Cannot use AC-21 : what are the options ?

D

d_wong

Registered Users (C)
Hi

I have completed the required 180 days after i-485 filing and I140 approval.
I am one of the victims of retrogression.

I know that I can change to 'same or similar" job.But I am laid off.So I have no choice. So I am taking what I got.

My previous job classification was "database analyst/developer". New job is "application support manager"
The previous title was "database Analyst III". New title is "Asst. Vice President"
I am also relocating for this new job.

Only good thing is that new salary is about 60% higher

I know this is not a suitable case for AC-21 .
I CANNOT USE AC-21

so what are my options ?

1)After USCIS rejects the I-485, can I appeal ?
2)Once the appeal is rejected can I approach the immgration Court for a review ?
3)will I be able keep renewing the EAD and keep legal status during this time ?

My main objective is to take this job and keep looking for a "same or similar job" as in the labor certification.
OR
I have to work for this new company for 1 year, then I can take a transfer to the London office. (Then i won't have to worry about the GC)

I want to buy as much time as possible before final rejection. So that the final rejection is delayed as much as possible.How do I do it ?

Please provide your inputs.will be greatly appreciated.


regards
d_wong
 
d_wong said:
Hi

I have completed the required 180 days after i-485 filing and I140 approval.
I am one of the victims of retrogression.

I know that I can change to 'same or similar" job.But I am laid off.So I have no choice. So I am taking what I got.

My previous job classification was "database analyst/developer". New job is "application support manager"
The previous title was "database Analyst III". New title is "Asst. Vice President"
I am also relocating for this new job.

Only good thing is that new salary is about 60% higher

I know this is not a suitable case for AC-21 .
I CANNOT USE AC-21

so what are my options ?

1)After USCIS rejects the I-485, can I appeal ?
2)Once the appeal is rejected can I approach the immgration Court for a review ?
3)will I be able keep renewing the EAD and keep legal status during this time ?

My main objective is to take this job and keep looking for a "same or similar job" as in the labor certification.
OR
I have to work for this new company for 1 year, then I can take a transfer to the London office. (Then i won't have to worry about the GC)

I want to buy as much time as possible before final rejection. So that the final rejection is delayed as much as possible.How do I do it ?

Please provide your inputs.will be greatly appreciated.


regards
d_wong
Click to expand...

I don't have any real answers for you.
But I would like to know on what ground will you appeal if your I-485 is rejected? If you have an RFE issued for employment verification letter where will you get one from? Apparently, since you are not eligible for AC-21 you will not be able to provide a EVL from your new employer.
 
minn_labor,

<<<I would like to know on what ground will you appeal if your I-485 is rejected? If you have an RFE issued for employment verification letter where will you get one from? Apparently, since you are not eligible for AC-21 you will not be able to provide a EVL from your new employer>>>

this is also what i would like to know.Would also like to know what are the steps involved in appealing the denial..

The situation is pretty grim.

I will be taking the new job on basis of EAD.
Do not have a H1 backup.

my only hope is to prolong the decision(or denial) on I-485 till
1)I actually get a similar job OR
2)work for new company for 1 year, after which I will try to get a transfer to one of their offices outside US.

Can someone just throw some light on how to just prolong the decision on I-485 ?

thanks,
d_wong
 
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d_wong said:
this is also what i would like to know.Would also like to know what are the steps involved in appealing the denial..
Click to expand...

Well, you'd first have to determine what errors USCIS made in denying the I-485. You can't just appeal because you don't like the decision.

If you're convinced that you cannot claim AC21 relief, I'd get the new employer to start a new LC for you pronto. The good news is that once it is approved, you can immediately file a new I-140 since you can claim the priority date of the earlier I-140, and request to USCIS that they link the I-485 to the new I-140.
 
TheRealCanadian,
Thanks for your reply.

As I was desparate for to get a new job after being laid off, I told the new company that "I have GC/do not require sponsorship" which was only partly true.Otherwise I would not have been even granted an interview.

I will try the steps you pointed, but it would be difficult to get the company to do it.(they might just drop me off instead)

Never even thought that One day I would have to suffer such a fate.

-d_wong
 
d_wong said:
TheRealCanadian,
Thanks for your reply.

As I was desparate for to get a new job after being laid off, I told the new company that "I have GC/do not require sponsorship" which was only partly true.Otherwise I would not have been even granted an interview.

I will try the steps you pointed, but it would be difficult to get the company to do it.(they might just drop me off instead)

Never even thought that One day I would have to suffer such a fate.

-d_wong
Click to expand...

What you need to do is keep looking for a job similar to your LC while working on this job. You should have no problem renewing your EAD as long as your I-485 is pending. Goodluck. Let us know how it turns out.
 
Other considerations.
the money they have offered me is really good so I really want to take this job.
I will of course try to take the AC-21 road.But what if it is denied ?
I know that this company has a favourable poilcy of transfers, but I have to complete 1 year at the present post first.
That is why I want to try to delay the process.
(isn't it ironic ? folks usually want to speed it up)
So just want to know if anyone knows the process of appeals and any ways to delay decision on them ?

