AC21 and EB1

R

RS_IL

Member
I noticed this in the transcript for Murthy Chat for Dec 8, 2003

Chat User : Hi, Attorney Murthy. Has there been any clarification of L1A portability under AC21?

Attorney Murthy : The USCIS has stated that they may revisit that issue and not permit L1A or EB1 candidates to enjoy AC21 portability, without the qualifying relationship. However, AC21 law does not contain any restrictions, and the only purpose of the law was to punish the USCIS/INS for their slowness and provide the foreign national the ability to travel freely and change employers. Generally, there is a risk in porting in L1A/EB1 cases, especially if the USCIS changes its position.


I am curious if any one has used AC21 with an EB1 application or I am misinterpreting this. Thanks.
 
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rsh

i found your interesting lament before in the "depressed with..." thread but withheld comments for a multitude of reasons. yes, i'm EB1 too, and i've used AC21. not that i've been approved yet, but i'm hoping to.

i've seen the murthy chat note too, but i feel that in a sense AC21 should be MORE, not less, applicable to EB1 cases, since these don't use LC, and hence should be less constricted than the EB2, 3 types. all the EB1 cases are porting is LC-less similar jobs for which the 140s were approved.

albeit, who knows, i could be completely off the mark.
 
It is a bizarre interpretation to begin with and furthermore it is even more bizarre to make such comments in private conversations to attorneys instead of posting them on their web page or some other such publicly accessible source. INS is supposed to have promulgated rules for the equitable and transparent implementation of AC-21 a long time ago. There is a fairly involved process including a period for public comments before these rules acquire the force of law. It appears that the INS is making up the rules as they go, and not very consistently, to boot, and is engaged in governance by fiat and cronyism.

On the merits of the point being discussed, there is obviously no risk to EB-1 extraordinary ability category. To applicants under OR and NIW cases, I am no lawyer, but I cannot fathom how AC-21 provisions can be regarded as inapplicable.

Certainly, Ms. Murthy repeating the illogical and unsubstantiated line in her chat cannot be considered as very lawyerly. For now we should assume that attorney Murthy is just slipping one in sideways to bolster her well-connected image and, perhaps, her clientele.:rolleyes:
 
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well said sankrityayan

I too follow the different chats on the web but lately have lost some interest because of the "spin" in the answers ( this could also be due to lack of proper guidelines on ac21 law)
I know tens of other EB1/NIW cases who have changed jobs and have been approved. Also many others have changed jobs and their case is pending (feb 02 onwards people) The waiver of job offer requirement itself means that ac21 is irrelevant and these people can change jobs as many times into a similar field.
sometimes lawyers want to protect themselves so that no one blames them later on and hence the presence of this spin zone.
In fact on one of the forums, I had placed a question and two attorneys from the same place replied with different answers.:D
Bottom line: The chats are helpful for general advice and we should thank these attorneys for their selfless help to us. However, for each case we need to look into it ourselves or with our own lawyer.
 
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sankrit and ag28

i opine (and dare i say, hope!) that you both are wonderfully correct. however, stuck in this quagmire myself, it's my feeling that unless CIS (or the powers-to-be) set themselves some tangible and non-labyrinthine goals and stick to those, we all might have to invoke AC31 after all.

of course, if that "A" in that law is still around for the next damn millennium.
 
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