested, the best thing you can do is to pray to God/Allah/Shiva/Buddha....
 
Yee Man Chan,

Are you a part time law student ? If not, you may very well think about it - I am sure you will do very well !


I see only two issues here..

1] Your case was > 180 days when the job was not available. In her case - it is 60 days.

2] In your case , the position itself did not exist - but in her case she was replaced. [ by a 'racially superior' person - sorry for that - but this is the reality] and the position still exists.

Assuming that INS does not know that the job was longer available to her after 60 days, is it not better to not mention about it at all but just invoke AC21 after 180 days, saying that she changed her intent after 180 days to remain with the consulting firm instead of joining the sponsor ?

Her case looks pretty complicated to me ...and as you said just pray ....
 
Has anyone in this thread talking about AC21 in th econtext of concurrent filing?
 
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ravan123,

I heard of cases that people got laid-off < 180 days with employment RFE and got approved because they got a new job. In your cousin's case, the key is to have a similar paying job (not sure if she is getting paid as a consultant now?) at the time of RFE/interview. Also, try whatever means to persuade the client not to revoke I-140. As long as she has a job and I-140 doesn't get revoked by INS < 180 days, she will be fine.
 
Yee Man Chan,

My cousin has been the highest billing [ever !] consultant of the consulting firm. The employer feels very sorry for her particulalry when this firm wanted to process her GC but the client had insisted that they will do it !

She is getting paid as per LC range and in the same job as in the LC. - working with another client.

The only thing which can save her GC is that INS does not act on the letter of revocation < 180 days. I saw some posting [murthy] that INS typically takes 3 months to act on such letters. It was 2 months after 485 filing - that leaves 4 months for an INS action which will make her lose the GC. This is the most worrisome part...

I have another question - even if 140 is revoked by INS < 180 days but the 485 is adjudicated > 180 days, shouldn't AC21 apply ? I assume there will some time gap between 140 revocation and 485 decision ?
 
ravan123,

Since your cousin still can get paid for a decent salary as of now, she should be okay as far as handling RFE/interview is concerned. The only problem is the I-140 revocation.

My feeling is that it does not depend on when INS invalidate your I-485 but when INS revoke your I-140.

As to how long it takes for INS to invalidate the I-485, I would suggest you go to murthy.com and ask Attorney Murthy directly at Murthy chat over there. I think if you got denied after 180 days due to 140 revocation before 180 days, you are in an unique situation that no one can really tell what will happen unless you fight it...

Good luck!
 
Yee Man Chan,

You started this thread to file I-485 without ex- employer letter I feel that:
1. One may get I-485 receipts, EAD, AP
2. One should stick to maintaining H1B status if possible because if I-485 is denied than one can use H1B extension
3. If you join other employer on H1 transfer, request your new employer to file for LC because if I-485 is denied than you can be on H1 status and take the advantage of new LC and H1B extension
4. If one is joining using EAD, he should talk to the new employer before joining that he has to give letter of same/similar job skills and have to pay minimum LC wages that is the base of I-140 or I-485
5. Before leaving try to collect copy of LC, I-140 or receipt of I-140 filing from employer or lawyer, because LC may be useful to match the skills and you can look what wages were filed for you on LC.
6. Some employers keep approved LCA in advance and transfer H1B based on that LCA if it does not match your skills then you can request him to change it because later at the time of I-485 approval INS may ask that you are working with different skills and you job title is different.
I don’t know if INS will accept the employer letter to use AC that XYZ will be employed as------ after the GC is approved and his skill set will be…. Because if you work on EAD or using H1 transfer INS may raise this question and it will be difficult to answer
7. As “Yee Man Chan” has started this thread don’t think that by just getting I-485 receipt you will automatically approved because still the final regulations regarding AC21 has not been published by INS and in future it may have different set of rules from INS
8. Every one has different case and concerns always take the services of good lawyer who has good interpretation of AC21, can fight with INS and has got approvals similar to your case as we have not seen many AC 21 approvals yet .
 
