AC21 Questions to the gurus...

P

psinha

Registered Users (C)
Gurus,
I am considering changing my job and I am aware of AC21 rules (180 days, I140 approved, job tile, description, salary...). I satisfy all the regulations of AC21 rule. The questions I have are the following:

1)In case my company takes a vindictive approach and decide to revoke my I140 (approved in February 2003), can BCIS revoke it?

2) I am on my 2nd EAD. If BCIS revoke my I140 and sends the notice of denial, will I have to go back to my home country and file for "motion to re open" ?


Any answers will be greatly appreciated.....
 
I m not a guru but...

Your situation is exactly like mine..
I have done lots and lots of research, talked to the Immg. Attorney and then changed employers. You should be fine.


1.Even if your co. tries to revoke I140, after 180 days yr ex-emlr can not revoke I 140., but if you think, yr emplr. will try to revoke, better use AC21 ASAP after changing, that's what my attorney suggested me.
2. Again, if you use AC21 now, CIS will not send you notice of denial, rather it will send you an RFE if applicable.

As far as I know, in case of denial, you still have chance to apeal. But if you do not file AC21 and later CIS sends u intent of denial (NOID), and you do not respond in a month(I think in a month), you are in serious truble.
 
Are BCIS aware of this....

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The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal. Those who chose concurrent filing enjoy an advantage, as they are accruing time toward the 180 days while the I-140 is pending, as long as it is finally approved.
----------------------------------------------------------------------------------
Although the memo clearly states that the sponsoring company cannot revoke I140 if the 180 day rule is satisfied...are BCIS aware of this?

Here is what happend to a friend of mine:

1)Applied for I140 in 2000.
2)Approved I140 in august 2001.
3)Applied for I485 in December 2001.
4)AC21 memo comes out in June 2003.
5)Friend changes job in August 2003. He is now on his EAD. H1 B has already expired.
6)Original employer requests a motion to revoke I140.
7)BCIS revokes his I140 and sends the "Notice of Denial in October".
8)My friend is now out of status. Contacts murthy's
9)The lawyer files "Motion to re-open".
10)My friend is advised to go back to India till BCIS concludes on his case. He loses his existing employment.
11)PACKS and LEAVES....Now waiting in India....



SO MUCH FOR THE AC21 MEMO..........................
 
psinha

Do you know if yr friend sent out the AC21 change of employment information to BCIS soon after he changed employer or he waited till he received BCIS action?
 
Did your friend receive Notice of Denial ... or Did he recieve "intent to Deny"? ... If I remember right, the AC21 memo says that BCIS will send out "Intent to Deny" notice (they used to send a RFE) ... to which the beneficiary has to respond in 30 days from the date on the notice (not 1 month as some responses suggest) ...

Was your friend able to receive the "intent to deny" notice and did he not respond in a timely manner?

it may not be as simple as it sounds....

I do hope your friend gets approved and is able to get the GC
 
What's the difference between

"Notice of Denial" and "intent to Deny"???

The bottom line is this....
Although, there is an official memo that clearly describes the 180 day rule....not all the BCIS officers are aware of it.

Hence if one changes the job, there is a remote chance that I140 may be revoked inspite of 180 day rule being satisifed.
 
psinha

"Notice of Denial" is actual denial of 485, that's it. Pack and leave.
and "intent to Deny" is you still have a chance to send and AC21 information to the CIS like employement letter and explianing the Job description, blah blah.
withing the timeframe what COS has asked you, if you are not able to send the information on time, that's it.
So the best thing to do is, send the information as soon as you have changed the employer(Murthy also suggests the same)

I agree to sairam1.

I have seen lots of approval on AC21 cases, so need not worry. There is a risk in every damn thing.
 
Thanks Bindass and Sairam1...

for citing out the difference between Notice of Denial and intent to deny...


Got a question...

Say I change my job. I utilize my AC21 by informing the BCIS, and I satisfy all the regulations of AC21. For some freaking reason BCIS revokes my I140(has happened and may continue to happen) and sends me intent to deny notice. Since I am on EAD, will I be out of status?? If true, am I not suppose to go back (ofcourse after applying for motion to re-open) and wait till eternity before BCIS comes to a final conclusion??Hmmmm If I have to go back to my home country I may lose my job. Now I am jobless which may probably lead to Notice of Denial????


AM I GOING NUTS ON THIS......:)
 
Last edited by a moderator:
psinha

As far as I understand the AC-21 memo, BCIS will issue a "intent for denial" notice if an approved I-140 petition is revoked (based on the request by the sponsoring employer) and I-485 is pending for longer than 180 days (from the Notice Date).