UnitedNations, are you there ?

d_wong
 
d_wong said:
Other considerations.
the money they have offered me is really good so I really want to take this job.
I will of course try to take the AC-21 road.But what if it is denied ?
I know that this company has a favourable poilcy of transfers, but I have to complete 1 year at the present post first.
That is why I want to try to delay the process.
(isn't it ironic ? folks usually want to speed it up)
So just want to know if anyone knows the process of appeals and any ways to delay decision on them ?

UnitedNations, are you there ?

d_wong
Click to expand...

Wong,

I have a feeling you want this job because of the pay. The IT job market is improving and I doubt you are having a hard time find a job as a database analyst, maybe, you might have to relocate to another state and city.

You are not worried if your I-485 gets denied as long as it doesn't happen before your one year is up before you can transfer to the London office.

There's no way your AC21 is going to be approved. There's a lot of difference between a Database Analyst and an Asst Vice President. You are going from a non managerial position to an upper management position. If I were you, I wouldn't invoke AC21. I would just sit quiet and hope that your file is not pulled up in the next 12 months.
 
minn_labor said:
There's no way your AC21 is going to be approved. There's a lot of difference between a Database Analyst and an Asst Vice President. You are going from a non managerial position to an upper management position.
Click to expand...

Actually, in a lot of companies an "Assistant Vice President" is by no means upper management at all; it's a term given to almost anyone above a basic professional level.

I'm more concerned with the job duties; it looks like he's running a help desk, not databases.
 
Both of u are right.
RealCanadian,you are right,AVP is not too high a position, it is just a supervisorial position and the duties will be different.

minn_labor, you are right too.the money offered is way over my previous job's salary (which was bad) and so it is hard to resist.And of course, if I get that salary in say UK, why would I want to work in US for a 40% lower salary ?

After all in the last 7 years ad H1/EAD , I have not made much progress.the GC is also too far beyond the horizon..
And if I do not take this offer, I might not get one for a long time.So I just want to delay the adjudication of I-485 as much as possible.

BTW, I am relocating for this position (paid by company) and I will fill AR-11 form.So USCIS will know about the job change.

So if anyone knows about any way that I can delay the 485 processing, please let me know.

d_wong
 
d_wong said:
Both of u are right.
RealCanadian,you are right,AVP is not too high a position, it is just a supervisorial position and the duties will be different.

minn_labor, you are right too.the money offered is way over my previous job's salary (which was bad) and so it is hard to resist.And of course, if I get that salary in say UK, why would I want to work in US for a 40% lower salary ?

After all in the last 7 years ad H1/EAD , I have not made much progress.the GC is also too far beyond the horizon..
And if I do not take this offer, I might not get one for a long time.So I just want to delay the adjudication of I-485 as much as possible.

BTW, I am relocating for this position (paid by company) and I will fill AR-11 form.So USCIS will know about the job change.

So if anyone knows about any way that I can delay the 485 processing, please let me know.

d_wong
Click to expand...

Real Canadian you are right. I didn't read the Application SUpport Manager in wong's first post.

I know what you mean by getting a good job and having been in the process for too long. You should try and see if you can move to UK as soon as possible. I don't know if an AR-11 would indicate change in jobs. But maybe, someone else would be able to answer that for you.

What's your ND/RD for I-485?
 
here are my dates
PD 12-2001 EB3
i140/485 concurrent filing 06-2004
I-140 approval 02-2005
I-485 pending due for FBI check
(all dates were current then)
Now it is pending due to retrogression.

d_wong
 
UN,thanks

Thank you for your reply UN (as always)

<<<If your 485 does get denied and you are not on h-1 then any motion to reopen does not accord you any status to stay in the country. At a maximum you would have to leave within six months of denial to be protected by 245k for future greencard processes
>>>

are six months counted from the first denial or from when the MTR is denied (which could be 3 months later than the first denial) ?

<<<If you do get transferred>>>

Where would I get transferred and why ?

One extreme thought..
Since I will be subject to 3 year bar if I overstay in the US more that 180 days after being in legal status,
this is what I think..

1)change to new employer on EAD

2)try to postpone by any means the I-485 adjudication or hope that I-485 will not be picked up for 365-180=185 days.On if they send RFE, I still have 90 days to respond.Send response at the last moment.Unfortunately, we did our second fingerrinting just 2 months back.
In either case try to stay legal for 185 days.

3)on I485 denial, I am illegal,but to not to get the 3 year bar, leave on 180th day.The employer will be unaware of the status as they check only during hiring, not later on.
This way I will be able to complete 1 year on existing position so that I can take transfer to office outside US.It might cause problems later as you pointed out,But right now I do not see any other way.

