AC-21 after I-485 Adjudication

[CUSTODY1234]

ac21

UN, Plz correct me if I am wrong in interpreting your prior posts.

thanks for the information.

 

[GC_GoneCase]

Thanks Lohith,

I would go by that. As 485 is not approved yet, I assume I have no reason to join sponsor at this time. I can wait tiill 485 approval. The sponsor is not asking me to join at this time and intentions are to wait till 485 is approved.

After that, I can decide on what to do.

Getting EVL for similar job duties is not an issue. The employment title also should be no issue. As the labor is for software engineer, I presume the duties could be of software engineering e.g. design, prototype etc. although the title may be different.

In my current employment, we follow 2 job titles, one on employment letter and second for the world outside. I think, USCIS cares for what is on the EVL, not what is for public facing.

If required, I can get EVL matching to what was on labor. Salary difference is more than 50% on positive side from the minimum mentiond on labor.

Do you see any pitfall in above approach?


Thanks again in advance.

And I fully agree to what you have said about unitednations. Everyone's time is very precious and unitednations manages to take the crucial time out of the schedule. Words are not enough to praise this selfless service.

It is like truly living to the expectations of the name, or more than that - United Nations.

It's amazing that unitednations is the savior of many people lives in the forum. UN spends his crucial personal time in searching through posts if someone is stuck with 'burning issue' and struggling to make both ends meet.

Mine is the classic example when UN by himself contacted me when I had been stuggling to salvage my second 140 and pushing h1 exts to the extreme. I could n't dare to imagine my life at this moment if he were n't helped me. My salute to UN !!

Well, GC_GoneCase, here is my 2 cents ...
Since you said, you have good rapport with GC sponsor, then act passively and keep the 'good intent' till you get 485 approval thru interview. And think about leisurely (not impulsively) that your well $$ paying current job's title/duties CAN be justified for AC21 based on your LC requirements.

Plz read UN's prior posts again and try to capture words/meaning between the lines, answer is right there.

 

[cala]

unitednations: Here is my case. Please help!

I worked for company A and they submitted LC and I-140. Since some business changes, I left the company in Jun 2001 and joined company B while I-140 was pending. In Aug, 2001, I found out I-140 was approved. I've been working in company B since then.

I'm thinking of using approved I-140 from company A and AC-21 to file I-485. I understand the problem was I left the company A about one month before I-140 approval. However, I asked my manager write a letter for me in Mar 2002. Of course he could not promise anything, but he did wrote "I want to re-employ him when oppurtunity arise".

My question:
1. How USCIS decide when I left the company A? I mean Jun and Aug will make things different.
2. Can I use the letter from my manager to be a proof that the company still intend to hire me while I-140 approved?
3. What's your suggestions for me to do

I'm on LC pending stage with company B and do not want to have any negative impact from what i'll do with company A's gc application. The reason I want to give it a try with the company A's gc application is for an additional option, just in case Company B's GC process has any problem.

 

[cala]

Thanks for your comments. UN.

Actually, I am able to get a letter from my previous manager with current date. The problem is he can not really promise the future job offer. Like I said, he may write something like "I will re-employ him, should oppurtunity arise". Do you think I should attach the letter with I-485 or not?

What if I do not submit medical result with I-485? Could you list anything could make the case be pending longer, and maket sure I would receive RFE after 3 month?

How does INS decide when I left the company A? What if INS questioning on my departure from company A before approval of I-140?

Thanks

Whenever, one is deciding what course of action to do, the main thing to keep in mind is; if something should go wrong, will it affect my greencard chances in another avenue.

To use ac21, the 485 has to be pending for more then 180 days. You haven't filed that yet based on the approved 140 from company a.

Because greencard is for a future job, you don't have to be working with A currently. If you file the 485 based on A's approved 140, you will have two issues:

1) you need to attach the 140 approval notice with your 485. If you don't have the approval notice then you should just state the receipt # of the 140 and the approval date. USCIS will be able to look it up in their system.

2) for EB 485 cases, a job offer letter is supposed to be attached with the 485. I don't think you will probably be able to get one with a current date. Therefore, you could file the 485 without the employment letter. USCIS will send you an RFE for it later.

1 & 2 you can overcome. The key part in 2 is if uscis sends you an RFE for the employment letter, you would be safe if you receive it after three months of filing. Reason I say that is that uscis will give you three months to reply to the RFE. Therefore, if you receive the RFE after three months then you can take the full three months to reply, which will take the 485 to be outstanding for more then 180 days and you can invoke ac21 and get an EVL from that employer.

