Aug 2003 Memo and its implications

So you are saying that when a goliath like Worldcom or Enron tanks, then the thousands of 485 applicants (pending < 180 days) should restart their process ?

I beg to differ - this is why :

check http://www.murthy.com/UDportme.html

As long a the I-140 remains approved at the 180 days stage then there are a few provisions :

"The Memo requires that the offer of employment must have been bona fide and the employer's intent to employ the foreign national upon approval of the adjustment application must have existed at the time the I-140 was approved." One way to prove the intent is employement with the sponsor when I-140 was approved.

"The Memo recognizes the fundamental fact that the entire permanent residency application process is for a future job offer and, accordingly, the I-485 applicant need not be working, or need ever to have worked, for the original sponsoring I-140 employer in order to benefit from AC21 portability." This means that one may have been resigned/laidoff before the 180 days but will still be eligible for AC21.
 
Interesting points. But I see BCIS giving out this memo in focused sections without ambiguity. This memo is all about change of employers- see the very first para /sentence of the memo. So the bulk of the memo (except the line about future employment) is about what happens if the applicant leaves the sponsoring employer (section A) or what happens if the employer revokes i140.(Section B). So dont look for co-existent logic based on other provisions or other statements

To me it is pretty clear that 180 days are critical. Regarding 179, 180, 181 scenario- the date of resignation is more critical than the date of acceptance of the new employment . I have seen Legacy INS taking the numbers seriously. For example, if you were out of status for 179 days- no bar, but if you were out of status 180 days, apply bar.
So the question is what constitutes change of employment- resignation or acceptance by some other employer? conservative vs liberal intrepretation.... But you can bet that there will be a few field offices who take the conservative path.

There is a definite no-no on the "let the BCIS adjudicate before 180 days" mantra. This memo atleast puts that beast to rest.

Hopefully the lawyers' intrepretation will lead to another memo by will yates in another eon:)
 
Does the 180 day clock start ONLY after I-140 is approved AND 485 is filed and pending for 180 days? What happens if both petitions are filed concurrently and more than 180 days have passed without I-140 approval? Can someone change jobs then?
 
It's very clear that BCIS does not and has no way to say whether an applicant leaves the sponsoring company before or after the 180th day. If they were going to make it "clear", they should have stated with words "leaving old company, joining new company before or after the 180th day and sth like that". No they didn't. As I exlained above, if only the date of joing a new company dominated, it would make no sense. So it seems like the date of leaving the old company shuold be more important. But, did BCIS say anything about that? No. That's the conclusion.

When it is said "I140 remains valid if I485 is pending for more than 180 days", it means "revocation/withdrawal of I140 after I485 is filed for 180 days, it doesn't affect the case == I140 keeps alive". This is the key of the memo.

Actually, this memo is more emphasized on scenarios of revocation/withdrawal of I140 (see title of Murthy.com).
 
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Re: Re: Re: To tammy2

Originally posted by JaneI485
SO If this memo is reasonable, some one can start a new job < 180 day, right?
Click to expand...

As long as employer does not withdraw I140 or BCIS does not revoke I140 before the 180th day after filing of I485, you should be fine.

(of course you need to confirm with your lawyer)
 
Let us hope for the best. My I 140 was filed in June 2002. And My I485 was filed in October 2002. I was laid of in November 2002.
I started for different company in November 2002 it self. I changed my job again to current employer in May 2003 again on H1. On July 16 2003 My I-140 got approved. I am planning send AC-21 letter now. My start date for this company is May 2003, which happens to six month after my I-485 filing. I was just wandering what will happen to my case.

My employer revoked I-140 of some of my colleagues. Fortunately He did not revoke mine until now.

BCIS interpretation of employer Intent question is very critical in my case. I was laid off. Does it means intent is changed? But they have not informed BCIS about I-140.
 
there are two parts

in the memo.
The first part states clearly the I140 is invalid if the I-485 pending less than 180 days.
The second part says I-140 revocation after 180 days, AC21 is applicable, less than 180 days, AC21 is not applicable.
As for when to join the new company, it's not immportant. After U get EAD, u can immediately work for any number of companies at the same time. The critical point is u do not terminate with the original employer before 180 days.
Concurrent filing works same way. Counter starts from the receipt date of I485, if I140 is approved and I458 180 days passed, u can take this I140 to another company as base of AC21.

Future employment filing is an exception.

And this memo is to the BICS officer, not to the Lawyer or petitioner. It ordered the officer in BICS that if the 180 days does not pass, the I140 becomes invalid, so deny the I485. If 180 days passed, but the sponsor revoked the I140, send intent to deny notice to the applicant if no AC21 filing.
So, this memo does not clarify or does not instruct applicant what to do. In the future, BICS will public policy , not memo, to tell us whether we should informa BICS about job status change
 
I agree with most of the points of aqaqaqa, except about applicant informing BCIS about employment change. Yes, you can still get I485 approved by responding to the notice to deny petition. However I would not risk myself in a notice to deny petition position, if my new job is similar to the one described in LC- after all the skill sets are likely to be the same. The mindset of speciality programmer has to be forgotten here.

Although it is in section B the following sentence puts the responsibility of informing BCIS about the job change on the applicant , especially if there is a risk of I140 being withdrawn (which most people wont be able to verify, using the receipt number of the I140 is not a reliable method to find whether I140 is withdrawn or not):

"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."

"will" is not "shall" neither is it "should have". But it still falls under "required or else"-

of course for those who know for pretty sure that the I140 was withdrawn, there is no other way.
For others, I wont put the verbal promise from a former employer as the sole assurance responsibile for the rest of my life here in US.
 
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