AC21 transfer Question

[H1Bee]

Hello,
I have an EB2 PERM petition in process. I've got Labor Certification approved and have a concurrent I-140 and I-485 filing on September 28, 2005 in CSC. Both are pending.
I recently got laid off...but have since found new employment.
Can an AC21 transfer be used in my case, given that I-140 is not approved yet. I have been led to believe that AC-21 only refers to pending I-485 petitions pending for 180 days and has nothing to do with I-140....is this true?
My former employer has agreed, after negotiations by me, to "bench" me instead of terminating my employment till such a time that I feel that my immigration process is safe. I've also asked my new employer to file a concurrent H1B petition for me, instead of a transfer...and they've agreed.
Additionally, to cover my bases, I've asked my attorney to apply for an EAD....

What else can I do to save my process ? Any suggestions are appreciated.

 

[catch_22_4_GC]

Technically, GC is only for a future job. So from a GC perspective, your ex-employer currently 'benching' you is of no consequence here. Just ask him not to withdraw the I-140 petition and support you in case any RFE such as 'Ability of Pay' is issued by USCIS on your I-140.

Also, you are not eligible for AC21 since 180 days are not yet complete from the receipt date of your I-485 filing. So wait for your 180 day cut-off period and then invoke AC21 by sending a 'AC21 Change of employment' letter to USCIS. That would make you safe. I-140 need not necessarily have to be approved to invoke AC21. Only 180 days cut off from I-485 filing matters.

 

[H1Bee]

Thanks Catch 22

That is my understanding too, but the attorney for my new employer is saying that AC21 can only be invoked if the I-140 is approved and the I-485 is pending for 180 days.
He also says that a con-current H1B filing will be detrimental to my entire process since, on the new H1B, I will be paid by my new employer, while my old employer has ceased paying me. He says that this fact alone will be grounds for the CIS to deny my I-140.
What he is suggesting is that both my employers should enter into a loan agreement, which will keep me as an employee of my old employer. My new employer will pay my old employer who in turn will pay me. He says that this is the best course of action to safeguard my immigration process.Furthermore he says that I am not eligible for an EAD unless my I-140 is approved....is this true ?
The immigration attorney used for my GC says that he is not comfortable with this loan agreement, as there are no solid legal reasons for this loan between the two companies....


Help !

 

[gc_2006]

I cannot comment in the loan item, but certainly on the I-140 approved or not.... my lawyer also didn't know this until after I showed him....Look at the Yates Memo of 5/12/05 - it CLEARLY states that I-140 does not need to be approved to invoke AC-21. Too bad some (highly paid) lawyers are not at all up-to-date on immigration matters.

That is my understanding too, but the attorney for my new employer is saying that AC21 can only be invoked if the I-140 is approved and the I-485 is pending for 180 days.
He also says that a con-current H1B filing will be detrimental to my entire process since, on the new H1B, I will be paid by my new employer, while my old employer has ceased paying me. He says that this fact alone will be grounds for the CIS to deny my I-140.