(see how desparate I am to take up this new offer,right now, that's the only one I have,but I will keep on looking for a 'same or similar' job)

One of my ex-colleagues told me an Indian saying (he's Indian)
"when there is food,teeth are not there,
when you have teeth,food is not there"

regards
d_wong
 
Thanks for your replies UN..
looks like I have no choice but to keep on looking for a "same or similar" job.
One last question.
If previous employer does not withdraw I-140, or otherwise does not inform USCIS that i have left, can I take the new job and use the "lame duck" excuse that the GC is for future employment and I would go back to my old employer on approval.Do I need a letter from previous employer for that ?
(will be impossible to get)

OR get a "convenience" letter from one of the numerous consulting companies that they will employ me as a "database analyst" once the GC is approved ?

Will these things have any value in the eyes of the USCIS ?

regards
d_wong
 
A friend of mine was initially hired as "program manager". Then he got laid-off while on AOS. He got a job as as "Technical Specialist" and clearly the position was not the same or similar. The only thing in common is that it was in the same field, which is telecom. He hired a good lawyer and they put things in a way that his I-485 got approved. I am not sure whether this is an isolated case, but I have a feeling - and this is just feeling- that the USCIS may not be very stringent about this requirement after all...
d_wong said:
Thanks for your replies UN..


looks like I have no choice but to keep on looking for a "same or similar" job.
One last question.
If previous employer does not withdraw I-140, or otherwise does not inform USCIS that i have left, can I take the new job and use the "lame duck" excuse that the GC is for future employment and I would go back to my old employer on approval.Do I need a letter from previous employer for that ?
(will be impossible to get)

OR get a "convenience" letter from one of the numerous consulting companies that they will employ me as a "database analyst" once the GC is approved ?

Will these things have any value in the eyes of the USCIS ?

regards
d_wong
Click to expand...
 
marlon2006 said:
A friend of mine was initially hired as "program manager". Then he got laid-off while on AOS. He got a job as as "Technical Specialist" and clearly the position was not the same or similar. The only thing in common is that it was in the same field, which is telecom. He hired a good lawyer and they put things in a way that his I-485 got approved. I am not sure whether this is an isolated case, but I have a feeling - and this is just feeling- that the USCIS may not be very stringent about this requirement after all...
Click to expand...

marlon,
the problem in wong's cases is that he's in a different field and different position. I am sure if you are in the same field and different position you can always word it a little differently. Though I am not sure if the people at USCIS would understand what the difference between two fields in IT are. I don't know.

My last advice to Wong is to hire a good immigration lawyer.
 
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AC21 question

Its been more than 180 days after my I 485 filing and I managed to get a temp to perm job (with the same job title and everything) around 2 month after
my job termination and worked as a temporary employee for abt 3 month and now my job is permanent.But
the only thing that worries me is that I did not apply for AC21 as my Attorney said that I don't have to at that
moment. Will I be safe just by applying AC21 if my previous company decides not to continue my filed case ??
Further more, is it okay to have worked in an temporary job or I should have found only the permanent jobs ??
What the the procedures involved if I happen to fall in this kind of situation ? Can I apply for AC21 right now
without waiting for my previous employer to cancel my case ?

Appreciate your reply and thank you in advance.
Slave_Victim.
 
Slave_Victim said:
Its been more than 180 days after my I 485 filing and I managed to get a temp to perm job (with the same job title and everything) around 2 month after
my job termination and worked as a temporary employee for abt 3 month and now my job is permanent.But
the only thing that worries me is that I did not apply for AC21 as my Attorney said that I don't have to at that
moment. Will I be safe just by applying AC21 if my previous company decides not to continue my filed case ??
Further more, is it okay to have worked in an temporary job or I should have found only the permanent jobs ??
What the the procedures involved if I happen to fall in this kind of situation ? Can I apply for AC21 right now
without waiting for my previous employer to cancel my case ?

Appreciate your reply and thank you in advance.
Slave_Victim.
Click to expand...

Slave

You are not required to file AC-21 right away. You can file for AC21 if you get an RFE for employment verification. You can file for AC-21 at any point. If you think that your previous employer will revoke your I-140 then its good to file AC-21 so that you avoid getting a NOID. If you get a NOID just send in your AC 21 and if your job category and position are not too far off from your LC you should be fine. I don't know if its okay to have a temp job and then a permanent job. I wouldn't file for AC-21 with a temporary job. I am not sure if the letter you send in for AC-21 states that you are employed permanently by the company or not. I hope I have attempted to answer your question in part if not fully.
 
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Thanks !

you sure did..thank you so much for your reply minn_labor

would be very helpful if anyone else could answer the rest of my question.

thanks in advance guys
 
Consult a lawyer

Good heavens, consult a lawyer!!!!

Remember it is ALWAYS better to have a clean record. For short term gains, do not mess with your record. You cannot predict the future and your best bet is to keep a clean record.

So, PLEASE spend the money on a good lawyer. That would be your best investment in yourself.

Regards
GCStrat :)
 
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