Clarification on AC21

E

enjoys1

Registered Users (C)
Hi,

I applied my I-140 and I-485 concurrently in Oct 2002 through Company A.
I got an RFE for my I-140 in June 2003(asking for experience letter). Replied to this RFE in July 2003.

Company A laid me off in May 2003(> 180 days after I-485 RD)
I joined company B(startup) in May 2003. I then joined company C(stable company) in Sep 2003.

I got an RFE for my I-485 in March 2004(usual EVL, 3 yrs tax returns, W-2's etc). Lawyer will reply to
this RFE this week stating that I will be using AC21 portability and another letter stating my intent to
no longer work for company A and continue full time employment with company C.
I-140 approved in April 2004.

I looked at murthy.com and many posts in immigrationportal.com. But, I am not clear on the requirements
for AC21.

** AC21 requirements are stated as I-140 approval and I-485 pending for more than 180 days **

1) Is this 180 days from I-485 RD (or) 180 days from I-140 approval date ?
2) Am I eligible to use AC21 ? I have I-140 approval now and my I-485 has been pending for around 500
days. But, I shifted jobs before my I-140 was approved.

Thanks
 
1) Is this 180 days from I-485 RD (or) 180 days from I-140 approval date ?

From I-485 RD.

2) Am I eligible to use AC21 ? I have I-140 approval now and my I-485 has been pending for around 500
days. But, I shifted jobs before my I-140 was approved.

No, you are not eligible.

You might have other options, though. Try to research the subject of substituting another I-140 under your I-485.
 
Technically under AC21, you cannot change jobs unless your 140 is approved and 485 is pending for more than 180 days.

But, As long as the sponsoring company has not withdrawn the underlying 140 petition, you should be okay. The reason for that being GC is for future employment not current. If you have good relations with Company A, then it wouldn't harm to get a letter from them stating that they will have a position open for you after GC.

So here are the steps you need to follow:
1. Reply to the RFE and while you are at it, file AC21 with current company. Make no mention of previous company B.
2. Try obtaining the letter mentioned above from Company A.
3. For all practical reasons, your case should be approved, in case they need any further information, they will re-issue another RFE, where you can provide letter obtained from 2. if needed.
4. If all of above fails then as BitterMan stated there are other options.

Good luck!
 
Thanks

My previous company A has not withdrawn the approved I-140. They also dont have the intent to withdraw it. BTW I am still using the same lawyer who filed my I-140 and I-485.

Thanks for your answers.

Best of luck to everyone.
 
FYI, here is that ginnu said

http://boards.immigrationportal.com/showthread.php?threadid=125061

I got an RFE for my I-485 in March 2004(usual EVL, 3 yrs tax returns, W-2's etc). Lawyer will reply to
this RFE this week stating that I will be using AC21 portability and another letter stating my intent to
no longer work for company A and continue full time employment with company C.
I-140 approved in April 2004.
--------- You are eligible for AC21 send the reply to RFE
I looked at murthy.com and many posts in immigrationportal.com. But, I am not clear on the requirements
for AC21.

** AC21 requirements are stated as I-140 approval and I-485 pending for more than 180 days **
------- that is correct
1) Is this 180 days from I-485 RD (or) 180 days from I-140 approval date ?
-------- I-485 pending from RD ( check the I-485 reciept it had RD)
2) Am I eligible to use AC21 ?
------YES, YES
I have I-140 approval now and my I-485 has been pending for around 500
days. But, I shifted jobs before my I-140 was approved.
------- NO problems
 
There seems to be some confusion around the subject. Let me elaborate.

I'll be referring to the official INS memo "Continuing Validity of Form I-140 Petition in accordance with Section 106 (c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (AD03-16)" dated August 4, 2003.

Let's see... it talks at length about what happens to I-140 in respect to its withdrawal or revocation before 180 days... which does not really concerns us, because your I-140 was never withdrawed or revoked. Although it implies that I-140 has to be approved before you change the job, but we let it slide for now.

One simple phrase attracts my attention, and I quote:
... In all cases an offer for employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ beneficiary upon adjustment ...
Click to expand...
What does it mean for you? Only that that your original employer, who has petitioned for your permanent residency, did not intend to employ you at the time of your adjustment (you were laid off with no plans to hire you back when you get the Green Card).

Therefore, I believe this establishes enough evidence to convince you that AC21 does not apply to your case, even with the resent clarifications in regard of concurrent I-140 and I-485.

However, 140_takes_4ever and others suggested to not mention the fact that you have changed employers before your I-140 was approved. Furthermore, you've been suggested to procure an employment offer letter from the original sponsor. Make no mistake about this. Although these approaches might work, this is certainly a misrepresentation of facts (that can be verified through other means) and in the latter case (if you never intend to work for your original sponsor anymore) it is also a fraud.
 
BitterMan,

The basic fraud is in intent, there is no fraud as far as the law is concerned.

GC IS for prospective employment. Which signifies, you don't even have to work for the sponsoring company. As long as the "intent" between you and the sponsoring company exists that they will hire you upon approval, there is NO fraud. Inspite of the layoff, which could be due to numerous reasons. This situation will be handled by the future employment letter from company A.

Coming to the second case of fair intent, now how do you go about proving intent? According to AC21, there is no clause the specifies you HAVE to stay with an employer through the entire GC process to establish intent. Infact it allows you to change jobs at will.

I can understand where you are coming from, I agree a conservative approach is a right approach. But the current situation, in my opinion will scrape through the loophole based upon past track record.

enjoys1,

With no offense to ginnu, he is wrong and Bitterman correct in my opinion. AC21 clearly DOES NOT apply to people whose 140 has not been approved. But what you are trying to do is circumvent the situation, by claiming that GC is for future employment. Be very clear on this. I would speak with a lawyer if I were you to clarify the grey areas that you are currently existing in.
 
this brings in good view to the problem

BitterMan brings in good point of view..

first of all most of us want to see end result that is GC..most of us have been here for a while..i know luch few who got GC when they applied after me....it all boils down to luck + something

depending upon case to case..people may not be able to stick to the sponsering company..

