Can an employer cancel the I-140 after approval while the I-485 application is pendin

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saini_vivek

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Chat User : Hello, Murthyji. Can an employer cancel the I-140 after approval while the I-485 application is pending? Especially if the employee changes job under AC21 portability?

Attorney Murthy : An employer seems to have the right, under law, to withdraw the underlying I-140 petition. Employers who generally do this believe that they have paid for the process, so that it is owed to them. AC21 law seems to imply it should not matter, and the I-485 applicant should be able to obtain the GC without the underlying I-140 petition. As stated above, HQ has stated that the I-485 should remain valid. Without any AC21 law regulations, we are all making good arguments. Ultimately, it is how the regulations interpret the laws, especially in such gray areas, that becomes very important.

WHAT R UR THOUGHTS GUYS.....

Has anybody gone through this ordeal...
 
I've always said that the only person who is safe to transfer under AC21 would be someone who worked for the sponsoring employer for at least 180 days after the I-140 was approved and 180 days after the I-485 was filed. Then the only issue would be similarity of the two positions.

If the I-140 was approved and the I-1485 was filed and pending for more than 180 days, AC21 would be meaningless if the employer could then cause the I-485 to be denied by cancelling the I-140. AC21 must mean something and it would be meaningless if the employer could kill the GC at any time by cancelling the I-140.


The further you get from that relatively safe situation, the greater the risk. Without implementing regulations for AC21, it is not possible to draw a clear line.
 
question for concurrent filers

Jim,
How does it apply for people like me who filed concurrently,
It is past 180 days since I applied for 140/485 and my 140 just got approved last week from Texas
How do you think AC21 can be made applicable?????
Thanks
 
No real definite answer to this. I would try to stay with the sponsoring employer for at least 180 days after I-140 approval in a concurrently filed case if at all possible. Of course, if you were laid off or terminated, I'd argue that it does apply by the plain language of the AC21 statute.
 
Hi jim/Regarding I-485 pending

Hi Jim,
In my case. My I-140 was approved on Dec-2001 and My I-485 was filed on April 2002 and got EAD card on Aug-2002.
Now I have already applied this week for renewing EAD card as my H1 is also getting expired this SePt.
Now I got an permanent job offer from one fo the company.
would it be safe for me to switch the company.
If my Company revoke my I-140 then what would happened to me?
Can my case of I-485 would still be continue,?
Pls help me
 
Hi Jim,

Does INS issues duplicate EAD cards or Approval notice if we lost them by any chance.

Thanks in advance.
 
job change

Hi
I got my 140 approved before I applied for 485.
RD for 485
12th Nov 2002
ND: 19th Nov 2002.
It will be 180 days for next week. I am planning to change the job 'coz of the conditions at my present company(lay off). I got my EAD & AP also. Am I safe to do so ? I am sure that my present lawyer is not going to support me after wards if I change the company.

what are my options here.... can any body please let me know....
 
Originally posted by Jim Mills
I've always said that the only person who is safe to transfer under AC21 would be someone who worked for the sponsoring employer for at least 180 days after the I-140 was approved and 180 days after the I-485 was filed. Then the only issue would be similarity of the two positions.

If the I-140 was approved and the I-1485 was filed and pending for more than 180 days, AC21 would be meaningless if the employer could then cause the I-485 to be denied by cancelling the I-140. AC21 must mean something and it would be meaningless if the employer could kill the GC at any time by cancelling the I-140.


The further you get from that relatively safe situation, the greater the risk. Without implementing regulations for AC21, it is not possible to draw a clear line.
Click to expand...

Jim,

Thanks for your detailed replies to queries like mine -- I had a follow up question: what if you continue with your employer for over 180 days since I140 approval, but less than 180 days since I485 application (say AOS application made a few months after approval of I-140), because of layoffs etc.

Does the fact that you stayed with the employer for over 180 days since I140 approval have any positive bearing on your case?

Thanks!
 
dwatlanta

this is a gray area, lawyer told me that we better be cautious and remain in the same city if you want to use AC21.