Now what are the other issues that you could face. Technically within ac21 you're not supposed to do what I have mentioned above. Reason being that you are supposed to have the intention of joining employer until 485 has been outstanding for more then 180 days. Obviously you know that isn't the case. Would you get in trouble for this; my answer would be no. The main way you would get in trouble is if you "made up an employment verification letter from a" and attached it with the 485.

If some how uscis objects to this, you haven't committed fraud and the worst thing they could do is deny the 485 but it wouldn't impact any future cases you may file.

Also, keep in mind that if somehow uscis approves your 485 within six months, you would be obligated to go and work for A upon greencard approval.

Some other options would be that once your labor and 140 gets approved from B and the priority date has retrogressed from B, you are allowed to transfer the priority date from the earlier approved 140 to your second approved 140 and you will not be affected by retrogression on the second approved 140 since you will enjoy the earlier priority date.

 

[cala]

Thanks again UN.

I'm not familiar with the I-485 process. Please correct me if I'm wrong. Here is what I should do:
- File I-485 without EVL and medical
- Wait for finger print notice
- Delay finger print untill the last day
- Do finger print
- Wait for RFE for medical and EVL
(hopefully past 3 months)
- submit medical along with AC-21 on last day

delay the fingerprints and do not send in the medical.

a letter from an employer stating "...should the opportunity arise" would harm your case. better to not include it.

 

[maybesomeday]

However, in the aila conference in march 2005, uscis said they are working on the regulations and they will be issuing them soon.

UN,
Is there any insight on how they are going to change the wording? I talked to my attorney (AILA liason) yesterday and she is leaning more towards the requirement that the I-485 is pending > 180days after I-140 approval (since as you mentioned earlier this law preceded concurrent filing).

 

[maybesomeday]

I also saw that Congress slipped in the I-140 revokation ruling to override the firstland case. That really sucks. Now there's no real safety net.

 

[hope_2005]

I also saw that Congress slipped in the I-140 revokation ruling to override the firstland case. That really sucks. Now there's no real safety net.

Hi,

What does that mean?

Also, 485 appl should be pending for > 180 days AFTER 140 approval is bad news too.

Thanks.

 

[lohith]

UN,
Is there any insight on how they are going to change the wording? I talked to my attorney (AILA liason) yesterday and she is leaning more towards the requirement that the I-485 is pending > 180days after I-140 approval (since as you mentioned earlier this law preceded concurrent filing).

This would be self-conflicting oxymoron ruling while allowing concurrent filing and approvals of 140/485. If it becomes a ruling/policy, then effective aging of 485 counts from 140 approval which ZERO '0' in my case and any one had concurrent approval. Then PD of 485 to the adjudication is again Zero.

 

[maybesomeday]

This would be self-conflicting oxymoron ruling while allowing concurrent filing and approvals of 140/485. If it becomes a ruling/policy, then effective aging of 485 counts from 140 approval which ZERO '0' in my case and any one had concurrent approval. Then PD of 485 to the adjudication is again Zero.

It would make some sense since they have since got rid of concurrent filing for retrogressed countries. I hope they don't get rid of concurrent filing altogether and institute the post I-140 approval timeclock for AC21 portability or I may get screwed over.

 

[cala]

unitednations. Another question for you:
At the time when I file AC-21 after I-485 (company A) pending for 180 days, do I have to change to EAD working for company B? I'm currently on H1 with company B. I read some info saying that you can keep using H1 only when you are working for the sponsor company, which would be Company A, I guess.

 

[cala]

Thanks unitednations!

you must have mis-interpreted the 'some info".

H-1b is transferrable to another company. If youhave h-1b with company b then stay on it. If you want to move to another company, you can transfer h-1b to that company. If you wish, you can get off h-1 and start using EAD. Whatever you read; delete it from your memory.

 

[cala]

unitednations:
I just reviewed my paperwork and found out the following:
My Labor Certification with current company (company B) states I started in Aug, 2001 with the company. I actually joined in Jun, 2001.
If I'm planning to file I-485 on Company A and later apply AC-21, what date should I use, August or June? I have to think about this since I do not want to cause any confusion to INS. I'm still applying green card through my current company now (LC pending). What do you think?

 

[cala]

unitednations:
Thanks for the reply and advice. two more questions before filing:

How can I show the intention of employment with company A while I-140 was approved? At that time, I left the company already. I believe this is one of the criteria of AC-21.

From your point of view, how big the chance this will get approved, assuming I-485 is pending more than 180 days?

Thanks

 

[cala]

THANKS A LOT FOR YOUR HELP!

As I stated before, greencard is for a future job and many people have either not been in the employ when 140 got approved or left before 140 approval. None of them had an issue.

There has only been one posting where it became an issue. The case was transferred to the local office and person used ac21 on a future based employment (he had never at any point worked with the company). The local office asked him to produce a letter from the 140 employer to show that they had intent of hiring him when 140 was approved. THIS HAS BEEN THE ONLY POSTING.

