AC21 JobTitle/Responsibilities/Pay Question. Please help.

V

vk_gc

Registered Users (C)
Hi Ginnu/Real Canadian or any other expert,

I am planning to take the new employment by invoking AC21.

My I-140 is approved. I-485 is pending for last 3 years.

The original job Title as per my LC is "Software Engineer". The new job title in the offer letter is going to be "Software Architect" or "Software Engineer/Architect". Which one is better to avoid any potential issues from USCIS in the future or do I have to have the title same as in my LC which is "Software Engineer".

I am negotiationg to have the resposibilities in the offer letter same as my original responsibilities in my LC, but they might add Architect word as well in those resposibilities. Is it OK?

My Current employer is a consulting company, they mentioned very less salary in LC even though I am getting paid much more than that on hourly basis. My new job pay is almost 3 times compared to my original pay as per my LC. Is it OK?

I really appreciate your kind feedback.

Thanks,
vk_gc
 
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vk_gc said:
Hi Ginnu/Real Canadian or any other expert,

I am planning to take the new employment by invoking AC21.

My I-140 is approved. I-485 is pending for last 3 years.

The original job Title as per my LC is "Software Engineer". The new job title in the offer letter is going to be "Software Architect" or "Software Engineer/Architect". Which one is better to avoid any potential issues from USCIS in the future or do I have to have the title same as in my LC which is "Software Engineer".
----------- Software Engineer is safe but they care about job duties
I am negotiationg to have the resposibilities in the offer letter same as my original responsibilities in my LC, but they might add Architect word as well in those resposibilities. Is it OK?
----that ok
My Current employer is a consulting company, they mentioned very less salary in LC even though I am getting paid much more than that on hourly basis. My new job pay is almost 3 times compared to my original pay as per my LC. Is it OK?
---------------- I have not read any AC21 case rejected becasue of salary
I really appreciate your kind feedback.

Thanks,
vk_gc
Click to expand...
 
Thank you Ginnu.

Looks like I will be getting the title as "Software Engineer/Architect" and responsibilities same as mentioned in LC.

Daring to accept the new offer. Hope nothing goes wrong.

Thanks,
vk_gc
 
Same or similar

Guys, "same or similar" job classification is *very* broad terminology so don't panic. I'm thinking of invoking AC21 myself and in my case the title is probably going to be quite different in a new company and salary 30% higher than on the LC. Nowhere it says that job title and duties need to be the same. The truth is most of "software engineer" occupations are similar, i.e. an Oracle Admin, UNIX Admin, Java Architect, etc. is some type of a Software Engineer. IMHO USCIS doesn't care as long as there is a bona fide job offer.
 
I agree with the last poster. Quoting LC duties word for word would make me far more suspicious as an examiner than an honest description that was similar yet slightly different. No two organizations ever have the exact same job description for professionals.

I'd be more worried about the 200% pay increase from the LC to the new job. USCIS can consider that to be evidence that the job isn't similar, or that the LC wage was artificially low to discourage US citizens/residents from applying.
 
Since people are concerned about what is the same or similar, do you know how the CIS determine the same or similar?
 
immiq said:
Since people are concerned about what is the same or similar, do you know how the CIS determine the same or similar?
Click to expand...

**** READ question 3 from May12,2005 MEMO (or search/read the full Memo)

20 Massachusetts Avenue, NW Washington, DC 20529 HQPRD 70/6.2.8-P To: REGIONAL DIRECTORS SERVICE CENTER DIRECTORS From: William R. Yates /S/ Associate Director for Operations United States Citizenship and Immigration Services Department of Homeland Security Date: May 12, 2005

Memorandum for Service Center Directors, et al.

Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-140 PORTABILITY PROVISIONS OF §106(C) OF AC21

Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied: A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes. B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?
Memorandum for Service Center Directors, et al.
Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1B Petitions Affected by the American Competitiveness in the
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 4
Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved: A. Deny the petition on the merits of the case; and B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?

Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors: A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification. B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification. C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).
 
Now it should be clear enough and you do not have to read someone’s worry at “pay increase” but try to follow the USCIS guidelines closely.
 
ginnu

Thanks Ginnu you are genius, help me with this one, I have a situation I need your advice,

Here is my immigrtaion history

1.I140 +I485 FILE IN mARCH 2004 I-140 APPROVED I-485 PENIDNG TILL 2010 WHEN I COMPLETE MY 5 YEARS IN MUA

2.I-140 AND 1485 FILED 13JUNE 2006 BASED ON RIR LABOR BOTH PENDING (REQUESTED YESTERDAY PP).

3 I-140 AND I485 FILED IN SEPTEMBER BASED ON PERM ,I140 APPROVED PP

MY QUESTIONS ARE IF I FILE I140 WITH 1 I485 DO I HAVE TO WITHDRAW
3 I485 AND WHAT WILL HAPPEN TO AC 21 PORTABLITY BCZ THE HSOPIATL I OWRK FOR IS SAMLL RURAL HOSPIATL THEY ARE NOT DOING FINANCIALLY GOOD AND CAN LAY OFF ANY TIME
THANK EXCUSE 'CAPS ' I MA NOT GOOD AT TYPIN
 
iak65 said:
Thanks Ginnu you are genius, help me with this one, I have a situation I need your advice,

Here is my immigrtaion history

1.I140 +I485 FILE IN mARCH 2004 I-140 APPROVED I-485 PENIDNG

TILL 2010 WHEN I COMPLETE MY 5 YEARS IN MUA
----------------------what do you mean by "I-485 Pending till 2010" ?????
do you mean filed I-140 and I-485 through employer A?
2.I-140 AND 1485 FILED 13JUNE 2006 BASED ON RIR LABOR BOTH PENDING (REQUESTED YESTERDAY PP).
------------- do you mean filed second I-140 and I-485 through new employer B
3 I-140 AND I485 FILED IN SEPTEMBER BASED ON PERM ,I140 APPROVED PP
-------------do you mean third I-140 filed???
MY QUESTIONS ARE IF I FILE I140 WITH 1 I485 DO I HAVE TO WITHDRAW
3 I485 AND WHAT WILL HAPPEN TO AC 21 PORTABLITY BCZ THE HSOPIATL I OWRK FOR IS SAMLL RURAL HOSPIATL THEY ARE NOT DOING FINANCIALLY GOOD AND CAN LAY OFF ANY TIME
THANK EXCUSE 'CAPS ' I MA NOT GOOD AT TYPIN
Click to expand...

Please make your case details clear with full details. read the below link then post full details so that one can understand the correct situation

http://www.ilw.com/articles/2006,1106-shusterman.shtm
 
ginnu

Thank you for your patience
I will try to do better

My situation

I-140 and I485 filed in 2004 on the basis of NIW for physician working in medically underserved area, the rule is that you have to complete five years in medically underserved area after approval of I-140 I-485 remains pending till you complete 5 years I self petitioned it

I had applied RIR LC in June, 2004 got approved in 2006 so I filed the another I-140 and I-485 since by this time the hospital was bought out by another company so this filing was as successor in interest, due to this successor in interest can be tricky so I file another PERM application in July which got approved and filed another I-140 and I485 in Sep2006, with the same employer who is successor in interest. I-140 was approved last month by PP file on the basis of PERM.
Basically all the application are with one employer although I self petitioned the NIW I-140 but the base was on me working for the same hospital
. To summarize it again the details of my application
[COLOR=Dark Orange] A[/COLOR]. I-140 and I-485 filed in 2004 as NIW for physician I-140 approved I-485 cannot be adjusted till I complete 5 years
B.I-140 and I-485 filed in JUNE based on RIR the employer filed I-140 as successor in interest as it was complete buy out both pending although I recently requested I-140 PP
C.Filed perm in July with the above employer got approved filed I-140 and I-485 I-140 got approved perm