Other lawyer told me that if we are portable we can look for a Job even in US Virgin islands.

good luck to you, now is your call, you want to take the risk?
\


The expert
 
Here below is the AC21 106(c)

AC21 106(c) - Change of Employment Permitted in Cases of Lengthy Adjustment Adjudication


he AC21 106(c) provides that the certification or Form I-140 approval of an EB immigrant
petition shall remain valid when an alien changes jobs, if:
(a) a Form I485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and

(b) the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

Procedures for Processing Benefits under AC21 106(c)

If an alien has complied with the above statutory requirements, adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present practices it is expected that an I-485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the I-140 petition.
The Service should continue to expect the applicant to submit a letter notifying INS of this change in intent, if the Adjudicator has reason to believe that the applicant's intent has changed a
Request for Evidence (RFE) may be issued to clarify the applicant's intent in regards to employment.

In instances where the applicant no longer intends to be employed by the employer who sponsored him/her on the I-140, the Service should request a letter of employment from the new
employer. The letter from the new employer verifying that the job offer exists should contain the new job title, job description and salary. This information is necessary to determine whether the
new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground of inadmissibility at INA 8212(a)(4). To determine whether a
new job is in the same or similar occupational classification as the original job for which the certification or approval was initially made, the adjudicating officer may consult the Department
of Labor's Dictionary of Occupational Titles or its online O'NET classification system or similar publications.

The Service is currently formulating proposed regulations to establish a policy framework in which to adjudicate AC21 106(c) benefits. Until the Service promulgates final regulations establishing such a policy framework, adjudicators shall consult, on a case by case basis, with Headquarters before denying cases on the basis that the new job is not in the same or similar classification.

***********************************************

Now the following line is very interesting:--->

In instances where the applicant no longer intends to be employed by the employer who sponsored him/her on the I-140, the Service should request a letter of employment from the new
employer

So INS has NO PROBLEM if the INTENT has changed if the I485 is pending for 180 days or more.

My analysis on this entire issue is as follows:

Getting a I140 approval is getting a Immigrant Visa , once this is approved , the I485 is just a formality. The I485 just provides a Card that is a means to an end of this paper work.

The 180 days after the I140 is to mandate the employee had intent to work for at least 180 days for that employer , after that he is free ..(as long as similar job etc ).

Now let us assume that the I485 is approved in ONE day. So-->
1. Get I140 approved.
2. Get I485 approved immediately (say in one week after i140).
3. Get GC.
4. Work for 6 months
5. Free to leave.

so the AC21 removes the wait for step 2 & 3 and as long as 4 is met the employee can proceed to Step 5 ( of course with a small condition : same job etc )


Other people on this forum have said that after getting GC it is best to work for 6 months so this rule of thumb is kind of vaildated in the AC21 ( 180 days after II485)

So once again the question of INTENT (or Change in INTENT) is clear from the AC21 as long as I140 has been approved and 180 days or more have passed.

So INS has NO PROBLEM if the INTENT has changed if the I485 is pending for 180 days or more ( after the I140 has been approved)


Also Check: http://www.murthy.com/UDac21qa.html#9
 
moving during 180 days

If one is changing jobs within the 180 days since applying for AOS, how much harm is caused to the application if the new job is in a different city/state?

Thanks.
 
This is directly from Sheela Murthy's website. I am very surprise and I agree with Sheela that AC21 would have no meaning if this becomes common. I just don't get it. Anyway, here it is:

We have recently become aware of cases in which the INS has denied I-485s due to the revocation of the I-140 petition, even though the I-140 revocation occurred after the 180-day point. Motions to Reopen and Reconsider were filed asking that the cases be approved based upon the INS' stated policy. Both the California and Nebraska Service Centers issued denials of the Motions, essentially citing that there is no written policy. Accordingly, without a written policy, the INS cannot deviate from the general legal requirement that an I-485 application needs to be supported by an approved, un-revoked I-140 petition. We cannot be certain whether this is a change in policy or an issue requiring the training of examiners unaware of the policy.
 
Mr. Jim,

2 Questions..

1. When using AC21 after 180 days, and the Job duties are similer and the role name is different what are the implications?

2. If the salary is 12000 - 15000 more than the labor with above conditions what are the implications?

Will highly appreciate your reply..

Thanks.
 
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