AC-21 after I-485 Adjudication

[cala]

Need help on I-485 form:
Part 1:
I-94 number. Is this the one on latest H1b extension I-797 approval? Or the one on my last entry (5 years ago)?
Part 3:
Nonimmigration Visa number: Which one is it? I got one on my last entry visa stamp (expired already), one on my latest H1b extension I797 form...
Consulate where visa was issued: Is this for the visa stamp on my last entry?
Date Visa Was Issued: again, which one?
A#: Should I leave it blank or put "None" or "N/A"

Thanks

 

[lohith]

Need help on I-485 form:
Part 1:
I-94 number. Is this the one on latest H1b extension I-797 approval? Or the one on my last entry (5 years ago)?
Latest entry and latest H1's 1-94 should be matching if you extended your H1 after your latest entry.
Part 3:
Nonimmigration Visa number: Which one is it? I got one on my last entry visa stamp (expired already), one on my latest H1b extension I797 form...
It was from H1 visa stamp by consulate. It was located right side below exp date of stamp/visa on pp. Just copy from latest visa stamp even it was expired.
Consulate where visa was issued: Is this for the visa stamp on my last entry?
Location of consulate where your pp stamped with h1. like madras, bombay,... Date Visa Was Issued: again, which one? Date of H1/PP stamping
A#: Should I leave it blank or put "None" or "N/A"
None
Thanks

 

[cala]

Thanks lohith. I extened H1 several times since my last entry about 5 years ago. I did not really pay attention on if those I-94s were matched or not.

 

[gc_ssr]

we are talking about the intent to hire at the time of approval of I 140. bUt how that stands for the applicants who are actually emploiyed by the GC sponsering company and laid of before 140 approval and less than <180 days of 485 filing.how do you show the intent. I mean, there is no intenet of hiring, as the employ is been laid off. Is that makes any problem in adjudicating 485? or is any problem in future, even if the UScis approveds the case.

Mine is exactly the above scenario, but the 140 has been approved now, but 485 is still pending?

 

[lohith]

we are talking about the intent to hire at the time of approval of I 140. bUt how that stands for the applicants who are actually emploiyed by the GC sponsering company and laid of before 140 approval and less than <180 days of 485 filing.how do you show the intent. I mean, there is no intenet of hiring, as the employ is been laid off. Is that makes any problem in adjudicating 485? or is any problem in future, even if the UScis approveds the case.

Mine is exactly the above scenario, but the 140 has been approved now, but 485 is still pending?

if 485 pending <180 days, if you get RFE for EVL, then wait till your 485 passes 180day water mark and respond with AC-21 docs. There is no short cut you can do before 180days passes.

 

[GC_GoneCase]

gc_ssr,

Also make sure 140 is not revoked by the petitioning employer before 180 days. Before 180 days, the petitioner can revoke the approved 140 making the AC21 process invalid.

if 485 pending <180 days, if you get RFE for EVL, then wait till your 485 passes 180day water mark and respond with AC-21 docs. There is no short cut you can do before 180days passes.

 

[cala]

I think his question was on "INTENTION" as marked in Red.

we are talking about the intent to hire at the time of approval of I 140. bUt how that stands for the applicants who are actually emploiyed by the GC sponsering company and laid of before 140 approval and less than <180 days of 485 filing.how do you show the intent. I mean, there is no intenet of hiring, as the employ is been laid off. Is that makes any problem in adjudicating 485? or is any problem in future, even if the UScis approveds the case.

Mine is exactly the above scenario, but the 140 has been approved now, but 485 is still pending?

 

[gc_ssr]

hi,
thanks for the info. As mentioned by cala, my question is on intention. My 140 has been approved on 181 st day of my concurrent filing (I 140 and 485). But i have been laid much earlier to 140 approval and < 180days of 485.
thanks

 

[lohith]

hi,
thanks for the info. As mentioned by cala, my question is on intention. My 140 has been approved on 181 st day of my concurrent filing (I 140 and 485). But i have been laid much earlier to 140 approval and < 180days of 485.
thanks

Obviously, your 140 sponsor does not have 'intent' to hire to support your 485 petition since o140 sponsor laid you off even before 180 days.


So, you'll only be protected/resqued by AC-21 (even in worst case of orig sponsor revokes/substitutes approved 140 like other members mentioned) by providing that now you have new employer has 'GoodFaith Intent' to continue to employ upon and after 485 approval; in other words, AC-21 letter should specify it's Permanent/indefinite continuing offer with EVL stating that it's same/similar profession.

unitednations mentioned in his posts that the whole responsibility lies on beneficiary to show/prove that 'changed intent' to work for AC-21 employer is permanent and bona fide. Also mentioned, USCIS specifically looks for this words to scrutinize beneficiary/employer's on-going intent.

