AC21 gray area. Please help answer

S

sjariffu

Registered Users (C)
with the introduction of concurrency filing of I1140 and 485, what happens if the 485 is past the 180 days and the I140 is not yet approved? Can the beneficiary find employment with another employer?

My original I140 was approved but sponsoring company got acquired and therefore had to do I140 amendment. It's in the 8-9 months, nothing yet. Meanwhile, 485 is past 180 days too. What happens in such a case? So called gray area. Does AC21 apply?
Can previous employer discontinue I140?

Thanks in advance.
 
i can only partially answer your question:

even though the "portability" provided for by AC-21 is often referred to as i485 portability, it is really the portability of an approved i140. under this portability, one's new employer "inherits" the approved i140 from the old employer, thereby becoming one's i140-sponsoring employer. and this portability is triggered by one's i485 having remained unadjucated for over 180 days, even though the actual change of employers may have happened earlier.

by the above, this portability is predicated on an approved i140 *and* its related i485 having been unadjucated for > 180 days. what this means with concurrent filing is, for instance, your i140 takes 175 to approve, then you can avail of the AC-21 law in another 5 days. if the i140 has taken over 180 days, then you can avail of AC-21 portability as soon as it is approved, but not before. also note that "availing of AC-21 portability" does not imply the actual act of changing employers. you could have changed employers even before the 180 days; it simply becomes protected under AC-21 law after 180 days of your i485 having remained pending. however, if you changed jobs before even your i140 was approved, that might even invalidate the i140, and with it would go out the window both your i485 and any kind of portability.

i must add here that this is JUST MY OPINION! please check with a lawyer!

the above still does not address the question of an *approved* i140 with an *amendment* pending. i could think of arguments either way.

maybe other forum users would like to weigh in on this.
 
i think as you (i.e your compnay) already apply for I-140 amendment, you have to wait till your I-140 approve.

if you haven't apply (I-140 amendment) you will be eligible for Ac21 rule to change job after 180 days.

Anyway i don't think you will be eligible for Ac21 unless you have I-140 approve, in worst case cinario if you get REF for that amendment I-140 you employer can neglict and you won't have I-140 approve, which is basically your immigration petition and it will invalidate your I-485 application.

So stay put atleast your updated I-140 approve.

JB
 
Thank you all.

The issue at hand is I am a consultant, and my current project is ending in less than a month. With current economic climate, not sure if they will be able to put me in another project.

Can't I argue that since the original I140 is approved, AC21 should be valid in this case? I485 submitted using original I140 around same time concurrency rule is created.

Another question, can I be on bench with EAD. I know H1B doesn't allow benching in which case the employer will be forced to terminate. Worst scenario, if my project ends and they can't find another for me. I go on bench without pay and the I140 continues till approved. I am only afraid they will revoke it.
 
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