It is important to note that prior to January 2005, it was USCIS policy that if a person wasn't working with the 140 employer when they filed the 485, it was grounds for transfer to a local office for an interview. However, in January 2005, USCIS changed their policy regarding transfers to the local office. They deleted the requirement of person not working with the 140 employer when they filed 485. Therefore, you should be able to get through with no problem of not having too prove that 140 employer had intent to hire you upon 140 approval.

In worst case if you are asked to prove it but you can't get the letter, then you just withdraw the 485. There will be no negative immigration consequence to you, as long as you don't lie.

 

[lohith]

....
Therefore, you should be able to get through with no problem of not having too prove that 140 employer had intent to hire you upon 140 approval.

In worst case if you are asked to prove it but you can't get the letter, then you just withdraw the 485. There will be no negative immigration consequence to you, as long as you don't lie.

Affidavit of Support. Submit the Affidavit of Support (Form
I-864) if your adjustment of status application is based on your
entry as a fiance(e), or a relative visa petition (Form I-130) filed
by your relative or on an employment based visa petition (Form
I-140) based on a business that is five percent or more owned by
your family.
Employment Letter. If your adjustment of status application is
based on an employment based visa petition (Form I-140), you
must submit a letter on the letterhead of the petitioning employer
which confirms that the job on which the visa petition is based is
still available to you. The letter must also state the salary that
will be paid..
Form I-485 (Rev. 02/07/00)N Page 2
(Note: The affidavit of support and/or employment letter are not
required if you applying for creation of record based on continuous
residence since before January 1, 1972, asylum adjustment, or a Cuban
or a spouse or unmarried child of a Cuban who was admitted after
January 1, 1959.)

Does this cause any rejection by MailRoom folks while doing 'Prima Facie' review ?

 

[cala]

Affidavit of Support. Submit the Affidavit of Support (Form
I-864) if your adjustment of status application is based on your
entry as a fiance(e), or a relative visa petition (Form I-130) filed
by your relative or on an employment based visa petition (Form
I-140) based on a business that is five percent or more owned by
your family.
Employment Letter. If your adjustment of status application is
based on an employment based visa petition (Form I-140), you
must submit a letter on the letterhead of the petitioning employer
which confirms that the job on which the visa petition is based is
still available to you. The letter must also state the salary that
will be paid..
Form I-485 (Rev. 02/07/00)N Page 2
(Note: The affidavit of support and/or employment letter are not
required if you applying for creation of record based on continuous
residence since before January 1, 1972, asylum adjustment, or a Cuban
or a spouse or unmarried child of a Cuban who was admitted after
January 1, 1959.)

Does this cause any rejection by MailRoom folks while doing 'Prima Facie' review ?

When do they issue RFE? At this Prima Facie review stage or after finger print is done?

 

[cala]

Not having the medical form will not trigger an RFI immediately, either. Right?

 

[lohith]

no, they won't reject it for that reason. Main reason they would reject the 485 is if there was no 140 or the priority date wasn't current.
.....

Not having the employment letter will not trigger an RFI immediately.

It always helps a lot to clarify from unitednations having lot of exposure and practical experience. It's critcal to know ahead what to send and what NOT to avoid trouble later.

I can not imagine how much time you spend to research on these issues before you give any advice.

Like UN said before, (reading instructions of 485 filing), it is not mandatory to submit employment letter and medicals for other categories like fiance', asylum, refugee, derivatives,.... So, at Prima facie stage, folks wont do that detailed scrutiny for them.

For initial acceptance of 485 petition, one has to submit minimim, copies of
1. 140 receipt # to claim eligibility to file,
2. Full PP , I-94
3. 2-photos
4. G-325a
5. Fee $385 for each application (does one has to submit for all derivatives too or can be filed later at RFE stage?)

 

[cala]

Agree. UN did help a lot with his knowledge and experience! Thank you UN! And thank you lohith, too!

It always helps a lot to clarify from unitednations having lot of exposure and practical experience. It's critcal to know ahead what to send and what NOT to avoid trouble later.

I can not imagine how much time you spend to research on these issues before you give any advice.

Like UN said before, (reading instructions of 485 filing), it is not mandatory to submit employment letter and medicals for other categories like fiance', asylum, refugee, derivatives,.... So, at Prima facie stage, folks wont do that detailed scrutiny for them.

For initial acceptance of 485 petition, one has to submit minimim, copies of
1. 140 receipt # to claim eligibility to file,
2. Full PP , I-94
3. 2-photos
4. G-325a
5. Fee $385 for each application (does one has to submit for all derivatives too or can be filed later at RFE stage?)