 

[gc_ssr]

What if my case is approved before filing the AC 21. Is there any risk involved in it. My original sponser is not going to cancel my 140. Off course I don't get any support in case if I have any RFE. For AC 21 my New employment date should be started from the date I left the old company (when I left it is < 180 days and 140 is not approved) or should be started from the 181 st day (> 180) day. If we have employment with another company before 140 approval and case pending less than 180 days.

 

[lohith]

What if my case is approved before filing the AC 21. Is there any risk involved in it. My original sponser is not going to cancel my 140.

Then, you are the luckiest person

Off course I don't get any support in case if I have any RFE. For AC 21 my New employment date should be started from the date I left the old company (when I left it is < 180 days and 140 is not approved) or should be started from the 181 st day (> 180) day.

GC is for future employment. only INTENT matters; since you/sponsorer were not asked for INTENT in < 180 days by RFE/NOID. you are fine since 180days passed.

If we have employment with another company before 140 approval and case pending less than 180 days.

Again, only INTENT matters; if you/sponsorer were asked for INTENT in < 180 days by RFE/NOID, then you should have been waited to pass 180 day water-mark, to repond with AC-21. This is not your current situation to worry.

 

[gc_ssr]

Thanks Lohith. I really apprecite your time

 

[Sugee]

Yes, GC sponsor is the trouble maker. No time window. You have to join GC sponsor immediately or depends on understanding between you and sponsor.

See my friend, This whole trauma pops up when GC sponsor complains. Other wise, USCIS does not bother whether you are seeling groceries or running the company as a CEO.

Lohith,

I am jumping ahead of myself here, since my 140 approval is still pending, but I am confident it will be approved since I sent RFE response with UN's help.

Anyway, I worked for sponsoring company in the job specified in the LC and at a salary close to LC salary (about 5K lesser). The job/position was eliminated when they laid me off 2 years ago. But they kept open the option of creating the job and hiring me for it and continue to sponsor my GC. I now work for the sponsoring company (rehired a year after lay-off) in a different position and much lesser salary (30% lesser than LC slaary). The LC position might not get created even after the GC. But I dont have a problem with that. I like the new job (less stress and all that) and have no intention of leaving it in the next 6 months or 3 years. Will continue on this job even after GC. Now, do I or the company have a problem ?

 

[Con_File_Feb]

Hi Everybody,
First of all I would like to thank great information on this thread. I would like to know a different senerio.
United Nations, lohith and others…………… please help on this.

1. It is for sure that we cannot use AC21 for 485 Approval cases, right...

So, if one changes the job after 90 days of approval of 485, do you see problem from INS (Assuming, if the employer does not complain this to INS.)

Did any of you experience or heard any problem on cases which have been approved and people changed the job and got into trouble.



Thank You all,

 

[raaj97]

Ac21...

suggee, one can use ac21 for same/similar job within the same company. If there is any trouble for anyone, it is usually if someone changes jobs too quick and goes to another company. It would not get on anyone's radar if you are still with the same company.

United Nations,
I didn't get the point you mentioned in this posting. What do you mean by "one can use AC21 for same/similar job within the same company" ?
You mean to say one cannot change employer using AC21 but can change jobs within the same company. I am sorry if I misunderstood you and I read your other postings too. I am little confused with different interpretations. Please clarify. I am planning to change my employer this week since I met all the AC21 requirements as my employer is giving me hell of a problems.
Thnx

 

[Con_File_Feb]

This is still a developing area. One that has had some heated debate on the boards.

As time has gone on, I've started to see things a little differently.

Apparently at one point in time there was a rule that one had to stay with the sponsoring company for at least one year. However, that was struck down years ago and was replaced with intention to work with sponsoring employer upon greencard approval.

Before Yates came out with his in august 2003, some were speculating that uscis was going to come out and say that after 485 has been outstanding for more then 180 days then we are free and clear of getting the greencard, no matter what the current job situation is when uscis gets aroound to adjudicating the 485. However, uscis came out a little bit more strict and expect you to be in same/similar job at the time 485 gets approved.

USCIS was supposed to come out with regulations on ac21 and they haven't in five years. I think they haven't come out with it because there are conflicts within the rules and there are a lot of loopholes that people could exploit. Therefore, they would have to overhaul a lot of code of federal regulations at the same time to close the loopholes.