The notice typically has a response time duration of 30 days from the date of issue. The beneficiary will then have to respond to the notice within the 30 days with employment verification facts and that (s)he intends to use the provisions under AC21. The adjudicator is then expected to approve the I-485 case.

The AC21 memo is clear on this, as I understand it.

It is on this basis that Shiela Murthy suggests that it is a good idea to let BCIS know of the employment change and the beneficiary's intent to use provisions of AC-21 as soon as the job change occurs. If possible this has to happen prior to the I-140 sponsoring employer sending a notice to BCIS requesting them to revoke the approved I-140.

I am not an expert / qualified immigration attorney. What I have expressed here are my views based on my understanding and interpretation of the provisions and the AC-21 memo copy that was once available on this forum somewhere. Please use this information at your own risk. Please consult with a qualified immigration attorney before you make any decision/move.

Good Luck!

PS: Left to myself and if I have a choice, I will not use AC-21 simply because there is no BCIS regulation based on the AC-21 law. Absent the regulation, the memo is the ONLY guideline available to BCIS adjudicators. If the adjudicator chooses not to follow the guideline, (s)he can still interpret the AC-21 law in a way that suits him / her.

Also, there are potential issues related to receipt of intent to deny notice. What if you recieve the inetent to deny notice (even after submitting the AC21 details as soon as you change the job) more than 30 days after its issue due to postal delays. We know it happens, all the time.
 
Hi psinha,

I think you are totally confused, If one person starts using AC21 it does not mean that he will get a denial notice.. there are few requirements for using AC21

eg:
1. should be more than 180 days from 485 application
2. job should be same or similar category (DOT code as filed in LC)
refer to the link below, you will be able to see the officical USCUIS memo on AC21 and it not a problem. Read the document and then come back and post your view here.


Refer to the following LINK.
http://shusterman.com/cgi-bin/ex-link.pl?uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf
 
psinha

As far as I understand the AC-21 memo, BCIS will issue a "intent for denial" notice if an approved I-140 petition is revoked (based on the request by the sponsoring employer) and I-485 is pending for longer than 180 days (from the Notice Date).

The notice typically has a response time duration of 30 days from the date of issue. The beneficiary will then have to respond to the notice within the 30 days with employment verification facts and that (s)he intends to use the provisions under AC21. The adjudicator is then expected to approve the I-485 case.

The AC21 memo is clear on this, as I understand it.

It is on this basis that Shiela Murthy suggests that it is a good idea to let BCIS know of the employment change and the beneficiary's intent to use provisions of AC-21 as soon as the job change occurs. If possible this has to happen prior to the I-140 sponsoring employer sending a notice to BCIS requesting them to revoke the approved I-140.

I am not an expert / qualified immigration attorney. What I have expressed here are my views based on my understanding and interpretation of the provisions and the AC-21 memo copy that was once available on this forum somewhere. Please use this information at your own risk. Please consult with a qualified immigration attorney before you make any decision/move.

Good Luck!

PS: Left to myself and if I have a choice, I will not use AC-21 simply because there is no BCIS regulation based on the AC-21 law. Absent the regulation, the memo is the ONLY guideline available to BCIS adjudicators. If the adjudicator chooses not to follow the guideline, (s)he can still interpret the AC-21 law in a way that suits him / her.

Also, there are potential issues related to receipt of intent to deny notice. What if you recieve the inetent to deny notice (even after submitting the AC21 details as soon as you change the job) more than 30 days after its issue due to postal delays. We know it happens, all the time.
 
I have a dumb question here. What if somebody changes job after the RFE (for employment and second FP) should this person notify BCIS for job change or should this person just change job and wait...
 
There you go ...

This is a million dollar question ...especially if the RFE is for employment and if the RFE has just been responded with an employment verification letter that declares from the sponsoring employer that the beneficiary is currently a permanent employee and will be so for the foreseeable future (yeah! right!) ....

A friend of mine is in exactly the same situation... he has an offer that he is unable to refuse (same title - same DOT occ code - matching salary ... all AC21 conditions are met) ... but his employer has responded to the RFE described above ..... itis more than 10 weeks since the response was received by CSC .. no approval yet....

He has decided to take the offer.. the advise and counsel he has received from his attorney (the new employer's attorney) is that he could go ahead and join and not even let BCIS know... if the approval does not happen in the next 6-8 weeks, the attorney would write to BCIS .. invoking AC-21 .... I thought it was a strange suggestion ... but hey .. I am not the expert here..

thoughts guys?
 
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