My thought was that if I request interfiling of I-140 refer to "C: to I-485 in "A"
And reading on this forum people have done but I have also learned that USCIS does not issue any receipt for it and I get lay off 3 months down the road, How I will be able to claim AC21 because my understanding is that to request C I-140 to be attached to [COLOR=Dark Orange]A[/COLOR] I-1485 I will have to withdraw the C I-485.So I will have no way to prove that my I-485 was pending for more than six months, although I am not for a retro country but I believe that my June I-485 may have already have name check cleared which can become night mare although all my applications are in the same center but I don’t think Uscis system is so efficient that they will take one name check to apply to all i-485
 
iak65 said:
Thank you for your patience
I will try to do better

My situation

I-140 and I485 filed in 2004 on the basis of NIW for physician working in medically underserved area, the rule is that you have to complete five years in medically underserved area after approval of I-140 I-485 remains pending till you complete 5 years I self petitioned it

I had applied RIR LC in June, 2004 got approved in 2006 so I filed the another I-140 and I-485 since by this time the hospital was bought out by another company so this filing was as successor in interest, due to this successor in interest can be tricky so I file another PERM application in July which got approved and filed another I-140 and I485 in Sep2006, with the same employer who is successor in interest. I-140 was approved last month by PP file on the basis of PERM.
Basically all the application are with one employer although I self petitioned the NIW I-140 but the base was on me working for the same hospital
. To summarize it again the details of my application
[COLOR=Dark Orange] A[/COLOR]. I-140 and I-485 filed in 2004 as NIW for physician I-140 approved I-485 cannot be adjusted till I complete 5 years
B.I-140 and I-485 filed in JUNE based on RIR the employer filed I-140 as successor in interest as it was complete buy out both pending although I recently requested I-140 PP
C.Filed perm in July with the above employer got approved filed I-140 and I-485 I-140 got approved perm

My thought was that if I request interfiling of I-140 refer to "C: to I-485 in "A"
And reading on this forum people have done but I have also learned that USCIS does not issue any receipt for it and I get lay off 3 months down the road, How I will be able to claim AC21 because my understanding is that to request C I-140 to be attached to [COLOR=Dark Orange]A[/COLOR] I-1485 I will have to withdraw the C I-485.So I will have no way to prove that my I-485 was pending for more than six months, although I am not for a retro country but I believe that my June I-485 may have already have name check cleared which can become night mare although all my applications are in the same center but I don’t think Uscis system is so efficient that they will take one name check to apply to all i-485
Click to expand...
-------------- it is Mess filing three I-140 and three I-485.
why not only to file second or third I-140 and then Interfile I-140 with pending I-485
** you dont need to invoke AC21 if the I-140 is filed by C and your filed I-485 based on that I-140 and want to work with C.
* you can also INTERFILE the latest I-140 of C(by sending copy of I-140 approval) with First I-485 and request the USCIS to approve the I-485 based on I-140 of C.
** one can use AC21 with pending I-485 that is pending more than 180 days and your new job is same/similar

** I dont know if your all I-485 have the SAME A# or not
** I dont know if on your second and thrird I-140 you wrote your A# that you got on first I-485 filing reciept.
** I am 99% sure your I-485 will be transfred to local USCIS for Interview and then Interview date may be after 5-6 months of your file transfer to local office.
**who advised you to file three I-485?? one can interfile the second/third I-140 approval notice with pending I-485 and interfiling is not invoking AC21
 
ginnu

Thank you ginnu and Gold bless you; on a lighter note I will like to change your signature as below

Remember ginnu is a layperson with out any legal training but better than many attorneys, if in doubt do your own research never trust any attorney
I agree with you ginnu that my case may look complicated although I hope it does not complicated
Let me give you my history when I started working in 2001 as a physician I had no clue about immigration issue I thought you pay the attorney and sleep over it, it was combination of wrong timing bad attorneys and luck that after 5 years I am still struggling