Just to give you an example:

ac21 states that you can change or change intent to which employer you want to work for as long as it is same/similar job after 485 o/s for more then 180 days. It doesn't say anything about you actually being employed in that same/similar job when 485 gets approved. You could almost interpret this that after 180 days you are free and clear.

The 140 employer is the sponsoring employer and not the ac21 employer. If you are supposed to work with the sponsoring employer of the 140 but can change after 180 days, the new employer isn't the one who sponsored you, so therefore, they haven't made any certifications to department of labor (labor certification) or on the 140 to employ you upon greencard approval. If the new employer isn't considered the sponsor then you could leave at any time.

USCIS regulations state that there has to be an approved and valid 140 immigrant petition for a person to adjust status. However, employers have been revoking them and people are still adjusting status with ac21. There are other regulatins that state if employer asks for revocation then uscis has to revoke it. This is another conflict that uscis will have to resolve.

Now back to your questions. I'm not aware of anyone who has gotten in trouble for leaving the job too early. However, keep in mind ac21 is only five years old and long delayed 485 processing has only existed since 2002. Therefore, a lot of the people who may have changed jobs too early would not have gotten onto the radar of uscis yet.

The main guidance I have seen is, how does uscis look at "intent". It appears that if you stick with the 140 employer or ac21 employer for three months after greencard approval then you shouldn't have any problems.

According to AILA liaison meetings in March 2005, uscis is working on ac21 regulations and it should shed some light on all these issues within this year.

Thanks for great information and such good insight on this subject. Can anybody here put themself on employer's shoes and tell me that how hard is for employer to cancel a case, which is already been approved.

Is there huddles or problems for employer on that, is there anything employer can do to cancel a case approved by INS and 90 days has been passed?

 

[Sugee]

suggee, one can use ac21 for same/similar job within the same company. If there is any trouble for anyone, it is usually if someone changes jobs too quick and goes to another company. It would not get on anyone's radar if you are still with the same company.

Thanks very much, UN.

OK, now I work for another department (can be argued that it is a similar job) at a lower salary. After the 140 approval comes, do you think we should use ac-21 to let USCIS know that the sponsor is changing the salary ? Or should we just keep quiet as long as there is no RFE ?

If there is an RFE for a fresh offer letter from the employer, which is preferable ? 1. Invoking ac-21 for salary change or 2. Sending a fresh offer letter for the same LC-stated salary ? In most probability, I will continue to work in the current job and (lower) salary even after GC. Therefore, will a fresh letter of offer with original LC salary put myself or the company in trouble at some later point with the USCIS ?

 

[lohith]

OK, now I work for another department (can be argued that it is a similar job) at a lower salary. After the 140 approval comes, do you think we should use ac-21 to let USCIS know that the sponsor is changing the salary ? Or should we just keep quiet as long as there is no RFE ?

Better to keep quiet since you are working for 140 sponsor, any way. So, in case of RFE, just send EVL from your employer/140 sponsor that it's same/similar job.
USCIS does not bother much on salary since LC salary shoube paid only after 485 approval

If there is an RFE for a fresh offer letter from the employer, which is preferable ? 1. Invoking ac-21 for salary change or 2. Sending a fresh offer letter for the same LC-stated salary ? In most probability, I will continue to work in the current job and (lower) salary even after GC. Therefore, will a fresh letter of offer with original LC salary put myself or the company in trouble at some later point with the USCIS ?

Just respond to RFE. There is no explicit/proactive AC-21 need on your case since you already with 140 sponsor. Just EVL will do.

 

[Sugee]

UN and Lohith,

Many thanks !!

I raised this issue because my new lawyer (yes, I had to change the lawyer because the old one refused to send UN's write-up prepared for the I-140 ability-to-pay RFE) once mentioned casually something like 'dont worry about 485, we will use ac-21'. I did not discuss his comment further with him at that time because it was all still premature.

 

[gc_ssr]

As mentioned by UN, the issue raises when filling for citizen ship, if you haven't used the AC21. As the Yates memo is simply a memo and does not have the same effect as a regulation. The memo, however, does not indicate what the consequences are, if any, in case a person does not submit a new employment letter. Nor does the memo address the question of what happens if the employment letter is submitted after an I-485 is approved.

It is advised to maintain good records as evidence that you were employed as a full time regular employee, by maintaining copies of your paychecks and W2. Similarly, it is recommended that you maintain proof of employement with your present employer and in what capacity (ie. job title and duties). The issue of who sponsored you for the green card and whether or not you qualified for AOS portability is most likely to be raised if, and when you apply for US Citizenship.