Confused about AC21 180 days rule!. Experts please comment.

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sub_labor

Registered Users (C)
I am confused about AC21 180 days rule. I seen two different view after reading many postings.
Experts please comment.
One can change job after 180 days working for original petitioner or Unadjusted I-485 for 180 days (for who got laidoff before 180 days and changed jobs after 180 days)
 
I am confused about AC21 180 days rule. I seen two different view after reading many postings.
Experts please comment.
----- I am NOT expert
One can change job after 180 days working for original petitioner or Unadjusted I-485 for 180 days (for who got laidoff before 180 days and changed jobs after 180 days)
--- Not only you ,everybody is confused about AC21. Nobody is expert on AC21, what ever we post is the opinion of lawyers on AC21 at a perticular date or time, I have seen good lawyers like Sheela Murthy changing her statements in every month on AC21 this confusion is because still final regulations are not published.
For your satisfaction the good AC21 case is: I-140 was approved then I-485 pending more than 180 days and I-140 not revoked. If you change job before 180 days or after 180 days does not matter, the I-485 should be pending for 180 days and I-140 not revoked while I-485 is pending less than 180 days. One needs to fulfill the other criteria also to use AC21 like similar job, and new employer is ready to provide you future permanent job offer letter when needed by your lawyer at the time of RFE or if no RFE at the time of Interview or when lawyer needs to inform BCIS of job change and AC21

I hope this helps.
 
Even BCIS is confused. In a recent letter to an attorney, Efren Hernandez, BCIS Director of Business and Trade Services stated "that the language of AC21 appears to provide that an employment-based petition and the supporting labor certification shall remain valid with respect to a new job offer if the individual changes jobs or employers as long as the adjustment application has been filed and remains unadjudicated for for 180 days or more." Mr. Hernandez then stated that this "interpretation would appear to apply even if approval of the initial Form I-140 had been revoked, provided the I-140 was revoked after the 180 days had passed."

From the above quoted language, it appears that INS feels that I-140 revocation BEFORE 180 days have passed means termination of the I-485. However, Mr. Hernandez hedged even more at the end of the letter by stating that we should "be aware that this interpretation is being explored within the context of the rule making process for AC21."

The letter appears to indicate that if the employer cancels the I-140 after the I-485 has been pending for 180 days, the I-485 will remain unaffected. It certainly does not indicate any more than that.
 
Also what are the guidelines for concurrent filed I-140 and I-485 cases ? Is the 180 days counted from the date the I-485 was filed or the date the I-140 was approved. Murthy etc seem to think the former is fine but its never been verified by BCIS folks right ?

The other question I have is that if the employer cancels the H-1 only but does revoke the I-140 will there be a trickle down effect. Employers feel safer cancelling the H1 because of the LCA they will not owe employee any financial dues. Does anyone know how this works ? Basically I'm trying to figure out that if I'm layed off and I am a candidate for AC21 (and currently on H-1B) would a cancelling of H-1B only by the company be equivalent to revoking the I-140 too.

BB
 
Is there an hidden advantage?

Is there an advantage for Employers to revoke I-140 always after 180 days in all cases? Because looks like the employee is pretty safe after 180 days of I-485 filing and also by revoking I-140 the previous employer can reuse the underlying labor certification if necessary.. Am I missing something here? Can the LC,on which revoked I-140 is based on, be used again???

Looks like win-win situation for everyone if this were the case???!!! I think BCIS may rather clarify that I-140 cannot be revoked if the concerned I-140 is the basis of 485 and the 485 has been filed >=180 days before....

Thanks
Dumeel

_______________________________________________
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups
 
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Re: Is there an hidden advantage?

Originally posted by Dumeel
Is there an advantage for Employers to revoke I-140 always after 180 days in all cases? Because looks like the employee is pretty safe after 180 days of I-485 filing and also by revoking I-140 the previous employer can reuse the underlying labor certification if necessary.. Am I missing something here? Can the LC,on which revoked I-140 is based on, be used again???

Looks like win-win situation for everyone if this were the case???!!! I think BCIS may rather clarify that I-140 cannot be revoked if the concerned I-140 is the basis of 485 and the 485 has been filed >=180 days before....

Thanks
Dumeel

_______________________________________________
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups
Click to expand...

You're right. It appears possible to theoretically get an unlimited number of people into the US and GCs under one LC (the employer files an I-140, the employee leaves the employer (or maybe just changes his intent and NEVER works for the sponsor if some interpretations of AC21 are followed) the employer then cancels the I-140 and reuses the LC fo another candidate). This seems to me to permit the sale of LCs and the fraudulent filing ofa GC. This is why I believe the final regulations will be more restrictive than the interpretations propounded by some attorneys.
 
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