Aug 2003 Memo and its implications

J

jaxen

Volunteer Moderator
1. First and foremost 180 days is important. Yes you can change jobs only after 180 days from RD of I485 (whether I140 approved or not)

2. If I140 is revoked after 180 days by the original employer and alien can prove that the new job is in the similar classification, I485 will not be denied and i140 (and LC) will be held valid .

3. Alien has to inform BCIS about change of job. If BCIS comes to know of a change of job or I140 is revoked by original employer there wont be a RFE, there will be a notice to deny, at which time getting all the required documentation might be difficult or not enough time.

4. Alien can work for somebody else in the meantime pending GC approval. So for the NTD a letter from the sponsoring employer might be enough to save the GC. But beware, after GC approval you will be expected to work for the sponsoring company for at least 6months to 1 year.
 
Originally posted by jaxen
1. First and foremost 180 days is important. Yes you can change jobs only after 180 days from RD of I485 (whether I140 approved or not)
Click to expand...

Wrong - where in the memo does it say that one can change jobs only after 180 days ?

The memo only addresses the issue of I-140 revocation and it's implication. If the I-140 is revoked before the 180 days is over then the alien cannot use AC21.
 
also it doesnt say that you have to notify

it says that only if 140 is revoked and you have not notified, will be a problem. if 140 is not revoked then you are okay.
 
see end of section A

Just before the start of section B, read the last sentence of section A slowly...

"If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment."

So the 180 days are important.

It applied to all EB categories, see AC21 June 2001 memo.
 
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I think Jaxen is right - I stand corrected

"The form I-140 ("immigration petition") has been approved the the form I-485 ("adjustment application") has been filed and has remained unadjudicated for 180 days or more (as measured from the form I-485 receipt date), the approved form I-140 will remain valid even if the alien changes jobs or employers as long as the new job offer is in the same or similar occupation. If the form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment."

This section basically means that AC21 is not applicable if BCIS adjudicates the I-485 within 180 days of the RD. Also to be eligible for AC21 :
1) The I-140 has to remain approved at I-485 RD+180
2) The applicant can start at a "same or similar" job only after I-485 RD+180

I still think that this scenario is a valid AC21 scenario :
1) applicant loses job @ =< RD + 179 days
2) starts same/similar job @ RD + 181 days
3) I-140 not revoked before RD + 180

When #1 happens is immaterial since GC is for a future job, but #2 and #3 are crucial. What say you Jaxen ?
 
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I disagree

If an applicant can only lose/change job @ RD + 179 days, how come I-140 revoke before RD + 180?

How to explain "The memo states that it is possible for an alien to qualify for the 180-day portability even if he or she has never been employed by the prior petitioning employer or the subsequent employer under AC 21."


I think that this scenario means that AC21 is not applicable :
If the form I-485 has been pending for less than 180 days
when BCIS adjudicates the I-485 , then the approved Form I-140 shall not remain valid with respect to a new offer of employment."
 
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I agree with this one :
"I think that this scenario means that AC21 is not applicable :
If the form I-485 has been pending for less than 180 days
when BCIS adjudicates the I-485 , then the approved Form I-140 shall not remain valid with respect to a new offer of employment."

I was looking at a different angle, whether it matter when one loses the job ? Does it have to be after 180 days ?

My point is : it looks like the BCIS memo does not deal with when an applicant can leave the sponsoring employer. As long as

1) I-140 remains approved at least at the 180 day point and
2) I-485 is not adjudicated before 180 days and
3) New job starts after 180 days and is same/similar to LC

then this is an eligible AC21 case. We knew about #1 and #2 before , condition #3 is new. this is a much narrower interpretation than people were hoping for. Plus the NIOD stuff is definitely not good.
 
Question is some one leaves the job or Laid off before 180 days and his I-140 approved after 180 days. Is it ok to use AC-21?
They are mentioning some thing about the Intent at the time of I-140 approval. How do they find the intent?
If company does not inform BCIS until I-140 is approved (I –140 approved after 180 days and was laid off before 180 days) then is it OK?
 