Yee Man Chan

I had been long in Labour certification forum. As it is certified now I 've to proceed with my I 140 and I 485, so was looking at these postings. I was till now not aware that an employer cannot revoke I 140 after 180 days mark.

My question is ...When does this 180 days clock start?
After I 140 approval or just the RD of I 140 by INS.

Thanks & Regards
MDU123
 
The employer can not revoke the I-140 IF your I-485 has been pending with INS more than 180 days from the Filling date.

the filing date is when your I-485 reaches INS sericice Centre, you will get a reciept and date will on the reciept.

First you should file your I-485 once you cross 180 then you will have no problems regarding I-140 .

Please remember that Still final regualations are not published by INS
 
With regualtion pending Employer can still revoke your I140 but you are protected by AC21 even if he does. I do't think INS has come up with any regulation regarding that a employer cannot revoke 140 after 180 days.
Thats why it better to inform about job change ASAP after 180 day.GC on employment base category is on approved LCA and if u leave the employer , he might want to use the same LCA for some one else by canceling your 140. That is his right , thats what most of the employers did before AC21 came in picture. So if your file with INs has AC21 change of intent you are very safe even if employer sends the letter to revoke 140. Othewise u might ave to send in a request and reopen the case and get the things straight.

Or if some is aware of such regualtion that approved 140 cannot be revoked plese post that link because that will be very valuable information.
 
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ghost-rider,

There is no regulation regarding whether employer can revoke I-140 after 180 days. However, if you read this thread carefully, you can find a link to case that INS approved a denied case when I-140 is revoked by INS after 180 days (the employer actually requested the revocation before 180 days).

I believe INS will revoke the I-140 whenever the employer request for it. However, if the actual revocation happens after 180 days, then you are fine. However, I am not sure whether employer can re-use that LC for someone else if you got approved with I-140 revocation.
 
exactly ..this is race to use the same LC by two ppl so when 180 days have passed most likely winner is the applicant if he has used AC21. Thats why its better to inform INS of AC21 if you are expecting some trouble from your sponsering employer. Well thats my view there may be other who will differe on that.
 
Yee Man Chan and Others,
I have my GC being processed for a future job.
1. Can I work for a different employer when I get my EAD?
2. When I get a RFE (like most of the applicants whose GC is for future job), how I can prove that I will work for the Sponsor after I get the GC in the case:
a) where I have not used EAD at all.
b) I have started using my EAD to work for a different employer.

Please refer to this:
http://www.murthy.com/chatdb.php?row=1&sFor=future job&Cat=All&B1=Search

Question : If a potential employer files for a GC for an employee, is it mandatory for the employee to join the employer when the GC comes through?
Answer : Based on AC21 law of Oct. 2000 and the earlier law which has always held that the GC is for a future job, the INS has clarified verbally and in the June 2001 INS Guidance Memo that the person does not need to work for the sponsoring employer but should work in the same or similar field, as mentioned in the LC and I-140 documents. Also of importance is the nature of the statements made to INS upon which the case approval is based. These statements must be truthful.
Date : 2002-01-14
 
Yee Man Chan

I just read your article about filing I-485 in a trciky way. Your idea will only buy time by intentionally triggering an RFE. When your lawyer responds back to RFE by claiming AC21 law, they include all the details about the employment dates of previous and new employer and also pay stubs. They include that proof to claim benefits under Ac21 law. No lawyer will simply write a letter stating that his client is eligible under AC21 without supporting documentation and INS never approved a case just because a lawyer claimed it without documentation. It's not some kind of affidavit that lawyer provides and INS accepts it. Looking at that documentation, INS can easily determine if you are eligible are not.

Though it might be exciting to analyze any loopholes in the immigration rules (we also do it), advising people based on such conclusions is not advisble.


Coming to I-140 issue, the law clearly says that a sponsoring employer will loose control over the beneficiaries I-140 approval once 180 days on I-485 passed. That means, if the employer goes to the extent of notifying the INS before I-180 days, the case will be in trouble. If the employer does after 180 days, the case is still legally sound under AC21 law.
 
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