BCIS Gives Guidance on AC21 180-Day Rule for EB-485 Filers

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PCee

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08/12/2003: BCIS Gives Guidance on AC21 180-Day Rule for EB-485 Filers

AILA has reported a very important memorandum of the BCIS which answers a number of unanswered questions relating to the so-called 180-day rule. We are grateful for the AILA to make this memo available to the interested parties. Some of the rules that are set forth in the memorandum are as follows:

Availability of 180-Day Rule for I-485 Applicants Who Were Not Employee of the I-140 Petitioner: The approved I-140 petition may be ported to a new employer for a same or similar occupational classification. 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. However, the evidence must be there that an offer of employment must have been boda fide, and the employer must have had the intent at the time the I-140 petition was approved.

Withdrawal or Revocation of I-140 Petition Before 180 Days: The I-140 petition is no longer valid and cannot be ported to a new employer after 180 days.

Revocation of I-140 Petition After 180 Days for Fraud: The I-140 petition becomes invalid and cannot be ported to a new employer even after 180 days.

Withdrawal or Revocation of I-140 Petition After 180 Days After New Employment of Similar/Same Occupation: The approved I-140 petion will remain valid and I-485 will be completed as filed.

Filing Requirement for Change of Employer: If the I-140 is withdrawn but the beneficiary has failed to file evidence of a new qualifying employment before that time, BCIS must issue Notice of Intent to Deny I-485. If the qualifying new employment is then timely submitted, BCIS may consider the approved I-140 valid for the purpose of continuous adjudication of I-485 even after the Notice to Deny has been issued. It is thus critically important that people either file the change of employer as soon as the employment change takes place or if the Notice to Deny is received, they respond to such Notice "timely" and with "required evidence." If the Notice is not timely reponded, the BCIS will deny the I-485.

This article is from http://www.immigration-law.com
 
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Useful info. Based on this, would you recommend telling BCIS about a job change?

Also my previous job and LCA had a description of "Project Manager" and in this the description is "Architect" .. is that a big deal? :o
 
my 2c

Based on this:
1. If any one changed job and thinks that the original employer may withdraw/revoke I-140 then it is a good idea to notify BCIS of job change.
2. One may get into trouble if the new job is not a similar job. What is a "similar job" is still a moving target, so consult your attorney. If the title, job description, salary is almost similar then there may not be any probelm.

Silly Man,
I think "Project Manager" and "Architect" are a bit different titles. I guess one need to convince BCIS that the job description/duties/responsibilities are still similar and its just the title is different in the new company. Please talk to your attorney on this before notifying BCIS.

Goodluck
PCee
 
This guidance mentions "a same or similar occupational classification".

However it fails to mention change in salary.

This could be viewed both positively and negatively. On the one hand the only requirement being imperitive is that "a same or similar classifiction" are required, and salary should not be a consideration for approval/denial. On the other hand, you could say this guidance only addresses the portability as it relates to I140 and occupational classifications and that salary is still a consideration.

This is of particular interest to me as I'm working in Northern Cal and planning to take a position in southern Cal and will drop 20-25% in salary.

Any thoughts/views?
 
SM

You should consider asking for a change in title for record keeping in your company. In consultation with your lawyer/HR, you may also try to word your job description similarly - if not exactly - as ur previous position (like in the Advertisement).

GettingCloser...

I have been following this too. Ms. Murthy and Shusterman argue that the salary doesnt figure for AC21 (approximate quote, I have to be brief). But I have heard other lawyers say that Salary should be the same after accounting for "rate adjustment" (that is, wage for the original job at the new location).

PCee

Thanks for hanging here with us...
 
Just a note...

Please note that this is "Not a complete set of guidelines about AC21" rather it is a very small part of it which is dealing with only one aspect of it i.e. "How to handle AC21 case with revoked I-140".. Remember few weeks back we discussed a very popular item related to this subject and as per Ms. Murthy a memo on this subject is expected with in a week. I guess that week (in BCIS timeline) is passed now and here they are on that subject..

Until we get actual guidelines memo on AC21 regulations, as I wrote in earlier post "still many things in AC21 are moving targets and they are upto anyone's interpretation".

-PCee
 
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neeru/PCee, I donot have that flexibility since this is a big organization.

