AC21 when I140 is not approved

S

sunny2002

Registered Users (C)
There is a lot of mention about AC21 rule. Can you please clarify
whether AC21 holds good in the following scenario:

I140/485/EAD/AP applied in april 1st week.
I140 is going to take atleast 9 - 12 months.

As per AC21, if 180 days has past since the filing of 485, one
can change jobs, but the confusion is regarding I140.

does the 180day rule apply only when I140 is approved or
is 180day rule independent of I140 approval?

any info would be of great help,
thanks,
VG
 
The rule came into effect when I140/I485 joint filing was not allowed. That time it was assumed that I140 is approved.

I had read few threads regarding this and many people were of the opinion that I140 approval is a necessary before availing AC21.

However check with your attorney.
 
AC-21

AC-21 is portability of approved i140, which is becomes available as an option when the i485 it is supporting has remained unadjudicated for over 180 days. by exercising this option, your new employer inherits the i140 and becomes its new owner, hence your new sponsor. i485 portability is meaningless.

it is therefore required that i140 be approved. with concurrent filing, both conditions need to be fullfilled for AC-21 portability protection to kick in: i140 approved and i485 having remained unadjudicated for >180 days.
 
Totally agree with Pork Chop

Totally agree with Pork Chop

You need to have your immigration petition (I-140) approved before using Ac21 portability. I-140 is your employer application, they can withdraw application or not answer REF and your will be screw. (your I-485 will also reject because of I-140)

JB
 
Pork Chop/jbm

Friends,
I have one question regarding AC21, my I-140 was approved in 2000 and I filed my I-485 in Feb 2001 so I am well past the 180 days, is there any risk involved using AC21 for same job? What if my sponsoring company pulls my I-140 (if I change the company), will I-485 be denied in that case?
Please advise.

thanks a lot
 
Technically, you can switch companies if your I-1485 application is pending for more that 180 days and your I-140 hasn't been approved.

If you switch companies and notify USCIS that you are invoking AC-21 rule, USCIS then needs to determine if the I-140 would have been approved or not if it had been adjucated at the right time. If USCIS then determines that it would have approved the case, had it processed the at an earlier date, then the adjucator would approve the case. If the adjucator feels that there is need for additonal information, the adjucator may then issue an RFE. Based on the response to the query, the adjucator can then either deny or approve the case. if denied, then the I-485 gets denied too.

For clarification, please see Yates Memo (May 2005).
 
You must log in or register to reply here.
Top