AC21 rules direct from USCIS
Guys,
This thread is a topic that concerns me the most. My I-140 is approved and in the last week of Nov, 2004 I'll be > 180 days since I-485 pending (without RFE). 1st EAD/AP just approved. I've a very good standing new job offer and I was planning to take advantage of AC21...but here r few things that made me more cautious:
http://uscis.gov/graphics/lawsregs/handbook/polpromem.htm
Look for the topic below (I140_AC21_8403.pdf)
Continuing validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).
On page 3 CAREFULLY read this paragraph:
B. Provisions in case of Revocation of the Approved Form 1-140.
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"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is
in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may (a big MAY!!) consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485.... "
So, yes, in a way, I'm sounding more cynical and skeptical but the "may" in the clause could wipe out all the wait, patience and money, if the officer does not consider the new employer's letter. On the positive side, this whole "may" is based on the fact if the petitioner files for revocation of an approved I-140 (vengance or otherwise) and most of the times that is not the case. Pending I-140 cases, I'd not even advise taking the chance on AC21 rule bcos I-140 revoked with I-485 > 180 days nullifies the whole GC process. So, even though AC21 gives the option to portability to change employers the prudent thing would be to wait for approved I-140 and hope the previouse employer/petitioner does not revoke it at all. Worst case scenario, even if the revocation for approved I-140 is applied we'd have a better chance (not guarantee) to deal with INS using the new employment offer letter + AC21 rule.
I'd like to hear comments from successful AC21 users, though.
