AC -21 Changing Employer

[ijaffery]

My I 485 is pending due to name check and I have no idea how long it will take before my application gets Approved so I got a very attractive offer and thinking of swicthing employer.
By reading you some post looks like AC 21 is not a safe route but I did my research and read some USCIS documents and memorandoms.

I have just read the following on 2nd paragraph of page 3 of HQBCIS 70/6.2.8-P dated Aug 04, 2003. This can be found at http://uscis.gov/graphics/lawsregs/...0_AC21_8403.pdf which states:

"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has ot established that the new offer of employment is in the same or similar occupation, the djudicating officer may immediately deny the Form I-485. If the alien does not respond or failsto timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny he Form I-485."


Accordong to this guideline it is very clear that we can change employer after our I 485 is pending for more than 180 days.
I do not understand why it is still very unsafe to do that???

Any comment?


Cheers,

IJ

 

[INS2004Filer]

My I 485 is pending due to name check and I have no idea how long it will take before my application gets Approved so I got a very attractive offer and thinking of swicthing employer.
By reading you some post looks like AC 21 is not a safe route but I did my research and read some USCIS documents and memorandoms.

I have just read the following on 2nd paragraph of page 3 of HQBCIS 70/6.2.8-P dated Aug 04, 2003. This can be found at http://uscis.gov/graphics/lawsregs/...0_AC21_8403.pdf which states:

"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has ot established that the new offer of employment is in the same or similar occupation, the djudicating officer may immediately deny the Form I-485. If the alien does not respond or failsto timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny he Form I-485."


Accordong to this guideline it is very clear that we can change employer after our I 485 is pending for more than 180 days.
I do not understand why it is still very unsafe to do that???

Any comment?


Cheers,

IJ

I am also planning to go for ac21. I think law says clearly safe. Even I had some confusion but I dont think anymore. If there is any issues then why uscis made this law. I am planning to file ac21 docs + g28 in the next week before joining the new job. But we need to meet ac21 requirements such as : I-140 approved; I-485 pending more than 180 days; same job classification.

 

[INS2004Filer]

I am also planning to go for ac21. I think law says clearly safe. Even I had some confusion but I dont think anymore. If there is any issues then why uscis made this law. I am planning to file ac21 docs + g28 in the next week before joining the new job. But we need to meet ac21 requirements such as : I-140 approved; I-485 pending more than 180 days; same job classification.

I got this info from my friend who got the reply from his attorney.

1> My employer says that he is going to revoke my I-140, does it affects my I-485 status. NO, IT DOES NOT MATTER BECAUSE YOUR I-485 APPLICATION HAS BEEN PENDING MORE THAN 180 DAYS - PER USCIS MEMORANDUM OF AUGUST 4, 2003

2> My service center is xxxx, but the new job is in yyyy. Are there any issues in u sing labor from different state? A DIFFERENT GEOGRAPHIC LOCATION DOES NOT AFFECT AC21 APPLICABLITY - AS PER USCIS MEMORANDUM OF MAY 12, 2005.

 

[ijaffery]

Thats what I have exactly heared from another attorney. I asked him:

have filed I 140/I 485 concurrently in Aug 2005. My I 140 is approved on Oct 2005 and I 485 is still pending due to name check.
I have got a very attractive job offer in the same category as of my labor certification and thinking of switching employer under AC 21, as my I 485 is pending more than 180 days and I 140 is approved.
I am getting mix message from different folks, to me as per law it is very straight forward but I have given advise that if my current employer revoke I 140 then my I 485 will automatically be denied. I need to know what will be my legal position and risk involve if I change the employer and invoke AC 21?

and he replied me:

This is slightly more complicated, and I couldn't say for 100% certain, without knowing/seeing all the details of the entire I-140/I-485 package. However, I can tell you/him generally that employer revocation of the I-140 petition in these situations does not mean an I-485 denial. After I-140 approval and 180 days of I-485 pending, only an I-140 revocation by the CIS for fraud will cause a problem. In some sense, the I-140 approval almost becomes the property of the employee, and the CIS is even considering not allowing employers to revoke them this late. Currently, they can still revoke, but it doesn't harm the employee.

So looks like we are good to go>>>>>>

Cheers,

IJ