Change Job Before I-140 approval: Can I use AC21

irisyue

Registered Users (C)
Hello, everybody,

My university submitted a green card petition for me under OR category in October 2003, and I concurrently filed I-485. My I-140 has been stuck by name check and has not yet gone through. I have been struggling to keep my job since last July and I can't keep it any more.

I have accepted an offer to work as a research scientist in a big company. Jobs are similar, titles are similar and the new one is better paid.

Since my I-140 and I485 have been pending for more than 500 days, is there any chance for me to continue my green card application under AC21? Or I will have to submit petition again.

Thanks for your idea,
 
irisyue said:
Hello, everybody,

My university submitted a green card petition for me under OR category in October 2003, and I concurrently filed I-485. My I-140 has been stuck by name check and has not yet gone through. I have been struggling to keep my job since last July and I can't keep it any more.

I have accepted an offer to work as a research scientist in a big company. Jobs are similar, titles are similar and the new one is better paid.

Since my I-140 and I485 have been pending for more than 500 days, is there any chance for me to continue my green card application under AC21? Or I will have to submit petition again.

Thanks for your idea,

I hate to tell you that there is a Yate's memo which anambiguosly states that I-140 must be approved for portability. I think there is an AC21 subforum in this forum where you can find the original memo. Maybe doing a search all forums quest will get you a link.....

Very sorry to hear about your situation. Good luck!
 
I read Yates (December 29???) memo and showed the document both to my department manager and the Associate Director of my university I-Center who is in charge of green card stuff. I only focused on the rescinding of Ohata memo because I am confident that INS should process my I-140 first. I will go back to take a look the memo again.

Perhaps, I will need to take a break and then file an OR petition again. That sucks....

Thanks for the response.

Iris.

tony403 said:
I hate to tell you that there is a Yate's memo which anambiguosly states that I-140 must be approved for portability. I think there is an AC21 subforum in this forum where you can find the original memo. Maybe doing a search all forums quest will get you a link.....

Very sorry to hear about your situation. Good luck!
 
irisyue,
I used to believe that these memos were the law and that's how they processed cases. I don't believe that anymore. Some cases are getting approved which don't follow the AC21 guidelines at all. Some people got approved after leaving the sponsoring company and informing the USCIS of that fact before the 140 was even approved. Some people got approved after 140 was approved and left and joined another company and THEN filed 485 based on new company. In my opinion, you have nothing to lose by keeping your case open. If you have to leave your sponsor, then leave. Try to leave on good terms so that they respond favorably to any 140 RFE (if there is one).
 
Is that true???

Thanks for your reply.

Some people told me that as long as your sponsor says they are going to hire you again after you get your green card, your green card petition is going to continue to be valid. Is that true?

I have a very good relationship with my sponsor. That is why I could struggle for 8 months after last July to wait for my GC: my original funding actually ran out at that time.

Iris

maybesomeday said:
irisyue,
I used to believe that these memos were the law and that's how they processed cases. I don't believe that anymore. Some cases are getting approved which don't follow the AC21 guidelines at all. Some people got approved after leaving the sponsoring company and informing the USCIS of that fact before the 140 was even approved. Some people got approved after 140 was approved and left and joined another company and THEN filed 485 based on new company. In my opinion, you have nothing to lose by keeping your case open. If you have to leave your sponsor, then leave. Try to leave on good terms so that they respond favorably to any 140 RFE (if there is one).
 
Any Consequences of H1 Transfer on GC Application?

Thanks, logicators, for your reply. So, it is still possible for me to save another round of GC application. :)

I am going to do H1 transfer. Are there any expected consequences on my GC application? Do I need to notify CIS that I have changed employer?? :confused:

Have a goodd night,

Iris


logicators said:
That's true
 
Technically, a green card is for future employment and as long as the employer commits to hire you after you receive your green card, you should be fine. You may, however, receive an RFE if CIS notices that you are no longer working for the petitioning employer. You should be able to get over with the RFE with the help of a good lawyer and a new offer letter from the petitioning employer explaining the situation and confirming their interest in hiring you for the permanent position (and some justificating on why they couldn't keep you as a temporary employee).

You may have trouble acquiring citizenship in future if you don't join the petitioning employer (atleast for a brief period of time) after receiving your GC. I recommend consulting a good lawyer to handle this case.
 
irisyue said:
I am going to do H1 transfer. Are there any expected consequences on my GC application? Do I need to notify CIS that I have changed employer?? :confused:
You may, like me, get called in for an interview at the district office. I was part of a layoff which happened before my 140 was approved. I have reason to believe USCIS knows about the layoff or at least that I worked somewhere else before the 140 was approved. My with the old company expired before the 140 approval and I worked on EAD instead. The petitioning company was kind enough to support me through my 140 approval by responding to an RFE with financials. I would think the most likely RFE on a NIW/EB1 would be for credentials which would come from you anyways. Once they get you past your 140 approval you should be as free as a bird to invoke AC21 and go off and find your ideal job. I would get the original sponsor to sign some letters offering future employment. That would cover all the bases.
 
My case

Laid off before 180 days and 140 approval.
140 approved 1.5 months after laid off
Now I am working on EAD for a full time job.

After going through all the threads on this forum about this situation, I feel like I am not going to file AC21 for now. If I get RFE, I will file then.

Here is my question:
Contrary to recommendation from lawyers quoted on the forum, my lawyer insists I file AC21 at this point of time. Other than believing doing so is in the best interest of mine, I am wondering if my lawyer has other concerns on her mind. Can anybody give me a hint?