With this immigration issues my bill in h-1 extensions attorneys fees and immigration fees is already around $40000 and I have tried three attorneys all big name. next one is worse than the previous one, till I decided that I will do everything myself.
In 2001 I filed the LC through RIR and that was the time when tons of LC filed so my case kept sitting 2 years at state level anyway I approached the local senator who went out of the way and found out that my great attorney did not run ads in Journal of American Medical Association so my that lC went down the drain and my job contract needed in 2004, so new job new labor at that time filed a new labor, realized that thing can be bad, so filed another labor RIR 2004 went to backlog since my 6 th year had already started and h-1 extension can be tricky and I was working in medically underserved area so I though it will give me a back up with EAD so I filed I-140 and 1-485 as NIW for physician working in MUA, now my case is in RIR and news of perm are every where I thought that I will get lucky now anyways perm came in 2005 and I found a big name attorney in Memphis got rid of one A hole in NYC, so filed the perm in August 2005 ran the Sunday adds but this even bigger A hole attorney put the wrong date for Sunday so my perm got denied, cursed him well he said I will run the ads at his own cost and file another perm, here come another bummer the state I am in, raised the prevailing wage which was highest in nation and nobody was paying that kind of wage so this A hole instead of getting survey which I was not aware of at that time wanted to file using the different occupational code that is of family practice while I am an internist. I knew it will not fly and at the same time the hospital got sold new company comes and lays off all the doctors. I am on the road again running around trying to find within the 60 days of my notice time another job meanwhile my 2004 lC got approved and I have lost the job, great found another job before my 60 days period is over they decided they are going to keep me I was desperate due to approved LC of 2004 so I decide that I will stay with this current employer now they gave me the hardest time of my life and refuse to give me the purchase agreement which I needed to prove that this company is successor in interest for my 2004 lC as after the sale of company the hospital name and tax id changed. they told me that they will give it to only corporate immigration attorney and I have to pay him the fee and way this is 3rd A hole he was sending the forms to my employer wrong information took 3 months to file my I-140 and I also file another r I-485 if they lay me off after 6 months at least I will have something in my hand. Now when I got the receipt notice for I-140 the name of petitioner was still the old companies name not the new company name which was filing as successor in interest called him his version is that may be Uscis did not have enough space to type and we will see when the approval come out instead of doing something to fix it now and as you may know since the petition is by employer I cant do anything like calling Uscis, now I had 2 concerns the wrong name and how Uscis will take the successor in interest issue will that approve it or no, so what to do, promised to myself that of course I will not hire any attorney so I did everything myself got perm approved in 3 days and since my previous I-140 had the 2 issues and went ahead filed another I-140 and I-485 because I was fearing that if they reject my I-140 not accepting successor in interests issue I may run in to problems. This hospital is run by management which is cutting down every day and nobody is even sure that when it will close down, although I hope not, another interesting thing my 2nd A hole attorney did when he filed my h-1 extension Uscis gave me 3 years extension that I found out was mistake and you have to correct by reading in one of the forum he never told me about and he agreed when I brought it to his attention he said yes that’s a mistake he easily would have made me lose my h-1 status well that’s my whiny story.
During my 2001 –2004 I was in medically underserved area my first A hole attorney could have easily filed NIW but never made me aware of that otherwise I would have completed my 5 years by now I saw the light when 9 th circuit court approved Carls Shusterman case but now the state department of health refused to issue me a letter of support so I can not claim my previous three-year there is one unreasonable person who think foreign medical graduates are low life she even does not talk to individual but only attorney ,I went through the attorney I guess they are necessary evils but she refused to issue the letter, I needed the letter because my 3 years were in a different MUA than my current MUA