TO waytoolong

Yes, I agree with this "My point is : it looks like the BCIS memo does not deal with when an applicant can leave the sponsoring employer."

However, Where does BCIS request "New job starts after 180 "?

I think "180 days" is I485 has been filed and remained unadjuducated for 180 days when BCIS adjudicates the I-485 , not when New job starts .

I believe AC21 is applicable as long as
1. I 140 has been approved and NOT revoked in 180
2. I 485 has been pending >=180 when BCIS adjudicates
3. a same or similar job

so I got the point" a person can start new job < 180 days as long as BCIS adjudicates the case > 180 "

From http://murthy.com/UDportme.html
"Second, the requirement that the employer must have the intent to employ the foreign national at the time of the I-140 approval"
I got the same Conclusion.
 
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To tammy2

BCIS does not make the area clear.
"Question is some one leaves the job or Laid off before 180 days and his I-140 approved after 180 days. Is it ok to use AC-21? "

That is why we need Analysis , what is your option?
 
Re: To tammy2

Originally posted by JaneI485
BCIS does not make the area clear.
"Question is some one leaves the job or Laid off before 180 days and his I-140 approved after 180 days. Is it ok to use AC-21? "

That is why we need Analysis , what is your option?
Click to expand...
I agree this point. Changing jobs before the 180th day after filing of I485 is not stated in this memo, meaning this issue stays there as before. The more emphasized point in the memo is about whether a GC process is valid based on different scenario of withdrawal and revocation of I140. There is no change for people who do not have an revoked or withdrawn I140 at any point.
 
Re: To tammy2

Originally posted by JaneI485
BCIS does not make the area clear.
"Question is some one leaves the job or Laid off before 180 days and his I-140 approved after 180 days. Is it ok to use AC-21? "

That is why we need Analysis , what is your option?
Click to expand...
Actually BCIS makes this memo reasonable in this area. Let's say, both of two persons were laid off before the 180th day. One then joined another company before the 180th day, the other joined a second company on or after the 180th day. So who will get approved? If the memo were interpreted as not allowing starting a new job before the 180th day, the second person would get approved. But is that reasonable? That a person can get job earlier means he/she will throw less burden to this country, but he would have to be deported. Sounds a ridiculous logic.

So, as a whole, no changes to people who do not have a revoked / withdrawn I140 in this memo.
 
Re: TO waytoolong

Originally posted by JaneI485
Yes, I agree with this "My point is : it looks like the BCIS memo does not deal with when an applicant can leave the sponsoring employer."

However, Where does BCIS request "New job starts after 180 "?

I think "180 days" is I485 has been filed and remained unadjuducated for 180 days when BCIS adjudicates the I-485 , not when New job starts .

I believe AC21 is applicable as long as
1. I 140 has been approved and NOT revoked in 180
2. I 485 has been pending >=180 when BCIS adjudicates
3. a same or similar job

so I got the point" a person can start new job < 180 days as long as BCIS adjudicates the case > 180 "

From http://murthy.com/UDportme.html
"Second, the requirement that the employer must have the intent to employ the foreign national at the time of the I-140 approval"
I got the same Conclusion.
Click to expand...


JaneI485 : I desparately hope that you are right, that meshes with the previous memo. However, this section threw me off and I think Jaxen is correct in the first post of this thread :

Last paragraph of section A states :

The form I-140 ("immigration petition") has been approved the the form I-485 ("adjustment application") has been filed and has remained unadjudicated for 180 days or more (as measured from the form I-485 receipt date), the approved form I-140 will remain valid even if the alien changes jobs or employers as long as the new job offer is in the same or similar occupation. If the form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment.

The last line is bothersome. It seems to me that INS is asking AC21 users to start a new job only after 180 days without explicitly mentioning that they need to be employed for 180 days with the sponsoring employer. I have not found any immigration site that explains this.

And thunder1900 has a good point - if the previous paragraph is correct then BCIS is actually helping the person who takes longer to find a job. However I think that is done to give the sponsor enough time (<180 days) to revoke the I-140 petition.
 