I have informed the attorney about my new job. If my attorney insists file AC 21 but i disagree, would the lawyer be able to file AC 21 without my consent?
 
Hi

Hi
Maye be this info could be of any help...

I filed my EB2 NIW while i was a post doc(Self Petition) . I 140 Filed in sep 2002 and had problems with funding and i could manage my job until 2003 sep but still my I 140 was not approved.

In the mean time i filed my I-485 in may 2003 and had my EAD when i have to leave my Job at University as Post doc.

I then had a Job from Jan 2004 teaching at a university nearby but i never changed my residence.

I had my I 140 approval in April 2004 and I 485 approval in Aug 2004 and then i moved out of that residence and moved to Chicago and trying for jobs.

I never had a RFE during my process for god's sake.

sri
 
Hamilton,

I personally wouldn't file the AC21. Since your case is a "out of scope" case, it might just raise flags and get transferred for an interview. I don't think the lawyer can really do anything that you explicitly tell them not to. Try to generate some paper trail to document your wishes.
 
H1 Transfer

Hi, Folks,

Thanks for all your replies. They are all helpful and encouraging.

I am on H1 sponsored by a university. I will have the lawyers in my hiring company to transfer my H1 visa. Here are some questions, on which I hope you can shed some lights.

1) Do my H1 transfer subjected to the cap?
2) Can I work immediately as soon as I get a notice from INS?
3) When the new 20,000 H1 quota are available to apply?

I tried to contact the lawyers in the company but I could not reach them today.

Thanks,

Iris.









maybesomeday said:
Hamilton,

I personally wouldn't file the AC21. Since your case is a "out of scope" case, it might just raise flags and get transferred for an interview. I don't think the lawyer can really do anything that you explicitly tell them not to. Try to generate some paper trail to document your wishes.
 
irisyue,
> 1) Do my H1 transfer subjected to the cap?
From my understanding, no
> 2) Can I work immediately as soon as I get a notice from INS?
yes
> 3) When the new 20,000 H1 quota are available to apply?
doesn't apply to you. on a side note apparently USCIS posted some announcement that people can't file against this 20,000 additional visas yet and are rejecting applications.
 
maybesomeday said:
irisyue,
> 1) Do my H1 transfer subjected to the cap?
From my understanding, no
> 2) Can I work immediately as soon as I get a notice from INS?
yes
> 3) When the new 20,000 H1 quota are available to apply?
doesn't apply to you. on a side note apparently USCIS posted some announcement that people can't file against this 20,000 additional visas yet and are rejecting applications.


1) We just had this case in our company. By changing from academia to big pharma you are then subjected to the cap.

2) Yes

3) Wait for the offical announcement by the USCIS
 
Thanks, You are so helpful

Dear Maybesomeday,

Thanks a million for your reply. Your reply is also my lawyers' understanding. They think it is not very difficult. I think I can set mid-April as my starting date (I still need to go through drug test and background check before they can file H1 transfer).

Thanks again
:)
Iris



maybesomeday said:
irisyue,
> 1) Do my H1 transfer subjected to the cap?
From my understanding, no
> 2) Can I work immediately as soon as I get a notice from INS?
yes
> 3) When the new 20,000 H1 quota are available to apply?
doesn't apply to you. on a side note apparently USCIS posted some announcement that people can't file against this 20,000 additional visas yet and are rejecting applications.
 
Do you mean I can still work when I am waiting for visa transfer?

OK, I can immediately work after I recieve a notice from INS about H1 transfer. Does this mean I can work until quota is available (either the 20,000 some time soon or the 65,000 in October 2005)?

Thanks,
:confused:
Iris

honkman said:
1) We just had this case in our company. By changing from academia to big pharma you are then subjected to the cap.

2) Yes

3) Wait for the offical announcement by the USCIS
 
How You Company Got Around the Quota Problem?

Could you please let me know how your company got around the quota problem? Really Appreciate Your Help.

:eek:
Iris

honkman said:
1) We just had this case in our company. By changing from academia to big pharma you are then subjected to the cap.

2) Yes

3) Wait for the offical announcement by the USCIS
 
irisyue said:
Could you please let me know how your company got around the quota problem? Really Appreciate Your Help.

:eek:
Iris


The only way was by waiting till he could apply for H-1B under the cap, which took quite awhile and so the whole hiring process was delay for several month. Here is also your example from a immigration lawyers page (www.hooyou.com):

"Todd is a researcher in a university. He is under H-1B status. Because of the nature of his employment, he was not subject to the H-1B cap when he first applied for H-1B status. Now, Todd would like to change jobs and work for a private company. This type of work is not cap exempt. As a result, Todd’s application for transfer to the new job is subject to the H-1B cap. If the cap has been met by the time the H-1B application is filed, then the transfer application will be returned."

And also from the USCIS page: http://uscis.gov/graphics/publicaffairs/questsans/h1bchang.htm

"AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption."

I am sorry to say, the offical USCIS page makes it very clear that you can't start working by simply switching from academia to industry with your H-1B, because you have to reapply for it. Your only way is to apply now for a H-1B and start working in October when you will get it, I thinkyour lawyers are not correct at this point that there won't be any problems for you. Just show them the offical text from the USCIS page.There is no other way around.
 
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honkman said:
"AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption."
That seems pretty unfair since if you started in industry and switched jobs in industry you are cap exempt.
 
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