AC21 w/ pending I140/I485 past 6 months

E

extinct

New Member
If it is unavoidable to change job (looming layoff) when:

0) Employer is a very big, established and reputable company.
1) EB2 LC is approved.
2) I140 is filed but yet unapproved for more than 6 months.
3) I485 is filed but yet unapproved for more than 6 months.
4) Premium Processing of I140 is not an option (company policy!).
5) Last 6 months (of 6 years) of H1B and company is unwilling to renew H1B and instead wants the employee to work on EAD/AP.

Questions:
a) What are the required steps and precautions when switching jobs under AC21 interpretation as per 12/27/2005 (AYTES MEMO)?
b) What documents must one take from the current employer/lawyers?
c) What assurities must be negotiated with the current employer/lawyers?
d) How risky is this?

Detailed answers are most welcome.
 
Any answers?

I would really appreciate feedback on my questions above. Thanks.

UnitedNations , Ginnu , anyone?
 
extinct said:
If it is unavoidable to change job (looming layoff) when:

0) Employer is a very big, established and reputable company.
1) EB2 LC is approved.
2) I140 is filed but yet unapproved for more than 6 months.

---------------Change AFTER I-140 is approved and I-485 pending more than 180 days
3) I485 is filed but yet unapproved for more than 6 months.
4) Premium Processing of I140 is not an option (company policy!).
5) Last 6 months (of 6 years) of H1B and company is unwilling to renew H1B and instead wants the employee to work on EAD/AP.

Questions:
a) What are the required steps and precautions when switching jobs under AC21 interpretation as per 12/27/2005 (AYTES MEMO)?
-------------------I-140 is approved and I-485 pending more than 180 days and new job with same/similar job duties

b) What documents must one take from the current employer/lawyers?
-------------------I-485 filing reciept is must. if you can get LC approved copy or LC form ETA750A then it can help you to find your job duties written on it (employer or lawyer may not give you LC copy )
c) What assurities must be negotiated with the current employer/lawyers?
d) How risky is this?
---------Dear, at this time you are not safe to change job, better change once I-140 is approved
Detailed answers are most welcome.
Click to expand...

-----------
 
Weathering a Layoff

Thanks for the response Ginnu.

Attached with this reply is the AYTES memo as available on Mr. Khanna's website:

1) Page 2 Question 1 clearly states that changing job before I140 approval is possible provided that I485 is pending 180+ days.

2) Page 4 Question 11 inference is that previous employer can not withdraw/revoke an I140 case if the corresponding I485 has been pending for 180+ days (though the writing is a bit convoluted).

3) Page 3 Question 2 states a very bad situation where if an RFE is issued and the previous employer does not respond, incorrectly responds or says that the employee has left then thats the true end of the line for the case!

So my conclusion was that its possible under law but very risky (rather fatal!) if an RFE comes.

In a case where an EB2 was filed by a (Fortune 200) big reputable company with net revenue in billions (ability to pay not an issue), and I140 was supported by US experience (w/ correct EVLs) and accredited degree/transcripts (of a top-10 US school) an RFE would be quite an odd spectacle.

Below are common I140 RFEs that I have gathered thus far and thats exactly what has been submitted for the case already:
a) Employer's ability to pay.
b) Degree/Transcript authenticity.
c) W2/Tax returns of previous years.
d) Employment verification letters.
e) Paystubs of current job.

I do agree with your conclusion that its very risky, as USCIS is nothing but unpredictable but layoffs don't see reason either. My attempt is to gain sound knowledge and ideas just in case!

Once again I'd appreciate your response.
 
ginnu said:
*** I read your post in thread. one can change job when I-485 pending BUT EMPLOYER CAN REVOKE THE I-140.
**dont take this risk at this time let your I-140 get approved.

***FYI one can be working with A and LC, I-140 can be filed by B and then person can file I-485 based on I-140 approval or with I-140. GC is for Future job
Click to expand...

In regard to employer revoking the I140, according to the referenced memo, invocation of AC21 by the beneficiary after 180 days of pending I485 does protect the beneficiary from I140 revocation because the portability can not be stopped after 180 days of I485 (page 4 Question 11).

Thus the previous employer can only effect the case by not responding to an RFE, this is perhaps the only thing that would keep anyone from not using this method but only as a method of last resort.

Once again I do agree with you that it is extremely risky but as per my analysis thats because of an RFE fear and not because of a revocation fear.

Once again comments are most welcome.
 
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