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Re: Re: TO waytoolong

Originally posted by waytoolong
The last line is bothersome. It seems to me that INS is asking AC21 users to start a new job only after 180 days without explicitly mentioning that they need to be employed for 180 days with the sponsoring employer. I have not found any immigration site that explains this.
Click to expand...

What I've heard hinted about is the notion of intent during the adjustment process. Basically, at the time the I-485 is filed, there needs to be bona fide intent by the alien to work for the sponsor at the conclusion of the process, and bona fide intent by the sponsor to hire the alien.

This intent needs to remain intact for 180 days.

BCIS cannot infer a change of intent; there must be a specific act for the Bureau to take note of. For the employer, the change of intent is the revocation of the I-140 petition. (It's reasonable to count the revocation as when it is RECEIVED by BCIS; since that's when the employer's intent changed.) For the alien's, resignation may indicate a change of intent on the alien's part. If there's a layoff, it's a little different.

It's not fatal; but I think you need to demonstrate that the necessary intent was there on the alien's part should there be a job change prior to 180 days. The employer's intent is easy; was the I-140 revoked or not?
 
My understanding about this memo:

Although I hope my conclusion is not right, but the fact is:

1. 180 days is critical. Laid off or resign from the original employer before 180 days of I485 pending will invalid the approved I-140, not matter when you join a new company.

2. After 180 days pending, laid off or resign will not affect the approved I140. But for us, we need similiar job when RFE or interview.

3. IF the employer revoke the proved I140 before 180 days of I485. game over, no matter when INS process the revoke.

4. This memo mainly deals with revoked I-140. If I-140 is not revoked, the sponsor and benifiary(??? spell) is due to work together after the GC is approved, otherwise, both are commited
fraudent.

In the future, INS needs to clear the No 4. If one is laid off or resign, and before the person inform the INS, INS approves the case, while the person just joins a new similiar position or is unemployed, is it mandatory to inform INS about the situation change?
 
Re: Re: To tammy2

Originally posted by thunder1900
Actually BCIS makes this memo reasonable in this area. Let's say, both of two persons were laid off before the 180th day. One then joined another company before the 180th day, the other joined a second company on or after the 180th day. So who will get approved? If the memo were interpreted as not allowing starting a new job before the 180th day, the second person would get approved. But is that reasonable? That a person can get job earlier means he/she will throw less burden to this country, but he would have to be deported. Sounds a ridiculous logic.

So, as a whole, no changes to people who do not have a revoked / withdrawn I140 in this memo.
Click to expand...

SO If this memo is reasonable, some one can start a new job < 180 day, right?
 
Thanks TRC - that makes sense.

aqaqaqaq - your #1 is probably not correct - remember GC is for future job, you don't actually have to work for the sponsor before the AOS is approved, both parties need to have the "intent" of having an employer/employee relationship based on the LC.

I think what TheRealCanadian means is that

If you are not employed by the sponsor before 180 days then there are 2 factors as far as BCIS is concerned :
1) Did you have an intent to work for them after your GC ? In case of a resignation before 180 days, it is hard for you to prove.
2) Did the employer have an intent to employ you after approval of GC ? By revoking the I-140 before 180 days, the employer demonstrates a lack of intent hence invalidating the I-485 petition.

Even if the I-140 is not revoked before 180 days, if you resign a job before 180 days that kind of raises a question on your intent. I think that can be defended since it is subjective (subject to family issues, economy, etc)

I sure hope BCIS is not going to make this an issue for folks who have lost or changed jobs before 180 days.
 
From the memo:
"Therefore, it is possible for an
alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed
by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."

You could get green card even you never work for the sponser before aproval date.
 
to waytoolong

I know GC is for future employment, but if the case is not filed for future employment, ie. the person already worked in the sponsor company when filing the petition, it's difficult to argue with INS if the person leave the company before 180 days and in fact he does not work for it after GC approval.


What's opion about the informing INS issue?

The extream case is one was laid off(or resigned) on Monday, the INS approved the case on Tuesday, he got a new job on Wen. before he informed INS, he received the approved Notice, how to deal with this? Inform INS or not? if not inform INS, it's fraud or not when apply citizenship?
 
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