I guess we cannot change the rule, but we can prove that we have good intention and no criminal record..and the fact that we got laid off ..is very little to do will incapability of applicant..

I dont know if we can use Presendent Bush view..if jobs are waiting for you then you can cross in border and file for GC (845??)..............

I dont know if we can convince..that whatever may the case..we have similar job..as labour and hence should be granted GC

my 2 cents,
Rama
 
140_takes_4ever,

my intent was not to scare enjoys1, but to warn him/her of potential consequences the suggested approaches might incur.

As enjoys1[/i]'s is not a clear-cut case, what I have described is the most likely interpretation. Changed jobs after a layoff before I-140 was approved... well... AC21 does not apply AS-IS, because it always talks about an already approved I-140.

Having said that, it is true that EB GC is for future employment, so AC21 applies even if a person never worked for the original employer. But this is not the case. enjoys1 in fact worked for the original employer, and they have let him/her go during a layoff.

Unless enjoys1 can prove that at the time s/he was laid off, the original employer still intended to offer a position with the company after s/he gets the Green Card, the point of discussion is moot. The intent might have changed since I-140 was approved, but definitely not before that time. Otherwise, the spirit of AC21 does not apply at all.

And I stand by what I have said before - it is a fraud, because the original employer never intended to employ enjoys1 ever again, so producing such a letter from them would be a fraud. Although it might actually work, and nobody gets caught, it is still a fraud.

I recall a good phrase in this regard. Don't remember where did I get it from, though. "On the way to the office I was driving 85 in 65 MPH zone. Did I get caught? No. But was I breaking the law? Yes."
 
Originally posted by BitterMan
Although it might actually work, and nobody gets caught, it is still a fraud.
Click to expand...
No arguments Counselor, you have proved your point.

What you said is right. Though I am glad you agree with my prognosis. :) But I am sure enjoys1 is less concerned about "Perceived" fraud as compared to "obtaining" the green card. The bottom line is intent, proof of intent, conscience and the fact that the GC is for future employment.
 
Last edited by a moderator:
Re: Thanks

Originally posted by enjoys1
My previous company A has not withdrawn the approved I-140. They also dont have the intent to withdraw it. BTW I am still using the same lawyer who filed my I-140 and I-485.

Thanks for your answers.

Best of luck to everyone.
Click to expand...

Since they did not have intent to revoke it, their intent was not changed (at least up to your I-140 approval). Since your intent was also not changed up to that point you are good to go. Do not get confused with Future employment and present employment things. INS has never made that distinction. So we need not make any such distinction.

You are good to go. Just do not worry.
 
Update regarding AC21 from Nebraska Service Center

Here is an update regarding AC21 from Nebraska Service Center
Courtesy -- nafsa.org

Who are these nafsa guys ??

http://boards.immigrationportal.com/showthread.php?threadid=125284

48. Would the new employer need to file its own I-140 in the following scenarios in order to protect the viability of an employment-based I-485 pending over 180 days at the time of the job change

* The previous employer withdraws its I-140 after I-140 approval
Ans) No, not necessarily. Withdrawal of the I-140 after the approval with an I-485 that has been pending +180 days may be amenable to portability provisions if the occupational classification is in the “same or similar” classification.

* The previous employer withdraws its I-140 while the I-140 is still pending
Ans) Yes. If the I-140 has been withdrawn prior to approval and the I-485 has not been pending +180 days the new petitioner should file another I-140 and the applicant would need to refile a complete I-485

*** Does new petitioner mean the new employer(or Company C in my case) ***

49. When does the portability of an I-485 arise – 180 days after the filing of the I-485 or 180 days after approval of the I-140, assuming the I-485 has also been pending 180 days?
Ans) Portability for I-485s is based upon the filing date of the properly filed I-485. It is not based upon the approval date of the I-140.
 
enjoys1,

you are trying to read what is not written. What I have said before stands. No intent - no portability.

Try the easiest way first (e.g. replying to the RFE with an AC21 letter from the latest company, but nothing more than that). If it does not work, and you receive another RFE, you'll start worrying about it again.
 
We are beating a dead horse here. I think enough has been said already on this issue. We are repeating the same theme again and again. enjoys1, PLEASE get with it!
 
Approved

I wanted to let you all know that my and my wife's I-485 petitions have been APPROVED.

My lawyer received the approval notice in mail today
and emailed me the scanned .pdf versions of the approval notices.
 
enjoys1 said:
I wanted to let you all know that my and my wife's I-485 petitions have been APPROVED.

My lawyer received the approval notice in mail today
and emailed me the scanned .pdf versions of the approval notices.
Click to expand...

So Well What did you do ? Did you go through AC 21 ?
 
Yes, I used AC21

Yes, I used AC21.

I had got an RFE for my I-485 in March 2004(usual EVL, 3 yrs tax returns, W-2's etc).
Lawyer replied to this RFE on May 4th, 2004 stating that I will be using AC21 portability and another letter stating my intent to no longer work for company A and continue full time employment with company C.
 
enjoys1 said:
Yes, I used AC21.

I had got an RFE for my I-485 in March 2004(usual EVL, 3 yrs tax returns, W-2's etc).
Lawyer replied to this RFE on May 4th, 2004 stating that I will be using AC21 portability and another letter stating my intent to no longer work for company A and continue full time employment with company C.
Click to expand...

thanks enjoys1 and congrats again.
 
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