Here is my view on this, I have *never* heard anyone's GC being rejected unless it is an outright mockery of the rules. I know mine is not, I was a computer person before, I am a computer person now. And it is only reasonable to expect my job in the computer industry to change a bit after 4 years (labor was filed then).

Worst case, there will be an interview, added delay, and there I will explain that different companies work differently.

Whats important -> I have a stable job.

So there .. I don't think I have too much reason to worry .. wat u say?
 
Sillyman,

you may very well be right, and hopefully for you, you don't get an rfe or an interview

As you know, because this is up to "interpretation" that anything can happen and now it seems that they've used new language to further define what they mean, it's anyones guess how it will be interpreted

I think that what people are saying is that wherever possible you can remove any obstacles ie different job class, obviously try to do that so you don't open yourself up for scrutiny

Is there anyway your company will for the sake of BCIS call your job and duties what they were in your labour cert?
 
Getting closer, I'm new here (3rd day today), I'd rather not start asking for such things right now. When an RFE does show up, I'll ask then, maybe based on the good impression I would have created by then, they might do a favor, but this is a big company so it's lookin' tough so far
 
My 2 cents,

SillyMan,

The Job title is not as important as the job description! If/when you get your RFE, the EVL letter is usually given by your hiring manager and you should be okay if your manager, though sticking to HR's title, explains that the job description encompasses the same duties as on your LC with slightly increased responsibilities as commensurate with your increased experience!

gettingclosernow,

As per our experience on the board and from what my lawyer has said, it is always better to make LC salary. In case of RFE/Interview, most of the IIO's will try to follow their interpretation of the law, which is not necessarily the true interpretation. It is very difficult to explain that salary ranges are different from NC to SC. What it might come down to is you are working outside the area where your LC was approved, at worst case, they might ask you to redo labor, which in current times is worse than the destruction of all your papers by INS.

I would try to be very conservative here, try and stay in a company that pays as near or higher salary than stated on your GC, while you could argue either ways, it is always better to be safe than sorry with INS. Specially when you have come so far in the GC process.
 
2c more...

Silly Man,

First, do you want to notify BCIS about change of employer or not? I guess you should decide based on "What are the chances your original GC employer filing for I-140 revocation, and based on this how much risk you want to take".

Second, When ever you have to write to BCIS about your new job (let it be now, if you want to notify about your new job, or later if you get RFE) make sure you get professional advise and write a convincing letter to BCIS explaining that both jobs are similar. If some one thinks conservatively and job title, duties, responsibilities and salary are almost similar then one doesn't need to worry at all. If you think every thing is not matching exactly then probably some explanation may help your case a bit.

My point is, it may be a bit easy to convince a person with facts first time (before any doubt raised in his/her mind). Once the person takes a side and that convincing becomes an argument. If it gets to that state then things will be prolonged and it may be a bit difficult to convince people and it is human nature. At the same time don't over do it either! That's way I asked you to seek professional help when and if that time comes.

Goodluck
PCee

PS: As you wrote, until now we didn't see any new AC21 case on this board which got rejected simply because the job title was different. But the question is how safe you want to deal with this situation. Please also note that most of the lawyers while discussing about "similar jobs" they did mention that if one is a "manager" position and the other is a "tech developer" then they don't match, there are several RFE's, rejects at LC stage when the job descriptions/titles didn't match! Note that on LC they clearely mention how many people one will be managing if it is a Manager kind of position and let's say in the LC that number is '0' and now it is let's say '5' then it could be a problem.
 
SM
The only thing to be concerned about is if the adjudicator nitpicks the case. As others say, the job description should be similar. Try to word your new job description with the same phrases as the old one (like programming in Perl, Scripting in C, parsing with python etc etc - I know, I no, I got them wrong) if they infact cant change the title.
Another more beneficial method is to be promoted to 'ProjectManager' before your approval!!
 
For concurrent filers, is it still the case that you have to stick it out for 180 days after the 140 is approved. Or, can we move out 180 days after filing, assuming that the underlying 140 is approved within 180 days of filing?
 
with my friend case

I have friend who has filed AC21 thru his new company laywer.
As per him, in the ac21 letter they(new company's laywer) never mentioned about salary and stated that this new job is exactly same and have same job description. and they also mention joining date. And informed BCIS that they can contact him(lawyer) for more details.
So lets see what happens to his case.
 
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