I hope you will understand why I am in this mess.
Am I whining too much LOL?
I agree with your suggestion to file approved I-140 with NIW I-485 but a little concern if there is a smart adjudicator he may raise issue that I-485 of NIW can not be approved till 5 years so it does not fall in to 180 days rule, I think Yates memo in its spirit apply to case with lengthy adjudication, may be I am thinking too much or paranoid,
You mass ask me why I’m still with this employer my problem is that I have this 90 day notice period suppose I give 90 day notice as a physician I even have to give at least 30 day notice to my patients so I can not just quit, suppose I give a 90 day notice and with my luck where everything goes wrong what if they adjust my status dueing those 90 day period as the dates are already of March for I-485 miner was file in June I will be doomed again, What you think about this scenario? any suggestions, because my understanding is that you have to work at least six months with the petitioning employer and so if I give 90 day notice say tomorrow I have to be with this employer till March 7 and what happens if I get say my 485 adjusted hypothetically on Feb 7, the current employer will definitely not take me backs, yes my A# is same on all application, an interesting development was in June when I filed the other I-485 they transferred my NIW I-485 from Texas service center to Nebraska where all my application are. Do you think they put every thing in one file or there will be 3 different files floating around, why you think I will have an interview/

A.I-140 AD NOV2004+I485 NIW MARCH 2004 PENDING
B.I-140 JUNE 13 RD+1485RD JUNE 13,2006
C.I-140 AD 11-14-06+ I485 RD 08-21-06
A.B&C ARE FROM SAME EMPLOYER
 
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agree with your suggestion to file approved I-140 with NIW I-485 but a little concern if there is a smart adjudicator he may raise issue that I-485 of NIW can not be approved till 5 years so it does not fall in to 180 days rule, I think Yates memo in its spirit apply to case with lengthy adjudication, may be I am thinking too much or paranoid,

You mass ask me why I’m still with this employer my problem is that I have this 90 day notice period suppose I give 90 day notice as a physician I even have to give at least 30 day notice to my patients so I can not just quit, suppose I give a 90 day notice and with my luck where everything goes wrong what if they adjust my status dueing those 90 day period as the dates are already of March for I-485 miner was file in June I will be doomed again, What you think about this scenario?
any suggestions, because my understanding is that you have to work at least six months with the petitioning employer and so if I give 90 day notice say tomorrow I have to be with this employer till March 7 and what happens if I get say my 485 adjusted hypothetically on Feb 7, the current employer will definitely not take me backs,
-----better to stick with that employer

yes my A# is same on all application, an interesting development was in June when I filed the other I-485 they transferred my NIW I-485 from Texas service center to Nebraska where all my application are. Do you think they put every thing in one file or there will be 3 different files floating around,
---------------------there will be 3 different files
why you think I will have an interview/
----------------- when you file second I-485 in 98% cases they transfer the file to Local office for Interview. Interview is nothing just they check 3 years tax filing papers, W-2, latest 2-3 pay stubs, DL, Passport, when you get interview notice they will write what papers to bring.
http://www.ilw.com/lawyers/seminars/august2002_citation2b.pdf

http://shihab.net/empimm/I485sop.pdf

*** till your I-485 is not approved be on H1 status, keep filing H1 extensions and remain on H1

**** you should have the PD of first LC filing date if that LC was approved and then filed I-140 based on that approved LC and I-140 was approved.
http://uscis.gov/graphics/services/employerinfo/Bull14final110303.pdf

A.I-140 AD NOV2004+I485 NIW MARCH 2004 PENDING

B.I-140 JUNE 13 RD+1485RD JUNE 13,3006 ( it may be june 13,2006 NOT 3006)
C.I-140 AD 11-14-06+ I485 RD 08-21-06
A.B&C ARE FROM SAME EMPLOYER

**** Try to read below link:
http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf
http://www.uscis.gov/files/pressrelease/casemgmt.pdf
 
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